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Shhh! Pro Bono's Not Just for Liberals AnymoreVery quietly, big law firms are taking on conservative causes as well
Contrary to popular wisdom, pro bono isn't just the province of liberals. Bolstered by influential organizations and pro bono advocates, some big firms regularly champion libertarian causes, while others challenge race-based policies and represent opponents of gay rights and abortion. As the politics of pro bono become more fluid, distinctions between liberals and conservatives are also blurring. The shift, seen in recent Supreme Court showdowns, is a quiet phenomenon that's 20 years in the making.
The American Lawyer2007-07-09 12:00:00 AM
They are not the poor, the infirm or the otherwise dispossessed. Instead, Harry Korrell III's pro bono clients are parents -- predominantly white -- from a comfortable suburb of Seattle. Last fall, Korrell, a partner at Davis Wright & Tremaine, took their case to the U.S. Supreme Court, arguing against the Seattle school choice program in which race is a factor in the allocation of coveted slots. In a controversial 5-4 decision in June, the Court ruled against the use of race in public school enrollment.
Even before the decision, the case sparked fury far beyond Seattle, galvanizing both supporters and foes of affirmative action. "People view it as reverse discrimination," says Korrell. "It's not popular." Even some of Korrell's partners disagreed with his view of the case. Nevertheless, Korrell says, Davis Wright has supported his work -- and he says that the case has not caused client defections or hiring problems. "We do well in recruiting minority lawyers," he says. "If a lawyer is afraid of coming here because of a case I handled, I wouldn't be sure of that person's judgment."
Korrell's case exemplifies a quiet phenomenon, 20 years in the making: major law firms supporting conservative pro bono causes. Contrary to conventional wisdom, pro bono is not just the province of liberals. Bolstered by influential groups like the Federalist Society, religious organizations and pro bono advocates, big firms now regularly champion libertarian causes such as free speech and property rights. More surprisingly, some are challenging race-based policies and representing groups opposed to gay rights and abortion. Indeed, the politics of pro bono are evolving -- they're more fluid than the stark line usually drawn between the left and the right. Conservative causes are not monolithic, and the distinctions between liberals and conservatives sometimes blur. In the "Bong Hits 4 Jesus" case recently argued before the Supreme Court, for instance, the American Civil Liberties Union sided with evangelical Christian groups to challenge speech restrictions on high school students, while conservative stalwart Kenneth Starr (now of counsel at Kirkland & Ellis) led the opposition. Even such a die-hard conservative as James Bopp Jr., general counsel of the National Right to Life Committee, is collaborating with the ACLU in challenging political advertisement restrictions in the McCain-Feingold campaign finance law. In Harry Korrell's school choice case, his clients aren't rabid conservatives, just parents who were "furious," he says, that because of racial preferences, "their kids couldn't go to school down the street." For big-firm lawyers like Korrell, pro bono no longer begins with a litmus test.
The most impregnable strongholds of liberal pro bono have for many years been abortion and gay rights -- two areas where the culture of big firms clashes head-on with social conservativism. Consider the recent Supreme Court showdown over partial birth abortion. More than a half-dozen prestigious firms (among them, Debevoise & Plimpton, O'Melveny & Myers, Morrison & Foerster, and Paul, Weiss, Rifkind, Wharton & Garrison) filed amicus briefs -- all on the side that sought to lift the ban on the procedure. "It goes to the core issue of women's right to choose," says MoFo pro bono chair Jamie Levitt, who represented a religious group that supports abortion rights. Debevoise partner Molly Boast, who wrote an amicus brief for a group of pro-choice doctors and statisticians, echoes that sentiment, adding that she takes the cause of reproductive rights "personally."
The absence of major firms on the anti-abortion cause surprised few in the conservative camp, which is quick to complain about liberal bias in big-firm pro bono. Pitching anti-abortion pro bono projects to firms is "a waste of time," says Bopp of the National Right to Life Committee; he says he stopped trying years ago, after being rebuffed by big firms. John Eastman, director of the Center for Constitutional Jurisprudence, calls gay rights a sacred cow, asserting that ever since Sidley Austin suffered law school boycotts after defending Colorado's constitutional amendment barring special protection for gays (the Supreme Court ruled against the amendment in 1995), firms have stayed out of controversies like Lawrence v. Texas, the 2003 Supreme Court case that struck down Texas' sodomy laws. Former Wachtell, Lipton, Rosen & Katz associate Andrew Schlafly, now a solo practitioner (and the son of conservative doyenne Phyllis Schlafly), says flatly, "Large firms never do work [for conservatives] on homosexual or abortion issues."
