Court Order and Amicus Briefs in Susman Godfrey vs. Executive Office of the President
In 2025, President Trump issued a number of Executive Orders (EOs) against law firms that had represented clients or causes the President took issue with. The EOs limited the firms’ attorneys’ ability to access government buildings, ended any consideration for future employment with the government, canceled government contracts, and prevented any company that uses such a firm from obtaining federal contracts. As of August 1, 2025, nine firms reached “settlements” in which they promised to provide a combined $940 million in pro bono representation for causes the President endorsed.
Other law firms resisted the EOs, including the law firm of Susman Godfrey (“Susman”). See Susman Godfrey LLP v. Executive Office of the President, et al., No. 25-cv-01107 (D.D.C.). Amicus briefs were filed on behalf of Susman, including from the NAACP Legal Defense Fund (LDF), 399 former judges, and several bar and membership organizations. The NAACP brief argued that the EO “will irreparably diminish the independence of the private bar. Indeed, if lawyers are forced to pick clients and choose cases out of desire to stay in the Executive Branch’s good graces, the rule of law and the constitutional order it undergirds will crumble.” Brief of Amicus Curiae NAACP Legal Defense & Educational Fund, Inc. in Support of Plaintiff’s Motion for Summary Judgment. The brief also explained why the courts should find the EO “an unconstitutional bill of attainder—one that risks deeply destabilizing the legal profession” and drew a parallel between the EO and earlier efforts in Southern states to prevent the NAACP and their lawyers from engaging in legal advocacy.
The Amicus Curiae Brief of 366 Former Judges in Support of Plaintiff’s Motion for Summary Judgment argued, in part, that the EO: 1) imposes improper political restrictions on access to the courts; 2) undermines the professional independence of counsel; and 3) improperly supplants judicial regulation of litigation conduct. The judges’ brief included the following reference to a lawyer’s ethical responsibilities:
B. The Order Undermines the Professional Independence of Counsel.
The Order is also inconsistent with the professional independence of counsel that is both required by state professional conduct rules and is one of the principal achievements of the American bar. Just adjudication requires that the facts and law relevant to a dispute be presented fully and with vigor to the court. The United States Supreme Court’s practice of appointing counsel to defend a position relevant to a case when a party declines to do so illustrates the importance of this point. Professional independence preserves the integrity of our adversarial system, which is foundational to just and fair adjudication. It is how courts ascertain the truth.
The Order chills the vigorous advocacy on which courts depend. The judiciary needs and depends on lawyers and firms willing to represent clients whose cases may be unpopular with an administration or the public. Our adversarial system cannot work otherwise. Clients, courts, and the rule of law itself need firms willing to exercise professional independence.
A court cannot be confident that the facts and law relevant to a matter have been fully presented if a firm must look over its shoulder in fear of becoming the target of punitive action such as the Order. Firms willing to face such risk embody the highest ideals of the bar, but that is not a risk any lawyer should face.
The Brief of Amici Curiae Bar Associations and Lawyer Membership Associations in Support of Plaintiff’s Motion for Summary Judgment and for Declaratory and Permanent Injunctive Relief cited to several ethics rules implicated by the Executive Order:
B. The executive orders encumber lawyers from performing their ethical duties to their clients and the profession
The executive orders impair lawyers’ ability to adhere to ethical rules that govern the practice of law. They constitute broadscale executive interference with individual attorney-client relationships, placing lawyers in the irreconcilable position of choosing between maintaining the duty of loyalty to the client and avoiding costly presidential reprisals. The orders also threaten the independent professional judgment that lawyers are expected to offer their clients. Fear of retaliation muzzles a lawyer’s full-throated legal advocacy for a client, particularly if the client’s interest challenges the government’s position. Moreover, the orders require firms to assess whether their work for a client conflicts with an undefined set of national “interests,” pressuring lawyers to downplay strategic objectives of clients that may conflict with those of the executive branch. Lawyers and clients in some circumstances are thus hamstrung in carrying out the full scope and aims of the representation. The danger is concrete and immediate; the targeted firms are presently representing clients in multiple matters that are conceivably adverse to the President’s policy agenda. Presidential retaliation casts an ethical shadow over this work, placing direct pressure on attorneys to alter their advocacy in violation of core ethical duties. A bar that is dependent on the President will confront a conflict between advancing clients’ interests and serving the President’s conception of the “national interest.” This conflict undermines the right to counsel. Cf. Strickland v. Washington, 466 U.S. 668, 692 (1984) (a conflict of interest that inhibits a lawyer’s effective representation is presumed to be prejudicial).
Additionally, the executive orders risk erosion of attorney-client confidentiality. Many clients do not publicly disclose their relationship with a firm when dealing with the federal government. See Statement of Facts ¶ 190. But the Order compels clients to disclose to the federal government confidential information about their engagement of Susman Godfrey, exposing them to the risk of termination of their government contracts. Addressing Risks from Susman Godfrey, 90 Fed. Reg. at 15615 (“Government contracting agencies shall, to the extent permissible by law, require Government contractors to disclose any business they do with Susman . . . .”). The EEOC letters also explicitly demand that firms provide protected attorney-client communications.
Moreover, the executive orders subvert lawyers’ duty of candor to the tribunal, which plays a critical function in our adversarial legal system. The judiciary relies on lawyers to bring cases, lay out pertinent facts, and make legal arguments based on those facts. Attorneys are required to speak truthfully to courts and not withhold material facts or controlling law. But when the executive branch penalizes law firms for representing particular clients or causes, it creates an environment where the lawyer’s duty of candor to the court must compete with the lawyer’s fear of retaliation. A lawyer may hesitate to be fully candid if candor risks inviting retribution. The resulting temptation for lawyers—to mute facts, soft-pedal arguments, and engage in self- censorship—forces a perverse ethical conflict: fulfill their duty to the court and risk harm from the executive, or temper their candor to shield themselves and their clients from that harm.
The court granted summary judgment in favor of Susman. In its Memorandum Opinion, the court primarily based its decision on Susman’s First Amendment claims, including claims that the EO was in retaliation for Susman’s exercise of free speech, constitutes viewpoint discrimination, and interferes with Susman and Susman’s lawyers ability to practice law. While the court’s opinion did not reference any rules of professional conduct or directly address any of the legal ethics arguments, the court did say: “By banning Susman employees from government buildings and from engaging with government officials, the Order prevents the firm’s attorneys from going to their place of work (the courts) and engaging in their daily business (discussing cases with the government). Accordingly, the Order violates the right of Susman and its attorneys to pursue their chosen profession.”