Let me start here (in the context of the above image which was taken in a church in the UK but resembles backbone, a relevant body part for this discussion).

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I taught contracts law for two plus decades. Yes, to be sure, my last class was 20 years ago but I remain more or less familiar with the rules of contracting.

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All that said

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Next, I respect the work of Harold Koh at Yale and always have. He is a thoughtful scholar. Third, I have not seen the actual final agreements negotiated and signed by the cratering Orange Shoe firms; I do not know if Professor Koh has. But, I know this: wise lawyers/law professors do not comment on agreements that they have not seen and analyzed; nor can I recite the negotiations that took place in reaching the agreements, the details of which impact coerciveness and duress and consideration and illegality (by the capitulating law firms).

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I am finding it very very hard to swallow that the cratering law firms (with their plentiful legal talent) signed their agreements with the President under duress/coercion as defined by law and accepted contract doctrine.

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If anything, the cratering law firms (that many are calling the Orange Shoe firms) committed legal wrongs that may well be sanctionable and actionable under state and federal law (including ethical violations).

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What you decide is a choice. And when your moment comes — and believe me, it will — please make sure that the decision you make is one you can live with.

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Next Steps

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Professor Koh among others suggests that the Orange Shoe Firms could “make it all right” by walking away from their agreements. Really? Does anyone see this actually happening? Can they even do that with impunity?

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And, here’s a point I made elsewhere, even if you walk away without legal consequence, does that eradicate the Orange stain on one’s firm? There are simply stains that cannot be removed; we can back away from bad deals and bad decisions but we cannot eradicate that we made a bad choice.

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Now, as to this latter point, that suggests that we need to be cautious when we make deals; remember, we need to sleep in the bed we make. And, for these reasons, I was delighted by the following quote of Professor Koh when speaking to the recent graduating law school class at GWU:

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Nothing left to say...

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Orange Shoe firms needed this advice. They made decisions and entered agreements that they now need to live with, including all of the concomitant consequences…legal, moral, economic, reputational.

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And, that old adage about selling one’s soul to the devil has real meaning now.