BigLaw gives up on its future

By putting business ahead of the rule of law when faced with assaults on their independence, many large US law firms have tarnished their reputations. Tomorrow's lawyers could make them pay the price.

It took me several years working in the legal sector to fully understand the Hierarchy of Legal Employment, and to grow suspicious of it. As I’m sure you know, it looks something like this:

1. Large (inter)national law firm

2. Large regional law firm

3. High-status boutique

4. Midsize regional/local firm

5. Law firm (any size)

6. Sole practice

7. Corporate counsel

8. Government counsel

9. Non-practising lawyer (repeat process)

If a lawyer drops from any level of this hierarchy to one further below, it’s because (say it with me, because I know you’ve heard it), “They couldn’t hack it here.” This line of thinking, and this entire ranking, are of course utter nonsense. But for much of the legal profession, that hierarchy is the Great Chain of (Legal) Being, the emotional framework of lawyer status. And enthroned at the top is BigLaw, smiling beatifically, shining its light on those less fortunate below.

Nobody knows this better than law students, who’ve been immersed in BigLaw branding since their first day of classes. My alma mater sold the naming rights to the law library and several classrooms 20 years ago, and its students have been competing in moots and attending events sponsored by firms ever since. The same is true at most law schools: BigLaw has invested heavily in on-campus presence for many years, and those investments have paid off handsomely.

Today, not only are most law students hyper-aware of BigLaw, they’ve also been led to believe that large national firms are the pinnacle of lawyering. Many students don’t even consider alternatives. Associate positions at major national firms are the ne plus ultra of post-grad destinations for highly competitive, prestige-seeking, and (let’s not forget) heavily debt-ridden new lawyers. In terms of the branding and talent recruitment benefits for big firms, this has been one of the great marketing success stories in the legal sector.

And in the space of about a month, BigLaw firms in the US have essentially thrown it away.

As you already know, Donald Trump is using the office of the President to attack, among many other targets, the legal profession. To date, he has signed executive orders against five large American law firms (and drafted a sixth) that stripped them of security clearances and government access and put much of their client work in peril. Three of those firms (Perkins Coie, Jenner Block, and WilmerHale) have fought back with lawsuits against the government, while a fourth, Covington & Burling, has not yet done so.

But it’s the fifth and sixth firms that everyone’s still talking about. Paul Weiss negotiated a settlement with the White House on terms that much of the profession found repulsive, including $40 million worth of free legal services for Trump’s preferred causes. Skadden Arps then went one better, signing their surrender in advance (sorry, “engaging proactively with President Trump”) on similar terms, but pledging an astonishing $100 million in free legal work.¹

I shared my thoughts last week about Paul Weiss’s decision, and my view of Skadden’s choice is no friendlier. (Sean West suggests that even an AI lawyer might have approached the situation better.) Many lawyers, to their great credit, have been fighting back against the White House — but so far, that hasn’t included most of the richest and most powerful ones.

Now, I do want to cut these firms’ leaders some slack. Trump placed them in a terrible position: Kiss his ring, or run the real risk of a mass flight of clients and partners that would certainly cause their firms significant damage and could conceivably sink them. Lawyers aren’t the only ones who’d suffer in that event: Many professional, technical, and clerical staff would lose their jobs, too. The leaders of these firms, stewards of their businesses, had to consider many factors, and I don’t want to suggest their decisions were easy.

But I do believe their decisions were wrong — for all the reasons many people have cited, but for one above all: By focusing solely on their firms and their clients, they failed to account for their ethical duty to uphold the rule of law and their professional duty to hold the line for less powerful players in the legal sector, during the worst attack on lawyers’ independence ever attempted by an American government.

Trump’s targeting of large law firms is just one front in a multi-pronged assault on constitutional democracy in the United States. Compared to abducting innocent people and setting up offshore concentration camps, these attacks seem relatively trivial. But the White House understands that breaking the legal profession’s spirit and independence is essential to installing and consolidating autocratic rule, and so it is striking that line of defence at what has turned out to be its weakest point.

By agreeing to these deals, Paul Weiss and Skadden Arps have made it harder for other big firms to resist — or maybe more accurately, easier for them to fall into line. Organizers of an amicus brief to support Perkins Coie reported that among the top 100 law firms by revenue, “only three have offered ‘unconditional support,’ with none coming from the top 20.”

Aside from the firms attacked and the firms hired to defend them, to my knowledge, not one member of the AmLaw 100 has publicly condemned these assaults or offered solidarity with its targets. I consider that to be a blot on all their professional reputations, a source of lasting shame. But probably those firms will accept that shame, if it means they get to live another day, or month, or year.

