Negotiating Power: David Enrich on Corporate Law

David Enrich’s book Servants of the Damned: Giant Law Firms, Donald Trump, and the Corruption of Justice (HarperCollins, 2022) documents the rise of corporate law firms, a culture of ethical boundary crossing, and Big Law’s role in Donald Trump’s presidency. Enrich visited Harvard Law School on January 28, 2023, for a live taping of the 5-4 podcast as part of the Corporate Capture of the Legal System conference. A week later, Dana Walters, associate editor of The Practice, spoke with Enrich, who is also the business investigations editor with the New York Times, about his narrative nonfiction account and what he hopes the legal profession takes away from the book.

Dana Walters: I’d love to start by asking you about the genesis of your recent book, Servants of the Damned. Can you tell me about when it first took shape?

David Enrich: This has been something I’ve been thinking about for a really long time. I’ve been doing financial and business journalism for almost 20 years now, and there’ve been so many moments when I’m covering a big business or financial scandal where lawyers from big firms are lurking in the background. One of the things about journalism, or at least business journalism, is that you end up talking to these lawyers a lot. I think most outsiders think that lawyers are so discreet and wouldn’t in a million years blab to journalists. But that’s not true. Many of our best sources are senior partners at Big Law firms. So, I spend a lot of time interacting with these lawyers and cultivating them as sources, honestly. I’d always been just fascinated by the way they were pulling strings—it seemed often on behalf of their clients—but there’d also been something nibbling away in the back of my mind that maybe this was as much about the lawyers trying to cozy up to journalists as it was anything else. That point crystallized for me when I saw, in a rare moment, a mainstream news organization set out to write an investigative piece looking into these Big Law firms. Some of the very same lawyers who were my sources were marching into our offices and saying, “If you are going down this reporting path, you can basically forget about us providing you any information in the future.” To me, that was a stark revelation about how power worked. I came to think that it was not a coincidence that the mainstream media so rarely writes about Big Law firms the way they would write about any other multibillion-dollar industry. I feel like reporters, myself included, have at times pulled punches, subconsciously at least, because lawyers have been great sources.

From that context, what became the book had been in the back of my mind. Then we have the 2020 election. Trump was, even before the election, really trying to undercut the people’s faith in the democratic process, and some of my colleagues and I started looking at big institutions, whether it was law firms or banks or other entities that had been lending support to Trump and his campaign. We came across Jones Day, which was a Big Law firm that had been working for the Trump campaign for about five years. All of a sudden it clicked in my mind that this was a great opportunity to write a book about the rise of Big Law but also the way that some law firms, Jones Day in particular, have begun shifting from simply representing big companies to also representing big politics. And off I went.

Walters: I really enjoyed the historical context around the growth of law firms in your book, and I was wondering, as you were investigating that history, if there was anything that surprised you or stood out to you.

Enrich: A lot surprised me. I came at this pretty fresh. In the fall of 2020, as I learned about Jones Day’s role in elevating Trump, I started researching the history of the firm, which goes back to the 1890s in Cleveland. I began to realize that not only did Jones Day have this really interesting narrative arc, but it was in many ways emblematic of the arc of the legal profession. It had never occurred to me, for example, that Big Law firms weren’t something that always existed. I had thought what we see now was always just the way law was practiced. I was very surprised to learn that less than 100 years ago, the large law firm really didn’t exist at all.

Lawyers were basically solo practitioners who at times banded together to share back-office expenses. It was not until much more recently that this notion of getting together and sharing clients became a thing—much less law firms branching off into multiple different cities. And Jones Day, it turned out, was at the vanguard of that movement. They didn’t start it, but they were one of the leading firms that went from a Cleveland firm, to then becoming a multicity firm, to becoming a national firm, and then going on to become a global firm.

The other big thing that I just had not the faintest idea about is that lawyers previously weren’t allowed to advertise. I, like anyone else, have been on a million highways where you see these billboards or any other places where you see all these ads for lawyers. It had not occurred to me that there was a time, not that long ago, when that was prohibited. In my consideration of what has changed in the legal profession, that felt like one of the big turning points, and it was a very well-intentioned effort by acolytes of Ralph Nader to make the legal profession democratic, in the small “d” sense, and more open to competition and lower prices for consumers of legal services. But it also opened the door to a much more cutthroat environment where self-promotion is the norm, not the exception. Lawyers are in the business of marketing themselves as much as they are just trying to serve their clients.

Walters: Following up on this idea that you were approaching the legal profession from a fresh standpoint, I’m wondering if you could talk about any specific challenges that you encountered as you embarked on this book—challenges that were specific to the legal profession as opposed to your previous financial reporting.

