The Justice Department has decided that the problem with the ABA’s lawsuit over the Biglaw executive orders is the lawyers bringing it.
The ABA sued the administration over the Trump administration’s campaign of executive orders — stripping disfavored firms of security clearances, federal building access, and government contracts — punishing firms for the clients they represented and the lawyers they employed. The theory isn’t just that the orders were illegal as to the firms that got them, though four of those firms went to court and beat them on that score. It’s that the whole point was the chilling effect on the profession as a whole — that nine firms cut deals worth $940 million in pro bono payola precisely because the threat worked, and that lawyers are now scared to take immigration pro bono work is further proof of a legal profession that no longer functions. Judge Amir Ali denied the government’s motion to dismiss, discovery opened, and the ABA started asking for the White House’s documents about the deals.
On Friday the administration moved to disqualify Susman Godfrey as counsel for the American Bar Association, invoking Rule 3.7 of the D.C. Rules of Professional Conduct.
This is the textbook case where the rules of professional conduct prohibiting a lawyer from serving as both advocate and witness must apply. Susman cannot serve as both advocate for the ABA and a fact witness in the same matter under Rule 3.7 of the D.C. Rules of Professional Conduct. That rule—and even the ABA’s own Model Rule 3.7—contains a bright line rule prohibiting a lawyer from serving as both advocate and fact witness in the same matter with narrow exceptions, which do not apply here.
Susman, the government continues, “is a central player—and fact witness—in this, and other litigation involving interactions between the Trump Administration and certain law firms. Disqualification is in order.”
Here’s the thing about Susman’s status as a fact witness…. it’s kinda the government’s fault.
On July 2, the department served Susman Godfrey with a third-party document subpoena demanding the firm’s communications with Boris Epshteyn, and noticed co-managing partner Kalpana Srinivasan for a deposition. Fifteen days later, it filed the subpoenas on the docket. Two days after that, it told the court that Susman is too much of a witness to keep litigating the case. Subpoena opposing counsel, then move to disqualify opposing counsel for having been subpoenaed. Checks out.
The government’s other metric is that Susman shows up in the ABA’s complaint “no fewer than 50 times” as part of the fact narrative rather than as counsel. Susman shows up in the complaint because Trump signed an executive order targeting Susman under the theory that Susman was a national security threat for donating to GLAD Law, and because Susman sued over it, and because Judge Loren AliKhan called that order a shocking abuse of power before striking it down entirely. Counting how often a targeted firm appears in a complaint about the targeting of firms is not evidence of a conflict so much as evidence the campaign happened.
It’s also worth pointing out that the Justice Department is citing “the ABA’s own Model Rule 3.7” as authority against the ABA, on behalf of an administration that has spent this term calling the ABA an illegitimate actor to be ignored in every other context. Pam Bondi cut the organization out of judicial vetting. The FTC and DOJ barred staff from its events. The administration has been going after its law school accreditation role, and the White House has publicly dismissed the group as useless and partisan when it rates a nominee unqualified. So… the ABA’s professional judgment is worthless right up until it can be pointed at the ABA’s lawyers.
The ABA’s response is due July 27, and the firm that has beaten this administration in court once already will weigh in then.
Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Bluesky @Kathryn1
The post DOJ Wants Susman Godfrey Kicked Off The ABA’s Case Because DOJ Subpoenaed Susman Godfrey appeared first on Above the Law.
The Justice Department has decided that the problem with the ABA’s lawsuit over the Biglaw executive orders is the lawyers bringing it.
The ABA sued the administration over the Trump administration’s campaign of executive orders — stripping disfavored firms of security clearances, federal building access, and government contracts — punishing firms for the clients they represented and the lawyers they employed. The theory isn’t just that the orders were illegal as to the firms that got them, though four of those firms went to court and beat them on that score. It’s that the whole point was the chilling effect on the profession as a whole — that nine firms cut deals worth $940 million in pro bono payola precisely because the threat worked, and that lawyers are now scared to take immigration pro bono work is further proof of a legal profession that no longer functions. Judge Amir Ali denied the government’s motion to dismiss, discovery opened, and the ABA started asking for the White House’s documents about the deals.
On Friday the administration moved to disqualify Susman Godfrey as counsel for the American Bar Association, invoking Rule 3.7 of the D.C. Rules of Professional Conduct.
This is the textbook case where the rules of professional conduct prohibiting a lawyer from serving as both advocate and witness must apply. Susman cannot serve as both advocate for the ABA and a fact witness in the same matter under Rule 3.7 of the D.C. Rules of Professional Conduct. That rule—and even the ABA’s own Model Rule 3.7—contains a bright line rule prohibiting a lawyer from serving as both advocate and fact witness in the same matter with narrow exceptions, which do not apply here.
Susman, the government continues, “is a central player—and fact witness—in this, and other litigation involving interactions between the Trump Administration and certain law firms. Disqualification is in order.”
Here’s the thing about Susman’s status as a fact witness…. it’s kinda the government’s fault.
On July 2, the department served Susman Godfrey with a third-party document subpoena demanding the firm’s communications with Boris Epshteyn, and noticed co-managing partner Kalpana Srinivasan for a deposition. Fifteen days later, it filed the subpoenas on the docket. Two days after that, it told the court that Susman is too much of a witness to keep litigating the case. Subpoena opposing counsel, then move to disqualify opposing counsel for having been subpoenaed. Checks out.
The government’s other metric is that Susman shows up in the ABA’s complaint “no fewer than 50 times” as part of the fact narrative rather than as counsel. Susman shows up in the complaint because Trump signed an executive order targeting Susman under the theory that Susman was a national security threat for donating to GLAD Law, and because Susman sued over it, and because Judge Loren AliKhan called that order a shocking abuse of power before striking it down entirely. Counting how often a targeted firm appears in a complaint about the targeting of firms is not evidence of a conflict so much as evidence the campaign happened.
It’s also worth pointing out that the Justice Department is citing “the ABA’s own Model Rule 3.7” as authority against the ABA, on behalf of an administration that has spent this term calling the ABA an illegitimate actor to be ignored in every other context. Pam Bondi cut the organization out of judicial vetting. The FTC and DOJ barred staff from its events. The administration has been going after its law school accreditation role, and the White House has publicly dismissed the group as useless and partisan when it rates a nominee unqualified. So… the ABA’s professional judgment is worthless right up until it can be pointed at the ABA’s lawyers.
The ABA’s response is due July 27, and the firm that has beaten this administration in court once already will weigh in then.
Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Bluesky @Kathryn1
