by
Michael
M.
Santiago/Getty
Images)
Stop
foaming
at
the
mouth.
I
know
that
many
of
the
country’s
largest
and
most
prestigious
law
firms
have
capitulated
in
the
face
of
President
Donald
Trump’s
executive
orders
(or
threats
of
executive
orders)
punishing
the
firms
for
having
taken
action
against
the
administration’s
interests.
But
I’m
here
to
tell
you
that
capitulation
is
not
crazy.
Exhale.
Think
about
this.
You’re
the
managing
partner
of
a
fancy-pants
law
firm. Trump’s
executive
order
threatens
to
revoke
the
security
clearances
of
your
lawyers,
deny
your
lawyers
access
to
federal
courthouses,
and
cancel
your
clients’
government
contracts. Security
clearances
may
not
matter
to
your
firm,
depending
on
your
firm’s
work,
but
access
to
federal
courthouses
is
vitally
important
to
litigators,
and
the
ability
of
clients
to
contract
with
the
government
is
a
big-ticket
item
for
fancy-pants
law
firms.
Thus: If
the
government’s
executive
order
is
upheld,
your
law
firm
is
out
of
business.
Should
you
fight
the
executive
order,
or
should
you
settle?
Remember
that
this
calculus
changes
over
time.
For
Paul
Weiss,
the
first
firm
to
settle
with
Trump,
the
future
was
a
blank
slate. Paul
Weiss
couldn’t
be
certain
that
the
executive
order,
if
challenged,
would
be
struck
down. Paul
Weiss
also
didn’t
know
whether
later
firms
would
settle
with
Trump
—
thus
spreading
the
shame
of
capitulation
—
or
fight
the
government
and
win
—
making
Paul
Weiss’s
decision
to
settle
look
terribly
weak.
For
Paul
Weiss,
what
were
the
chances
that
the
executive
order
would
be
upheld? I,
at
least,
would
have
viewed
it
as
very
unlikely
that
Trump’s
executive
order
could
withstand
judicial
scrutiny. The
odds
of
victory
in
a
case
challenging
an
executive
order
attacking
a
law
firm
change
over
time,
as
courts
create
precedents
when
early
challengers
win
or
lose
their
cases. But
let’s
say
that
your
firm
was
one
of
the
early
ones
to
be
attacked
by
Trump,
and
the
odds
that
you
would
win
a
lawsuit,
and
have
the
order
struck
down,
are
as
good
as
the
strongest
case
that
I
ever
saw
in
private
practice: You
have
a
90%
chance
of
winning.
There
are
of
course
no
100%
cases;
there’s
always
a
chance
that
you
lose. In
a
case
challenging
the
executive
order,
your
case
might
be
assigned
to
Aileen
Cannon
or
some
other
Trump-appointed
judge
looking
to
be
elevated
to
the
Supreme
Court.
If
so,
you
lose. Your
judge
might
have
an
entirely
different
view
of
the
Constitution
than
the
conventional
wisdom. If
so,
you
lose. Your
judge
might
have
a
bad
day. If
so,
you
lose.
But,
as
I
said,
suppose
your
chances
of
winning
are
extraordinarily
good: 90%.
You
could
settle
with
the
Trump
administration
and
eliminate
the
10%
chance
that
your
firm
will
be
out
of
business. Against
that,
however,
you
must
weigh
three
drawbacks
to
settling.
First,
there’s
the
matter
of
principle:
Law
firms
shouldn’t
capitulate
to
an
over-reaching
government! But
it’s
fiendishly
difficult
to
put
a
dollar
value
on
matters
of
principle.
Second,
you’ll
have
to
agree
to
devote
$40
million,
or
$100
million,
or
$125
million
(depending
on
when
you
settled)
of
pro
bono
hours
to
causes
endorsed
by
the
Trump
administration.
I’m
just
guessing
here,
but
I’d
bet
that,
for
many
big
American
law
firms,
$100
million
in
pro
bono
hours
is
not
that
much
more
than
the
firm
is
currently
contributing
to
pro
bono
causes. The
amount
that
firms
commit
to
pro
bono
varies
by
the
size
of
the
law
firm,
the
firm’s
commitment
to
pro
bono,
the
press
of
paying
work,
and
a
bunch
of
other
things.
