Servants of the Damned

(Photo by Monika Skolimowska/picture alliance via Getty Images)

I recently finished reading "Servants of the Damned," a new book by New York Times business investigations editor David Enrich. The book exposes how Jones Day, one of the world's largest law firms, has used its immense power to enable corporate misconduct and, more recently, the Trump administration. I reached out to Enrich because his book provides essential insights into how corporations, with the help of firms like Jones Day, manipulate the political system. This conversation has been edited for length and clarity. I hope you enjoy it. — Judd

LEGUM: You describe regulatory changes around advertising that facilitated the growth of Jones Day and other law firms into much larger, much more powerful forces. It switched the focus of the firm from being officers of the court to doing whatever it takes to advance corporate interests and maximize firm profits. How much of this do you think is a reflection of Jones Day's evolution versus Jones Day responding to the demands of the modern corporation? 

ENRICH: It's actually a really easy answer to that question. It’s both. There’s a symbiotic relationship between these law firms and their big corporate clients. It's not a coincidence that as the global economy globalized and big companies became global, law firms were following suit. 

It's a cycle that kind of reinforces itself, because the more you expand, the more revenue you need to pay for that expansion, which means you need to become more aggressive in pursuing clients and assignments. The bigger you get, and the faster you get bigger, the more pressure there is on your lawyers to swallow the concerns that they might otherwise have had, put morality aside, and really just focus, within the confines of legal ethics and the law, on how far can we push to make as much money as possible as quickly as possible.

LEGUM: One of the through lines of the book I was really interested in is this idea of the law firm and how it chooses its clients. Do the misdeeds of the client reflect on the attorney? The pat answer that Jones Day keeps falling back on is that everyone needs an attorney, even unpopular people. 

ENRICH: There's certainly truth to that. I think it's very important that this remains the case, especially in cases when individuals, maybe even companies, are being accused of crimes. The Constitution is extremely clear that everyone accused of a crime has the right to competent legal counsel. That is written for humans, but even if you want to extend it to corporations, fine. I think you can even make the argument that in civil situations where someone or something is accused of wrong, that person or entity deserves high-quality legal representation. 

It's worth noting [high-quality legal representation] is often unavailable to people, especially poor people, or smaller organizations because so many of the best lawyers in the country gravitate towards these giant law firms that just simply will not represent individuals, small companies, small businesses, or smaller organizations. 

There are two huge problems with the argument that I see Jones Day and many other law firms putting forward that offers them blanket immunity from not only responsibility, but even scrutiny about the clients they represent. The first thing no one is entitled to representation to help avoid taxes, skirt regulations, hide their money, or intimidate witnesses. That's not something to which you are entitled to have a lawyer. That is often what these law firms are doing. Less and less of the work that big law firms are doing takes place inside the confines of a courtroom or even in the context of litigation. 

Second is that even if you accept that someone does have the right to those extrajudicial legal services, that does not excuse some of the conduct that I've seen Jones Day and other law firms engaging in in the course of representing those clients. They go out and pitch a client that has a widespread reputation for pushing the envelope. Then in the course of representing that client, engage in what the U.S. government later said was a pattern of abusive, deceitful, and arguably illegal activities on behalf of that client. 

LEGUM: As you go through some of the examples in the book, like their representation of RJR, or Abbott Labs. I think you make a pretty convincing case that they didn't conduct themselves, at least at all times, totally ethically as they were representing these clients. But do you think that there would be a way to kind of ethically represent RJR as it's getting sued by these smokers who are getting cancer?

ENRICH: I don't know, is the short answer. I don't think the fact that they're getting sued is the thing that would make me a little queasy. It's a fact that the entire tobacco industry, and RJR in particular, has a very well-documented history of lying about the deadly and addictive nature of its product. It's one of the only products that, when used as intended, kills the person who's using it. But, put my views aside, what I've heard talking to a bunch of people inside Jones Day, some of them are fine with the tobacco representation, but others, including some partners and former Supreme Court clerks, were so unhappy about the notion of working for a tobacco company that they reached agreements with the firm that they would not themselves have to work on those cases. 

