How BigLaw Executive Orders May Affect Smaller Firms

Reuben Guttman Articles, Whistleblower Articles, Whistleblower News, Whistleblower Resources

I represent the little guy — civil rights plaintiffs, whistleblowers, consumers and inmates, to name a few.

My opposition is often BigLaw firms, the ones with hundreds, if not thousands, of lawyers.

On a normal day, I have my disputes with these firms over pleading standards, compulsory arbitration and deference to administrative agencies. We battle it out within the legal system. It’s an imperfect system, no doubt, affected by politics and bias.

I didn’t think I’d ever advocate on behalf of these firms. But today, I feel compelled to do so, because of an issue that affects us both — the executive orders targeting some of the nation’s largest law firms.

This isn’t just about BigLaw, and it’s not just about the BigLaw firms named in executive
orders. It’s also about the small firms, the solo practitioners and the public interest lawyers who see what is happening to these big firms and are

I represent the little guy — civil rights plaintiffs, whistleblowers, consumers and inmates, to name a few.

My opposition is often BigLaw firms, the ones with hundreds, if not thousands, of lawyers.

On a normal day, I have my disputes with these firms over pleading standards, compulsory arbitration and deference to administrative agencies. We battle it out within the legal system. It’s an imperfect system, no doubt, affected by politics and bias.

I didn’t think I’d ever advocate on behalf of these firms. But today, I feel compelled to do so, because of an issue that affects us both — the executive orders targeting some of the nation’s largest law firms.

This isn’t just about BigLaw, and it’s not just about the BigLaw firms named in executive orders. It’s also about the small firms, the solo practitioners and the public interest lawyers who see what is happening to these big firms and are wondering what they will do if and when they, too, are targeted.

Make no mistake: If BigLaw firms can be targeted, so too can midsize law firms, boutiques, solo practitioners, prosecutors and public defenders. Though I litigate against BigLaw, on this day and on this matter, we are kindred spirits.

The legal system only works if lawyers can represent clients without retribution or fear of retribution. Once in court, advocacy is regulated by the tribunal itself.

Ethical, procedural and evidentiary rules govern the lawyer and the process. It is a laboratory environment where, on a good day, a case will sink or swim on the merits, and the lawyers will move on to the next matter untainted by their advocacy on behalf of an entity or person whose position did not prevail or whose conduct was deemed unsavory.

In addition to the orders targeting specific law firms, the president signed a memorandum on March 22 making it clear that none of this is limited to just a few large firms. That memo directs the attorney general to be more aggressive in the use of sanctions motions and ethical charges against those who litigate against the government. The memo states:

I further direct that, when the Attorney General determines that conduct by an attorney or law firm in litigation against the Federal Government warrants seeking sanctions or other disciplinary action, the Attorney General shall, in consultation with any relevant senior executive official, recommend … additional steps that may be taken, including reassessment of security clearances held by the attorney or termination of any Federal contract for which the relevant attorney or law firm has been hired to perform services.[1]

The March 22 memo is noteworthy not only for what it says but for what it does not say. It provides for a referral for “additional steps,” including the loss of contracts or the loss of security clearance, not after a court determines that sanctions are warranted, but after the attorney general makes such a determination. That referral can occur without a motion for sanctions being filed, or before the court has ruled on a motion for sanctions. Under this memo, the referral and additional steps can be taken even if the court denies the motion for sanctions.

It is, in sum, a memo that provides a litigant — indeed the defense counsel for the government and the government itself — the sole right to sanction counsel. In this way, the memo effectively removes the judge from the sanctions calculus.

The sanction of having security clearance withdrawn is of course not an abstract proposition. A lawyer needs security clearance to represent, for instance, employees of the CIA, the FBI and the intelligence community who have lost their jobs through Department of Government Efficiency cutbacks. And a number of the firms representing plaintiffs in these cases are boutique or midsize litigation firms, or public interest nonprofits.

By eliminating the security clearance of lawyers or maintaining a threat to do so, a defendant — in this case the government — may essentially curtail opposing counsel’s ability to represent such clients, or influence their advocacy.

It was in Marbury v. Madison that Chief Justice John Marshall in 1803 famously said that “the very essence of civil liberty certainly consists in the right of every individual to claim the protection of the laws, whenever he receives an injury.”

Fundamental to that protection is the ability to secure counsel. There is no question that the March 22 memo will cause all lawyers — but especially public interest lawyers and solo practitioners — to think twice about whether to take on cases they would ordinarily assume.

Yes, the big firms have their pro bono practices, but it is the smaller firms and the boutique practices that tend do the everyday work of challenging government action. It is the small firms and public interest organizations whose institutional missions focus primarily on things like representing immigrants facing deportation or inmates of for-profit prisons who seek proper medical care, or bringing suits under the Freedom of Information Act to make government more transparent.

