Well, well, well. When Biglaw firms started swearing fealty to the Trump administration, the justifications their defenders offered fell into two major buckets. First, that the millions of dollars in pro bono payola they put on the table would be feel good charity work for the benefit of, to quote them at the time, “a wide range of underserved populations.” Those of us who were not born yesterday recognized this as very stupid, and were quickly rewarded for our basic common sense. We now know the administration sees the pro bono obligation as more of a “representing cops in excessive force cases when they kill unarmed Black kids” thing.
Potato, po-tah-to.
The other excuse was that a firm finding itself cross-wise with the administration would get roasted alive as clients bolt for competitors who aren’t facing government retaliation. We predicted the opposite at the time, expecting many clients to reject firms showing their belly to Trump. If a firm is willing to throw itself under the bus at the first sign of illegal government pressure, how can they be trusted to stand up for a client? What level of comfort can you have with firms hemorrhaging talent? Maybe more fundamentally, as Trump careens into historic unfavorables, what business wants the negative stigma of affiliation with these firms?
Simpson Thacher joined the ranks of surrendering firms a couple weeks ago. Now it enters the “find out” phase that follows fucking around like night follows day. From Noam Scheiber over at the NY Times:
On April 22, several attorneys at the law firm Simpson Thacher & Bartlett informed the Delaware Court of Chancery that they would no longer be representing Microsoft in a case related to the company’s 2023 acquisition of the video game giant Activision Blizzard, according to court filings.
Simpson Thacher reached a deal with the White House last month in which the firm committed to perform $125 million in free legal work for causes acceptable to the Trump administration. In a joint statement with other firms making similar agreements, Simpson Thacher said the pro bono work would be on behalf of “a wide range of underserved populations.”
On the same day that the Simpson Thacher lawyers filed paperwork withdrawing from the Microsoft case, at least three partners at the firm Jenner & Block informed the court that they would be representing Microsoft in the case. Jenner is fighting in court to permanently block a Trump administration executive order targeting its business.
One of the most powerful companies in America just dumped a key case out of the hands of Simpson — a firm touting a $125 million pro bono deal with the administration — and handed it over to Jenner & Block — a firm actively suing and routinely defeating the administration.
That seems… significant.
Officially, nobody’s talking. Microsoft declined to comment, Simpson ghosted reporters, and Jenner is wisely staying classy. Indeed, if anyone involved were willing to talk, they would surely describe this as a routine decision. But in this moment, with this switch, from that firm to that firm? Please. If you believe this is just business as usual, I’ve got a $125 million “pro bono” pledge to sell you.
Microsoft is a sophisticated entity and it fully understood the ramifications of switching from Simpson to Jenner. Even if they came out tomorrow and said they only made the switch because Jenner offered them a “bill 9 hours, get the 10th free” deal or something, Microsoft would realize that everyone would clock a docket entry like this. If they didn’t want this signal out there, they could’ve added another firm to the team without actually firing Simpson. Or if they were going to replace Simpson, they could’ve chosen another collaborator or one of the many, many, many firms staying alarmingly silent about Trump’s attacks on the profession.
Instead, they made the Simpson-Jenner issue a zero-sum equation for everyone to see.
This is a huge public domino to fall, but it’s unlikely the last. The bet Simpson and others made that playing nice with Trump would keep clients from fleeing always looked dubious, but now we have some data. Turns out, some clients don’t want a firm that makes deals with authoritarians. They want a firm that’ll fight them.
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.