How the Government Should Deal with Lawyers’ Alleged Bad Behavior: Substance and Procedure

Last week, I posted an excerpt of Paul Clement’s arguments as to why the Executive Order targeting the WilmerHale law firm violates the Constitution, and said they struck me as quite correct. (The analysis is similar, I think, with regard to the other Executive Orders targeting law firms.) In response, a reader asked:

With all the hub-bub now around Big Law firms being attacked, it might be nice to see a piece harkening back to the way numerous lawyers and law firms were attacked by the left back when we were representing Trump in 2016 and 2020 and how the profession didn’t so much as yawn in our direction about it.

For example, in a WSJ article on March 9, 2025 (“Fear of Trump Has Elite Law Firms in Retreat”), Rep. Jamie Raskin’s (D., Md.) was fired up that the Trump administration was singling out law firms that solicited the Steele dossier and which vigorously attacked Trump’s own lawyers in 2020. Raskin was a Constitutional law professor before his election to Congress. He was utterly silent when his then Congressional colleague, Bill Pascrell, Jr. (D., NJ.) wrote a letter on November 20, 2020 to the Pennsylvania Disciplinary Board seeking to have [various lawyers] disbarred solely because we represented President Trump in courts across Pennsylvania on mundane election law issues not involving allegations of fraud….

It didn’t much seem to matter to anyone back then because we were mostly small firm and solo practitioners under attack. Now that its Big Law getting punched, suddenly everyone’s up in arms. Where was the rest of our profession when we were getting hit with both barrels back then?

I think this is an important question; let me offer a tentative and partial answer.

Lawyers are bound by specific professional obligations, and violating them can rightly lead to discipline. Those start with reprimands and financial sanctions, and move up to loss of one’s license and therefore one’s livelihood. Indeed, some lawyer misconduct may actually be criminal.

Just to give some examples, lawyers aren’t allowed to help their clients commit crimes (though of course they are often supposed to help their clients avoid punishment for committing crimes). Lawyers aren’t allowed to make misrepresentations to courts. Lawyers aren’t allowed to make legally frivolous arguments (though my sense is that making such frivolous arguments very rarely leads to punishment beyond the occasional financial sanction).

Now of course the existence of these disciplinary rules sometimes leads to demands that lawyers be punished for behavior that, viewed objectively, is perfectly legitimate. Disgruntled opponents sometimes make that arguments. Sometimes political opponents do, too. There’s a risk that the bar authorities might erroneously punish legitimate behavior, whether because of simple error or political bias. And in any event, often the process is the punishment, even if the accused is ultimately cleared.

Nonetheless, if we are to have any rules governing lawyers’ conduct, there needs to be a system to adjudicate claims of misconduct. If people, including government officials, think they’ve spotted a lawyer misbehaving, they are entitled to call for a bar investigation. If their calls seem to lack legal or factual basis, they can be criticized. If a bar finds misconduct but its explanation is unpersuasive, then it can be criticized.

But all that is part of our system of rule of law, not inherently an interference with it. The disputes also often have to do with contested factual claims (who made what assertions, what they knew at the time, and so on). They have to do with how rules, which are often imprecise, apply to the contested facts. As a result, many observers might have little to say about such allegations, especially before the bar investigates the matter and issues a decision (and sometimes even after).

The Executive Orders targeting the firms, on the other hand, have nothing to do with either the substantive rules that lawyers must follow or the procedures set up for adjudicating disputes about such rules. Consider some of the allegations in the Executive Order targeting WilmerHale:

WilmerHale engages in obvious partisan representations to achieve political ends, supports efforts to discriminate on the basis of race, backs the obstruction of efforts to prevent illegal aliens from committing horrific crimes and trafficking deadly drugs within our borders, and furthers the degradation of the quality of American elections, including by supporting efforts designed to enable noncitizens to vote.

None of that is actually inherently against the established rules governing lawyers. No rules of lawyer conduct forbid partisan representations to achieve political ends. (Many Republican-leaning lawyers do that all the time.) No rules forbid supporting efforts to discriminate on the basis of race; a court may reject an argument in favor of race discrimination, but lawyers are free to make such an argument. Likewise as to lawyers’ opposition to enforcement of immigration law or criminal law, or their “supporting efforts designed to enable noncitizens to vote.”

The premise of our legal system is that lawyers can take either side in any of these disputes. Indeed, the lawyers’ speech and petitioning in such cases are generally protected by the First Amendment, and the government generally may not retaliate against them based on such First-Amendment-protected actions.

The same is basically true, I think, as to most of the allegations in this paragraph:

WilmerHale is also bent on employing lawyers who weaponize the prosecutorial power to upend the democratic process and distort justice. For example, WilmerHale rewarded Robert Mueller and his colleagues—Aaron Zebley, Mueller’s “top aide” and “closest associate,” and James Quarles—by welcoming them to the firm after they wielded the power of the Federal Government to lead one of the most partisan investigations in American history. Mueller’s investigation epitomizes the weaponization of government, yet WilmerHale claimed he “embodies the highest value of our firm and profession.” Mueller’s “investigation” upended the lives of public servants in my Administration who were summoned before “prosecutors” with the effect of interfering in their ability to fulfill the mandates of my first term agenda. This weaponization of the justice system must not be rewarded, let alone condoned.

But even if you think that the named people actually did violate any prosecutorial obligations in their behavior, it’s not up to the President to decide whether as a result these lawyers—or their law firms—should be banned from representing federal contractors (or, under unspecified circumstances, excluded from federal government buildings). We have rules, and for good reason, that (1) clients should have the right to choose which lawyers represent them, unless (2) the courts or the bar authorities (which are ultimately answerable to the courts) find that the lawyers have committed sufficiently serious misconduct.

I’ve joked that lawyers’ true superpower is the power to turn every question into a question about procedure. But there’s good sense behind the legal system’s obsession with procedure (even if at times that obsession goes too far).

We leave adjudication of claims of lawyer misconduct to the judiciary, and we have rules for how those claims are adjudicated. We don’t make the President the decisionmaker on such matters. That’s especially sensible when the President is upset with the lawyers because of their behavior in cases involving himself, or his subordinates. But it’s also true in other cases as well.

Now, to be sure, the President does have considerable authority to make some decisions about perceived lawyer misbehavior. To take the most obvious example, if he thinks the Attorney General has acted improperly, he doesn’t have to wait for a bar investigation to dismiss him. Likewise, the Executive Branch has great authority over security clearances. The questions about possible loss of security clearance for lawyers at the targeted firms are potentially harder precisely because of that.

The President may also have some authority over decisions about which lower-level lawyers to hire or fire, or which law firms to engage on the government’s behalf if the government wants private representation. Yet even that authority is constrained by the First Amendment, and probably by the various procedural rules that have been set up to protect government employees and government contractors.

And the Executive Branch doesn’t have the same employment relationship with the lawyers who represent federal contractors. The President is not allowed, I think, to just unilaterally decide that some law firms have misbehaved and therefore should be effectively barred from representing federal contractors. And, again, that is especially so when the alleged misbehavior is the firm’s taking litigation positions of which the President disapproves.

In any event, the reader asked the question, and I thought I’d offer my answer. I’d love to hear what others think as well.

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