But these firms simply do not have the resources or cash flow of the big firms. Unlike Perkins Coie LLP, WilmerHale and Jenner & Block LLP, which have all challenged these executive orders, small firms may be unable to tap the expertise of the best constitutional lawyers in the land to defend themselves against ruin.

Imagine a scenario where a solo practitioner represents a student who is in this country under a student visa, but who has been detained and subject to deportation because of the content of an article they authored in the student newspaper. How might that practitioner react when the government lawyer takes him aside and says that a potential lawsuit is sanctionable? A gutsy lawyer might say, “I’ll see you in court.” But of course, under the March 22 memo, the government may secure sanctions absent a court determination.

The sanctions might include loss of security clearance and/or loss of government contracts. For the lawyer who represents members of the intelligence community or the public interest group that benefits from government grants, the threat is significant. But these are only examples as the memo’s use of the phrase “additional steps that maybe taken, including” makes clear that potential recriminations are boundless.

A big firm may have lobbyists or insiders who can negotiate a resolution with the president. But the average solo practitioner does not have such access or leverage.

In the end, solo practitioners, small law firms and public interest attorneys may find themselves more dramatically affected by the collective impact of these executive orders and memoranda than even the BigLaw firms that have been directly targeted.

Absent the resources and revenue of their BigLaw counterparts, these firms may just temper their advocacy or curtail client relationships. When this happens, there will be no headlines or banner story on the nightly news. Public interest advocacy will have been curtailed — perhaps forever — in ways that will not be easy to quantify.

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Reuben A. Guttman is a senior founding partner at Guttman Buschner & Brooks PLLC. The opinions expressed are those of the author(s) and do not necessarily reflect the views of their employer, its clients, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

1. https://www.whitehouse.gov/presidential-actions/2025/03/preventing-abuses-of-the-legal-system-and-the-federal-court/.

On the Rule of Law: Now is the Time to Rethink the Role of Law Schools

Reuben Guttman Articles, Whistleblower Articles

In his opening remarks to a Senate Judiciary Committee charged with reviewing his nomination to be Attorney General of the United States, Judge Merrick Garland noted that “communities of color and other minorities still face discrimination in housing, in education, in employment and in the criminal justice system, and they bear the brunt of the harm caused by the pandemic . . . .” All of these problems still exist over 150 years since the passage of the Thirteenth, Fourteenth, and Fifteenth Amendments; over sixty years since Brown v. Board of Education was decided; and over half a century since the civil rights legislation of the 1960s.

The truth is that we — as a mature nation — had a lot to overcome; today our nation remains tainted by an ugly upbringing, the history of which has too often been glossed over in palatable terms…

Read the full piece below.

https://medium.com/@rguttman/on-the-rule-of-law-now-is-the-time-to-rethink-the-role-of-law-schools-1f9e707ee4a1

Whistleblowers Beware

Reuben Guttman Articles, Whistleblower Articles, Whistleblower News, Whistleblowers Blog

By Reuben Guttman

For fraudsters, government expenditures are a license to steal. One thing fraudsters know is that with trillions of dollars in expenditures from federal and state governments in healthcare dollars and bucks for battle tanks and fighter jets, there are not enough eyes watching the till to keep cheaters in line.

Now, in response to a pandemic, the government has pushed over $2 trillion out the door in stimulus money. Government dollars will be earmarked for grants, loans, and for the procurement necessary to battle the COVID-19 pandemic and mitigate the economic consequences of the consequent quarantine.

With government investigators already stretched too thin in enforcing compliance, there will be a need for whistleblowers to pick up the slack. Whistleblowers are no more than everyday honest citizens with an inherent litmus test fabricated from common sense and integrity which causes them to raise questions when they see impropriety. Though the current President has through his words and conducted attempted to cast a pall over the conduct of whistleblowers — particularly as they have lent transparency to his conduct — the truth is that we are a nation whose rule of law was tempered for the better by the work of whistleblowers. Those challenging the statute quo eradicated the evil of slavery, brought voting rights to women, worked to eradicate discrimination in our educational systems, and have challenged workplace harassment and discrimination based on race, gender, religion and sexual orientation. Whistleblowers have exposed unlawful pharmaceutical marketing practices and scams by fraudsters selling college and graduate degrees.

Whistleblowers now have a new challenge. In the provision of healthcare supplies and healthcare itself, they will have an opportunity to be the watchful eyes who can protect government expenditures and the quality of healthcare. In businesses — large and small — across the country they can monitor applications for government grants and loans and make their voices heard when they see impropriety.