You also can look at a lot of other corporate law firms that have just simply refused to work with big tobacco companies, some have refused to work with gun companies, things like that. I think clearly within the legal profession there are a lot of people who think there is, on its face, an ethical problem, or they would have an ethical problem, at least representing these companies. 

LEGUM: I think a lot of people's interest in this book, although there's really a lot of great stuff, is going to where you talk about the Trump administration and how Jones Day was so integral to the Trump campaign and then the Trump administration. You discuss large payments that were made to the Jones Day attorneys just prior to entering the Trump administration. To me, that stuck out as a hugely important issue because it seems not altogether dissimilar to them remaining on the Jones Day payroll while in powerful government positions. What is the significance of these payments and are there any government ethics or legal ethics issues that are implicated?

ENRICH: Jones Day’s argument is that by giving these payments, they are basically enabling people who have grown accustomed to very wealthy or very fat paychecks to accept a huge pay cut to go into public service. 

I think it is a terrible practice that creates a huge, almost unavoidable conflict of interest between the person who is supposed to be working on behalf of taxpayers and the fact that they've received a huge payment from their law firm. In some cases, their law firm has interests before the very departments and agencies that some of these people are working for. 

[Jones Day attorney James] Burnham, in particular, goes to the White House and then goes to the Justice Department, and is involved in this Walmart case. Jones Day is representing Walmart which is under federal investigation, and current Jones Day lawyers go to Burnham, and other Jones Day people in the Justice Department on behalf of their client. So, he's received basically an extra year's salary from Jones Day, and is then interacting with his former Jones Day colleagues as they represent a client that's opposed to the federal government, and then before long returns to Jones Day. I don't have any reason to think it does violate the rules and laws. But I definitely think that if you're concerned about the perception of a conflict of interest, that is not a good look.

For many of these people who received these payments, or who just left Jones Day, I think there was a tacit kind of understanding, that not only would the doors be open, but they could expect to receive big promotions and big pay increases when they got back. That, whether it's deliberate or not, creates a very powerful incentive for people in government service to potentially pull their punches.

LEGUM: What are the challenges of writing a book about a law firm that is known for, as you document, burying its adversaries in litigation? How do you write this book knowing that this is a firm that very aggressively cultivates its reputation to the point that it doesn't want to have its logo on an umbrella because there might be some raindrops on the logo and then that would look bad?

ENRICH: Ultimately, what happened is that toward the end of my reporting process, I sent a bunch of lawyers there very detailed fact-checking memos, essentially, that had in some cases, probably tens of thousands of words with hundreds of bullet points of, "I understand this to be true, do you have any response?" The book was not written at that point, but my reporting was mostly done. 

As is the nature of that kind of exercise, some things in those bullet points were wrong. That is a normal journalistic procedure. Jones Day had a fairly strong adverse reaction to that. At that point, Jones Day hired an outside law firm to come in and start representing them by sending repeated letters to my publisher attacking me and accusing me of bias and sloppiness and warning about the risks of publishing a book if it had defamatory material in it. 

So, it was not the easiest process I've ever had as a reporter, but I don't want to make myself sound like this huge David versus Goliath thing. They were applying the normal standard pressure tactics that a big institution or big company will generally use to try to control or exert some pressure over what people are prepared to write. And that's something that, unfortunately, has become the norm in these situations.

LEGUM: How has it been since the book was published? 

ENRICH: I don't know how many words it is, but books are usually about 100,000 words. The chance of not having anything wrong in a 100,000-word document is low. I make mistakes, other reporters make mistakes, that's the nature of the business. So I, and to this day, have been kind of bracing for Jones Day or outside lawyers to come and be like, ‘You got this wrong and this wrong.’ But I haven't heard a peep. 

For whatever it's worth, I don't care one way or the other about whether this helps or hurts Jones Day recruit clients. I do hope that this book helps law students and law professors talk a little bit more openly about what it means to become a lawyer at a big corporate law firm and some of the perils and ethical challenges you might face. 

You can purchase "Servants of the Damned" through BookShop.org and your purchase will benefit a local bookstore.