{"id":114011,"date":"2025-04-08T10:03:07","date_gmt":"2025-04-08T18:03:07","guid":{"rendered":"https:\/\/xira.com\/p\/2025\/04\/08\/sparring-with-ethics-guru-stephen-gillers-on-the-paul-weiss-trump-deal\/"},"modified":"2025-04-08T10:03:07","modified_gmt":"2025-04-08T18:03:07","slug":"sparring-with-ethics-guru-stephen-gillers-on-the-paul-weiss-trump-deal","status":"publish","type":"post","link":"https:\/\/xira.com\/p\/2025\/04\/08\/sparring-with-ethics-guru-stephen-gillers-on-the-paul-weiss-trump-deal\/","title":{"rendered":"Sparring With Ethics Guru Stephen Gillers On The Paul Weiss Trump Deal"},"content":{"rendered":"
\"\"
<\/figcaption><\/figure>\n

Ed. note<\/u>: Please welcome Vivia Chen back to the pages of Above the Law. Subscribe to her Substack, \u201cThe Ex-Careerist,\u201d\u00a0<\/strong>here<\/a>.<\/em><\/p>\n

YOU\u2019D BE SHOCKED at how deferential I am to my former professors (hey, I was raised to respect my teachers). But I just couldn\u2019t let ethics guru\u00a0Stephen Gillers<\/a>, my former evidence professor at New York University School of Law, get away with it.<\/p>\n

I thought what he wrote (\u201cPaul Weiss Cut a Deal with Trump \u2013 That Doesn\u2019t Mean It Caved\u201d<\/a>) for Bloomberg Law was bonkers. And I told him so (nicely, of course). Thus began a series of lively exchanges between us on Biglaw in the age of Trump.<\/p>\n

In his op-ed, Gillers calls the criticism levied against Paul Weiss for making its Trumpian bargain \u201cmisguided.\u201d The firm neither \u201ccapitulated\u201d nor \u201ccaved\u201d to the administration, he writes. \u201cWhat exactly did the firm promise?\u201d he asks, citing its pledge to uphold justice, fight antisemitism, do \u201ca wide range of pro bono,\u201d and other anodyne agreements.<\/p>\n

Those braying critics failed to analyze the actual terms, Gillers contends. If they had done so, they\u2019d realize it\u2019s all a big nothing. And, considering that the firm ensured its survival by making the deal, the benefits clearly outweighed the costs.<\/p>\n

Coming from one of the nation\u2019s top legal ethicists, it was a bit jarring<\/strong>. Sure, Paul Weiss\u2019s promises to the administration might be facially unobjectionable, but isn\u2019t that missing the bigger picture?<\/p>\n

Gillers\u2019s problem is that he views the deal through a lawyer\u2019s lens. He\u2019s fixated on the quality of the draftsmanship \u2013 as if that\u2019s what\u2019s at stake. The White House and Paul Weiss released separate, sometimes differing, versions of the agreement, he writes, noting that both were \u201cvague and poorly drafted.\u201d<\/p>\n

He also rails against the imprecise terms used in the agreement, such as Paul Weiss\u2019s promise to take on \u201cpro bono matters that represent the full spectrum of political viewpoints.\u201d He queries: \u201cWhat does it mean to say that a legal \u2018matter\u2019 \u2013 not a person, mind you \u2013 represents a \u2018political viewpoint?\u2019\u201d All this, he concludes, is \u201cfurther proof of inept drafting and the insignificance of the restriction.\u201d<\/p>\n

At this point, I was rolling my eyes.<\/p>\n

So I sent my former professor an email, telling him my objections:<\/p>\n

\n

Isn\u2019t it myopic to look at the agreement as just another badly drafted contract that left the firm a lot of wiggle room? The symbolism of getting Paul Weiss to agree to Trump\u2019s terms is huge \u2013 the propaganda value is immense, sending a message to other firms that it\u2019s futile to resist. And do you really believe the firm won\u2019t feel constrained about the kind of pro bono it takes on just because nothing is explicitly listed as verboten?<\/p>\n<\/blockquote>\n

I concluded: \u201cI think you\u2019re falling into the trap that many Democrats do \u2013 looking at dealings with Trump legalistically, as if that still has meaning. We\u2019re in a different world now.\u201d<\/p>\n

Always the law professor, Gillers shot a question back at me<\/strong>: \u201cAssume that [Paul Weiss chair Brad] Karp had good reason to fear that the order\u2019s sanctions could bring down the firm as it exists, what would your response be? Or do you think the improbability of that is so great that we should reject Karp\u2019s prediction as unworthy of consideration even if honestly made?\u201d<\/p>\n

