the Future of Change

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In Season 4, Episode 1 of Succession, media mogul Nan Pierce, played by the incomparable Cherry Jones, is entertaining competing and escalating bids by the generational factions within the Roy clan. Knowing she can play both sides against each other almost without end, she feigns naiveté, wondering out loud: “Different people saying different numbers. Eight, nine. What’s next?” Sensing her opportunity, she intends to seize it. After obtaining significant concessions from the law firm Paul Weiss, President Trump is continuing his revenge tour against law firms that he feels have slighted him in the past. Like Nan Pierce sensing an opportunity, unless law firms resist him, these demands will not end. Not for those newly in his sights, and not for any that bend the knee.

President Trump’s gaze is now fixed on WilmerHale, the law firm that once employed former FBI Director Robert S. Mueller III (of the Mueller Report from Trump I). Another firm, Skadden Arps, appears like it has gone the road of obeying in advance, seeking to cut a deal before the President comes for it. Law firms are clearly caught in a collective action problem. They are strongest if they refuse to bend the knee. But if there are defectors, it will likely cause others to want to capitulate as well.

What is more, the conventional wisdom seems to be driving these firms to cut deals with the Administration for fear they will lose clients. But what if the conventional wisdom is wrong? What if the Administration, like the fictional Nan Pierce, gets the sense that, if it can get law firms to capitulate now, what else can it ask for? What other concessions can it try to exact down the road? No bully backs down once they sense weakness. Rather, it only encourages them to go after you again, and again, and again. And that sense that clients will prefer a lawyer who will back down doesn’t square with what most clients want from their lawyer. Indeed, lawyers are supposed to advocate for their clients against government overreach, not give into it. As I try to explain in a recent piece in Bloomberg Law, there is a business case for resisting such overreach, which should be at the core of the profession’s values. And exhibiting such values is what should attract clients, not repel them. Give it a read. See what you think. Comments welcome.