David Enrich on Big Law Jones Day and the Corruption of Justice

New York Times reporter David Enrich has written a remarkable expose of a big corporate law firm. 

The law firm is Jones Day.

The book is called – Servants of the Damned: Giant Law Firms, Donald Trump and the Corruption of Justice (Harper Collins, 2022).

Emphasis on Donald Trump.

Because this book could have been written about any of the big top corporate law firms.

The same disease afflicts them all. It’s no longer a profession. It’s a business. And it’s big business.

But the one thing that separates Jones Day is that it was the law firm for the Trump campaign. And Jones Day lawyers, more than lawyers from other firms, populated the Trump administration, starting with White House counsel Don McGahn.

“I could have written this book about Kirkland & Ellis, or Sullivan & Cromwell, or Paul Weiss or Gibson Dunn — the list goes on and on,” Enrich told Corporate Crime Reporter in an interview last month. “This is their reality. This is not about lawyers not doing their job well. It’s the opposite. These lawyers and these law firms are extremely good at what they do. And these days, what they do is exercise power in the most raw way imaginable.”

“It’s a different profession than it was decades earlier where there was more of an allegiance to the priorities of truth and honesty and fairness. Now, it’s about winning. And winning matters not just because they derive pleasure from it. It is a huge business.” 

“A client like Walmart or Boeing can generate for the law firms well over $100 million a year in revenue. And that allows the law firms to keep expanding into new places, to hire new lawyers, to pay their partners sometimes tens of millions of dollars a year.” 

“Not too long ago, if you were to say to a lawyer – I’m writing a story about the legal industry, they would have stopped you and said — we are not an industry, we are a profession.”

“The pursuit of profits was not a priority. You were not allowed to advertise. You weren’t allowed to actively solicit business. You were not allowed to hand out business cards at cocktail parties.”  

“Prohibiting advertising did have the effect of locking in the power of big established law firms at the expense of smaller firms and those that were seeking to offer legal services at lower prices. But there’s no question that the arms race that has taken place over the past several decades has transformed the legal profession into an industry that is raking in billions of dollars a year by often pursuing tactics that would make lawyers from generations earlier cringe.”

The thing that set Jones Day apart was that they were the law firm for the Trump campaign and administration. And a point you make in your book is that Jones Day took this great risk to its reputation by being tied so closely to Trump – and they could have made much more money just representing large corporations. Just stick to the firm’s bread and butter. 

While there was little or no dissent in the firm for its representation of corporate criminals, there was dissent within the firm for its representation of Trump.

“Lawyers have been trained and conditioned since law school that because everyone deserves legal representation, you as a lawyer should not have any moral or ethical concerns with representing the worst of the worst. This is a tricky issue. You want lawyers to represent the most heinous accused murderer. And courts say that a corporation is a legal person. Which means by extension that even the most heinous corporation, when accused of a crime, deserves competent legal counsel.” 

“But do you need to personally represent a tobacco company as it is pressuring a small town to abandon proposed regulations? That certainly doesn’t fall under the rubric of defending an accused criminal. Do you need to try to intimidate witnesses or plaintiffs on behalf of RJR or a gun company or Abbott Labs? I don’t think you do. And do you need it to help Purdue Pharma protect and enforce its patents on Oxycontin?” 

“There are many more lawyers protesting Trump than protesting RJR or the gun companies or Purdue Pharma. That is telling.” 

“In the book, I quote some Jones Day tobacco lawyers who use very similar language to defend not only the work they’re doing.” 

Here it is from the book page 166:

“You can’t just pick and choose your clients,” a longtime partner, George Manning, asserted. “Moral qualms can be left to the legislators.” 

“The moral judgments I leave to God,” another Jones Day tobacco litigator told me.

“Law firms generally don’t draw lines. It becomes a slippery slope,” a third partner explained.  “Once you start trying to put a moral or ethical screen, it becomes a really hard line to be able to draw. At the end of the day, law firms are profit-maximizing institutions.”

Enrich said that for twenty years, he has been writing about these corporate scandals.

“I had bumped up against these huge corporate law firms many times. I thought I was using them when in fact they were using me. I developed sources at very senior levels at a number of these big law firms. The lawyers were always there, behind the scenes, framing themselves and their work as just honest brokers trying to help out the confused reporter who was trying to make sense of situations.” 

“It’s kind of embarrassing, but it really only dawned on me in the past five or ten years that this is very self interested. They are trying to spin things so that I understood them through the perspective of their clients. But they also wanted to be perceived as being helpful to journalists. And once that cozy relationship is developed, it becomes very hard for journalists like me to turn our focus to their law firms and their work.”

“Law firms are huge businesses and the legal industry is a huge industry worth billions and billions of dollars. It is an industry that basically does not get talked about in journalism circles. It gets talked about as a source for stories. But it almost never gets asked – why is this multibillion dollar institution that’s paying its senior people many millions of dollars a year – why are they doing this?” 

“They are making themselves indispensable to reporters as sources. But they are also covering themselves in this umbrella of – we are lawyers, we are public spirited, we are just zealously representing our clients and we therefore should be immune from any outside scrutiny about the conduct that we are engaged in.” 

“I myself fell into that trap for a long time. And I’ve just been itching to dig into one of these big corporate law firms, but I hadn’t found a perfect target. And then 2020 came along and there was Jones Day. I had never paid that much attention to it. But I had known a few of their lawyers over the years. And it just struck me as a normal law firm. Then I realized in 2020 all the work they had been doing for the Trump campaign. And I also realized the extent they had embedded themselves within the Trump administration.” 