For those who step forward and seek to bring transparency to wrongdoing, there is in existence a law dating back to 1864 that provides individuals the right to step into the shoes of the government, report fraud, and bring litigation in the name of the government to seek economic redress on behalf of the government. That statute is called the False Claims Act allowing redress against those who cheat the Federal Government. More than 20 states — including California, New York, Illinois and Florida — have their own False Claims Acts allowing whistleblowers to bring litigation when the fraud involves sate dollars.

There has been over the past several weeks clamor about the importance of this statute and perhaps a need to amend it to make it more effective in batting the fraud that will arise out of the misuse of stimulus dollars. Those who litigate under the False Claims Act know that the law was thoughtfully drafted and is effective. It needs no amendment. What is needed is an administration that fully respects the importance of whistleblowers. Americans need an administration that will fully staff — at the agency level — the ability to investigate and analyze the information and complaints brought forward by whistleblowers. We need an administration committed to imposing the full panoply of damages — treble actual damages and civil penalties — on wrongdoers. And we need an administration that goes after individuals and not merely the corporate shells that provide cover for their misconduct.

Whistleblowers are our heritage; they are an American tradition. Honoring them and protecting our stimulus dollars means aggressive enforcement compliance under a law that is on the books and works.

COVID-19 Will Lead to New False Claims Cases

Reuben Guttman Articles, Whistleblower Articles, Whistleblowers Blog

The COVID-19 virus is inspiring new private-public relationships that will lead to a new generation of whistleblower cases under the Federal False Claims Act.

Government is injecting billions of dollars into the private sector for medical devices and necessary healthcare equipment. The private sector is now supplying everything from tests to masks and ventilators. In the massive purchase of products and services there is not a corresponding gearing-up in oversight. Whistleblowers will be essential in documenting defective products, and false billing for services or products not supplied or rendered.

The fraud will not just be limited to medical products; state and federal governments are spending billions to build temporary medical facilities and there is no doubt that there will be fraud, waste and abuse in their construction.

To keep the economy from collapsing, the government has made grants and loans worth billions of dollars. Recipients of government funds must make truthful representations on their loan or grant applications and they must continue to meet the requirements of the loan or grant for an extended period of time. The conditions of receipt of government funds are as detailed as the requirement that a recipient remain neutral in a union organizing campaign; in other words, ripe for misuse.

The bottom line; COVID-19 has created a new role for whistleblowers.

On the Rule of Law: The Times They are a-Changing and So Should Trial Advocacy Training

Reuben Guttman Articles, Whistleblowers Blog , ,

By Reuben A. Guttman |

As a lawyer, I grew up in dusty warehouses, the repositories for massive document reviews. I tore through boxes, often disappointed to find reams of computer runs, no doubt the product of a twentieth-century printer that pecked out letters one at a time. I drafted my first complaint on an IBM Selectric II typewriter, hitting the whiteout key repeatedly with my index finger, often erasing entire sentences at a time. I walked that complaint to the federal courthouse in Pittsburgh, Pennsylvania, wrote out a check from my personal account, and received the file stamped copy. Back in the days of the “notice pleading,” my eleven-page masterpiece was a triumph. 

For young lawyers, this may seem like the practice of a different age. For veteran attorneys, it was yesteryear. In my lifetime, technological changes have rewritten the rules of litigation and trials. 

The days of the dusty warehouses are gone. Documents arriving on zip drives are uploaded to a platform enabling a lawyer to lay in bed at night and access millions of pages of potential evidence on a two-pound iPad or small iPhone. 

With iPhones, virtually every person, from every corner of the earth, can be videoed, photographed, or audio-recorded at a moment’s notice. Spontaneous comment, once pried loose through deposition testimony, is now recorded for posterity on Twitter feeds, Facebook newsfeeds, LinkedIn profiles, Instagram accounts, and emails. What should never have been can now be undone using a website called Wayback Machine that reveals original drafts of online information.

Of course, few people walk their complaint to the courthouse anymore for filing. That too is done electronically. Today, the only place one can find an IBM Selectric II is perhaps at a yard sale or in a Smithsonian Institution warehouse. The skilled typist, whose hands once danced on typewriter keyboards, are no longer necessary for big litigation. Lawyers can research, draft, edit, and file their pleadings directly from the confines of a tiny laptop computer, even while sipping coffee at the neighborhood coffeehouse.

