DC Bar Warns of Ethics Pitfalls After Big Law Deals With Trump

Agreements between law firms and government—like those entered into earlier this year between some Big Law firms and the Trump administration—have ethical implications that firms, their attorneys, and government attorneys must consider, the ethics committee of the District of Columbia Bar said in a new opinion.

Chief among these are conflicts of interest and possible difficulties of obtaining client waivers of conflicts arising because of such deals.

Firms and attorneys need to consider the implications of prospective agreements between a government and lawyers or firms “with conditions that may limit or shape their law practices,” the opinion, issued Tuesday, says.

Firms “must consider” whether such conduct will raise issues under the DC Rules of Professional Conduct, including the possibility of conflicts “for current or future engagements adverse to that government,” improper restrictions on the lawyers’ right to practice, and interference with lawyers’ professional independence, the opinion also says.

The opinion was released months after Paul Weiss Rifkind Wharton & Garrison became the first of several leading law firms to agree to handle tens of millions of dollars in pro bono work the administration approved of, in return for Trump agreeing not to limit the security clearances of Paul Weiss lawyers or the federal contracts of the firm’s clients.

Since then, several of the most lucrative firms, including Skadden, Latham & Watkins, and Kirkland & Ellis, have made similar deals. Others, like Perkins Coie and Jenner & Block, have fought back by filing suit.

The DC Bar ethics committee has been working on the opinion for the last several months, after calls started coming into the group’s hotline from lawyers concerned about the ethics-related impacts of the deals being struck, said a source knowledgeable about the committee’s work who agreed to speak on condition of not being named.

Though it’s “pretty obvious” the opinion’s content and timing are directly related to the deals with the Trump administration, the source said it was important that the committee make an effort to write an opinion that could apply to future administrations, regardless of political party.

A “major concern” of the opinion is how a firm that enters into an agreement with conditions that may limit or shape their law practice would deal with a current or proposed matter “in which its client’s position is directly adverse to a program or policy in which the government in question has a strong interest,” the opinion says.

One way to address this is by seeking a client waiver if the firm “reasonably believes” that the conflict will not impair the representation of that client. But that might be tough to request if a law firm doesn’t know “what actions on their part might trigger adverse government action"—meaning the firm may be unable to provide full disclosure of the nature of the possible conflict “and the possible adverse consequences of such representation.”

Firms that make deals also should be concerned about improper restrictions on the firm’s or its lawyers’ right to practice, or interference with their professional independence, the opinion says.

The committee cautioned that maintaining professional independence in this circumstance means making sure to avoid a third party’s direction about the services to be provided to a client, and also to avoid taking third-party direction “as to whether to accept or decline a particular prospective client.”

And the committee had a final word for government lawyers: “Lawyers who represent the government in seeking, negotiating, or implementing such agreements also must consider their responsibilities under the Rules of Professional Conduct.”