Practicing law, practicing Belonging, & trust
I recently flashed back to a memory from 40 years ago. I was sitting in my old law firm’s main conference room with my fellow brand-new lawyers, listening to senior partner Jim Borthwick present to us on The History & Culture of the Firm. Among other lessons, Jim told us:
When you office a new case, you’ll ask around to see if anyone knows the lawyer on the other side. Then you’ll ask the most important question of all: “Can I trust them?”
Jim’s point was that how we behaved as lawyers would congeal into our reputation, and once that happened, it would be all but impossible to change. And central to our reputations would be whether we can be trusted.
Effective law practice requires trust. And when that trust is broken, bad things happen. I was reminded of this by the U.S. Supreme Court’s emergency order of April 19, 2025, in A.A.R.P. v. Trump. Under the Supreme Court’s terse order, issued at 12:52 AM Eastern Time, “[t]he Government is directed not to remove any member of the putative class of detainees from the United States until further order of this Court.” It wasn’t until the Supreme Court’s subsequent Per Curiam order of May 15, 2025 that we got the rest of the story:
We understood the Government to assert the right to remove the detainees as soon as midnight central time on April 19. The Government addressed the detainees’ allegations on April 18 only at an evening hearing before the District Court for the District of Columbia, where the detainees had separately sought relief. The Government guaranteed that no putative class members would be removed that day. But it further represented that, in its view, removal of putative class members as soon as the next day “would be consistent with” its due process obligations, and it “reserve[d] the right” to take such action. Evidence now in the record (although not all before us on April 18) suggests that the Government had in fact taken steps on the afternoon of April 18 toward removing detainees under the AEA [Alien Enemies Act] – including transporting them from their detention facility to an airport and later returning them to the facility. Had the detainees been removed from the United States to the custody of a foreign sovereign on April 19, the Government may have argued, as it has previously argued, that no U. S. court had jurisdiction to order relief.
A.A.R.P v. DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, No. 24A1007, slip op. at 2 (U.S. May 15, 2025)(cleaned up, emphasis added).
What’s striking is that it is unclear whether the Supreme Court actually had jurisdiction over this case when it issued its emergency order in the early morning of April 19, as the case remained at that time before the Fifth Circuit Court of Appeals. Reading between the lines, it appears that the Supreme Court of the United States (or seven justices, including the three appointed by President Trump) simply did not trust that the Administration would let the judicial system ensure the deportees received constitutionally-required due process. And if that loss of trust and the exigent circumstances compelled the Court to bend its normal procedures by issuing a middle-of-the-night emergency order with murky jurisdiction, then so be it. Such a loss of trust is truly remarkable.
Trust is equally essential to professional belonging. We can see this playing out in how various law firms have responded to the Administration’s demands that the targeted firms, among other matters, abandon their diversity, equity, and inclusion efforts. Those firms that have rebuffed this Hobson’s choice have thus far won in court. In his May 27 decision granting summary judgment for WilmerHale and permanently enjoining the Administration, Senior U.S. District Judge Richard J. Leon of the District of Columbia singlehandedly depleted our national stockpile of exclamation points. An excerpt:
The cornerstone of the American system of justice is an independent judiciary and an independent bar willing to tackle unpopular cases, however daunting. The Founding Fathers knew this! Accordingly, they took pains to enshrine in the Constitution certain rights that would serve as the foundation for that independence. Little wonder that in the nearly 250 years since the Constitution was adopted no Executive Order has been issued challenging these fundamental rights. Now, however, several Executive Orders have been issued directly challenging these rights and that independence. One of these Orders is the subject of this case. For the reasons set forth below, I have concluded that this Order must be struck down in its entirety as unconstitutional. Indeed, to rule otherwise would be unfaithful to the judgment and vision of the Founding Fathers!
In contrast, the firms that have bent the knee may have avoided a battle, but are not safe from the war. Those firms now find themselves exposed to wholly new demands for their pro bono work, such as handling tariff negotiations and representing coal companies. And if my use of GoT’s “bend the knee” seems a bit overblown here:
Karoline Leavitt, the White House press secretary, said in a statement that “Big Law continues to bend the knee to President Trump because they know they were wrong, and he looks forward to putting their pro bono legal concessions toward implementing his America First agenda.”
https://www.nytimes.com/2025/04/09/us/politics/trump-law-firms-orders.html
The settling firms face another, long-term cost – damage to their reputations. At first, departing associates made public their loss of trust in these firms’ values. Now we are seeing early signs of departing partners.
In this blog:
Belonging is your sense that you are part of something greater than yourself that you value and need and that values and needs you back; it cannot be achieved without factoring in social identity and use and misuse of power.
And Practicing Belonging means the specific things that law firms, practice groups, and partners actively do to build, or detract from, different lawyers’ sense of Belonging.
It follows that, to truly belong at their law firm, lawyers must trust that their firm values and needs them back, and will remain true to its values, including the firm’s commitment to diversity, equity, and inclusion. The foundation of that kind of trust is not and never will be fancy words on a firm’s website, or some DEI statement. A firm’s history is what it has done. Its culture is what it does now, and can be trusted to do going forward. Culture of course can evolve, but it remains grounded in the context of history. And a firm’s culture is forged out of its actions, not its verbiage.
I think this is why I flashed back to Jim Borthwick’s advice from four decades ago. The U.S. Supreme Court is asking itself “can we trust the Administration?” Lawyers at firms targeted by the Administration are asking themselves “can I trust my law firm?” The answers will come from actions, not words. And we’re all watching.