I replied that the term, \u201cbring down the firm,\u201d needs defining: does it mean that Paul Weiss might lose its position as one of the most profitable firms in the country (it had the fifth highest profit per partner last year)? Or that it will cease to exist?<\/p>\n

Then Gillers went full law professor on me with a long hypothetical:<\/p>\n

\n

Let\u2019s treat it as a mind game. Assume that if the firm continued to fight, there is an X percent chance that in six months, it would lose its corporate practice and would shrink from 1000 lawyers and a non-lawyer staff of 1500 to 200 lawyers and a staff of 300. Everyone else would lose their jobs. Assume to that its practice would then become mainly litigation. Assume all this is true and the only question is what X is.<\/p>\n

Assume now that X is the product of state of the art computer analysis, individual statistical analysis by those most knowledgeable about the law market, and the best available artificial intelligence.<\/p>\n

The rule for mind games is that you cannot fight the hypothetical. There is a number for X.<\/p>\n

So the question for you is: is there any number for X at the time that the firm had to decide how to respond that would cause you to support the firm\u2019s decision to settle as it did? Or at least cause you not to criticize it? Or, conversely, would you criticize the firm (or support those who do) even if X were 100 \u2014 that is, certainty?<\/p>\n<\/blockquote>\n

I hate, hate hypotheticals!\u00a0<\/strong>Suddenly, I\u2019m reliving my 1-L nightmare \u2013 the time I got called on in criminal law and froze.<\/p>\n

Decades later, I\u2019m not quite as easily intimidated: \u201cThere\u2019s no number for X that would change my mind,\u201d I replied to Gillers. \u201cThe moral imperative trumps the economic considerations,\u201d which is particularly true for Paul Weiss, I added, given its standing in the profession.<\/p>\n

That\u2019s how we left it: To me, a firm like Paul Weiss has greater societal obligations, while Gillers takes a much more circumscribed view.<\/p>\n

But a week or so later, the list of major law firms capitulating to Trump started to grow. (As of this writing,\u00a0Skadden Arps<\/a>, Willkie Farr, and Milbank Tweed have each pledged $100 million to Trump\u2019s pro bono slush fund, and Kirkland & Ellis is reportedly in talks with the administration.)<\/p>\n

So I went back to Gillers for a temperature check. Does he believe that those $100 million pledges are all justifiable in the name of \u201csaving\u201d the firm? Or should we be alarmed about how compromised the profession has become in the Trump era?<\/p>\n

Gillers is waking up and smelling the coffee<\/strong>\u00a0(or the rot)!<\/strong>\u00a0Though he had discounted the significance of Paul Weiss\u2019s agreement with Trump because of poor drafting, he\u2019s now taking an opposite view. \u201cTroubling to me at the moment is how vague many of the firm promises are,\u201d Gillers emailed me. \u201cWhile that may seem a benefit to the firms \u2026 it also allows Trump to come back later and say that you haven\u2019t lived up to your bargain so I am reinstating the executive order.\u201d<\/p>\n

Gillers raised other new concerns. \u201cAlso troubling to me is the very idea that Trump can get these promises from law firms by using the executive order threat,\u201d he continued. \u201cThis is troubling even if a promise describes conduct that the law firm is already doing; I fear a precedent that recognizes the power of the president or government to exact promises, even those the firm supports, let alone those it does not.\u201d<\/p>\n

Bingo! Isn\u2019t that the kind of alarms many of us have been raising?<\/p>\n

So has Gillers evolved in his thinking?<\/p>\n

\u201cI am not prepared to join the condemnation chorus against firms that, knowing their particular situation better than I do, decided for now to reach an agreement,\u201d he responded. But he added, \u201cthis is a moving target, and I suspect that my views may move along with it.\u201d<\/p>\n

It might take a while, but I\u2019m going to win this one, Professor Gillers.<\/p>\n

Subscribe to read more at The Ex-Careerist\u2026.<\/em><\/a><\/p>\n

\n

Vivia Chen\u00a0writes\u00a0\u201cThe Ex-Careerist\u201d<\/a>\u00a0column on Substack where she unleashes her unvarnished views about the intersection of work, life, and politics. A former lawyer, she was an opinion columnist at Bloomberg Law and The American Lawyer. Subscribe to her Substack by clicking here:<\/em><\/strong><\/p>\n

\"\"<\/a><\/figure>\n

The post Sparring With Ethics Guru Stephen Gillers On The Paul Weiss Trump Deal<\/a> appeared first on Above the Law<\/a>.<\/p>\n

\"\"
<\/figcaption><\/figure>\n

Ed. note<\/u>: Please welcome Vivia Chen back to the pages of Above the Law. Subscribe to her Substack, \u201cThe Ex-Careerist,\u201dhere<\/a>.<\/em><\/p>\n

