In an effort to keep piling indignity upon the legacy of the Department of Justice, Deputy Attorney General (and apparently Librarian of Congress somehow?) Todd Blanche just unveiled a policy redefining “conflict of interest” to mean “dared to sue us” — directing that the Justice Department’s “private counsel” program can no longer hire any firm that “contemporaneously are directly adverse to the United States — for example, active litigation against Administration policies or representing clients in active litigation against Administration policies.”
The edict cites the Model Rules, which do identify as a conflict, “the representation of one client will be directly adverse to another client.” Though since representing a law firm challenging an executive order has no substantive connection to helping the civil division collect debts — the point of the private counsel program — the announcement stretches the interpretation of “conflict” like flubber.
Since this isn’t really about ethics but empty symbolic retribution, it totally tracks.
There are around 20 Am Law 200 firms currently tussling with the government by the National Law Journal’s reckoning. That includes firms targeted by Trump executive orders that had the self-respect not to surrender, the firms representing those firms, as well as the firms representing the wrongfully deported or Harvard or people illegally fired by a ketamine-fueled idiot with a dubious special appointment.
Any firm already litigating against the administration had to expect this. The White House isn’t subtle about rule by vendetta. But it’s not so much deterring the current crop of firms opposing Trump. Draping itself in the legitimacy of the same ABA it’s relentlessly trashing, the DOJ announcement aspires to chill any future firm from taking a case against the administration by threatening to lock them out like a college grad at a Matt Gaetz party.
Except… who cares? The flipside of running an administration built on illegal retaliation is that it creates enough potential business to more than offset losing out on any private counsel work the DOJ might throw that way. When Trump closes a door, he opens several more and they all lead into courtrooms.
Does anyone actually think we’ve seen the end of law firms slapped with vindictive executive orders or universities receiving funding threats? There’s going to be work everywhere. This is like the living embodiment of the Jeremy Clarkson meme:
The only practical effect of this decision is leaving the DOJ without anyone trying to take on private counsel business. Maybe they can use some of that billion dollars worth of pro bono payola they’ve racked up.
Oh, sorry, that cowardly crop of Biglaw firms didn’t really agree to do work for the administration. Wink wink!
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.