Many law students, in particular, are grateful that there is a recognition—and a questioning—of the fact that corporate law has become the default destination for most law students.

Enrich: The biggest challenge, which is something I’ve faced in other book projects and frankly other reporting projects, was that people in specialized professions that are being scrutinized by the media or by outsiders have an automatic defense tactic. They attempt to make it seem as if you, the untrained, uneducated outsider, can’t possibly comprehend the subtleties and sophistication of the way they practice. I heard over and over and over again in the course of reporting this book about how I simply did not grasp the concept that everyone, no matter what, is always entitled to legal representation. That is a refrain that I of course had heard before, but I had never really stopped to carefully examine it.

About the 15th time I heard this from a Jones Day lawyer, I started digging, and I realized that the intellectual foundation of what they were saying was not as sturdy as they made it sound. I don’t think they’re deliberately trying to intimidate people, but there’s a tendency by people in professions like this or in certain corners of the banking industry, which I have spent a lot of time reporting on, to try to steer you away by making it sound like someone who has not gone to law school or does not have a finance background can’t understand, and almost shouldn’t understand, and shouldn’t dabble in that space.

One of the things I’ve learned over a long time as a journalist is that when people start doing that and making that sort of argument, it’s usually a surefire sign that you’re on to something because it’s not engaging in argument or even engaging with facts. They’re trying to push you away without having any real substantive discussion. I’ve come to expect that, and I think many journalists have come to expect that. And you just need to trust your instincts in situations like that.

Walters: That’s a good point to ask about the reaction among the legal profession since you’ve published the book. What sort of engagement have you seen?

Enrich: It varies tremendously. I’ve gotten tons of great feedback from many, many lawyers and even more nonlawyers. I’ve gotten a lot of positive engagement from law schools and from the plaintiff side of the bar. Big corporate firms have been, I think not surprisingly, a little less thrilled with it. And Jones Day’s reaction has been, not surprisingly, especially robust. Just by way of background, I spent give or take two years working on this and started engaging with Jones Day, or trying to engage with Jones Day, very early on in the process. I both reached out to individual lawyers and tried going through the front door to talk to their PR person and to the leader of the firm at the time, Steve Brogan.

Brogan and the PR person—I can’t tell you how many emails and phone calls I made to them—never responded to a single one of my inquiries. But many other Jones Day people did, including very senior people at the firm. A lot of them provided very useful information and corrected some of the mistakes that I thought I had learned through the reporting process, which is just normal, healthy back-and-forth. Since the publication, the reaction has not been positive from Jones Day, and they have attacked me in the pages of the Wall Street Journal. I did an event at a law school in New York City back in the fall, and the night before I was scheduled to speak, the guy who was going to interview me got a letter from one of the top partners at Jones Day warning him against talking to me.

Jones Day has also hired an outside law firm to send pressuring letters to my publisher accusing me of bias and bad faith and sloppy journalism. These are the same tactics that I have come to expect Big Law firms to use in these situations, which is to apply pressure on lots of different fronts. They hope that some of that pressure will get you to either back down or stop writing or rein in some of what you’re saying or doing. Luckily I work for the New York Times and my publisher is HarperCollins, so I’m not an independent person facing it alone. And I have lawyers who are good at handling these situations.

Walters: It’s good to have your own lawyers. When you heard from law students or engaged with the plaintiff’s side of the bar, what were the kinds of things you heard?

Enrich: Many law students, in particular, are grateful that there is a recognition—and a questioning—of the fact that corporate law has become the default destination for most law students. There are alternatives, whether that’s working on the plaintiff’s side or going into government or going in-house somewhere or doing other public interest work. I think that there are a lot of law students out there who are really hungry for their concerns about going into Big Law to be broadcast to a wider group of people, so I’ve picked up a lot of gratitude, and also curiosity, from law students.

One of the things I get into in the book repeatedly is that there are ethical lines that you should not cross as a lawyer in representation of a client. The question of where exactly to draw those lines is often a bit murky, and so I’ve heard from a lot of students and law professors who are really interested to engage in that debate about how to detect where those lines are. What do you do if you are approaching one of those lines? One of Jones Day’s biggest clients historically has been RJ Reynolds, the tobacco company. There are a lot of other law firms out there that have stopped representing tobacco companies or gun companies because these are companies that when their products are used as designed, they often kill people, which is not a great look in today’s world. This is not to say no one should represent them. It’s just saying that a lot of law firms have decided not to represent them.

