The Legal Profession Is Still Under Attack—Silence Is Not an Option

On May 14, the D.C. Circuit Court will hear arguments in one of the most significant cases on the independence of the legal profession. In Perkins Coie LLP v. U.S. Department of Justice, the court will hear an appeal of an order by Judge Beryl Howell of the D.C. District Court striking down the executive order (EO) issued by Mr. Trump on March 6, 2025, only seven weeks into his second term.

The order required that the security clearances of any person employed at this law firm be revoked; that the supply of any materials and services provided to the firm by the government, such as secure information facilities, cease; that government contractors should cease doing business with the law firm and should end contracts with companies that do business with the law firm; federal agencies investigate the law firm for violations of equal employment opportunities for adopting DEI (diversity, equity, and inclusion) policies; federal agencies be barred from hiring attorneys who work at the firm; and firm’s attorneys be limited from entering federal buildings.

In a thorough, lengthy, and careful opinion, Judge Howell found that this order violated the firm’s First Amendment rights in three ways: (1) the order amounted to retaliation against the firm for protected activity such as representing political opponents of Mr. Trump; (2) challenging efforts to suppress voting rights; and (3) engaging in constitutionally-protected public advocacy.

She also found that the firm was targeted because of the viewpoint it expressed through its legal work. Finally, she concluded that the order violated the firm’s right to free association—by penalizing contractors who associated with the law firm—and by restricting the firm’s right to “petition” the government by bringing litigation disfavored by the Trump administration.

Judge Howell went on to find that the EO violated the firm’s right to due process under the Fifth Amendment, as it blacklisted the firm from working with federal agencies and contractors, and stripped the attorneys of security clearances and access to federal buildings without notice, or a hearing before a neutral decision maker. She also found that the order violated the Sixth Amendment rights of the firm’s clients, by depriving them of counsel of their choice.

Judge Howell recognized that independent lawyers have long been recognized as ensuring that the Americal judicial system administers fair and impartial justice. Judges can only respond to cases brought by lawyers. The United States Supreme Court has embraced the need for the independence of the bar by noting that “[e]liminating lawyers as the guardians of the rule of law removes a major impediment to the path to more power.” She also cited Alexis de Tocqueville, who noted that “the authority... intrusted to members of the legal profession... is the most powerful existing security against the excesses of democracy.

I am hopeful that the panel of the D.C. Circuit hearing the appeal will agree with Judge Howell. In its brief appealing her order, the government focused solely on threshold issues such as justiciability (with respect to security clearances), ripeness (not all of the threatened actions had yet taken effect), government’s right to claim protected speech, and severability if the court were to conclude that the obvious retaliatory purpose language in the preamble to the order had to be stricken, the actions of the order could still survive. But the government never defended the president’s actions on the merits.

Should the appellate court agree with the district court, the real risk is if the government decides to appeal to the Supreme Court. Given that court’s recent decisions it is hard to predict how it would rule, even on a case where the merits so obviously favor the law firms rather than the president.

Which brings me, finally, to the Principles Governing the Independence of the Legal Profession, a project spearheaded by several former federal judges who are members of the Article III coalition, a subsidiary of Keep Our Republic, an organization dedicated to protecting democracy and the rule of law.

The six principles are short and direct. Drafted in response to these unconstitutional attacks on professional independence, they urge all members of the bar, bar associations, and in house counsel to adopt the Principles as an easy, but very important first step, in defending the independence of their profession. The six principles spell out how to do exactly that. Here is the short version of the principles:

1. Practice law free from government coercion or retaliation for protected First Amendment activity including representing clients and all of their claims (including suits against the government) donating to causes of concern, expressing beliefs regarding the value of equal opportunity.

2. Adhere to the Rules of Professional Conduct including the duty to represent clients on the issues on which they seek representation.

3. Provide legal services to those in need (either directly or to an organization that a firm might assist). Protect the rule of law safe from government interference. Provide equal access to justice.

4. Maintain public confidence in the actual and perceived integrity of the legal process.

5. Encourage others to support these principles including clients (i.e. businesses), bar associations, federal and state governments

6. Refuse to accept representation where a condition of doing so would violate any of these principles.

As of today, over 800 individual attorneys, over 70 former judges, 35 organizations, including the New York County Lawyers Association and the New York City Bar Association have endorsed the principles. More endorsements would be most welcome.

Hon. Shira A. Scheindlin, U.S. District Judge, Southern District of New York (Ret.)

Reprinted with permission from the May 13, 2026 issue of New York Law Journal. Further duplication without permission is prohibited. All rights reserved.