'Disqualification is in order': Trump DOJ accuses major law firm of violating 'bright line rule' in American Bar Association case, asks judge to act

The DOJ asked a federal judge on Friday to disqualify a major law firm from representing the American Bar Association in a lawsuit, claiming that Susman Godfrey has violated its client’s own Model Rules of Professional Conduct.

The Trump administration made waves this week by issuing a raft of subpoenas of law firms and their top partners to testify at depositions, ostensibly as a way of frustrating the ABA’s discovery demands of the Executive Office of the President.

The subpoena recipients included nine firms that chose to placate the administration, and four firms that have so far successfully challenged Trump’s executive orders: Jenner & Block, Perkins Coie, Wilmer Cutler Pickering Hale and Dorr LLP, and Susman Godfrey.

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In late June, the premier lawyers’ organization and the government told U.S. District Judge Amir Ali that the parties were “at an impasse” on discovery. The plaintiffs sought White House communications to help show that Trump’s “unprecedented and uniquely dangerous” orders targeting contracts and security clearances were meant to “coerce lawyers and law firms to abandon clients, causes, and policy positions the President does not like.”

Evidently, the “impasse” has worsened, as the DOJ is using the fact of its subpoena for Susman Godfrey managing partner Kalpana Srinivasan as one way to oust the firm from the case.

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“This is the textbook case where the rules of professional conduct prohibiting a lawyer from serving as both advocate and witness must apply,” the DOJ said, hoping the Joe Biden-appointed jurist will agree Susman Godfrey violated its client’s own rules by representing that client.

“Susman cannot serve as both advocate for the ABA and a fact witness in the same matter under Rule 3.7 of the D.C. Rules of Professional Conduct. That rule—and even the ABA’s own Model Rule 3.7—contains a bright line rule prohibiting a lawyer from serving as both advocate and fact witness in the same matter with narrow exceptions, which do not apply here,” the filing said. “Yet Susman, the counsel for Plaintiff, is a central player—and fact witness—in this, and other litigation involving interactions between the Trump Administration and certain law firms. Disqualification is in order.”

The DOJ said it is problematic and telling that the firm is pursuing its discovery interests while playing a starring role in the ABA’s lawsuit.

“Susman appears in the ABA’s complaint, as part of the fact narrative and allegations, not as counsel, no fewer than 50 times. Following this Court’s denial of Defendants’ Motion to Dismiss, Susman—on behalf of the ABA—has initiated discovery and requested records from Defendants, including specifically their communications with Susman itself,” the government said, asserting that “obvious conflicts of interest” demand the firm’s disqualification.

“It is not clear what steps, if any, Susman has taken to erect conflict boundaries within the firm as part of the litigation, but Defendants assert that any such attempts would be futile,” the Trump administration added.

The judge on Saturday ordered the American Bar Association to respond to the motion by July 27, the court docket showed.

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