But I believe these decisions will have longer-term consequences than that. Firms’ relationship with one group of stakeholders crucial to their future has been badly damaged by these events, maybe irrevocably. Because as it turns out, there were principled lawyers in BigLaw firms — they were the associates.

Two young Skadden associates, Rachel Cohen and Brenna Trout Frey, resigned from the firm, the former before its deal with Trump and the latter afterwards. “If my employer cannot stand up for the rule of law,” wrote Ms. Frey, “then I cannot ethically continue to work for them.” There might’ve been other public resignations I haven’t seen, but I’m confident there have been private ones from both firms, as well as intense efforts by other associates to find positions elsewhere.

This is the risk these firms are taking: It matters to young lawyers when their law firms fail to defend the rule of law. And it matters especially to young lawyers who are women and members of visible minorities when law firms jettison their vaunted diversity, equity, and inclusion programs under pressure from the government.

The thing about young lawyers is that when a law firm says it values the rule of law and has a culture of inclusion, they believe it. You can call that naïve, if you like; I call it refreshing and admirable, not least because the strength of that belief forces law firms to live up to their lofty commitments — or to explain themselves when they abandon them.

I think that for Paul Weiss and Skadden, and maybe for BigLaw in general, this reputational stain will damage their brand in the legal talent recruitment market for years to come. Here are some quotes from published articles these past few days, some of them specifically about the Paul Weiss/Skadden situation, some not:

• “For diverse attorneys who are trying to find a firm with a good culture and want to rise up within the organization, I think it does matter how a firm responds, because it shows what they believe in.”

• “Young attorneys expect diversity and inclusion to be ‘front and center’ at law firms.”

• “The candidates I’ve had who have made decisions about their careers based on what they feel is right morally or ethically tended to be younger.”

• “As a Black and queer associate, reading about firms … disbanding affinity groups and removing pronouns from email signatures has been pretty scary. And it’s pretty scary to be met with silence from our own firms.”

• “Young attorneys often seek firms that align with their values. … [They] expect law firm actions to match their words about values; otherwise, it's just ‘lip service.’”

I’ve been worried for a while that law firms are gradually exiting the business of new lawyer development, with potentially disastrous results for the lawyer pipeline. The growing uptake of AI to carry out entry-level work, plus serious generational tension between senior and junior lawyers, make it more likely that law firms, when balancing the pros and cons of opposing a vengeful autocrat, might decide to discount “what the associates think.”

But tomorrow’s partners have to come from somewhere. If every firm adopts a position of “We’ll laterally recruit other firms’ senior associates,” an unpleasant surprise will await them someday in the Commons. But there’s more at stake here even than that.

Large law firms have pulled off the remarkable trick of making their brutalizing, all-consuming entry-level positions the most desirable destination for new law graduates. Many young lawyers aspire to work in BigLaw. They’d be proud to work there. They’ve considered it the crown jewel of employment, the top of the Lawyer Hierarchy, and they’ve fallen over themselves trying to secure positions there.

Yes, they’re attracted to the money, especially when they’re so deep in debt. But when you read the resignation letters of Rachel Cohen and Brenna Trout Frey, you can feel the disappointment. They expected better. They believed they were working for great law firms whose prestigious histories underlined their commitment to high ideals. They (and many others) are now telling everyone who will listen, including thousands of law students, not to buy anything BigLaw is selling them.

The story of Donald Trump vs. BigLaw isn’t written yet. There’s still time for the richest and most prestigious law firms in the United States to pull this one out of the fire. But if they don’t, then we might look back on these past few weeks as marking, among other things, the end of the positive relationship between large law firms and new lawyers, one that has delivered extraordinary benefits to those firms for many years. A lot of scales are falling from a lot of eyes right now.

In an email sent to his colleagues following the settlement last week, the executive partner of Skadden Arps concluded: “This agreement does not change who we are.” More than a few law students out there, reading that line, might be thinking, “You’re right — this is exactly who you are.”

1. Let’s put that number in some context. In 2023, the 200 most profitable law firms in the United States performed five million hours of pro bono work. Using a generous estimate of the Taproot Foundation’s 2024 pro bono billing rates, that’s nearly $2 billion in pro bono work performed by the entire AmLaw 200. Skadden Arps has pledged nearly 5% of that total to Donald Trump, at his complete discretion. Throw in Paul Weiss’s payout, and the total tribute approaches 7.5%.

Think about what $140 million in pro bono services from two of the world’s most prestigious law firms might have accomplished, had it been directed to people in actual need. I’ll bet the young lawyers at these firms already have.