Corporate General Counsel Weigh In on Executive Order Aimed at Law Firm

A group of former general counsel from major corporations filed an amicus brief in support of litigation challenging a Trump administration executive order (EO) that targets the Perkins Coie law firm for representing certain clients and maintaining a DEI program.

Why it matters: The amicus brief is the first to specifically highlight the EO’s potential harm to American business and the potential extension to other service providers. The DC federal district court issued a temporary restraining order in March preventing implementation of the EO pending review on the merits.

What they’re saying: The amicus brief highlights an array of harms corporations will experience if their ability to work with outside counsel of choice is infringed. They warn that the government’s retaliatory actions against law firms “hijacks a corporation’s relationship with outside counsel,” violates companies’ First Amendment rights, and will cause lasting harm to American business.

Corporate use of outside counsel: The brief underscores that “effective corporate governance depends on the ability to select and maintain a relationship with outside counsel based on expertise, trust, and proven performance,” especially in light of highly specialized areas where there is limited qualified counsel.

• If the EO is upheld, “…corporate leaders must now assess not just the skill, expertise and trust they have in counsel, but also whether those lawyers work at law firms that the President may seek to discredit or destroy,” a situation that imposes “severe practical costs on American business” that need to change counsel.

Punishments including cancelled government contracts: Among other things, the executive order requires agencies to “terminate any contract, to the maximum extent permitted by applicable law…for which Perkins Coie has been hired to perform any service.”

• Calling the executive order “a dangerous precedent for future administrations,” Amici highlighted the likely expansion of this activity if the courts do not strike down the Order. 

• “If the government may terminate a company’s contracts for hiring a disfavored law firm, what prevents retaliation against the same company for any other protected activities the President alone may deem ‘dishonest and dangerous’?”

What’s next: The federal district court decision on the merits will occur after all court filings are submitted to the court by the third week of April. The decision marks the first step in the legal process to define the parameters of presidential power.