Will Jones Day Drop Donald Trump As A Client?

Probably not -- but many lawyers at the firm wouldn't mind saying "you're fired" to the controversial candidate.

Jones Day's Don McGahn (left) with his client, Donald Trump.

Jones Day’s Don McGahn (left) with his client, Donald Trump

Our report from earlier this week about Jones Day representing Donald Trump has apparently caused quite the controversy in the halls of the white-shoe, blue-chip firm. It seems that many JD lawyers and clients didn’t know about the firm’s work for the Trump campaign until this week, when the firm hosted a meeting in its D.C. offices between Donald Trump and top Republicans. And as you can see from the multiple updates added to our prior post, many JD lawyers are unhappy about the representation, for a whole host of reasons.

In addition to the obvious ones — the accusations of racism, sexism, xenophobia, and incitement of violence that have been leveled against Donald Trump — there are a number of objections to representing Trump that are specific to Jones Day. For example, it’s particularly unfortunate to have Trump as a client given (1) the firm’s interest in expanding its Latin America practice, (2) its extensive pro bono work on behalf of immigrants’ rights, and (3) the fact that Fox News host Megyn Kelly, a frequent target of Trump’s attacks, is a prominent Jones Day alum.

Here is one JD lawyer’s reaction that is representative of many others we received:

It’s disgusting, cynical horses**t. I came into this knowing that many firm leaders are very active members of the Republican Party, but until now it’s seemed to be the Bush-vote, family-values variety. So, I am genuinely disturbed that Jones Day accepted Trump as a client, and I would expect and hope that many other JD clients (particularly pro bono clients) would be equally disturbed. A lot of other lawyers here feel as strongly as I do.

This source then directed our attention to this page, Why Is Jones Day Different? The firm exhibits values like “integrity,” “dedication,” and “commitment” — all in the service of this classy client (who tweeted out side-by-side photos of Heidi Cruz and Melania Trump to follow up on an earlier threat to “spill the beans” about Ted Cruz’s wife):

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Over the past few days, there have been many internal conversations and email threads at Jones Day about the Trump representation — including a few lawyers talking privately about quitting in protest — but no firm-wide statement from the powers-that-be (and no response to another query from us). The closest thing we’ve heard to an official comment is a New York-based partner addressing the subject at an all-associates meeting earlier this week (a previously scheduled, annual all-associates meeting, not a meeting to talk about Trump). Here’s how one source summarized it:

An associate asked about Trump: was this an institutional decision? The basic answer: no, we have an election-law group that came over from elsewhere, we represent a lot of bad people (hilariously, one example given was the Modell family, who moved the Browns out of Cleveland), so no the firm isn’t endorsing him.

A perfectly reasonable response. Jones Day is America’s largest law firm, with almost 1,700 lawyers in the United States alone, and so the decision of one partner in D.C. to take on Trump shouldn’t be held against the entire institution and its thousands of lawyers and staff around the world. (This would seem so obvious as to not be worth stating, but one JD defender claimed that our prior piece was somehow implying that everyone at the firm supports Trump — an absurd claim, considering that not even a majority of Republicans support Trump, and Jones Day, while conservative by Biglaw standards, is far from 100 percent Republican.)

In further defense of Jones Day, it’s not the only Biglaw firm to have an unpopular or controversial client — and it’s in the finest tradition of lawyering to represent such figures. Major firms represented (and still represent) Big Tobacco as a paying client, and they take on pro bono cases to defend accused murderers. Or to take some examples related to the current election season, Williams & Connolly is repping Hillary Clinton in her email scandal, and O’Melveny & Myers is defending the Donald in Trump University litigation.

There are, of course, responses to these responses. Not all candidates are created equal. It’s not very persuasive to throw up one’s hands and say “representing a presidential candidate is always okay because that’s what election lawyers do”; it depends on who the candidate is and what she stands for. In this situation, there’s a good case to be made that Donald Trump is especially loathsome (yes, even compared to Hillary Clinton and Ted Cruz). Heck, David Duke ran for president before too, and a firm would surely get flak for serving as his campaign counsel (which, to respond to another point from Jones Day defenders, is not just some ministerial or housekeeping function to ensure that Federal Election Commissions are typo-free; as any election lawyer can tell you, serving as legal counsel to a major presidential campaign is a significant role that touches on everything from fundraising to advertising to FEC interactions to litigation).

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And even though every client is entitled to counsel in the courtroom, representing a client in a pending case — which requires court permission for withdrawal — is a different matter than serving on an ongoing basis as a strategic advisor and counselor, the role that Jones Day is playing for the Trump campaign. Except for pending litigation matters where it’s already counsel of record, presumably Jones Day can ditch Trump as a client at any time.

So will Jones Day dump Donald Drumpf, just as King & Spalding kicked DOMA defense to the curb? Probably not. Despite their huge size, Biglaw firms have distinct personalities, and Jones Day’s might be described as “stubborn” and “indifferent to public opinion” (or, more charitably, as “independen[t]” and “courage[ous]”).

Although I don’t see Jones Day telling Trump “you’re fired,” I wouldn’t rule out the possibility of Don McGahn and his associates voluntarily departing at some point to set up their own election-law practice. When you have controversial clients, it’s easier to be in a boutique, with fewer clients, lawyers, and constituencies who might be offended by a given representation. That’s why it made perfect sense for Paul Clement, after leaving King & Spalding, to take his practice to Bancroft, the high-powered boutique known for representing prominent conservative clients.

It’s worth noting that McGahn is far from a fixture at Jones Day. He has been at the firm for less than two years; he joined in spring 2014, fleeing the wreckage of Patton Boggs (around the time it got absorbed by Squire Sanders). So it wouldn’t be insane for him to go out on his own — and it might reduce the potential for tension or conflict between his practice and the practices of fellow election-law partners like Benjamin Ginsberg and William McGinley.

(Although there are so-called “Chinese walls” to protect against conflicts, having several prominent members of a very small practice area under the same roof can create awkwardness, even in the absence of direct conflict. Ben Ginsberg, viewed by many as the dean of the election-law bar, previously represented the Scott Walker campaign. The Walker campaign died months ago, but Ginsberg continues to write and speak on television about a brokered GOP convention — which Trump views as synonymous with robbing him of the Republican presidential nomination. This might have gone unnoticed by the Trump campaign, which doesn’t strike me as a very detail-oriented operation — but if Trump were to notice it, I could certainly see him placing an irate call to his law firm, Jones Day.)

We’ll continue to follow the Jones Day/Donald Trump story with interest. Feel free to contact us by email or by text message (646-820-8477) if you have anything to add.

UPDATE (6:01 p.m.): I should clarify, in response to some Twitter conversation I’ve been having, that I am not arguing that Trump should be denied legal representation. Every client, no matter how awful — criminal defendants accused of heinous acts, large corporations accused of terrible misconduct — should have the right to retain counsel. I’m simply wondering, from a prudential point of view, whether taking on Trump was a wise move for Jones Day as a law firm and as a business.

Docket Chat: Jones Day Beats Well-Worn Path to Supreme Court [National Law Journal]
Three top Republican lawyers leaving Patton Boggs to establish practice with Jones Day [Washington Post]

Earlier: Jones Day: Helping Donald Trump To Make America Great Again