YOU\u2019D BE SHOCKED at how deferential I am to my former professors (hey, I was raised to respect my teachers). But I just couldn\u2019t let ethics guru\u00a0Stephen Gillers<\/a>, my former evidence professor at New York University School of Law, get away with it.<\/p>\n

I thought what he wrote (\u201cPaul Weiss Cut a Deal with Trump \u2013 That Doesn\u2019t Mean It Caved\u201d<\/a>) for Bloomberg Law was bonkers. And I told him so (nicely, of course). Thus began a series of lively exchanges between us on Biglaw in the age of Trump.<\/p>\n

In his op-ed, Gillers calls the criticism levied against Paul Weiss for making its Trumpian bargain \u201cmisguided.\u201d The firm neither \u201ccapitulated\u201d nor \u201ccaved\u201d to the administration, he writes. \u201cWhat exactly did the firm promise?\u201d he asks, citing its pledge to uphold justice, fight antisemitism, do \u201ca wide range of pro bono,\u201d and other anodyne agreements.<\/p>\n

Those braying critics failed to analyze the actual terms, Gillers contends. If they had done so, they\u2019d realize it\u2019s all a big nothing. And, considering that the firm ensured its survival by making the deal, the benefits clearly outweighed the costs.<\/p>\n

Coming from one of the nation\u2019s top legal ethicists, it was a bit jarring<\/strong>. Sure, Paul Weiss\u2019s promises to the administration might be facially unobjectionable, but isn\u2019t that missing the bigger picture?<\/p>\n

Gillers\u2019s problem is that he views the deal through a lawyer\u2019s lens. He\u2019s fixated on the quality of the draftsmanship \u2013 as if that\u2019s what\u2019s at stake. The White House and Paul Weiss released separate, sometimes differing, versions of the agreement, he writes, noting that both were \u201cvague and poorly drafted.\u201d<\/p>\n

He also rails against the imprecise terms used in the agreement, such as Paul Weiss\u2019s promise to take on \u201cpro bono matters that represent the full spectrum of political viewpoints.\u201d He queries: \u201cWhat does it mean to say that a legal \u2018matter\u2019 \u2013 not a person, mind you \u2013 represents a \u2018political viewpoint?\u2019\u201d All this, he concludes, is \u201cfurther proof of inept drafting and the insignificance of the restriction.\u201d<\/p>\n

At this point, I was rolling my eyes.<\/p>\n

So I sent my former professor an email, telling him my objections:<\/p>\n

\n

Isn\u2019t it myopic to look at the agreement as just another badly drafted contract that left the firm a lot of wiggle room? The symbolism of getting Paul Weiss to agree to Trump\u2019s terms is huge \u2013 the propaganda value is immense, sending a message to other firms that it\u2019s futile to resist. And do you really believe the firm won\u2019t feel constrained about the kind of pro bono it takes on just because nothing is explicitly listed as verboten?<\/p>\n<\/blockquote>\n

I concluded: \u201cI think you\u2019re falling into the trap that many Democrats do \u2013 looking at dealings with Trump legalistically, as if that still has meaning. We\u2019re in a different world now.\u201d<\/p>\n

Always the law professor, Gillers shot a question back at me<\/strong>: \u201cAssume that [Paul Weiss chair Brad] Karp had good reason to fear that the order\u2019s sanctions could bring down the firm as it exists, what would your response be? Or do you think the improbability of that is so great that we should reject Karp\u2019s prediction as unworthy of consideration even if honestly made?\u201d<\/p>\n

I replied that the term, \u201cbring down the firm,\u201d needs defining: does it mean that Paul Weiss might lose its position as one of the most profitable firms in the country (it had the fifth highest profit per partner last year)? Or that it will cease to exist?<\/p>\n

Then Gillers went full law professor on me with a long hypothetical:<\/p>\n

\n

Let\u2019s treat it as a mind game. Assume that if the firm continued to fight, there is an X percent chance that in six months, it would lose its corporate practice and would shrink from 1000 lawyers and a non-lawyer staff of 1500 to 200 lawyers and a staff of 300. Everyone else would lose their jobs. Assume to that its practice would then become mainly litigation. Assume all this is true and the only question is what X is.<\/p>\n

Assume now that X is the product of state of the art computer analysis, individual statistical analysis by those most knowledgeable about the law market, and the best available artificial intelligence.<\/p>\n

The rule for mind games is that you cannot fight the hypothetical. There is a number for X.<\/p>\n

