Bullying behaviors can take many forms and can come from many levels. Their common elements are that they target individuals or specific groups, in a negative or punitive fashion, through the misuse of power. Those on the receiving end of bullying behaviors may have limited options, depending on the circumstances. What they need most are allies – individuals or groups who will stand with them or call out the inappropriateness of the behavior.

Thus far a select handful of large national law firms, seemingly powerful institutions in their own right, have found themselves individual targets of a series of executive orders.  One by one, the President of the United States has used the full weight of that office to call out and punish these law firms, and select attorneys who currently or formerly worked at them, for actions taken against him or others associated with him.

Option 1: Report

Three firms have fought back in court, and temporary orders have been granted stopping application of provisions in the executive orders.  Reporting bullying behavior and seeking redress can be an effective response.  That response is more helpful when allies speak up on behalf of those targeted.

Many bar associations and individual, small firm lawyers have spoken up to condemn the president’s actions.  The absent voice of other large law firms is a deafening silence.  It feeds and empowers further bullying behaviors.

Option 2: Conciliate

Two other law firms have taken a conciliatory approach. Paul Weiss negotiated a settlement with the administration, and the executive order issued against it was retracted a week after its issuance. Skadden Arps anticipated what was coming and approached the administration to reach a peremptory agreement.  Both firms have reportedly agreed:

• to affirm a commitment to merit-based hiring, promotion and retention;
• not to discriminate in their diversity, equity, and inclusion policies and practices;
• not to deny representation to clients based on political views of individual lawyers; and
• to dedicate tens of millions of dollars to pro bono legal services to support causes that include assisting veterans, ensuring fairness in the justice system, and combatting antisemitism.

At first blush, the actions taken by Paul Weiss and Skadden Arps are concerning as a seeming capitulation.  Alternatively, they may be understood as a form of diplomacy in response to a hostile party, engaging in dialogue with a bully to achieve a tolerable outcome.

Terms of the Deals

The executive order of retraction issued with respect to Paul Weiss states that the firm “acknowledged the wrongdoing” of one former partner, without any greater specificity, and it “agreed to a number of policy changes to promote equality, justice, and the principles that keep our Nation strong.”  With the exception of assigning a specific price tag to its pro bono commitment, it is unlikely that any of the affirmative requirements under the executive order present a material change from the firm’s existing stated policies.  While less detail has been made public regarding the Skadden agreement, its terms also likely align with existing firm policies.

What may be changing at these firms is the way in which they effectuate their written policies – the practical application of their commitment to consider individual merit.  Those changes, however, are already underway at law firms and countless other organizations throughout the United States as the new administration has made clear its intense hostility to the concept of diversity, equity, and inclusion, and particularly any suggestion of preferences for women or minorities.

Why Give In?

Neither of the law firms are saying much publicly about their approach.  The public protests against these firms, both in person outside their offices and online in the sphere of social media, suggest that actions therefore are being judged based on assumptions, without questioning the reasoning.

But we should be asking questions, to understand why these firms chose not to fight, and what they learned about themselves and the administration’s true objectives in the process:

• Are these executive orders really just about settling scores and personal vendettas?
  • If so, then why would both law firm agreements involve actions that relate to equity for all (including white men), in terms of client representation, hiring and promotion practices, and pro bono initiatives?
• Did these law firms adjust their practices subsequent to the Supreme Court’s June 2023 decisions on race-based affirmative action in college admissions, or were they offering internship, mentoring, and other initiatives exclusively to individuals who fell in certain racial or gender categories?
• How have the law firms been selecting their pro bono cases?
• Did the firms conclude there were areas in which they were legally vulnerable in terms of their actual practices?
• Or did they simply decide that the time, resources, and ongoing publicity of a battle against the administration were not worthwhile relative to the short-term public relations hit of reaching an agreement on terms they could accept?

When we do not ask these questions, and operate under assumptions, we invite misunderstandings that can further the ruptures in our society.

How Do We Move On?

Reasonable minds certainly differ and only time will tell whether the executive orders in March are the start of a new, more widespread trend.  Sometimes bullying behaviors are just intended to test the limits of an individual’s power – when, where, and how there will be pushback – and once determined, the bully will resume more socially normative behavior, at least for a period of time.  In other circumstances, conciliation may be viewed as capitulation, and embolden further bullying behavior.

In the DEI sphere, the past several weeks have felt like a ping pong match, with repeatedly changing legal obligations, as different courts have weighed in on executive orders issued in the first days of the new Trump administration.  In some respects, the new executive orders targeting law firms are yet another element of that same multi-pronged DEI attack.

In the broader sphere of employment law, as with other areas of federal regulation, we have experienced successive presidential administrations over the past nearly two decades wielding the authority of executive orders, regulations, and agency guidance in a game of shifting priorities.  Positions taken by the National Labor Relations Board have notoriously fluctuated with the political winds, but so too, in more recent years, have pronouncements from the Equal Employment Opportunity Commission, the Department of Labor, the Office of Federal Contract Compliance Programs, and the Federal Trade Commission.  Requirements related to wages, worker classification, hiring practices and restrictions, and workplace training, among others, repeatedly fluctuate.  It has been good news for the business of employment law, but immensely frustrating for any employer that just wants to follow the rules.

It is wearying to contemplate the continuation of this approach in future administrations.  Rule by administrative fiat is not how our federal legal system was intended to operate.

We Need to Listen

Perhaps what we need is an alternative approach centered in diplomacy – an approach that centers around listening to the concerns of those who do not share our perspective and trying to find common ground.  We need more people who are willing to look beyond inflammatory rhetoric, and refrain from matching like with like, to offer a more measured response.  We need to take the temperature down – everywhere – to focus on achieving our common goals of a productive society.

Maybe Paul Weiss and Skadden did capitulate, and maybe they have sounded the death-knell for weeks upon weeks of additional executive orders attacking employers in wide-ranging industries.  Or perhaps they took the first steps toward an alternative approach of reaching negotiated agreements that enable everyone to move on.

By Tracey I. Levy