A collective action solution for law firms

Why the ABA’s lawsuit matters

Authoritarian regimes seek to isolate and divide their opponents. They use targeted attacks and negotiated capitulation to single out the institutions and actors who would oppose them.

This is exactly what happened with President Trump’s executive orders targeting law firms. The administration exploited a textbook collective action problem.

As the administration announced each new executive order, rather than work together to fight back, many firms went silent or caved to the coercive threat that they were next. Nine struck unseemly “deals” to contribute free work on behalf of the administration’s priorities worth hundreds of millions of dollars.

While the exact details of these deals are not publicly known, it’s clear that firms made them out of fear that the immense power of the federal government would be turned against them if they did not obey.

But this week, the American Bar Association — a nearly 150-year-old organization that exists to represent the entire legal profession — filed a lawsuit against the administration’s policy of intimidating lawyers.

This lawsuit takes an important stand for the legal community and starts to shift the hide-then-surrender dynamic that the administration’s intimidation policy has caused. If it succeeds — and it should — the ABA will make it easier for the legal profession to refuse to be intimidated. The ABA’s success would protect its thousands of members across the country, a collective benefit that could transform the strategic calculus and shield lawyers from the administration’s threats.

From isolation to collective defense

Until now, individual firms faced down administration pressure in isolation, resulting in an ill-fated pattern of anticipatory obedience.

That isolation looks like it was intentional — what the ABA calls Trump's "deliberate policy designed to intimidate and coerce law firms and lawyers to refrain from challenging the President or his Administration in court." The administration targeted six firms initially, going after each firm one-by-one in executive orders. It issued other coercive directives and investigations targeted at additional firms. At the same time, it backchanneled with several firms to compel them to support the administration.

This divide-and-conquer strategy forced firms to make a choice: capitulate to avoid becoming the next target, or resist alone and risk devastating retaliation with no guarantee other firms would follow.

What happened next was deeply troubling for the profession. As the ABA’s lawsuit details, a culture of fear and paralysis spread across law firms, not just for those who the administration explicitly targeted. More and more firms settled while others quietly conformed their behavior. Case in point: Only nine of the top 100 firms by revenue (and none of the top 25) would even agree to sign their names to an amicus brief supporting Perkins Coie, the second firm that the administration specifically targeted.

Why were firms so afraid? Simple. According to the New York Times:

They quietly support[ed] the principle of [the amicus brief], but [were] concerned that signing the document would draw Mr. Trump’s ire and cost them clients.

As ABA’s complaint details, the downstream effects of the administration’s attack on law firms have been significant.

Major firms that historically devoted millions annually to pro bono work have scaled back their engagement. Others withdrew from or downplayed inclusion and equality efforts. And there have been immeasurable harms to the structural role that lawyers play in our system. They’re supposed to be fearless advocates for their clients, no matter if their clients are trying to resolve a contractual dispute or are challenging executive power overreach. That’s the whole idea of an adversarial legal system like ours, where there are lawyers on both sides of the case to equip the court to reach a just result. The White House sought to undercut that balance by making firms afraid to oppose the government, undermining the judiciary’s vital role in upholding the people’s rights against abuses of power.

The ABA’s case attempts to break this cycle by seeking what no single firm could achieve alone: broad, nearing sector-wide protection from retaliatory targeting for the thousands of lawyers that make up ABA’s membership.

Thawing the chill on the legal profession

Here’s the ABA’s core argument: that the administration has "used the vast powers of the Executive Branch to coerce lawyers and law firms to abandon clients, causes, and policy positions the President does not like."

This argument itself is not novel or controversial. All the tactics being used by the administration — terminating security clearances; interfering with federal contracting; restricting access to federal buildings, services, and personnel — have been challenged by the four firms who did fight back and filed their own cases against the government. Courts in those cases have repeatedly found the administration’s tactics are clear First Amendment violations.

But even with these successes, the collective action problems remain. The administration’s isolation strategy has so far forced the courts to play whack-a-mole, only granting relief for individual firms one at a time, and only after they’ve been targeted. Those courts’ repeated rulings that the law firm executive orders are unconstitutional did not stop the White House from continuing to issue and threaten new executive orders. In fact, in other contexts, the administration has explicitly argued that a court’s ruling in favor of one party would not stop it from doing the same unlawful thing to someone else.

Additionally, the firms that already made “deals” remain at great risk of being further coerced—to take on clients they otherwise wouldn’t, or to do free legal work for the administration’s priorities. Wins in their peer firms’ individual lawsuits are less likely to provide a shield for when the administration inevitably comes back around with expanded demands to these “deal-making” firms. The ABA’s suit addresses both those problems by bringing a collective solution to a collective action problem.

Why this shift matters

The suit’s critical intervention is to bring about a strategic shift in calculus from firms’ individual capitulation to collective resistance. But this isn't just about protecting law firms. The ABA’s efforts are important for preserving lawyers' role as frontline advocates for reining in government abuse.

Throughout history, authoritarian leaders target courts and lawyers first, understanding that an independent bar represents an effective check on executive overreach. When lawyers operate under intimidation — sacrificing principles to avoid becoming targets — the system of checks and balances and the rule of law weakens.

The court should grant the relief the ABA seeks. Success in this case will buttress the admirable efforts of the firms the administration has directly targeted and who filed their own individual lawsuits (as well as the courageous firms that stepped up to represent them). And it will give a second chance to the firms who felt compelled to trade away their principles in hopes of avoiding being targeted, but are at risk of being further coerced by this administration.

Regardless, the fact the ABA filed this lawsuit at all represents a much-needed new chapter of collective action from a historically risk-averse profession. All lawyers — across practice areas, geography, and political persuasions — know that our legal system becomes distorted when the government uses intimidation to alter the cases attorneys take, with whom they associate, and the arguments they make. Mobilizing to rally behind the ABA’s effort is an important inflection point of the legal community working together to prevent authoritarian backsliding and defend the rule of law.