To a certain extent, the conservative activists have a valid point: Big-firm pro bono has traditionally tended to the left. Wiley Rein partner Andrew McBride, a former U.S. Attorney who has authored amicus briefs in support of the Bush administration's handling of national security and detainees cases, says the tilt is inevitable. Pro bono, he argues, is by definition liberal; working on behalf of "those without sufficient means [amounts to] advocacy on the liberal side." And lawyers on both sides agree that elite firms, especially in New York, tend to be liberal -- at least on social issues. "Our history is on the liberal side," says Stuart Gold, a partner at Cravath, Swaine & Moore. Gold says that it's unimaginable that Cravath would take work that restricts gay rights, such as advocacy against same-sex unions: "Thinking of the sensibilities here, I'm not sure we could get enough people to work on it." Adds Jeffrey Trachtman, the pro bono chair at Kramer Levin Naftalis & Frankel: "It would be offensive to be against abortion [or] minority, gay or women's rights. Are those politically correct positions? I'd like to think it reflects values."
But even within this liberal sphere -- and even when the issues are gay rights or abortion -- some blue-chip firms are lending pro bono support to conservatives. In 2005, for example, Paul Weiss partner Robert Parker wrote a Supreme Court amicus brief in the Solomon Amendment case, arguing that the government had the right to withhold funds from law schools that banned military recruiters. (The schools argued that the federal funding rules prohibited their First Amendment right to protest the military's discrimination against gays; the Court ruled in favor of the government.) And in 2002, Cravath partner Roger Brooks represented two pregnancy centers that were subpoenaed by then-New York Attorney General Eliot Spitzer for allegedly steering women away from abortion by stressing the emotional impact of the procedure. Brooks filed a motion to quash the subpoenas on grounds of free speech, and the attorney general's office eventually backed down.
Paul Weiss and Cravath both have liberal reputations, but neither Brooks nor Parker faced opposition from their firms. Brooks won't comment about how Cravath vetted his matter, but retired Cravath partner Paul Dodyk says, "I'm sure eyebrows were raised, but no one stopped him." Parker, who calls himself a libertarian, says, "There's no litmus test here. Paul Weiss is a diverse place in every sense."
Big firms are also challenging racial preferences -- an area that has gained acceptance, says Cravath's Brooks, because "the issue of affirmative action has been in play so long, and no one knows what the right solution is." In addition to Davis Wright in the Seattle case, examples include Minneapolis' Maslon Edelman Borman & Brand, which handled two landmark 2003 affirmative action cases, Grutter v. Bollinger and Gratz v. Bollinger. The 80-person firm challenged the University of Michigan's raced-based admissions policy before the Supreme Court, which ultimately struck down the admission program in part.
Such advocacy is not without risk, says Terry Pell, founder of the Center for Individual Rights. "Race goes to the bottom line," Pell says, noting the Fortune 500's insistence on diversity at its law firms. Maslon, he adds, is still getting grief for its work on the Michigan cases; last year, a local consortium of firms and corporations working on diversity rejected the firm's membership. Maslon partner Kirk Kolbo, who argued the cases before the Supreme Court, says he's stunned at the fallout. "The irony is that the firm has a liberal history," he says, citing Maslon's school desegregation work. Some of the firm's clients also expressed "dissatisfaction" with the representation, says Kolbo, though "to my knowledge, no client removed their business."
Maslon is an exception, though: For the most part, lawyers say they have not suffered repercussions with clients -- or law school recruits -- for taking on conservative causes. Certainly, the rise of conservative think tanks and legal organizations has helped embolden right-wing lawyers. "Conservative public interest law firms are thriving -- fat, happy and prosperous," says David Luban, an ethics expert at Georgetown University Law Center.