But
big
firms
might
commit
close
to
$100
million
to
pro
bono
whether
the
firms
settle
with
Trump
or
not. If
you
settle,
you
probably
don’t
have
to
substantially
increase
the
amount
of
pro
bono
work
that
you
provide,
so
you’re
not
taking
a
big
financial
hit.
If
you
settle,
the
government
will
influence
your
selection
of
pro
bono
cases. You
can,
of
course,
continue
to
represent
indigent
criminal
defendants,
and
outfits
advocating
for
affirmative
action,
and
the
like,
with
your
pro
bono
hours
above
the
$100
million
subject
to
your
settlement. You
might
have
to
reduce
the
help
you
give
to
preexisting
causes,
but
you
need
not
abandon
them
entirely.
As
to
the
hours
subject
to
government
approval,
I
bet
the
conversation
with
the
government
goes
something
like
this:
Firm: We’d
like
to
advocate
for
diversity,
equity,
and
inclusion.
Trump
administration: Screw
that! You’re
going
to
advocate
on
behalf
of
coal
companies
that
want
to
spew
more
pollution
into
the
air!
Firm: Why
don’t
we
compromise? We’ll
represent
veterans
who
were
improperly
denied
veterans’
benefits.
Trump
administration: Okay.
That
wasn’t
so
hard,
was
it?
What
else
do
you
lose
by
settling?
The
third
big
disadvantage
of
capitulation
is
that
your
firm
will
take
a
short-term
reputational
hit. George
Conway,
and
Andrew
Weissmann,
and
columnists
at
Above
the
Law,
and
the
rest
will
scream
that
you’re
a
wimp
—
you’ve
capitulated!
Those
screams
will
probably
last
for
a
month
or
two,
and
then
we’ll
be
on
to
the
next
Trump
administration
outrage. You
can
surely
survive
that.
Clients
might
leave
your
firm
because
you’ve
capitulated
to
the
government. That
could
hurt,
but
it’s
pretty
unlikely
to
happen. Clients
work
with
individual
lawyers,
and
clients
probably
don’t
blame
those
lawyers
for
the
firm’s
decision
to
settle. Moreover,
the
firm
settled
in
part
to
protect
clients
—
to
permit
clients
to
contract
with
the
federal
government. Why
would
you
fire
a
law
firm
that
acted
to
help
you?
Beyond
that,
if
you
fire
your
existing
counsel
—
fancy-pants
law
firm
No.
1
—
where
would
you
go
for
legal
services? It’s
true
that
Paul
Weiss
capitulated
to
the
government,
but
so
did
Kirkland,
and
Latham,
and
a
bunch
of
others. The
more
firms
that
capitulate,
the
harder
it
is
to
find
alternative
representation.
(And
the
more
sensible
it
looks
for
firms
to
have
capitulated
in
the
first
place. There’s
safety
in
numbers: Everyone’s
capitulating;
we’re
just
one
of
the
crowd.)
Your
law
school
recruiting
efforts
might
be
hurt
because
you
capitulated
to
Trump. Law
students
are
noble;
perhaps
they
won’t
take
jobs
at
firms
that
do
ignoble
things. ‘
But
what’s
the
effect
of
this? Even
if
some
law
students
will
now
refuse
to
go
to,
say,
Paul
Weiss,
plenty
of
other
law
students
will
take
those
jobs. Endless
streams
of
law
students
itch
to
work
at
fancy
firms,
with
great
reputations,
high
pay,
and
sophisticated
work.
Maybe
the
replacement
students
won’t
be
as
good
as
the
folks
Paul
Weiss
wanted
to
recruit,
but
how
long
will
it
take
the
world
to
notice
that
the
quality
of
a
law
firm’s
work
is
now
a
little
bit
worse
than
it
was
10
years
ago? Most
firms
probably
lost
quality
as
they
expanded
through
the
early
2000s
—
greater
size
means
less
quality
control
—
and
I
don’t
think
anyone
ever
noticed
the
change.
Lawyers
may
leave
your
firm
because
they’re
outraged
by
your
capitulation.
Maybe
—
but
not
that
many. The
lawyer
has
to
be
truly
outraged
by
your
decision
to
settle,
and
most
lawyers
won’t
be. The
10%
chance
that
the
executive
order
would
be
upheld,
and
your
firm
forced
out
of
business,
makes
the
settlement
decision
rational. The
outraged
lawyer
must
also
make
a
financial
difference
to
your
firm. It’s
true
that
some
associates
and
senior
counsel
have
left
law
firms
in
recent
weeks. Those
departures
make
for
good
press,
but
they
don’t
injure
the
firm. A
partner
with
$30
million
in
portable
business
might
matter,
and
I
haven’t
yet
seen
any
of
them
move.
