Earlier this week, acting chair of the US Equal Employment Opportunity Commission (EEOC), Andrea Lucas, sent letters to 20 law firms, seeking information about their DEI-related employment practices.

The letters express concern that the firms’ DEI practices “may entail unlawful disparate treatment in terms, conditions, and privileges of employment, or unlawful limiting, segregating, and classifying based on race, sex, or other protected characteristics”, in violation of America’s Civil Rights Act.

Among the firms targeted by the EEOC are A&O Shearman (which has offices in Sydney and Perth, including an advanced delivery and solutions arm out west), White & Case (which has offices in Sydney and Melbourne), Sidley Austin LLP (Sydney office), and Latham & Watkins LLP (which has a regional Australia practice).

Lawyers Weekly has sought comment from these four firms.

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Hogan Lovells – which exited the Australian market in September – also received a letter.

Lucas said: “The EEOC is prepared to root out discrimination anywhere it may rear its head, including in our nation’s elite law firms. No one is above the law– and certainly not the private bar.”

The letters sent to each of the 20 firms are publicly available.

In January, Lawyers Weekly spoke with six BigLaw firms in Australia, all of whom confirmed there is “no turning back” on creating diverse and inclusive workplaces, regardless of what the sociopolitical climate is like in the United States.

It remains to be seen whether recent events will shift the positions of firms Down Under – particularly global players that are US-headquartered or have American offices.

Restrictions on multiple BigLaw firms

This latest move by the Trump administration follows its targeting of BigLaw firms since the January inauguration.

In recent weeks, President Donald Trump has signed various executive orders targeting BigLaw firms in the US, including: removing security clearances and restricting access to federal buildings for lawyers at Perkins Coie LLP (which represented Hilary Clinton’s 2016 campaign); Covington & Burling LLP (which provided advice to former special counsel Jack Smith, who had led federal investigations into the returned president); and Paul, Weiss, Rifkind, Wharton & Garrison LLP (for filing proceedings against individuals that participated in the attack on the US Capitol on 6 January 2021).

Those orders also prevent government contractors from working with these firms.

The order signed by Trump against Paul Weiss was particularly personal, noting that “in 2022, [the firm] hired unethical attorney Mark Pomerantz, who had previously left Paul Weiss to join the Manhattan District Attorney’s Office solely to manufacture a prosecution against me and who, according to his co-workers, unethically led witnesses in ways designed to implicate me”.

Last week, Perkins Coie filed suit against the Trump administration, calling the executive order against it unconstitutional. In a statement, managing partner Bill Malley said: “At the heart of the order is an unlawful attack on the freedom of all Americans to select counsel of their choice without fear of retribution or punishment from the government.”

US District Judge Beryl Howell has now issued a temporary restraining order blocking enforcement of the order against Perkins Coie. As reported by NPR, Judge Howell said the “potential adverse impact [of the order] cannot be understated” and that it “casts a chilling harm of blizzard proportion across the entire legal profession”.

In a statement issued earlier this month, the American Bar Association (ABA) rejected the administration’s efforts to undermine the courts and the profession.

“We will not stay silent in the face of efforts to remake the legal profession into something that rewards those who agree with the government and punishes those who do not,” the ABA said.

“Words and actions matter. And the intimidating words and actions we have heard must end. They are designed to cow our country’s judges, our country’s courts, and our legal profession … these efforts cannot be sanctioned or normalised.”

Looking ahead

It is inconceivable that an Australian prime minister would move to blacklist a law firm perceived to be aligned with the opposition party. However, this is what Donald Trump is doing.

There are clear choices facing America’s legal profession, the ABA posited.

“We can choose to remain silent and allow these acts to continue, or we can stand for the rule of law and the values we hold dear. We call upon the entire profession, including lawyers who serve in elected positions, to speak out against intimidation,” it said.