Wednesday, October 26, 2011

Pro Bono Programs: Seen as Total Bullshit and/or Public Relations

From “The Super-Lawyers: The Small and Powerful World of the Great Washington Law Firm”
by Joseph C. Goulden; chapter 10 “The New Washington Lawyers: Balancing the Scales”

Pp 356-361

When the big-firm recruiters toured the name law schools beginning in the late 1960s, they encountered a recurrent phenomenon. Ho-hum indifference. No one wanted to listen to them. “Interviews” turned into angry confrontations, with students haranguing dignified lawyers on “responsibilities to society” and “whorish corporate attorneys.” Who wants you money? The students asked. I want to do something more important in life them work for General Motors or United States Steel.

The recruiters were philosophical, if stunned. “We had no trouble in finding enough good people to fill the slots we had vacant,” a Covington and Burling partner told me. He paused. “But I must admit we did miss getting some people we wanted. You’d find someone with good grades and an outstanding law review record, but his attitude would be so fouled up you could get nowhere with him.” One result of this experience was a decision by the major Washington firms to expand and (in some cases) to publicize their pro bono programs. (Not every firm believes in pro bono work, by that or any other names. I asked a man formerly with Corcoran, Foley, Rowe and Youngman what public interest work this firm did when he was there. He thought a moment and replied, “Tommy Corcoran used to be nice to Lyndon Johnson.”)

Pushed by activist young associates, Arnold and Porter’s management committee decreed that as a matter of formal policy the firm would devote fifteen percent of its time to pro bono work. Arnold and Porter assigned a partner as full-time supervisor of the program, with authority to draw upon the full resources of the firm. One figure I saw listed Arnold and Porter’s pro bono outlay, in manpower and non-reimbursed expenses, at $500,000 for 1970. Wilmer, Cutler and Pickering computes that thirteen percent of the firm time went for public-interest/pro bono work during 1970. Mortimer Caplin, of Caplin and Drysdale, says his firm invested a “couple of thousand hours” for nonpaying or low-paying clients during writing of the Tax Reform Act of 1969.

Most of this work is done in the name of individual lawyers, not of the firm. There is a reason. “Any time an office has more than one lawyer in it, you have two opinions on a subject,” states a partner of Hogan and Hartson. A background sheet on Wilmer, Cutler and Pickering’s pro-bono program explains:

The firm’s 57 lawyers have individual and sometimes differencing views on public questions. It is our shared belief that individual lawyers with the form should be free, consistent with the Code of Professional Responsibility, to pursue their own independent and professional goals. Rather than attempting to achieve a unified “position” on any particular matter, the members of this firm encourage each individual to take whatever public position on issues of public concern he feels appropriate.

A sampling of Wilmer, Culer and Pickering cases: Contesting unreasonably high utility charges to the poor, especially in the South and Appalachia. Helping organize a nonprofit corporation to build low-income housing in Mississippi. Challenging early voter registration cutoff dates before Texas primary elections. Assisting the G.I. Office a center for servicemen complaining of military abuses, and the Vietnam Moratorium Committee and the New Mobilizations to End the War in Vietnam, the anti-war groups. Combating freeways planned to cut through a scenic park in Memphis, Tennessee, and New Orleans’s Vieux Carres. The firm can also mobilize manpower for an emergency: in April and May 1968, ninety percent of the lawyers in the firm helped represent persons arrested during the riots following the murder of the Rev. Dr. Martin Luther King; later, a partner chaired a D.C. committee that revised police court, and jail procedure during situations that result in mass arrests. And Culter has been a guiding force in the Lawyer’s Committee for Civil Rights Under Law, virtually the only surviving white-dominated group pressing for desegregation.

Law activists deride the pro bono programs. One morning while awaiting an appointment at the George Washington Law School I talked with two guys at the coffee machine, and we got onto pro-bono. “Pure bullshit,” one of them said. “Public relations,” said the other. “You ever hear of them going after anybody with money, the big corporations?” Yes, as a matter of fact. Arnold and Porter is helping Nader in a suit to require General Motors to recall trucks whose wheels allegedly have the disquietening habit of breaking apart. Some Arnold and Porter clients protested vigorously that the firm would help the demon Nader do anything whatsoever, but the firm persevered. And Benny Kass, who practices all alone, without foundation money or visible sympathy for Washington Lawyers, told me “Unhappily, a measure of sincerity in 1970 is how much money you are paying for something. Covington and Burling had paid $100,000 on the Culebra case the last time I checked. Now that means something.”

But the pro bono programs have inherent defects. The large firms are limited in the type of actions they can bring, lest they are caught in a conflict-of-interest problems with existing clients. For instance, airline business is spread evenly across Washington Law. A Benny Kass was required to sue American Airlines for allegedly deceptive advertising. When student activists wanted to sue District of Columbia banks for alleged violations of usury laws, the big firms politely told them to go away; any firm with a D.C. bank for a client- or possibly any bank- would have a conflict of interest. There are anomalies. Louis Oberdorfer was national co-chairperson of the Lawyers’ Committee for Civil Rights Under Law at the same time that his firm Wilmer, Cutler and Pickering, represented Crown-Zelerbach, which was being sued for employment discrimination under the Civil Rights Act. (The case ended with Crown-Zellerbach signing a consent decree.)

Even more serious a threat to pro bono work are the internal pressures from within a firm. When Richard Copaken began representing residents of Culebra he asked other public-interest lawyers for advice. “Get all the publicity you can,” he was told. One lawyer suggested that he demand equal TV time to counter Navy recruiting advertising- for each “John the Navy and see the world” spot, he should demand one saying, “Join the Navy and bomb the people of Culebra.” The lawyer told Copaken publicly was always vital on a public policy case being fought in the political forum of Congress. Copakan liked the idea, but told the other lawyer a few days later” “the firm wouldn’t let me do it. We represent a network, and such a suit might embarrass it.” Again, a Covington and Burling partner who formally held a high Department of Defense position subtly suggested that Copaken go easy on the suit. Copaken refused.”

Lawyers reflexive clubbiness is another inhibiting factor in pro bono work. In December 1971 the directors of the Washington branch of the American Civil Liberties Union were debating how much, if any, assistance the ACLU should give to attorney Phillip Hirschkop, who had been cited for contempt of court for his conduct of the defense of anti-war activists. The District of Columbia Bar Association, through its grievance committee, concurrently was initiating its own disciplinary proceedings. Hirschkop’s attorney, Monroe Freedman, wanted ACLU support in a court action enjoining the bar committee from acting. But two lawyers on the ACLU board argued against involving the ACLU in the case. One of them- David B. Isbell, of Covington and Burling- noted that Edmund L. Jones, a leading partner in Hogan and Hartson, another big firm, was chairman of the Grievance committee, and that any suit wold have to name him as a defendant. According to two persons at the meeting, Isbell noted that Hogan and Hartson handles fifteen to twenty cases a year for the ACLU, and that a suit against Jones could so “embarrass” the firm it would withdraw from further pro bono work. Isbel was outvoted. The ACLU decided to aid Hirschkop.

Covington & Burling – Drug Policy Foundation PRO BONO connection
Link FMD 3-31-08

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