We All Did What We Could Do
Whats Really Happening When BigLaw Cowers
Trump’s attacks on the rule of law continue, unabated. But he’s doing something I didn’t expect: going after the lawyers. Much to my dismay, the legal community is not mounting the level of resistance you’d expect — with some firms outright folding. Others are fighting, but the wagons are not being circled.
This has as much to do with politics as it does with business. The law is more of a business than a profession these days. Law firms are no longer true partnerships that serve clients; they are brands where lawyers with books of business trade part of their legal fees for marketing and operational support. The firms themselves are fungible. When a client hires a “firm,” their loyalty lies with the lawyer who brought in the business. That lawyer, with no loyalty to the partnership, will take their clients and leave if another firm offers more money.
This means that anything a firm does that makes it less attractive to rainmaking lawyers—not necessarily to clients—is really bad for business. When a lawyer is deciding where to place their book of business, will they choose a firm battling the federal government, or one where they can make money without dealing with politics? Tragically, too many lawyers choose money over principle. It's a societal rot that primes the pump for people like Trump.
But what troubles me is that these firms are not choosing between being principled and being destitute. Of the three prominent firms that rolled over, the profits-per-partner at one was $7 million in 2024, and another was $5.4 million and the another was $3.9 million in 2023. And the list goes on. So even if you assume that half the firm’s work would have fled to shops with a better relationship with our dear leader (which would be unlikely), $3.5 million and $2.2 million and $1.95 million per partner, respectively, is still pretty good money. Granted, I’m not being asked to make those principled sacrifices, so I really can’t be too critical. But when you think about who is resisting and who is not, IMHO there’s a certain amount of greed at play. It's a sad state of affairs.
I might better understand why rich lawyers want to stay rich by appeasing Trump if their obsequiousness weren’t (1) undermining the independence of the legal profession and (2) neutering the ability of Big Law to provide free legal services (“pro bono”) to clients who might challenge Trump’s actions, both big and small. It's the latter that has been a little lost in the “Trump v. Big Law” narrative, but it's really important.
Let me explain.
When I was a young associate in Big Law 20 years ago, I spent a few years as a minion on a huge multi-district litigation representing a chemical company being sued for manufacturing a gasoline additive that contaminated drinking water for hundreds of communities around the country. I liked the pay, and I liked that I was practicing law at the highest level with top litigators. But I didn’t like that I was representing people who had literally poisoned the well(s). These were bad people doing bad things. And I — and dozens of other well-paid lawyers — were billing 12 hours a day to keep them from paying victims for the damage they’d done. Our “defense” had to do with federal preemption and government mandates. It was a colorable defense, but it probably would have been better if all the legal fees just went to cleaning up the water. That’s par for the course.
But that wasn’t all I did. There was sort of an unwritten agreement. While the firm made its money representing well-poisoners and others of questionable character, we donated lots of time, pro-bono, to causes we believed in. As I recall, a certain number of annual pro bono hours were actually required.
Personally, I found satisfaction representing prisoners suing the State of New York and the Federal Government for abuse in prison — a constitutional violation because the Eighth Amendment prohibits cruel and unusual punishment. I also spent a lot of time working for a group called the Democratic Lawyers Counsel on voter rights issues, often challenging silly laws that made it harder for people to vote and organizing “election protection” activities on behalf of Democratic candidates. My pro bono work was, basically, suing the government and helping Democrats get elected. The firm was fine with that, and honestly, it felt like an honest bargain at the time. Never, in a million years, would I have thought that my pro bono work against the government and for Democrats would affect my well-paying work for the well-poisoners (among others).
Why did my firm let me moonlight as a partisan thorn in the government’s side, for free? Because the law is a self-regulating profession. The government does not decide who can become a lawyer, and it does not create the code of legal ethics. The "bar associations" of each state and territory (like Puerto Rico and Washington, D.C.) decides that. These are groups of lawyers making the rules for other lawyers. Lawyers get punished all the time for being unethical. And bad lawyers get sued for malpractice. But lawyers are never punished based on the clients they take on. It’s a point of pride in the legal profession that we work for clients without fear of retribution. Everyone — even well-poisoners and convicts — is entitled to legal services.
The reason for self-regulation is summed up nicely in the American Bar Association’s Preamble to its Model Rules of Professional Conduct: "An independent legal profession is an important force in preserving government under law, for abuse of legal authority is more readily challenged by a profession whose members are not dependent on government for the right to practice."
Apparently, that is not true anymore. Our madcap federal government is threatening to punish lawyers who work for causes they disagree with. The two causes they’ve identified so far — and this will sound familiar — are lawyers who represent undocumented immigrants and lawyers who represent people suing our dear leader, Mr. Trump. These lawyers are being threatened with lack of access to federal work, federal buildings, and the security clearance needed to represent people suing or being sued by the government. Basically, the government is now saying: if you’re representing people or causes we dislike, we’re going to do our best to put you out of business.
The firms that capitulated are now promising to steer their pro bono activities (that free work I used to do) toward causes Trump agrees with. The commitments are a little vague — one firm promised $40,000,000, two others promised $100,000,000 — and it’s not clear whether that’s an annual amount or over multiple years. But one thing is for sure: these are not additional commitments. That’s important because it means these firms are likely curtailing the pro bono work they’re already doing in favor of pro bono work Trump wants them to do. A lot fewer racial discrimination cases. A lot more religious discrimination cases. A lot fewer environmental justice cases. A lot more cases challenging state laws that protect the environment. You get the idea.
If you’re an associate 20 years younger than me, you’d find yourself getting paid to represent the rich well-poisoners and doing pro bono work for the poor ones. That sucks.
Trump’s actions appall most lawyers not in Big Law — which is the vast majority of lawyers — and even many who are in it. And we will continue to fight the good fight. When this is over, some of us will be able to honestly say, to borrow from Lynyrd Skynyrd, “we all did what we could do.”
I’m itching to sue Trump and represent the victims of his madness. But the damage to the public’s confidence in the legal profession — and our own autonomy — when some of the best lawyers in the country choose to appease a rogue administration in the name of self-preservation, is very real.
We’ve been here before. We don’t talk about it much, but large institutions—and most voters—tacitly supported the last great threat to the constitutional order over 50 years ago: Richard Nixon. Until they didn’t.
At the same time, most Americans and major institutions were highly critical of the war in Vietnam, racism, and Nixon’s heavy-handed tactics. We’re seeing the same dynamic today. There’s a general sense of disapproval toward Trump’s anti-democratic actions, cruel immigration crack-down, tariffs, and dismantling of the federal government, but our institutions seem to be accommodating themselves to him.
History has not been kind to those who supported Nixon, and I suspect the same will be true of Trump. But we’re far from that point.
In the thick of the tumult of the 1970s, Lynyrd Skynyrd asked a question we should all be asking the Big Law partners at firms now accommodating themselves to Trump: “Does your conscience bother you?”
Keep thinking, keep building,
Jesse
Hi, and welcome to my newsletter! I’m Jesse Strauss, Your Fractional General Counsel. I’m a lawyer with a private practice based in New York City, helping clients in the United States and globally with their U.S. legal needs. My expertise spans various areas, including raising funding rounds, employment issues, negotiating master service agreements, intellectual property, compliance, legal process management, and dispute resolution. My focus is on founding and nurturing great companies from seed to exit. Discover more at Your Fractional GC and book a complimentary 30-minute consultation. You can also follow me on Threads @lawyerjesse1977, on BlueSky @lawyerjesse.bsky.social, subscribe to my Substack here (follow me on notes), and follow me on LinkedIn here.