So the question for you is: is there any number for X at the time that the firm had to decide how to respond that would cause you to support the firm\u2019s decision to settle as it did? Or at least cause you not to criticize it? Or, conversely, would you criticize the firm (or support those who do) even if X were 100 \u2014 that is, certainty?<\/p>\n<\/blockquote>\n

I hate, hate hypotheticals!\u00a0<\/strong>Suddenly, I\u2019m reliving my 1-L nightmare \u2013 the time I got called on in criminal law and froze.<\/p>\n

Decades later, I\u2019m not quite as easily intimidated: \u201cThere\u2019s no number for X that would change my mind,\u201d I replied to Gillers. \u201cThe moral imperative trumps the economic considerations,\u201d which is particularly true for Paul Weiss, I added, given its standing in the profession.<\/p>\n

That\u2019s how we left it: To me, a firm like Paul Weiss has greater societal obligations, while Gillers takes a much more circumscribed view.<\/p>\n

But a week or so later, the list of major law firms capitulating to Trump started to grow. (As of this writing,\u00a0Skadden Arps<\/a>, Willkie Farr, and Milbank Tweed have each pledged $100 million to Trump\u2019s pro bono slush fund, and Kirkland & Ellis is reportedly in talks with the administration.)<\/p>\n

So I went back to Gillers for a temperature check. Does he believe that those $100 million pledges are all justifiable in the name of \u201csaving\u201d the firm? Or should we be alarmed about how compromised the profession has become in the Trump era?<\/p>\n

Gillers is waking up and smelling the coffee<\/strong>\u00a0(or the rot)!<\/strong>\u00a0Though he had discounted the significance of Paul Weiss\u2019s agreement with Trump because of poor drafting, he\u2019s now taking an opposite view. \u201cTroubling to me at the moment is how vague many of the firm promises are,\u201d Gillers emailed me. \u201cWhile that may seem a benefit to the firms \u2026 it also allows Trump to come back later and say that you haven\u2019t lived up to your bargain so I am reinstating the executive order.\u201d<\/p>\n

Gillers raised other new concerns. \u201cAlso troubling to me is the very idea that Trump can get these promises from law firms by using the executive order threat,\u201d he continued. \u201cThis is troubling even if a promise describes conduct that the law firm is already doing; I fear a precedent that recognizes the power of the president or government to exact promises, even those the firm supports, let alone those it does not.\u201d<\/p>\n

Bingo! Isn\u2019t that the kind of alarms many of us have been raising?<\/p>\n

So has Gillers evolved in his thinking?<\/p>\n

\u201cI am not prepared to join the condemnation chorus against firms that, knowing their particular situation better than I do, decided for now to reach an agreement,\u201d he responded. But he added, \u201cthis is a moving target, and I suspect that my views may move along with it.\u201d<\/p>\n

It might take a while, but I\u2019m going to win this one, Professor Gillers.<\/p>\n

Subscribe to read more at The Ex-Careerist\u2026.<\/em><\/a><\/p>\n

\n

Vivia Chen\u00a0writes\u00a0\u201cThe Ex-Careerist\u201d<\/a>\u00a0column on Substack where she unleashes her unvarnished views about the intersection of work, life, and politics. A former lawyer, she was an opinion columnist at Bloomberg Law and The American Lawyer. Subscribe to her Substack by clicking here:<\/em><\/strong><\/p>\n

\"\"<\/a><\/figure>\n","protected":false},"excerpt":{"rendered":"

Ed. note: Please welcome Vivia Chen back to the pages of Above the Law. Subscribe to her Substack, \u201cThe Ex-Careerist,\u201d\u00a0here. YOU\u2019D BE SHOCKED at how deferential I am to my former professors (hey, I was raised to respect my teachers). But I just couldn\u2019t let ethics guru\u00a0Stephen Gillers, my former evidence professor at New York […]<\/p>\n","protected":false},"author":3,"featured_media":113988,"comment_status":"","ping_status":"","sticky":false,"template":"","format":"standard","meta":{"_et_pb_use_builder":"","_et_pb_old_content":"","_et_gb_content_width":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16],"tags":[],"class_list":["post-114011","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-above_the_law"],"jetpack_featured_media_url":"https:\/\/i0.wp.com\/xira.com\/p\/wp-content\/uploads\/2025\/04\/Vivia-Chen-Ex-Careerist-xHMyRO.webp?fit=286%2C72&ssl=1","jetpack_sharing_enabled":true,"_links":{"self":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/114011","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/comments?post=114011"}],"version-history":[{"count":0,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/posts\/114011\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media\/113988"}],"wp:attachment":[{"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/media?parent=114011"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/categories?post=114011"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/xira.com\/p\/wp-json\/wp\/v2\/tags?post=114011"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}