Article snapshot

Focus

Ethics and Competence

Summary

This article explains a recent state-bar amicus brief arguing that government retaliation against law firms can burden protected advocacy, chill representation, and intrude on judicial control over the legal profession. It also draws practical lessons for lawyer independence, constitutional literacy, and professional competence in both the United States and Canada.

Primary issue

First Amendment, separation of powers, lawyer independence, professional regulation, legal ethics, advocacy competence

Jurisdiction

United States

Court / tribunal

United States Court of Appeals for the District of Columbia Circuit

Case / matter

Perkins Coie LLP v. U.S. Department of Justice et al.; state-bar amicus brief of the Washington State Bar Association, Oregon State Bar, and the State Bar of California

Citation / file no.

Nos. 25-5241, 25-5265, 25-5277, 25-5310

Statute / rule

U.S. Const. amend. I, U.S. Const. art. III, § 1

Who this helps

American lawyers, Canadian lawyers, appellate lawyers, litigators, law students, bar applicants, legal academics, professional regulators

Key takeaway

A government cannot be permitted to punish legal representation by targeting the firm that provides it, because retaliation against advocacy threatens clients, chills lawyers, and risks intruding on the judiciary’s control over the profession.

Contact the firm

When Government Punishes the Lawyer: What This State-Bar Brief Teaches About the First Amendment, Professional Independence, and Competence

The State Bar of California, together with the Oregon State Bar and the Washington State Bar Association, filed an amicus brief Friday, April 3, 2026 in support of four law firms targeted by the Trump Administration’s executive orders for the firms’ representation of clients unpopular with the administration.

The most important thing about this amicus brief is not its politics. It is its theory of the legal profession.

Three state bar bodies argue that when government punishes a law firm because of the clients it represents, the problem is not confined to that firm’s bottom line. The injury radiates outward. It burdens lawyers. It chills clients. It pressures courts. And it threatens the constitutional structure that depends on independent advocates.

That is the brief in one sentence.

But the brief is also a good lesson in professional competence, because its reasoning is powerful in some places and compressed in others. A careful lawyer should understand both.

Why this brief matters

An amicus brief is a “friend of the court” brief. It is not a neutral textbook. It is an advocacy document written to persuade.

Here, the amici are state bar entities from Washington, Oregon, and California. They are making a larger point than “please do not be unfair to these firms.” Their claim is more structural: the executive branch cannot use its power to punish law firms for taking on disfavoured clients or causes without colliding with constitutional protections and with the judiciary’s authority over the legal profession.

That makes this brief interesting far beyond the United States. Every serious legal system depends on one uncomfortable idea: lawyers must sometimes represent people, movements, or institutions that the government or the public dislikes. If government can selectively punish that representation, the profession is no longer independent in any meaningful sense.

The Constitution in plain English

The brief’s main engine is the First Amendment, but its full logic also touches the Fifth Amendment, the Sixth Amendment, and Article III.

The First Amendment protects freedom of speech, association, and petition. In ordinary conversation, many people hear “free speech” and think of rallies, articles, or political slogans. In constitutional litigation, the concept is wider. It includes the right of people to join together, hire lawyers, support causes, and ask courts for relief. That is why old American cases about unions, civil-rights organizations, and public-interest litigation matter here. The brief’s point is that legal representation is not just commerce. It is often an act of speech, association, and petition.

The right of association matters because clients often need to act through lawyers in order to vindicate rights. The right to petition matters because going to court is one of the classic ways citizens ask government to redress wrongs. The brief says you cannot meaningfully protect those rights while allowing the state to punish the lawyers who make them effective.

The Fifth Amendment is not the star of this brief, but it sits in the background. Due process reflects a basic constitutional commitment to fair legal process. A government that singles out counsel for retaliation is not merely engaging in hardball politics. It is threatening the fairness of the legal system itself.

The Sixth Amendment protects the right to counsel in criminal cases. Again, that is not the brief’s main doctrinal engine, but it helps explain the deeper concern. Constitutional systems treat lawyers as essential to justice, not as optional accessories. Retaliation against counsel is therefore never merely private injury.

Then there is Article III, which is not an amendment at all, but the constitutional provision that vests the judicial power in the federal courts. That matters because the brief’s second major claim is about separation of powers. The judiciary, not the executive, decides who may practice before the courts and how lawyer misconduct is to be dealt with.