The opportunities for young lawyers to hang a shingle and be a voice for the voiceless are almost infinite. The overhead of having a law library, a secretary, or a runner to file papers in court has vanished. Even where cases require more than one lawyer so that legal thought can be second-guessed, practice norms have changed. Today, smaller firms and solo practitioners join forces for a case or joint venture with other firms. Because individual lawyers can now represent those in need without the support of a big enterprise, training individual lawyers to put together and litigate cases is an even more empowering endeavor. Newly minted lawyers can no longer complain about employment prospects. A licensed law school graduate with the right training should be ready to represent clients. There is currently no dearth of those in need of representation. It is the job of law schools and legal educators to provide lawyers and would-be lawyers with practical skills.

Contemporary litigation is not just about new opportunities, it is also about how we investigate and try cases. Along with advances in technology, the United States Supreme Court has imposed procedural changes that front-load litigation, requiring lawyers to gather fact-specific evidence for the pleading stage. In the Iqbal and Twombly decisions, the Supreme Court eliminated the age-old notice pleading standard. After these opinions were issued, plaintiff lawyers feared lacking the necessary information to meet the new standards. Yet, information readily available on the Internet from LinkedIn, Facebook, Instagram, Twitter, and chat rooms continually provides data and information to would-be litigants before discovery even begins. Company policies, government standards, and the standards of well-known oversight entities like the Joint Commission of the Accreditation of Hospitals need not be accessed through a trip to the library and searching the stacks: they can be pulled up on an iPhone while watching a baseball game.

In his autobiography, My Life in Court, the great trial lawyer Louis Nizer talked about litigation as a game of probability. Witnesses are put on the stand and testify to an event or chain of events. While their testimony may be truthful, it may not be accurate. Memories are flawed and witnesses view events from a particular vantage point, often not incorporating a scene’s entirety.

One wonders if Nizer—who passed away in 1994—would view things differently today. iPhone videos, photographs, audio recordings, and emails memorializing real-time recollections eliminate jury guessing games and reduce the need for witnesses. Does counsel really need eyewitness testimony of a car accident also captured on an iPhone? In a theoretical sense, just as automation has taken workers off the production line, technological innovation has taken witnesses off the stand.

To keep up with the times, we need to adjust teaching methods. Trial advocacy programs often start by teaching students the art of direct and cross-examination, followed by openings and closings. Why not begin training by requiring that students try cases using only documents, videos, photographs, and audio recordings? This forces students to learn the evidentiary rules of relevance, hearsay, and authentication as well as the art of openings and closings. For their first mock trial, prohibit students from calling witnesses; make them try the case using non-testimonial evidence. Then have them retry the same case with witnesses. This approach is the legal equivalent of the basketball coach making players practice with their weak hand or the ice hockey coach having players scrimmage with their sticks turned upside down.

Forcing students to focus on exhibits also teaches them how to select, or better yet de-select—perhaps from a trove of electronic information—exhibits that nail the case. In an era of abundant information, the skill of exhibit de-selection is critical to avoid going down a rabbit hole and losing the decision maker.

Front-loaded litigation, caused by pleading rules changes, requires that students think about evidentiary rules during case development and investigation. Here are some rules to stress:

  • FRE 201 (Judicial Notice of Adjudicative Facts). So much available online information meets FRE 201 requirements. Challenge those in trial advocacy programs to look outside the case file for industry standards or other usable evidence. This not only teaches students about the rule, it encourages curiosity, creativity, and thinking outside the box.
  • FRE 801(d)(2) (An Opposing Party’s Statement). Simply teaching students about opposing party statements is not enough. In an age when opposing party statements are common, students must also learn this rule’s broad utility. Think about emails, PowerPoint presentations, LinkedIn, Facebook, and Tweets.
  • FRE 901 (Authenticating or Identifying Evidence) and FRE 902 (Evidence that is Self-Authenticating). Teach students that if evidence is one, relevant under 401; two, not excluded under 403; three, not hearsay under 801(d); or four, meets a hearsay exception under 803, then the 901 and 902 authentication rules are the gateway for presenting evidence without a witness in court. FRE 902(13) and (14) even contemplate the mechanisms to authenticate electronic data.
  • FRE 1006 (Summaries to Prove Content). In an age of more information than we know what to do with, consider FRE 1006 the “sleeper” of the Federal Rules of Evidence. It allows the presentation of data summaries to the court and/or the jury. Remember the movie The Rainmaker where the young lawyer, played by Tom Cruise, presents Great Insurance Company’s CEO with a foot-thick computer run of wrongfully denied claims? FRE 1006 permits summary usage in lieu of burdening the jury with a multitude of documents detailing the same thing. FRE 1006 may also eliminate the need for expert testimony from economists and accountants who will do nothing more than summarize and add up numbers.

Most importantly, we as teachers need to keep up with changes, adjust our methods, and maintain student engagement.


Reuben Guttman is a founding partner of Guttman, Buschner & Brooks, PLLC, in Washington, D.C. Read more of his On the Rule of Law columns here.

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