Part
of
the
reason
for
partner
inertia
is
institutional: If
a
client
works
with
many
lawyers
at
a
firm,
and
only
one
lawyer
is
outraged
by
the
settlement
with
Trump,
then
the
outraged
lawyer
could
change
firms,
but
the
client
might
not. The
partner’s
business
was
thus
not
truly
“portable.” Changing
firms
would
hurt
the
lawyer
who
changed
jobs
but
wouldn’t
matter
to
the
original
law
firm.
Part
of
the
reason
for
partner
inertia
is
the
fluidity
of
the
situation: Many
big
firms
other
than
yours
—
firms
with
good
reputations
and
the
ability
to
support
your
clients
—
have
also
settled
with
Trump. Yet
more
firms
might
settle
in
the
future. If
you’re
a
partner
about
to
jump
ship
from
your
current
employer,
you’d
better
find
a
good
alternative
ship
on
which
to
land.
But
part
of
the
reason
you
haven’t
yet
seen
partner
moves
is
that
transitioning
laterally
between
law
firms
takes
time: Folks
transitioning
laterally
must
interview
with
the
new
firm. They
must
clear
conflicts. They
must
otherwise
assess
whether
they
fit
with
the
new
place. I
wouldn’t
expect
those
moves
to
occur
within
a
week
or
two
of
a
firm’s
settlement
with
the
Trump
administration. Give
this
time,
and
perhaps
a
few
significant
partners
will
choose
to
leave
their
current
law
firms. Perhaps
firms
will
pay
some
price
for
having
capitulated. But
you
don’t
know
that
in
advance. We’ll
see
what
happens.
There
are
other
aspects
of
the
reputational
risk
caused
by
having
settled
with
Trump. There
is,
for
example,
Trump
himself. Trump
loves
to
boast
that
important
people,
or
institutions,
or
countries,
kissed
his
ass. Trump
may
say
that
about
your
firm.
You
can
live
with
that.
I’m
not
yet
done
with
the
forms
of
humiliation
you’ll
suffer. In
the
past,
you
always
liked
to
bray
about
courage
at
your
firm’s
partners’
meetings. You’d
puff
up
your
chest
and
explain
how
fierce
and
courageous
your
law
firm
was. But
now,
when
push
came
to
shove,
you
folded
like
a
cheap
suit. Of
course: A
principle
isn’t
a
principle
until
it
hurts. Now
we
know
your
true
principles. But
you’ll
get
over
that
humiliation,
too.
Ultimately,
put
everything
in
the
balance: Weigh
a
10%
chance
of
your
firm
going
out
of
business
against
a
small
tilt
in
a
portion
of
your
pro
bono
commitment
and
some
short-term
public
relations
problems.
Does
capitulation
prove
that
you,
the
professed
lion,
is
in
fact
a
pussy
cat? Sure.
But
it
would
look
a
whole
lot
worse
if
the
10%
chance
of
loss
came
through
and
your
firm
went
out
of
business.
You’d
look
like
a
complete
idiot,
and
a
lot
of
people
would
be
out
of
work.
Is
it
easier
to
fight
the
government
today
than
it
was
a
month
ago? Yes. More
firms
are
fighting
(there’s
safety
in
numbers),
and
several
firms
have
won
decisions
striking
down
part
or
all
of
the
executive
orders.
Am
I
terribly
disappointed
in
the
firms
that
have
capitulated? I
am. Shame
on
them. I
wish
them
ill.
But
do
I
understand
the
decision?
Absolutely. Leaders
at
Biglaw
firms
may
be
cowards,
but
they’re
generally
not
stupid.
Mark Herrmann spent
17
years
as
a
partner
at
a
leading
international
law
firm
and
later
oversaw
litigation,
compliance
and
employment
matters
at
a
large
international
company.
He
is
the
author
of The
Curmudgeon’s
Guide
to
Practicing
Law and Drug
and
Device
Product
Liability
Litigation
Strategy (affiliate
links).
You
can
reach
him
by
email
at [email protected].