Bay: We have to stand up
The American Bar Association (ABA) has brought legal action against the Trump administration over its “ongoing unlawful policy of intimidation against lawyers”.
The representative body for US lawyers said it had been “harmed directly” by the “law firm intimidation policy” because firms were no longer willing to represent it in actions against the federal government.
In a complaint for declaratory and injunctive relief against the US government filed this week at the federal court in Washington, the ABA said the policy was unconstitutional and should be struck down.
ABA president William Bay commented: “This is the time to stand up, speak out and seek relief from our courts. There has never been a more urgent time for the ABA to defend its members, our profession and the rule of law itself.”
The action outlined how President Trump had “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”.
Before the policy was implemented, the filing went on, the ABA frequently relied on pro bono representation by law firms and partnered with several of the top 100 firms to further its mission.
While it intended to continue this litigation and advocacy, the ABA said it had “experienced difficulty finding previously willing law firms to represent it in litigation adverse to the federal government”.
For example, when the ABA sought to participate as a party in litigation “challenging certain of the president’s policies affecting immigrants”, the law firm that initially expressed interest in representing the ABA in the litigation “declined to do so” as a result of the intimidation policy.
“The ABA was unable to participate as a party in the litigation in significant part as a result of its inability to obtain its choice of counsel on the timeline required.”
When the ABA sought pro bono representation in litigation challenging on First Amendment grounds the termination of certain grants it received, none of the firms it contacted offered pro bono representation.
US judges have struck down executive orders made by President Trump against law firms such as Jenner & Block and Perkins Coie, which had sought to cut them off from work relating to the federal government or access to it.
Nine other law firms, including Anglo-US giant A&O Shearman, have done deals to ward off orders, with A&O promising to carry out up to $125m of pro bono work for mutually acceptable causes – between them the firms have pledged $940m of pro bono work.
The ABA said the use of executive orders were “not isolated events, but one component of a broader, deliberate policy designed to intimidate and coerce law firms and lawyers to refrain from challenging the president or his administration in court, or from even speaking publicly in support of policies or causes that the president does not like”.
Although President Trump had “made examples of certain law firms that he particularly resented”, the “core purpose of the law firm intimidation policy is not merely to punish but to intimidate and coerce”.
The ABA went on: “Without skilled lawyers to bring and argue cases – and to do so by advancing the interests of their clients without fear of reprisal from the government – the judiciary cannot function as a meaningful check on executive overreach.
“The president’s policy is working as designed. Even as federal judges have ruled over and over that the law firm orders are plainly unconstitutional, law firms that once proudly contributed thousands of hours of pro bono work to a host of causes—including causes championed by the ABA—have withdrawn from such work because it is disfavoured by the administration, particularly work that would require law firms to litigate against the federal government.
“News reports and studies already show that most top firms are lying low, trying to avoid being hit with similar executive orders.”
The ABA warned that the longer the intimidation policy persisted, the more it would become “normalised in our legal system” and whoever won the next presidential election would be “free to squelch dissent” based on policy disagreements.
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