The Big Law Bias: To Represent Conservative Clients, Top Lawyers Often Forced To Leave Their Firms

Former president Donald Trump and lawyers in a Manhattan courthouse / Reuters
April 13, 2023

The indictment of former president Donald Trump—unprecedented in U.S. history and based on what many experts say are flimsy foundations—has stoked fresh fears about the politicization of the justice system. But it has also highlighted a trend that began long before Trump's arraignment: the politicization of top-flight law firms.

Todd Blanche, a longtime partner at Cadwalader, Wickersham, & Taft, resigned last week from the elite firm to represent Trump, who was indicted on April 4 by Manhattan district attorney Alvin Bragg (D.). Though Cadwalader has been tight-lipped about the circumstances of Blanche's departure, Blanche himself said something interesting. "Obviously," his parting email indicated, "doing this as a partner at Cadwalader was not an option, so I have had to make the difficult choice to leave the firm." Within hours, Cadwalader had scrubbed Blanche's bio from the firm's website. Neither Blanche nor Cadwalader responded to requests for comment.

The resignation, and the ultimatum from Cadwalader that it implied, was not a one-off. Like their corporate clients, top law firms have taken a sharp left turn over the past decade, joining groups like the Law Firm Antiracism Alliance and even hosting drag queens for Pride Month. That flight from the political center, lawyers and legal commentators say, has made "Big Law" much less willing to take conservative clients—especially when their last name is Trump.

"Trump is toxic for most big firms," said Adam Mortara, a former partner at Bartlit Beck who served as the lead trial lawyer for the plaintiffs in Students for Fair Admissions v. Harvard, the Supreme Court case that could outlaw affirmative action. "Lawyers can't get him or other right-wing clients past their partners."

Top attorneys now face a choice between cushy partnerships and conservative clients, whom white-shoe law firms won't represent. That has in turn fueled an imbalance of power within the legal system, as America's biggest and best-heeled firms increasingly do the bidding of one political party.

Big Law has no qualms about representing Democrats in distress: Bill Clinton, John Edwards, and Anita Hill are just a few of the liberals who have navigated sordid controversies with the help of top firms, including Williams & Connolly, Skadden, Arps, Slate, Meagher, & Flom, and Covington & Burling. And its pro-bono work is hardly nonpartisan: On issues like affirmative action and abortion, Big Law's amicus briefs almost always support the left.

"Conservative cases and clients tend to create more problems than progressive cases and clients," said legal analyst David Lat. "As a result, lawyers who do want to take on conservative clients often end up leaving their firms, with varying degrees of voluntariness."

Blanche is not the only lawyer who has left a large firm for Trump. Christopher Kise last year resigned from Foley & Lardner to represent the embattled former president in the wake of the FBI's raid on Mar-a-Lago, prompting the firm to scrub Kise's name from its website.

Other firms have pushed out partners for representing garden-variety conservatives. The superstar Supreme Court litigator Paul Clement resigned from his law firm, King and Spalding, in 2011 after it refused to let him represent the GOP-controlled House of Representatives in its bid to uphold the Defense of Marriage Act. A decade later, he left another white-shoe firm, Kirkland & Ellis, after it announced that it would no longer do gun-rights litigation—the same day the Supreme Court ruled in Clement's favor on a major Second Amendment case.

It is hardly unheard of for lawyers to turn down business they deem dangerous or harmful. Large firms have long been gun-shy about representing tobacco companies, for example, and in 2021, Big Law steered clear of challenges to COVID vaccine mandates.

But no client has proven quite as polarizing as Trump. A former White House official, who spoke on the condition of anonymity, knew of at least three major firms that barred their star litigators from representing the former president. And a lawyer who worked in the Trump White House said that Big Law's reaction to Trump was unprecedented.

"Under our system of justice, everyone is entitled to zealous representation of counsel," the lawyer said. "That norm now has a carveout: everyone except Donald Trump."

In 2017, Trump approached Hogan Lovells, one of the largest and wealthiest firms in the world, about representing him in a personal capacity, according to a former partner at the firm. Though Hogan couldn't have represented Trump even if it wanted—it was already representing a challenge to the then-president's travel ban, making any association with him a conflict of interest—there was "strident opposition" within the firm to having Trump as a client, the former partner said.

The Trumphobia can't be explained by an aversion to controversy. Big firms routinely wade into polarizing issues like abortion and trans rights—the "Transgender Name Change Clinic" is one of Cadwalader's pro-bono clients—while some, such as Paul Weiss, have done extensive litigation opposing the death penalty, a policy most Americans support.

"A few firms are equal opportunity avoiders of controversy," said the managing partner of a large law office, who requested anonymity to speak freely. "But in general, it's easier to take controversial clients on the left."

That double standard is sometimes defended on business grounds. If a law firm defends Trump, the thinking goes, other clients, especially large corporations, may cut ties with the firm in protest, thereby hurting the firm's bottom line.

"We aren't going to do things that adversely affect profits," the managing partner said. "There's very little upside to taking clients that might offend our Fortune 1000 clients."

But others say the economic argument has been weaponized by partisans at big law firms, which use the specter of losing business—even when no client has threatened to withdraw—to enforce orthodoxy in partner meetings.

"The idea that clients get mad about stuff is more a trope than a reality," Mortara said. "Progressive lawyers bring up client pressure to get their way, but it's really a political objection."

Granted, Trump is an extra charged lightning rod. Lawyers have been repelled not just by the ideological ick factor but also by the former president's well-known failure to pay his legal bills, even to trusted consiglieri like Rudy Giuliani. And attorneys across the political spectrum chafed at Trump's rhetoric about the 2020 election: Benjamin Ginsberg, a top GOP elections lawyer, left Jones Day over its work with Trump.

The firm's critics argued that it was aiding and abetting an unprecedented attack on democracy by taking up Trump's election lawsuits. With the stakes so high—and with most experts dismissing the lawsuits as baseless—some lawyers said there was an ethical duty not to represent Trump as he sought to overturn the election.

But events since then suggest that Big Law's Trumphobia is less principled than partisan. Bragg's indictment has flipped the familiar script: Even liberals are saying that it is now Trump's opponents who are flouting democratic norms on the basis of baroque legal theories.

Almost every expert who has discussed the indictment, from the anti-Trump conservative David French to the far-left Nation writer Elie Mystal, has said that the case underlying it is dubious. The shakiness has compounded worries about political prosecution and the rule of law: Fordham Law School's Jed Shugerman—a trenchant Trump critic who argued that Trump could be indicted while he was a sitting presidentsaid that Bragg's legal theory posed "a dangerous precedent."

Elite firms are nonetheless passing on the chance to prevent that precedent from being set. For some lawyers, the reticence suggests that Big Law's politicization is hollowing out another legal norm: the idea that everyone, no matter how hated, deserves an attorney.

"That ideal is gone," a former Justice Department official said. "You can't do that anymore in D.C."