The names of big American law firms have always fascinated me. They sound too posh for words.
Names like Perkins Coie, Paul Weiss Rifkind Wharton & Garrison, Skadden Arps Slate Meagher and Flom just roll off the tongue, though they are almost never pronounced the way they are written.
These huge firms all generate billions of dollars in fees every year, from clients for whom big legal bills seem to be a matter of pride.
But all (and a few more I haven’t mentioned) were recently in the news either because US president Donald Trump targeted them in executive orders banning them from getting any work from the US government, or because their staff members were angered because their firms did not join in the fight against this perceived overreach of US presidential power.
The fact that they had represented various members of the Democratic Party, including Hillary Clinton, as well as advised on the investigation into Russian interference in the 2016 election, is no coincidence.
This is classic Donald Trump exacting revenge on his opponents. And then there are his ardent attacks on all judges that oppose his orders, one whom he referred to as a “radical left lunatic judge” among other hateful references to judges who have simply fulfilled their constitutional function of providing checks and balances on power.
Trump’s ardent supporters are cheering. But this is a sign that the misinformation Trump and his cronies have spread has caused lasting damage, because not even the most ardent Trump supporter should tolerate an attack on the US judiciary. They seem to have no idea how checks and balances on power work.
The US judiciary is by no means the only such institution that had been attacked by a president and his or her supporters. SA had its own shameful chapter under Jacob Zuma, whose frequent attacks on our judiciary caused serious concern here.
Brazilian right-wing supporters believe, ridiculously, that they live under a dictatorship of the judiciary. Former Brazilian president Jair Bolsonaro, who is due to face trial in Brasilia for his role in fomenting a coup to cling to power in 2022, pleaded for foreign intervention against this “judicial dictatorship” in a recent interview with the London-based Financial Times.
Attacks on the judiciary in Brazil, SA and other countries could easily, but incorrectly, be brushed off as the growing pains of young democracies, but to see that happen in a 250-year democracy is disconcerting.
However, to have the kind of blatant attack on the judiciary one sees from Trump in the country that has traditionally been seen as the beacon and birthplace of modern democracy and human rights is particularly worrying. Suddenly it may become fashionable to attack the judiciary everywhere.
Attacks on the judiciary in Brazil, SA and other countries could easily, but incorrectly, be brushed off as the growing pains of young democracies, but to see that happen in a 250-year democracy is disconcerting. And it should be for everyone, regardless of political orientation.
This is not just an attack on the judicial branch of the American government, it is an attack on the US’s constitutional system. This is not eliminating the “deep state” or cutting expenses to promote government efficiency à la Elon Musk, it is dismantling the US’s constitutional system, which has guaranteed its exceptional welfare over the past two and half centuries.
It was the foundation of its soft power that allowed it to expand and promote its principles (sometimes controversially) around the world. USAID was not wasting US tax dollars. In addition to providing critical support in some of the most impoverished regions of the world, it broadly promoted US democratic values, creating a better world, which also benefited the US taxpayer.
Yes, I know it was not always that simple, but Trump and Musk are wrong to categorise it as a waste of money. That alone displays a glaring lack of understanding of American constitutional values and culture.
Trump’s executive orders targeting major law firms caused what one judge in a matter brought by Perkins Coie to have the orders set aside referred to as “having a chilling effect” on the legal fraternity. Any law firm will now think twice before taking on the Trump administration. Clients who may for perfectly legitimate reasons want to do business with the Trump administration may now look for other law firms to advise them.
Ultimately, it deprives the public of a basic legal right, namely, to be able to choose their legal counsel freely. The firm Paul Weiss capitulated early by pussyfooting around the Trump administration and grovelling for pardon. The price? Forty million dollars, this being the value of pro bono legal services it will render to causes endorsed by Trump (causes that will further his agenda).
Perkins Coie had more backbone and decided to challenge the executive order in court. On March 20 an associate, Rachel Cohen, at Skadden Arps (which had not been targeted by the executive orders) publicly resigned on LinkedIn over Skadden’s failure to join Perkins Coie’s challenge of the executive order.
Skadden hasn’t commented, but the reality is clear. Firms will now have to choose between fighting injustice and Trump’s appropriation of powers many American lawyers say he doesn’t have, or sucking it up just to avoid losing clients or business.
This is of course a dilemma that faces law firms everywhere, not just in the US. In 2012 I decided for several reasons to a join a big law firm after 10 years of successfully running my own show. Among other reasons, this was so I could face the perceived financial challenges of becoming a father.
I stayed for two years, until the draw of being a free spirit, which I had cultivated over a decade of being my own boss and calling the shots myself, became too strong to resist. I will never forget, early on in my stint at the firm, that one of the first freedoms that was curtailed was that I could no longer write opinion pieces such as this for Business Day.
It was a red flag they could have told me about before I signed up (it was clearly displayed on my CV). But their fear was that I might express views, no matter how noble or how in favour of a just society, that may offend the clients or agencies the firm worked with. In short, they said as long as you work here you don’t have an independent or even free voice.
While there is a certain business rationale behind this that I can understand (even as I disagree with it), this conformist approach at many law firms misses one crucial difference between law firms and other businesses such as banks. Our business is to promote justice and uphold the rule of law, even against the powerful. It is not just to make money.
That is why Rachel Cohen is right to call out Skadden (and other law firms) for not immediately joining Perkins Coie’s court case against Trump.
• Myburgh is an attorney practising law in Johannesburg and São Paulo.
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