During the recession of 1990-91, Anderson says his firm saw pro bono as incompatible with an urgent need to increase billables. Now firms are more likely to see pro bono work as a way to take up slack when billables are down, says Anderson, who expects pro bono numbers at Winston & Strawn will be "way up" in 2009. Last fall, the outgoing executive partner at Skadden, Arps, Slate, Meagher & Flom encouraged lawyers in the firm's New York office to take on pro bono projects if their practices slowed down. "Our monthly rates of increase in pro bono hours were already significant before that, but they've grown even bigger since," says Ronald Tabak, Skadden's special counsel for pro bono.
The institutionalization of pro bono, a process that began decades ago with the creation of committees like Anderson's at Winston & Strawn, has progressed to the point that it's almost unremarkable. Many Am Law 200 firms now have a full-time staff running their pro bono infrastructure or partners whose only responsibility is to the firm's pro bono program. "It used to be that firms would respond serendipitously to whoever knocked on their door," says Robert Juceam, another early pro bono pioneer who has practiced at Fried, Frank, Harris, Shriver & Jacobson since 1966. "Now they look at what's needed and seek that work out."
Juceam and others say that a symbiosis has developed between law firms and the nonprofits that refer and coordinate pro bono work. As executive director of Human Rights First, Elisa Massimino has worked with pro bono attorneys from dozens of Am Law 200 firms, particularly on asylum cases. She says better infrastructure has made working with firms much easier over the past six or seven years. "There's better organization on both sides of the relationship, and that makes pro bono a more productive enterprise," she says.
Firms - -and a younger generation of lawyers -- have also become more ambitious in the types of projects they consider, says Miriam Buhl, pro bono coordinator at Weil, Gotshal & Manges. When Buhl first met with Weil's pro bono committee members five years ago and asked if they wanted to concentrate on a single area, they said no: "They said, 'We want to make new law.'" Betsy Cavendish, executive director of Appleseed, has seen the evolution on the nonprofit side as well. "As the law firms have gotten larger and more sophisticated, we're learning how to take advantage of those resources and find the best ways to use that talent at a significant level," she says.
With the machinery and the appetite firmly in place, the past eight years have provided plenty of grist. Mitchell Bernard, litigation director for the Natural Resources Defense Council, says his organization filed 71 cases in the final two years of the Bush administration, many of them drawing on pro bono lawyers (Bernard estimates that close to a dozen firms commit pro bono time to NRDC each year). At Akin Gump Strauss Hauer & Feld, pro bono partner Steven Schulman says he saw a similar increase in pro bono work on asylum cases.
Whether the issue was Guantanamo, asylum, the environment or privacy, firms found ways to get in on the action. Says Juceam: "Every time there is public outrage, there is a pro bono aspect -- if not in the courtroom, then in a policy matter. In the last eight years, there has been a lot of outrage." Whether outrage translated into more hours may be open for debate, but it's clear that the zeitgeist of the Bush era energized much of the pro bono bar. Janet Reno promoted pro bono through U.S. Department of Justice initiatives; her immediate successors were targets of pro bono litigation.
For years, Bingham McCutchen associate Jason Pinney has been pro bono counsel for a Boston nonprofit that mentors and coaches city kids through a lacrosse league; he devotes a few hours a year to the organization. But since 2005, Pinney has also represented a group of Uighur inmates at Guantanamo whose cases became central to the legal battle over the prison. He's already logged more than 2,100 hours on the project. Pinney, now a sixth-year associate, says the experience changed his view of pro bono, making it a more fundamental part of his career. "If it had just been me and MetroLacrosse, I might not have that perspective," he says.
According to pro bono advocates, the lesson isn't that lawyers were engaged in a war on the Bush administration. Sometimes firms showed great reluctance to take on the administration, especially when it came to representing terror suspects immediately after 9/11. The point is that lawyers who had the opportunity to tackle significant pro bono matters -- and the legal battles of the past eight years have certainly been significant -- are likely to stay engaged with pro bono throughout their careers.
Vincent Warren, who helped oversee the efforts of more than 500 pro bono lawyers for Guantanamo detainees as executive director of the Center for Constitutional Rights, says Pinney's experience is typical. "These cases profoundly changed the lives of the lawyers who were involved," he says. In a similar fashion, lawyers who aided victims of 9/11 and Katrina have tended to remain involved in pro bono work, says Patricia Brannan, pro bono partner at Hogan & Hartson. "People really keep going back," she says.
Depending on how bad things get, the spiraling economy could still undermine pro bono's gains. No amount of infrastructure can save pro bono programs at failing firms. Former Thacher Proffitt & Wood pro bono Chairman Walter Van Dorn Jr. says that as the firm collapsed in 2008, its lawyers were working on their resumes, not pro bono projects. While some firms may be able to move associates to pro bono work when billable hours are scarce, many will continue to have no choice but to lay them off instead.
The shift in power in Washington, D.C., presents new challenges too. "Obama and Bush are demonstratively very different, and some people are adopting a wait-and-see attitude in terms of how the needs may have changed," Warren says.
For others, particularly on the right, the advent of the Obama era may signal a pro bono renaissance. "When people think a president supports their values, they have a tendency to take a seat on the sidelines," says Glen Lavy, senior counsel at the Alliance Defense Fund, a nonprofit that promotes conservative Christian causes. Last month the group held its annual litigation academy, a free week of training in exchange for a commitment from participating lawyers to devote 450 pro bono hours to one of its causes. Usually the course doesn't fill up until nearly summer. This year, Lavy says, all 100 seats were booked by February.
RELATED CHART:
Pro Bono Report 2009: Ranking The Firms
ADDITIONAL INFORMATION:
See the full Am Law Pro Bono 100 project for an in-depth look at law firms' pro bono matters.
Subscribe to The American Lawyer
