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A look back at the recently concluded Supreme Court term reveals, not surprisingly, that many of the parties and amici in the high court’s cases were represented by the nation’s largest and most prestigious law firms. What is surprising, however, is the number of major firms — close to three dozen (see attached list) — that made appearances on behalf of pro bono clients in matters of controversial and cutting-edge public policy. It is, perhaps, yet another sign that pro bono work at large law firms is on the rise. Per-hour activity at AmLaw 100 firms was up by 20 percent in 2002 — strong growth that substantially exceeded increases in both revenues and head counts. Early indications are that, to date, 2003 pro bono activity is at least on pace with 2002′s impressive performance. But the statistics, while notable, are only half the story. Equally impressive is a discernible change in the type of pro bono work that firms are undertaking. Increasingly, major law firms are demonstrating not only a willingness, but also almost an eagerness, to handle matters that involve hot-button policy issues. This is not, of course, an absolute break from the past. Major law firms have represented death-row inmates for decades, and many firms have handled crucial civil-rights matters through the Lawyers’ Committee for Civil Rights for more than 40 years. A few law firms, like Arnold & Porter, have taken on highly controversial matters since their inception. What has changed, however, is the emerging consensus among large firms that they have an obligation not only to promote and support pro bono service, but also, in particular, to encourage constructive engagement in the crucial legal issues of our time. Another pivotal change is the breadth of that consensus, i.e., the growing number of law firms that seek out and accept pro bono engagements of this sort. At the Pro Bono Institute, which works closely with the nation’s leading law firms to help them strengthen, institutionalize, and expand their pro bono programs, we have witnessed this shift. Increasingly, law firms contact the institute for advice on how to become involved in matters and projects that address major policy issues and how to successfully incorporate this type of pro bono work into their practices. This heightened interest takes many forms. It is reflected in the individual representation matters handled by large firm lawyers, which increasingly, for example, include cases seeking to protect the environment as well as representation of immigrants, asylum seekers, and detainees. It can also be seen in the growth of firmwide projects that focus on topics such as unaccompanied immigrant children in detention and challenges to underfunding of indigent defense systems. The increased participation in Supreme Court cases is simply the most visible manifestation of a broader trend. THREE CASES While major firms were involved on a pro bono basis in a wide range of Supreme Court matters this term, three cases reflect the vigor and breadth of firm participation. In Lawrence v. Texas, a successful challenge to Texas’ anti-sodomy law, lawyers from Jenner & Block served as co-counsel for the petitioners along with lawyers from the Lambda Legal Defense and Education Fund. Lawyers from many other firms represented a wide variety of amici, including AIDS and public health groups, a wide variety of gay-rights organizations, a consortium of religious groups, international human rights organizations, and the Log Cabin Republicans, among others. Two pivotal death penalty cases — Miller-El v. Cockrell and Wiggins v. Smith — involved pro bono counsel from Jenner & Block; Arnold & Porter; Zuckerman Spaeder; Sidley Austin Brown & Wood; and Wilmer Cutler & Pickering. And, of course, Gratz v. Bollinger and Grutter v. Bollinger — the two Michigan affirmative action cases — generated a virtual pro bono cottage industry among major law firms representing organizations that supported the University of Michigan’s admissions policies and the importance of diversity. Two of the most notable briefs — Jenner & Block’s brief on behalf of 65 leading American businesses as amici curiae (Mayer, Brown, Rowe & Maw represented General Motors in a separate brief) and Sidley Austin Brown & Wood’s brief on behalf of top military leaders, including several former chairmen of the Joint Chiefs of Staff (Joe Reeder of Greenberg Traurig led the effort to enlist the brief’s signatories) — give new meaning to the term “military-industrial complex.” To some extent, the role of large law firms in hot-button matters during the past year is coincidental — an artifact of timing — but there are several factors that made major firms more open to participation. They include the following: • The need is greater. A series of federal and state initiatives since 1996 — changes in immigration laws, the adoption of habeas reform, three-strikes legislation, to name a few — along with the positions taken by the George W. Bush White House and the John Ashcroft Justice Department on civil liberties and privacy issues present profound policy shifts that must be addressed in the courts. These laws and policies profoundly impact the lives of the poorest and most vulnerable people in our nation — welfare recipients, prisoners, persons sentenced to death, public housing residents, immigrants, and children — so it is only natural that pro bono resources expand to encompass legal advocacy on their part. • The resources are fewer. It is unfortunate that, at a time in which issues of profound importance to our national character and to the poor and disadvantaged are coming into play, the capacity to advocate on behalf of those negatively affected has been drastically reduced. Legal-assistance programs that receive even one dollar of federal funding, for example, are barred from representing incarcerated persons or from bringing class actions. Faced with a growing need for their services in a slow economy, public-interest groups — facing cutbacks in IOLTA revenues and foundation funding — are trying valiantly to do more with less. Major law firms are being called upon to fill the ever-growing gap between need and resources and to ensure that both sides in these vital matters are vigorously and zealously represented. • Awareness of systemic problems is growing. As pro bono counsel increasingly take on a wide range of individual matters — for instance, counseling immigrants in detention, parents of poor children with special education needs, or prisoners who failed to receive adequate representation at trial — they become aware of and concerned about the systemic failures revealed in their individual representation. As a result, they are more willing to try to resolve these issues on a systemic level. • Their clients are doing it, too. In recent years, the fear that major corporate clients will take offense at firms’ pro bono activities has been allayed. As lawyers in corporate legal departments increasingly undertake pro bono representation themselves, they lessen the concerns of outside counsel that firm pro bono work will be seen as inappropriate — or worse. In an era in which Merck & Co. General Counsel Kenneth Frazier represents a death-row inmate in his postconviction appeals and Microsoft Corp.’s top in-house lawyer, Bradford Smith, selects representation of immigrants in detention as the focus of his department’s pro bono initiative, firms feel far more empowered to take on difficult and controversial pro bono matters. The clearest sign that times have changed in-house is the fact that 65 general counsel of Fortune 500 companies were listed as of counsel on an amicus brief in support of the respondents in Gratz. One lawyer who certainly would be proud of what his peers accomplished during the 2002-03 Supreme Court term is the late Chesterfield Smith, who died July 16 at age 85. Smith — the one-time president of the American Bar Association, leader of the Florida Bar, and chairman of Holland & Knight — believed that great lawyers and great law firms cannot and should not shy away from controversy. He always put the cause of equal justice first, and he was perhaps best known for his Watergate-era statement in support of efforts to impeach President Richard Nixon: “No man is above the law.” He was also a great champion of the poor and disadvantaged who are so often denied access to the legal system. Passionate in his support of the Legal Services Corp. and fervent in his belief that pro bono is the heart and soul of the legal profession, Chesterfield created at his firm the largest pro bono department in the world, encouraged the firm to take on politically sensitive and highly controversial matters — from civil-rights cases to representation of notorious death-row inmates — and praised his partners for doing so. Esther F. Lardent is president of the Pro Bono Institute at Georgetown University Law Center. PBI summer law clerks Paul Ghosh-Roy and Kate Harrington contributed to this article.

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