A federal judge suggested that some clients may “harbour reservations” about deals struck by top law firms to fend off attacks by President Trump as she struck down the executive order levelled at Perkins Coie.
 
Granting Perkins Coie’s motion for summary judgment on Friday (2 May), Judge Beryl A. Howell of the Federal District Court for the District of Columbia declared the order, which labelled the Seattle-based firm a security risk and accused it of racial discrimination, unconstitutional on numerous counts.
 
Howell wrote in her memorandum opinion that the suspension of security clearance for Perkins Coie employees, barring its attorneys from access to government buildings and officials, and mandating government agencies to terminate contracts with the firm amounted to an “unprecedented attack” on the Constitution’s foundational principles.
 
The order had cited Perkins Coie’s legal work, including acting for presidential candidate Hillary Clinton in the 2016 election, and accused it of discriminating against its attorneys and staff through its diversity, equity and inclusion policies (DEI).
 
Howell wrote: “No American president has ever before issued executive orders like the one at issue in this lawsuit targeting a prominent law firm with adverse actions to be executed by all executive branch agencies but, in purpose and effect, this action draws from a playbook as old as Shakespeare, who penned the phrase: ‘The first thing we do, let’s kill all the lawyers.’”
 
She also referenced the deals struck with Trump by nine firms, including Kirkland & Ellis, Latham & Watkins, A&O Shearman, Simpson Thacher & Bartlett and Paul Weiss, pledging a total of $940m in free legal work to head off action over their DEI policies, or, as was the case of Paul Weiss, an executive order similar to the one levelled at Perkins Coie.
 
In a footnote, she wrote: “…some clients may harbour reservations about the implications of such deals for the vigorous and zealous representation to which they are entitled from ethically responsible counsel, since at least the publicised deal terms appear only to forestall, rather than eliminate, the threat of being targeted in an executive order.”
 
Perkins Coie said in a statement: “This ruling affirms core constitutional freedoms all Americans hold dear, including free speech, due process and the right to select counsel without the fear of retribution. We are pleased with this decision and are immensely grateful to those who spoke up in support of our positions.”
 
Among the contraventions highlighted by Howell, were that the order amounted to retaliation and viewpoint discrimination under the Constitution’s First Amendment, denied equal protection in violation of the Fifth Amendment and the right to counsel guaranteed by the Fifth and Sixth Amendments.

Howell wrote: “By its terms, this order stigmatises and penalises a particular law firm and its employees – from its partners to its associate attorneys, secretaries and mailroom attendants – due to the firm’s representation, both in the past and currently, of clients pursuing claims and taking positions with which the current president disagrees, as well as the firm’s own speech.”

Diversity policies

She also rejected the administration's claim that Perkins Coie's public statements about DEI, including its adoption of the Mansfield Rule, which encourages firms to consider underrepresented qualified talent for senior positions, were evidence of discrimination.

She wrote: "...public statements supporting diversity, standing alone, as they do here, provide not even a scintilla of evidence of impropriety, let alone illegality".

Among the groups supporting Perkins Coie’s motion via amicus briefs were former and current general counsel and more than 500 law firms. But only a small number of top 200 law firms were among the latter group, a fact that has drawn criticism from Big Law associates, a number of whom have resigned from law firms that struck deals.
 
On 25 April, however, a group of more than 750 partners at top 200 US law firms, acting independently of their firms, filed an amicus brief in support of Susman Godfrey’s bid to quash the executive order against it.

Rulings on motions for summary judgment against executive orders by Susman Godfrey, WilmerHale and Jenner & Block are pending.