The brief’s chain of reasoning

The brief’s reasoning is easier to understand if you lay it out step by step instead of accepting its rhetoric all at once.

First, the brief says lawyers do not merely sell services. They are the means through which citizens speak, associate, and petition the courts. In that sense, legal advocacy is constitutionally significant activity.

Second, the brief says the executive orders at issue do not just regulate buildings, security, or contracts in some neutral way. The bars argue that the orders were aimed at firms because of the representations they undertook and the causes or clients they served.

Third, the brief says that punishing a law firm for the matters it handles is, in substance, punishing legal advocacy itself. That is where the First Amendment enters. If the state targets representation because it dislikes the client, the political association, or the message, then the retaliation is not just administrative. It is constitutional.

Fourth, the brief says this retaliation does not harm only firms. It chills other lawyers and firms who may now think twice before representing controversial clients or taking unpopular positions. That is a classic constitutional argument: even if a sanction hits a few named actors, its real effect is broader deterrence.

Fifth, the brief moves from rights to structure. It says attorney discipline and court admission belong to the judiciary. Lawyers are answerable to courts and bar regulators operating under judicial authority, not to executive displeasure.

Sixth, the brief points out that in Washington, Oregon, and California, admission to certain federal courts is tied to membership in the corresponding state bars. That matters because the amici describe themselves as public regulatory bodies operating under authority delegated by state supreme courts.

Seventh, and this is the most aggressive step, the brief argues that by crippling firms and thereby burdening the lawyers within them, the executive branch is indirectly interfering with the courts’ domain: who may function as advocates before them and under what conditions.

That is the logic flow.

It is not that the executive order literally disbars named lawyers. It is that the bars say the executive is doing indirectly, through firm-level punishment, what it could not do directly through formal attorney discipline.

The sentence that causes confusion

One sentence in the brief compresses too much and is easy to misunderstand. It says the executive order restricts the firms’ access to “federal court attorneys” in Washington, Oregon, and California.

That phrase is awkward. The orders target firms, not individual attorney licences. So what are the bars trying to say?

Read charitably, the phrase means attorneys admitted, or eligible to be admitted, to practice before those federal courts. The point is not about hallways or courthouse doors. It is about the body of lawyers through whom federal court practice happens. The bars are arguing that if the executive punishes firms in a way that disables or deters those lawyers, it is interfering with court practice.

That is the real theory.

But good competence requires candour: the wording is sloppy. A stronger sentence would have said that the orders burden the firms’ lawyers and thereby interfere with access to independent counsel in federal court. That is cleaner and more accurate.

Where the brief is strongest

The brief is strongest when it insists on professional independence.

Any legal system that values the rule of law must tolerate lawyers representing unpopular clients. That is not a side point. It is the point. The profession exists precisely because the public often hates the client, distrusts the cause, or wants the process shortened. If government can impose meaningful penalties on firms for taking those files, representation ceases to be independent.

The brief is also strong when it connects lawyers’ interests to the interests of clients and courts. Too much public commentary treats lawyers as though they are merely service providers in a market. That is incomplete. Lawyers are also constitutional intermediaries. They help people exercise rights. They translate grievances into pleadings. They make courts usable.

Once that is understood, retaliation against representation looks less like a private business dispute and more like a constitutional injury.

Where the brief is most vulnerable

The brief is weakest when it moves too quickly from sanctions on firms to direct invasion of attorney discipline or court admission.

That move is not absurd. But it is not self-proving either.

A skeptical judge could say this: the executive did not revoke bar membership, rewrite court admission rules, suspend named lawyers, or enter disciplinary orders. It targeted firms as institutions in their dealings with the executive branch. That may be retaliatory and unconstitutional on First Amendment grounds, but it is not automatically a separation-of-powers violation.

That objection matters.

The brief’s answer is an effects argument. It says form should not defeat substance. If the executive cannot directly control lawyers who appear in court, it should not be allowed to cripple the firms through which those lawyers practice for disfavoured clients. That is the bars’ best response.

Still, the distinction must be kept clear. Competent analysis requires you to say exactly where the argument is strongest and where it depends on inference. Too many lawyers blur those steps and then call the result “principle.” It is not principle. It is imprecision.

