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 to receive the correspondence were 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 sought comment from the four abovementioned firms but did not hear back.

Following this, Lawyers Weekly approached numerous global firms that have both US and Australian offices to ask if those practices remain committed to DEI policies and initiatives amid the US government’s actions, as well as the broader corporate backlash currently underway.

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A spokesperson for Baker McKenzie said that, as a global firm, it complies with the applicable laws “in all jurisdictions in which we operate, whether that be in Australia, the US, or elsewhere”.

“Against this backdrop, we remain committed to our core values around inclusion, diversity and equity and non-discrimination in the workplace,” the spokesperson said.

A spokesperson for K&L Gates said it is committed to fostering opportunity and inclusion, “which are integral to our core values”.

“We take pride in the cultural diversity of our people, which not only strengthens our firm but also elevates the quality of service we provide to our clients and the communities in which we all live,” the spokesperson said.

A&O Shearman and Dentons declined to comment.

Norton Rose Fulbright and White & Case did not respond in time for the filing of this story; however, NRF’s website notes that each of the firm’s offices has a DEI committee.

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 in the US will shift the positions of BigLaw firms Down Under – particularly those with American offices.

Further targeting of BigLaw

The DEI probes follow President Donald Trump’s signing of 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 and brazenly 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”.

The EO against Paul Weiss has now been rescinded, with the firm having pledged to review its hiring practices and to provide tens of millions of dollars in free legal services to support certain White House initiatives.

The Trump administration has pressed on, however, now imposing similar sanctions on Jenner & Block, for – among other things – employing a prosecutor “after his time engaging in partisan prosecution as part of Robert Mueller’s entirely unjustified [2016 special counsel] investigation”.

Moreover, and extraordinarily, in an EO titled, Preventing Abuses of the Legal System and the Federal Court, Trump has empowered Attorney-General Pam Bondi to review conduct by attorneys or their law firms in litigation against the federal government over the last eight years, and if the A-G “identifies misconduct that may warrant additional action, such as filing frivolous litigation or engaging in fraudulent practices”, then those firms may have security clearances revoked or federal contracts terminated.

Criticism from legal associations, academics

The Law Council of Australia recently signed a joint statement, calling on the US government to “immediately halt” all acts of intimidation and harassment of legal professionals, domestically and abroad, noting such attacks violate international human rights law and undermine the rule of law.

The American Bar Association has been steadfast in its condemnation of the Trump administration’s actions, and now, it has issued a statement, co-signed by 57 other US-based legal groups, rejecting the notion that the federal government can punish lawyers and law firms who represent certain clients or punish judges who rule certain ways.

“We cannot accept government actions that seek to twist the scales of justice in this manner,” the bodies said.

“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. Words and actions matter. And the intimidating words and actions we have heard and seen must end. They are designed to cow our country’s judges, our country’s courts, and our legal profession.”

Almost 80 law school deans have also co-signed a letter, pointing out that punishing lawyers for their representation and advocacy violates the First Amendment, and undermines the Sixth Amendment, of the US Constitution.

The legal educators – speaking in their personal capacities, and not on behalf of their universities – condemned government efforts “to punish lawyers or their firms based on the identity of their clients or for their zealous lawful and ethical advocacy”.