Your book does track the transformation of American law. Why don’t we compare and contrast two cases in your book that define the transformation. You open with a gas explosion in Cleveland. And then you describe a case of contaminated baby formula.

“In the East Ohio Gas case, Jones Day advises the company to lay down its arms and accept what might seem like defeat for the sake of fairness and justice and to protect the client’s ability to continue operating with a decent reputation in a community that has just been ravaged by a tragedy.” 

“This was in the 1940s, the gas company in Cleveland had these liquefied natural gas tanks right by the lake. Two of them explode. The explosion just basically leveled an entire community, killing a lot of people, injuring a lot of people and destroying property.”

“East Ohio Gas was represented by Jones Day. The explosion happened on a Friday. Jones Day lawyers spent the weekend trying to figure out the law governing the company’s liability. They concluded that it would be possible for the gas company to fight this. They could blame the companies whose materials made the gas tanks, or they could blame the sewer and water authorities in Cleveland –  their tunnels served as conduits for gas. They could cast doubt on the actual damages that victims have suffered.”

“But instead their advice within 48 hours of the explosion was – if the gas company wanted to remain and do business in Cleveland, you should do the right thing. And the right thing was to admit blanket liability and make people whole without fighting.” 

“So that Monday, the gas company, at the advice of Jones Day, ran an ad in the Plain Dealer newspaper inviting people to come to their headquarters and explain how they’d been injured and they would write checks on the spot. Jones Day went as far as manning the table that the gas company had set up and the lawyers were helping write checks to people on the spot.” 

“You will hear these days people say – well of course lawyers are going to go to the mat for their corporate clients, and of course they are going to fight everything and isn’t that what lawyers do? And I bring up the case of the East Ohio Gas Company and Jones Day.”

“That’s example one. Example two involved Abbott Labs, which is the big health care company that among many other things makes powdered infant formula. There’s a pattern going back decades of newborn babies who consume powdered infant formula and on rare occasions develop a form of bacterial meningitis that either kills them or leaves them permanently and very severely brain damaged.” 

“This is certainly not to say that all powdered formula poses danger or anything like that. But there’s heaps of academic and scientific research showing that this particular type of bacteria breeds in powdered infant formula that is not sterile – unlike ready to pour liquid formula. And there’s a clear pattern of babies either dying or nearly dying as a result of consuming this.”

“Jones Day is the law firm representing Abbott. Abbott has been sued repeatedly by families of babies who have been harmed. The strategy is basically the exact opposite of what Jones Day used representing East Ohio Gas decades ago.”

“These cases are relatively rare. It would not cost this huge, multi-billion dollar Fortune 500 company much to just compensate the families that have suffered these grievous tragedies. They are not looking to get rich. They are looking to cover the huge medical expenses they’re going to face for many years caring for their incapacitated child.” 

“Instead, the strategy by and large has been to fight tooth and nail, not only using aggressive legal tactics. These tactics have been found by a federal judge to be abusive and over the line.” 

“The Abbott case is the exact inverse of what happened with East Ohio Gas. The gas company came clean about their responsibilities, they owned up to it and then they continued to have a thriving presence in Cleveland. And they have a good reputation there to this day.”

“Whereas with Abbott, Jones Day’s strategy has been to bury the problem. And up until now, they have never lost a powdered infant formula case that has been tried before a jury.”  

“But by burying the problem, it was never dealt with until it exploded into this national crisis. And Abbott’s reputation was badly harmed, and justifiably so. Jones Day’s counsel to Abbott – fight, fight, fight – made sense at the time and was successful at the time because Abbott didn’t have to make any payouts. But the damage done to the company in 2022 as a result of the strategy is much worse than it would have been had they had just paid a few million dollars here and a few million dollars there to compensate the families for their injuries.” 

What has been Jones Day’s response so far to your book?

“Jones Day hired their own law firm to represent them. They sent us a bunch of mildly threatening letters. They had deduced from all of the fact checking emails I had sent to the firm what the book was about. But since the book was published, the only response has been an opinion article in the Wall Street Journal by Kevyn Orr, who is a partner at the firm, maybe the sole Democrat at the top of the firm.”

I see it. It’s titled – First, Smear All the Lawyers: David Enrich casts my firm in a false light and argues some clients don’t deserve representation.

“We will see if the Wall Street Journal will publish my response. It’s a 600 word response. I hope they will publish it.”

“I have written an entire book about their law firm. And they can take to the Wall Street Journal to defend themselves. I tried to be fair in the book. I am not trying to smear all the lawyers. The legal industry in general and Jones Day in particular deserves more scrutiny than it’s getting. The firm is not an evil institution. Some of the work they do is really good. They have this border project in Texas where they do amazing work helping migrants trapped in these immigration courts. They were in desperate need of representation that they were not getting. And Jones Day lawyers have spent countless hours representing them.” 

“It’s a complicated large institution with people with different political beliefs, philosophical and religious beliefs. But at the end of the day they are a large corporate law firm that does what big corporate law firms do, which is go to the ends of the earth to steam roll anyone in the way of their clients.”

Is the bar or legal ethics commission doing anything to bring corporate law firms in line?

“Nothing formal. I’ve seen one off examples of federal judges trying to make examples of lawyers from corporate firms when they cross lines. And I detail one of those in the book related to the Abbott Labs case. But overall, the silence has been deafening.”

[For the complete Interview with David Enrich, see 36 Corporate Crime Reporter 38, Monday October 3, 2022, print edition only.]

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