The ethics lesson

The ethical lesson is older than this dispute.

A lawyer’s duty is not to endorse every client. It is to provide competent, independent, honest representation within the law. The profession loses moral seriousness when it forgets that distinction.

This brief is, at bottom, a warning against guilt by representation. If lawyers or firms may be punished because their clients are politically noxious, then the profession becomes safe, timid, and ultimately useless. The first casualties will be controversial clients. The last casualty will be public confidence that courts remain open to all.

That is why courage is an ethical virtue in law practice. But courage without precision is not enough. Lawyers also have a duty of competence, and competence means tracing the actual legal mechanism. What exactly is being burdened? A building pass? A contract? A licence? A court admission? Protected expression? Associational rights? Judicial authority?

The answer matters.

What American lawyers should take from this

American lawyers should resist two lazy habits.

The first is treating the First Amendment like a slogan. Do not say “free speech” and stop thinking. Ask whether the protected interest is speech, association, petition, or viewpoint neutrality. Those are related but not identical ideas.

The second is treating firm-level sanctions and attorney discipline as though they are the same thing. They are not. If you collapse them, your argument becomes weaker. If you distinguish them and then explain the indirect effect, your argument becomes sharper.

This brief is persuasive when it shows how retaliation against a firm can chill the lawyers inside it and the clients outside it. It becomes less precise when it speaks as though firm sanctions are already the same as direct attorney regulation. A competent reader should see both.

What Canadian lawyers should notice

Canadian lawyers should not dismiss this as purely American drama.

Canada does not have a First Amendment. Our constitutional vocabulary is different. We would more naturally think about freedom of expression and association under the Charter, rights to counsel in specific settings, the independence of the bar, judicial independence, and the rule of law.

But the professional lesson is the same. A government that can materially punish lawyers or firms for taking disfavoured files can distort representation without ever formally banning it. And that is often how institutional pressure works in the real world: indirectly, selectively, plausibly deniably.

Canadian lawyers should be especially careful here. We sometimes congratulate ourselves for being calmer or more moderate than Americans while forgetting that institutional independence is not maintained by temperament alone. It is maintained by habits of professional courage, by regulators who understand their role, and by judges who can recognize coercion even when it arrives dressed as administration.

The competence lesson

The deepest competence lesson in this brief is methodological.

Do not read an advocacy brief as though it were a judgment. Read it as advocacy. Identify its strongest move. Identify its weakest bridge. Ask what it assumes but does not fully prove. Ask what a hostile judge would say.

Here, the strongest move is the argument that retaliation against representation burdens speech, association, petition, and the public’s access to justice.

The weakest bridge is the jump from sanctions on firms to direct invasion of judicial control over attorneys. That jump can be defended, but it must be defended carefully.

A mature lawyer does not flatten that complexity. A mature lawyer names it.

Final thought

A legal profession that cannot safely represent unpopular clients is not independent. A judiciary that tolerates executive pressure on advocacy is not fully secure. And a lawyer who cannot trace the chain from text to doctrine to institutional consequence is not yet practicing with full competence.

That is why this brief matters.

Not because every sentence in it is perfect. It is not.

It matters because it forces the right question: when the state punishes the lawyer’s work, is it punishing a business, or is it trying to shape the legal system itself?

The correct answer may decide more than one case. It may decide what kind of profession remains.

Questions this post answers

What is an amicus brief?

An amicus brief is a submission from a non-party that asks the court to consider a broader legal or institutional perspective. In this matter, state bar bodies argued that punishment of law firms for their advocacy threatens both constitutional rights and the structure of the legal profession.

Why does the First Amendment matter in a dispute involving law firms?

Because legal representation can involve speech, association, and petitioning the courts. The brief argues that when government retaliates against a firm because of the clients it represents or the causes it advances, it burdens constitutionally protected advocacy.

What is the separation-of-powers issue in this brief?

The brief argues that attorney discipline, admission to practice, and control over courtroom advocacy belong to the judiciary, not the executive. Its theory is that firm-level punishment can become an indirect way of interfering with lawyers and court practice.

Why is this relevant to Canadian lawyers?

Even though Canada uses different constitutional language, the institutional lesson is the same: if government can materially punish lawyers or firms for taking disfavoured files, professional independence and access to justice are at risk.