Some groups, such as the American Center for Law and Justice, created by Pat Robertson in 1990 and now headed by Jay Sekulow, have become so successful that they handle most of their advocacy in-house. But others, like the Alliance Defense Fund, are making a determined play for a piece of the legal establishment's pro bono pie. With 35 full-time lawyers and annual revenues of $22 million, Scottsdale, Ariz.-based ADF vies with Sekulow's ACLJ as the Christian ACLU. Though clearly ideological (freedom of religion, sanctity of human life, and defense of marriage and traditional family values are its cornerstones), ADF is practical about how it approaches big firms. "We don't throw Bibles at people," says Jeffrey Ventrella, ADF's senior vice president. Instead, Ventrella says, ADF tries to find matters that will resonate with big firms, such as freedom of speech or religion cases. Or it reframes sensitive social issues, such as combating gay rights, as business matters.
ADF also underwrites a training program that's starting to attract big-firm lawyers. Dallas-based Akin Gump Strauss Hauer & Feld partner Randall Kucera, for instance, trained at ADF two years ago. Since then, Kucera says, he's taken on constitutional challenges that he wouldn't have handled before. In one case he's defending a school district in Texas that's been sued by the ACLU for including the Bible in its curriculum. In another, now before the 5th U.S. Circuit Court of Appeals, he's defending a school board's right to hold prayer meetings. Just a few months ago, in the highly publicized Baby Emilio case in Austin, Texas, Kucera fought to keep the fatally ill child on life support. (The case became moot when the child died.) Kucera says that Akin Gump has been nothing but encouraging about his pro bono matters.
Another conservative group, the Christian Legal Society, had no problem enlisting Gibson, Dunn & Crutcher in a 2001 fight over embryonic stem cell research. Representing an agency that promoted "adoption" of human embryos stored at fertility clinics, the firm filed suit against the U.S. Department of Health and Human Services to overturn guidelines that allowed for federal funding of embryonic stem cell research. CLS head Samuel Casey says that he became acquainted with Gibson Dunn when about half a dozen of its lawyers joined CLS for Bible studies. "We prayed with them on a number of cases they were doing," recalls Casey. A former Orrick, Herrington & Sutcliffe partner, Casey says that Gibson Dunn's work was key in persuading the Bush administration to back the embryo research ban. And should the ban be lifted, Casey says, "We'd take it to Gibson again. ... They treated us like IBM." (Former partner Thomas Hungar, now deputy U.S. solicitor general, led the stem cell case; he declined to comment.)
It's probably no accident that the stem cell case came out of Gibson Dunn's Washington, D.C., office. Home to Theodore Olson and Eugene Scalia, the D.C. office has a burnished conservative reputation; under Olson's leadership, the firm successfully challenged the affirmative action program at the University of Texas in 1996 (Hopwood v. State of Texas), still hailed as a proud win in conservative circles. Gibson's managing partner, Kenneth Doran, says he can't remember any fallout from conservative pro bono -- internally or with clients or law students. Indeed, Doran says, the firm's "diverse -- if not eclectic" pro bono is a point of pride, and possibly even a draw for recruits.
That laissez-faire approach, common in Washington, makes the capital New York's opposite when it comes to pro bono. "We're not in the business of purifying everything we do," says D.C.-based Donald Ayer, Jones Day's pro bono partner. Unless there's a conflict of interest, he says, lawyers can take on almost any project: "It's a free country." Jones Day partner Michael Carvin, who represented the Republican Party before the Supreme Court in Bush v. Gore, says he's swamped with polarizing clients -- paying and pro bono. "I've done a lot of controversial cases and not gotten heat," he jokes. "I'm beyond redemption." Not only did Carvin successfully defend Proposition 209, limiting affirmative action in California, he also helped push Ohio's 2003 constitutional amendment, which prohibits same-sex marriages and gay civil unions.
The bottom line, says David French, director of the ADF's Center for Academic Freedom (and a 1994 graduate of Harvard Law School who once worked at Kramer Levin), is that lawyers should not be discouraged from proposing conservative pro bono to their firms. "The legal profession is not ideologically uniform," says French. "Don't assume that because your firm represents Planned Parenthood or Human Rights Watch that it wouldn't take your project. ... I honestly see a lot of fair-minded people in law firms."