Ever since the Surrendergate Nine capitulated to the Trump administration, pledging nearly a billion dollars worth of free legal work, the firms have bent over backward to shrug it off as no big deal. As the months dragged on, and the firms lost more talent and more clients, stories started cropping up suggesting that the firms viewed the deals as unenforceable all along and that it’s business as usual over there. The firms never officially said this, of course. None of them would stick their head above the trench to say such a thing directly. But news article fodder kept drip, drip, dripping out that the firms were really just fine — in fact, they still take on a few matters that challenge the administration! Earlier this week, the American Lawyer ran a piece wondering “has leverage shifted?” in the Trump-Biglaw relationship, chronicling work the firms are doing against the administration.
At the time, I mused that the headline all but guaranteed the other shoe was about to drop. And here we are.
It turns out, despite the firms providing the media with flashy exceptions to prove the rule, the Trump administration indeed still holds the leverage. The New York Times reported last week that Kirkland and Skadden were doing trade work for the Commerce Department, but couldn’t confirm if they were getting paid for it. Now the Times can confirm that Kirkland and Paul Weiss are repping the Commerce Department for free, presumably as part of their pro bono payola deals. Skadden’s situation is still up in the air.
In the past, some law firms have done work for the federal government at a reduced rate. But coming just months after they struck deals with the president, the free work is likely to raise new questions about whether the firms felt compelled to do so to stay in Mr. Trump’s good graces.
So much for those grand declarations the firms sent to Congress just a few months back. Despite explicit claims from the administration that, under the deal, the firms would be conscripted to paper up nonsense tariff deals, the firms hand-waved it all away as preposterous. Nonetheless, those letters dripped with bravado about how the firm would never be coerced into abandoning principles. Paul Weiss specifically promised that its free work would be limited “to assist our nation’s veterans, to combat anti-Semitism, and to promote the fairness of the justice system.” Kirkland’s response offered fewer specifics but declared that its pro bono work would be delivered on “a non-partisan basis to a wide range of underserved populations.” Apparently, the Commerce Department is one of those underserved populations. It’s not established that Skadden is doing this work for free, but its response to Congress included similar bullshit.
We didn’t believe them at the time. It’s refreshing when cynicism ages like a fine wine.
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Could the firms be doing more objectionable work for the administration? Sure! The Trump administration suggested drafting the firms to defend police brutality claims. They aren’t doing that… yet. But this misses the point. Pro bono work is, functionally, zero-sum. Law firms aren’t giving up billable time to other pro bono tasks after sacrificing $125 million to the feds. Every hour spent trying to convince Penguin Island to import more, I don’t know, more Trump 2028 hats or something, isn’t going to a homeless shelter. And all that time has to be made up by real, paying work to pay for those partner summer homes.
Not that this is really “pro bono publico” work. The fact that it was even a question whether or not this was paid work, demonstrates how phony the “pro bono” claim is. Not all free legal services are pro bono or everyone would claim summer associate write-offs as pro bono. The Model Rules specifically frame pro bono — even pro bono work for the government — as services in support of those with “limited means” or where normal fees would “significantly deplete” organizational resources. The U.S. government, shockingly, is not indigent — though the Trump tax cuts may drive it there soon enough.
Nor can lawyers claim the community service they’re doing to clear up that DUI toward their pro bono awards either. As the American Lawyer article concludes:
Still, ethics experts were doubtful that Kirkland could claim the work as “pro bono,” in the traditional meaning of the word. “I don’t view it as pro bono work. The U.S. government is not an individual or organization of limited means. This work was also coerced,” Levin said.
There’s a word for this kind of relationship, and it isn’t “charity.” It’s “complicity.”
Two Big Law Firms Said to Be Doing Free Work for Trump Administration [NY Times]
In Trump’s Battle With Big Law, Has Leverage Shifted? [American Lawyer]
Earlier: Biglaw Firms Surrendering To Trump Furiously Backpedaling: ‘LOL, What Pro Bono Deals?’
Trump’s Biglaw Bootlickers Say Quiet Part Out Loud In Letters To Congress
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.