John Sturrock KC

In 1996, I attended Harvard’s Program on Negotiation (PON) to learn, for the first time, about interest-based negotiation. I was privileged to study under the legendary Professor Roger Fisher, co-author, along with Wiliam Ury, of Getting to Yes. Having spent many years being educated in and practising adversarial dispute resolution, this was a revelatory experience for me and it has informed my career ever since.

One of my tutors on that course in 1996 was a young academic, Sheila Heen. Nearly 30 years later, Heen is now the distinguished Thaddeus R. Beal professor of practice at Harvard Law School and deputy director of the Harvard Negotiation Project.

Recently, Professor Heen circulated a memorandum entitled “Advice I Almost Never Give: Don’t Negotiate”, addressed to law firms who are “under attack by the Trump administration”. This extraordinary document underscores just how serious things have become for many law firms in the US.

Heen describes how she has been teaching negotiation and developing theory and practice at Harvard for 30 years, spending her career helping colleagues and combatants find common ground and working in all sorts of situations of conflict. She goes on to say: “I’m now offering advice that I almost never give. Do not negotiate.”

Heen captures the “impossible choice” faced by many law firms:

In strong language, Heen describes President Trump as “a caricature of a unidimensional negotiator, operating exclusively from the domain of power… He tramples on rights … willy-nilly.”

Likening him to “a schoolyard bully”, she says that attacks on law firms are not about DEI and pro bono hours, any more than the playground confrontation is about the lunch money: “Trump’s message is clear ‘do what I say, or I will destroy you’.”

She argues that conceding anything to the administration teaches the president that “maybe he can push you around”. Coming to agreement confirms that you are willing to sign over your autonomy and let him micro-manage the internal decision-making and governance of the firm. This has resulted in at least a few of the best law firms in the country being effectively “under his thumb, working for him”.

His “driving interest is in neutralizing representation for anyone who opposes him. He is demanding that you replace your firm’s loyalty to your clients with loyalty to the president”.  He is positioning himself “to veto the top firms’ ability to represent anyone whose legal, constitutional, or human rights he tramples”.

For Heen, there is no risk-free path. However, refusing to negotiate protects the status quo, she argues, and enables the firm’s attorneys to uphold the Constitution, act with integrity, and represent clients zealously in pursuit of justice. Heen pleads for threatened firms to speak up and stand together. She asks if bystander firms will step in, offering resistance, “to stick up for the victim, collectively forcing the bully to back off? Or will they avert their eyes and hope to escape notice, lest the bully’s sights land on them?”

I make no apology for setting out Heen’s words at some length. They seem shocking to read and remind us that we must not take for granted the rule of law and the independence of the legal profession.

• John Sturrock KC is a mediator who previously practiced at the Scottish bar.