Will The Real Jones Day Please Stand Up?

Many conservative lawyers have left the firm, but the tension will persist for some time.

Methinks Jones Day doth protest too much?

Methinks Jones Day doth protest too much?

Law students going through on-campus interviewing often say, after the umpteenth interview, “All these firms look alike!” But that’s not true; real differences exist between Biglaw shops (and you can learn about them by reading Above the Law regularly).

One of our favorite firms to write about is Jones Day. What makes JD so attractive? The firm’s penchant for secrecy certainly contributes to its mystique; journalists love the challenge of opening up black boxes.

Another interesting thing about Jones Day is that it is large, it contains multitudes. It’s a firm with multiple identities, and it hasn’t yet figured out which one will control.

I can count at least two Jones Days. First, there’s the “old” Jones Day — a 125-year-old, Cleveland-founded firm, with right-of-center politics — at least by Biglaw standards — and a client roster of large but shrinking Rust Belt enterprises. Second, there’s the “new” Jones Day — an increasingly global law firm, with 44 offices around the world, and the more left-leaning politics typical of large firms.

Jones Day partner turned White House counsel Donald F. McGahn II (via YouTube)

Donald F. McGahn II (via YouTube)

The sense I had was that the old Jones Day was losing ground to the new, at least in recent years — but all that changed in 2016. Donald Trump showed up on the scene, rallying the Rust Belt, and Jones Day played a major role in his rise (admittedly over some objections from voices of the new Jones Day). Jones Day lawyers spearheaded the Trump transition and went on to grab coveted posts in his administration (most notably, JD partner turned White House counsel Don McGahn). In the media and in the public imagination, the old Jones Day was resurgent.

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With so many talented and conservative JD lawyers leaving to serve in the Trump Administration, however, one might expect the new Jones Day to take over. But I think it’s too early to say. Instead, expect a struggle for the soul of the firm — one that flared up yesterday, in the epic litigation challenging President Trump’s Muslim ban travel ban executive order limiting entry to the U.S. for certain foreign nationals. As reported by Ross Todd of The Recorder:

In an amicus brief filed with the U.S. Court of Appeals for the Ninth Circuit on behalf of four constitutional scholars, Jones Day lawyers challenged the administration’s position that the executive branch has “unreviewable authority to suspend the admission of any class of aliens.”

The move spurred acting Solicitor General Noel Francisco and acting assistant attorney general Chad Readler, both former Jones Day lawyers, to hold back from signing the Justice Department’s latest brief Monday afternoon.

“The acting solicitor general and acting assistant attorney general have refrained from signing this brief, out of an abundance of caution, in light of a last-minute filing of an amicus brief by their former law firm,” the brief stated.

So, in a nutshell, an eleventh-hour filing by progressive Jones Day lawyers forced two of the firm’s leading conservative alums to sideline themselves, in the highest-profile litigation faced by the Trump Administration so far. AWK-ward.

That might seem surprising, but it shouldn’t come as a total shock to folks familiar with the firm. In March of last year, when writing about Jones Day’s decision to represent the Trump campaign, I noted the extensive pro bono work performed by JD lawyers on behalf of immigrants. Indeed, the firm’s years of work on behalf of refugees are highlighted on its pro bono site.

How will Jones Day’s close association with the Trump Administration affect the firm? I predicted it could be a good thing — “It’s great for the firm’s prestige, and it also means that JD lawyers will be eagerly sought after by clients with issues pending before their former colleagues.” — but reasonable minds can disagree. It might have negative reputational consequences for the firm, especially if the JD lawyers are viewed as not serving President Trump effectively, and it could hurt recruiting, especially at elite law schools with overwhelmingly liberal student bodies.

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Some of JD’s top conservative and libertarian lawyers might have left the building, but the tension between new and old Jones Day will linger for quite some time.

At Ninth Circuit, Big Law Makes Its Stand Against Trump Travel Ban [The Recorder]
Does Trump Want to Lose the EO Battle in Court? Or is Donald McGahn Simply Ineffectual (or Worse)? [Lawfare]

Earlier: Jones Day: Helping Donald Trump To Make America Great Again
Jones Day In The (White) House: The Biglaw Firm Fills Top Jobs In The Trump Administration


DBL square headshotDavid Lat is the founder and managing editor of Above the Law and the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@abovethelaw.com.