To: Firms Under Pressure from the Trump Administration
From: Sheila Heen
Thaddeus R. Beal Professor of Practice, Harvard Law School
Deputy Director, Harvard Negotiation Project
Date: April 10, 2025
Re: Negotiation Strategy Notes for Law Firms Under Attack by the Trump Administration
As a law firm under attack from the Trump Administration, you face an impossible choice. If you resist, the sanctions ravage your ability to represent current and future clients in front of government agencies, and both partners and clients may decamp to less controversial and visible practices. If you are among the managing partners responsible for protecting your firm, your natural instinct may be to find ways to work with the administration in hopes of remaining viable and “putting this matter behind us.”
I have been teaching negotiation at Harvard Law School, and developing theory and practice at the Harvard Negotiation Project for thirty years. I have spent my career helping colleagues and combatants find common ground. I’ve worked in international ethnic conflict, with senior teams across industries, and with judges, law firms, and general counsel offices. I’m now offering advice that I almost never give.
Do not negotiate
Why? Negotiators can be driven by any of three approaches: interests, rights, or power.
Focusing on interests means exploring the concerns and priorities of the parties—why they want what they want, and whether shared interests or trades can produce a mutually beneficial and durable agreement. A rights focus looks at what parties are due based on industry practices, or under legal, moral or human rights principles. Finally, negotiators focused on power are weighing the strength of the other side’s alternatives away from the negotiation table, and using their own unilateral power—decision-making authority and resources—to secure agreement.
Skilled negotiators are aware of and move between domains to maximize their persuasiveness.
Agreements based on genuine interests, and aligned with the various stakeholders’ rights, are most likely to produce stable, mutually beneficial outcomes.
President Trump is a caricature of a unidimensional negotiator, operating exclusively from the domain of power. He rarely appears to care about the issues at hand or the people directly or indirectly affected by his actions. He tramples on rights—human rights, due process rights, constitutional rights—willy-nilly. Oft-described as a schoolyard bully, Trump’s attacks on law firms are not about DEI and pro bono hours any more than the playground shakedown is about the lunch money.
Trump’s “investigations” are vindictive accusations, offering no evidence or due process while threatening immediate and sweeping sanctions. Trump’s message is clear “do what I say, or I will destroy you.”
In any negotiation of consequence, parties are not only negotiating the terms of the deal, they are negotiating the implicit terms of the relationship. To that end, Trump’s attacks on firms are seeking answers to two (barely) invisible questions:
Can I push you around?
and
Will any of you bystanders step in?
This means that conceding anything to the administration teaches Trump that, Yes, maybe he can push you around. Coming to agreement confirms it: you are willing to sign over your autonomy and let him micro-manage the internal decision-making and governance of your firm. How you hire. Who you represent. Whose work you send your associates to do for free. For a guy with a penchant for slapping his name on every surface on earth, Trump has now put himself on your management committee, with the ability to veto anything you do and anyone you represent that he doesn’t like, and to direct you to give free services to whomever he chooses. He now has at least a few of the best law firms in the country under his thumb, working for him.
This, of course, is not what firm decision-makers intend when they strike an agreement with the Administration. Firm decision-makers are thoughtful, smart, experienced attorneys, entrusted with the future of their firm. They feel—and you feel—deep in your bones your fiduciary duty to your colleagues, clients and employees. And what Trump is demanding seems innocuous enough. After all, your firm is already doing millions of dollars in pro bono work, you are already hiring the best associates, consistent with the law. What’s the harm in agreeing to things that you are already doing? You are the same firm you always have been, you say, and we can now put this ugly chapter behind us.
This might be true if Trump was operating from a genuine interests perspective. While all negotiations are driven by interests, Trump’s true interests don’t relate to DEI or representation for veterans. His driving interest is in neutralizing representation for anyone who opposes him.
He is demanding that you replace your firm’s loyalty to your clients with loyalty to the president, as described by the Bar’s amicus brief filed in support of Perkins Coie. Trump has no intention of putting these matters behind him. On the contrary, he is positioning himself to veto the top firms’ ability to represent anyone whose legal, constitutional, or human rights he tramples.
When he says he wants you to provide pro bono representation to veterans, none of us believe he means suing the Veteran’s Administration to challenge his cuts. Trump will continue to dictate what you can and cannot do. Indeed, he flexed that power immediately by unilaterally changing the terms of the agreement with our friends at Paul Weiss within hours of agreement. His strategy is to lure you into agreement by promising big benefits (“I won’t revoke your security clearances”) for comparatively small demands (“hire the best people”). Once you say yes, he expects loyalty. And where Trump expects loyalty, he oftens finds disloyalty. The stakes will get higher, rather than go away.
Let’s play things out
As I’m sure you’re already doing, we need to play different choices forward in order to make good strategic decisions in negotiation. If we do x, what is the other side likely to do? Where does this take us?
Given what we’ve seen so far, here’s what seems to be coming into focus as stakeholders react both within and outside of firms:
If you strike a deal
The hope is that the President’s attention moves on to other firms and players, and you live to fight another day. But in the aftermath of that deal, you also take on a number of risks:
You are likely to face continued threats and meddling in how you operate, and who you represent. You will also be at the beck and call of the President for any matter he expects you to take up, for free, at his whim and as part of his vindictive agenda, with or without cause. While the agreements may attempt to preserve your ability to say no at any point in the future, the President’s reaction to that perceived betrayal may be even worse than the original sanctions.
Clients will need to make some difficult decisions. Among clients, reactions to early firm agreements have been decidedly mixed. Some are pleased. Others alarmed. 67 General Counsels raised concerns about the impact on corporate America’s First Amendment rights and interference with their relationship with outside counsel. Certainly anyone critical of the administration, or challenging or seeking redress from the government—and ever-growing segment—will go elsewhere. Your client base will be limited to clients who do not offend the President, and who are not offended by the President.