One of the examples I point to in the book that I want law students to take note of is that Jones Day spends a tremendous amount of time and money recruiting clerks from the Supreme Court, and these clerks have a lot of leverage to make demands of their own about the type of work they want to do. Some of these clerks going into Jones Day have agreed to join the firm on the condition that they can just avoid working for certain clients or on certain types of cases—for example, not doing tobacco work. I’ve talked to a bunch of students who have said that it had never occurred to them in their negotiations with law firms that they could use, or even try to use, leverage like that to say, “I would love to come work for your firm on the condition that I not work for Exxon, or I not work for Smith & Wesson or RJR.”

The mainstream media has completely failed at covering the legal industry.

I don’t know how effective it’ll be for any law student at most firms to go in and say, “I refuse to work on a certain type of case.” But I think for a lot of law students, they had not learned that that was even an option. And, frankly, that is one of the great failings of a great many law schools right now is that they are not doing enough to educate their students about alternative career paths and just ways to navigate Big Law, which is where, again, I think most students are probably headed.

Walters: I found the panel around the plaintiff’s bar at the Corporate Capture conference last weekend to be one of the more interesting things, because you don’t hear a lot about it as an option.

Enrich: I hadn’t even realized until I was on campus at Harvard last weekend the extent to which law schools and law firms are explicitly steering students into not just any legal career, but a career at these elite giant law firms. I’ve talked to a bunch of people about that subsequently, including my father, who was a law professor himself. Almost all of them have been like, “How did you not realize that? You just wrote a book about the legal industry.” I wish I had known it. Frankly, I wish I had been at this conference a year ago before I was done writing the book, because it really opened my eyes a lot to how  people are funneled into Big Law firms. Law schools are facilitating it—you automatically get a job, and you deal with your student debt, and it’s almost hard to avoid that outcome.

Walters: It’s a good moment to ask about what your goals for the book were. You talked about the reaction from law students. I’m wondering, was that an added benefit or was eliciting that response the goal? What did you set out to accomplish in writing this?

Enrich: Aside from the obvious goal of I want as many people from as broad a range of professions and interests as possible to read the book, there were also two broad classes of people that I was really hoping to reach, and one of them is the law school community, whether that’s law school administrators, professors, or students. I knew that this was an issue with law schools funneling students into these big firms. I just hadn’t realized quite the extent and how explicit it was. But I was hoping that writing a book like this that was written in a narrative sense, and not a textbook, would make it a little more approachable to people who were in their 20s considering going to or studying at law schools, and that it would open their eyes to what they are likely to encounter if they arrive at a big firm. Jones Day has done a lot of stuff that deserves a lot of scrutiny, but I don’t think they’re really an outlier. They’re not even the most elite, most aggressive firm out there by any stretch of the imagination. So I was hoping to reach a lot of law students and also just help law professors articulate to themselves, to their students, and to each other why there’s reason to be a little more skeptical about sending their students down this road.

The other big group of people I was trying to reach are those in the media. The mainstream media has completely failed at covering the legal industry. It’s ridiculous because this is a multibillion-dollar industry. There is no other industry in America that is so big and so influential and so rich that is just generally ignored by the media. That is a real problem on so many different levels. It means that we, as journalists, are often not understanding the dynamics that are at play in business, or in politics, or just in society at large. It also means that there’s this entire class of actors in our society who have a lot of power and money and influence that are just not getting the scrutiny that they deserve for the good things they do and also for the bad things that they do. That lack of scrutiny almost automatically translates into people thinking they can push the envelope further than they should and there will not be consequences—certainly not reputational consequences.

That’s one of the roles the media plays in our economy and our society and our politics, or at least it should. The act of writing about and exposing things educates people, and it can work as it gets people to think about how they would react if what they are about to do ends up on the front page of the newspaper. I’m obviously highly biased about this as a journalist, but to me that’s a pretty healthy fear for people to have and it keeps power in check. Ultimately, that is what our job as journalists is or should be.

Walters: With that call to action, what’s next for you as a journalist? Are you going to continue down the legal beat?

Enrich: I don’t know. I’ve received a lot of tips about good stories, book ideas, things like that in the legal world. I don’t know what I’m going to do next. But I remain really fascinated. One of the great things about writing a book like this is that there are a lot of lawyers out there whom it had never occurred to that there would be journalists out there who would really want to hear the inside stuff that they’ve got. And we do. I do. And a lot of them have materialized in the past few months for me and there’ve been many a tantalizing tip. And I am happy to receive more.

David Enrich is the business investigations editor at The New York Times. He is the author, most recently, of “Servants of the Damned: Giant Law Firms, Donald Trump, and the Corruption of Justice.”
Mr. Enrich previously was finance editor. Before joining The Times, he was a reporter and editor at The Wall Street Journal in New York and London. His previous books are “Dark Towers,” about Deutsche Bank and Donald Trump, and “The Spider Network,” about a man at the center of a vast financial scandal.

This interview has been edited for length and clarity.