The internal risks are perhaps even more concerning and long term. Your firm’s international offices are full of lawyers and clients already bewildered by the Trump Administration’s destruction of trade and trusted alliances. Do they stay associated with you? Or move their business and careers elsewhere?
Disillusioned law students and young associates have signaled their disagreement in open letters and elsewhere; I have students in my office daily, and alumni on the phone. Talent may not leave immediately since the job market is currently flooded with experienced government lawyers. But, as voiced by Skadden alumni and others dismayed at their own association, you will plant a question in the minds of every attorney and staff member: if I stay, what damage might be done to my reputation and my future?
Law firm partners themselves have notoriously strong BATNAs, or alternatives, particularly those partners with strong client bases. So your highest revenue partners have the lowest barriers to exiting, with some of your most valuable clients in tow. Remaining partners bear the fixed costs and reduced profits as colleagues depart with valuable business. And I’m sure you’re concerned about the research showing that law firms don’t tend to stabilize, but instead implode. Perhaps even more seriously, once the dust settles and prosecutors regain the ability to follow and enforce the law, the firm risks bribery charges. This feels deeply unfair, given the extortionary nature of the pressure you are under. Yet, as one seasoned prosecutor pointed out to me recently: this case is a prosecutor’s dream. All the evidence is in public view as firms cut deals to provide free services to the President’s pet causes in exchange for the President’s favor. As your own white collar specialists know, extortion is not a defense.
So yes. You are being threatened with business-ending consequences, but choosing to negotiate may risk even more.
Of course, refusing to negotiate and choosing to fight has its own costs and risks. A balanced analysis must play this forward as well.
If you refuse to negotiate, and instead fight:
On the upside, in refusing you maintain your autonomy and integrity. You stand up for the rule of law, and join a growing list of people and organizations doing the same: other firms, bar associations, almost 350 former judges, law professors, general counsels, former senior government officials and a cross-cutting ideological group that includes the ACLU and the Cato Institute. Within the echelon of top firms, you become an employer of choice, with your resistance reputation-enhanced for hiring and lateral recruitment.
You will also have access to the broadest client base. You can continue to represent anyone you choose to, without interference. In fact, clients may seek you out, as you demonstrate the ability to zealously advocate against the most powerful player on the world stage today. But, of course there are also costs and risks:
From the President, you will face continued threats and condemnations, at least until his attention moves on.
You are also adding the stress and hassle of litigation, taking up time and attention from other matters. The chances that Perkins Coie and others who are suing will prevail on First Amendment grounds seem strong, and the amicus briefs continue to come in. Jenner & Block partner Adam Unikowsky provides a cogent and in-depth analysis of the First Amendment, Due Process, Equal Protection, separation of powers and Sixth Amendment violations in his post “ The case for suing.” He points out,
If you asked me to summarize the key to a free society while standing on one foot, I would say: ‘a robust private sector that is truly independent of the government.
As strong as the case may be, some partners and associates won’t have the stomach for it. Attorneys whose practices rely on security clearances may need to shift their practices, partner with co-counsel at other firms, or move to other firms, though it’s not clear that access to their security clearances will be reinstated even then. Clients needing representation in front of federal agencies may need supplemental counsel to feel they will get a fair shake. These are very real risks, only some of which are mitigated by injunctions maintaining your access to public spaces, public servants, and public processes.
So, yes, there are many potential negative short-term impacts. Each firm will have to do the calculus for themselves, recognizing that their litigation and transactions practices are not identically situated, and their litigators and dealmakers may lean different directions out of both clear thinking and professional habit as they decide whether to “fight” or “do a deal.” But what’s crucial is that you’re weighing both the vivid short-term consequences and the longer term and rippling consequences for autonomy and reputation that risk irreparable harm.
What about our fiduciary duty to the firm?
Given the above, what is the wisest course for partners committed to exercising your fiduciary duties of loyalty and of care? That duty prohibits actions that would harm the firm or create conflicts of interest. There is no risk-free path. But what is increasingly clear is that the choice to negotiate and come to agreement is a choice to sacrifice the firm’s autonomy, risk criminal sanctions, and subject the firm to escalated retribution should you change course later. That’s a path of certain harm. Refusing to negotiate protects the status quo and enables your attorneys to do what they each pledged in their bar swearing in: to uphold the Constitution, act with integrity, and represent your clients zealously in pursuit of justice. It does no harm. It resists harm.
Which brings us to the best-case choice for those who still have the opportunity: Signal early, and sidestep the brunt of an attack.
A message for current bystanders
When a bully and his sidekick confront a victim on the playground, it is not just the victim being tested. It is as much a test of the bystanders who observe what’s happening. Will they step in to stick up for the victim, collectively forcing the bully to back off? Or will they avert their eyes and hope to escape notice, lest the bully’s sights land on them?
Fewer than ten of the top 100 firms signed the amicus briefs in support of Perkins Coie, and the law firms currently under Administration scrutiny are largely—and conspicuously—absent.
This is a huge opportunity squandered. Bystander silence encourages the bully—it teaches him that it’s working. It signals that you remain a potential next mark. And it increases the chances that those you didn’t defend will not defend you.
To the top 100 firms, including those on current target lists: this moment is your lowest-cost, highest-impact opportunity to signal early that you are not open to intimidation. It tells the President not to waste time on you, and to move on. And the more firms stand together, the less likely Trump will be to stick with this strategy. He tends to back down when he encounters enough resistance, and his attention turns elsewhere. That’s a power-oriented negotiator reading the strength of the power on the other side.
This moment is a golden opportunity to sidestep the worst of Trump’s coercive threats. It’s a rapidly closing door.