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D.C.’s Legal Aid Society is located in the city’s downtown business district, nearly swallowed by the bland postmodern office buildings proliferating in the area like objections during a hot cross-examination. Although many legal and political power brokers are based in the neighborhood, the society serves the “other” D.C., one of the poorest, most violent cities in the country. Ten thousand people come through its doors every year — some seeking help because of violence at home, some trying to get food stamps, still others about to lose their homes. Luckily, the society is only a couple of blocks away from Arnold & Porter and Covington & Burling, and not much farther from Wilmer Cutler Pickering Hale and Dorr, firms with three of the country’s premier pro bono programs. Philip Horton, co-chair of A&P’s pro bono program, is president of the society, and the firm loans it an associate on a full-time basis. Wilmer and Covington each have a representative on the society’s board and have been accepting referrals for years. The work they do for the Legal Aid Society is just one of the reasons that Wilmer Cutler (before its merger with Hale and Dorr) ranked first in The American Lawyer 2004 pro bono survey, Covington was second, and A&P was third. Those firms held the No. 2, 3, and 4 spots last year, and each has been in the top 10 for the past decade. The numbers tell the story: The average U.S. lawyer at Wilmer worked almost 135 pro bono hours last year, more then twice as many as the average U.S. lawyer at New York’s Simpson Thacher & Bartlett, a firm known for the strength of its public service program, and more than three times as many as the average Am Law 200 lawyer. Horton estimates that A&P dedicated $25 million worth of time and laid out $1 million in expenses for pro bono work last year. The 414 U.S. lawyers at Covington worked more pro bono hours last year than did the 912 U.S. lawyers at Chicago’s Mayer Brown Rowe & Maw and the 775 U.S. lawyers at Chicago’s McDermott, Will & Emery — combined. According to their pro bono directors, their commitment grows out of their history. Covington, for example, represented a young Japanese-American who refused to report to a World War II internment camp in Korematsu v. United States, a 1944 U.S. Supreme Court case. Although the firm lost, Covington pro bono chair Anthony Herman cites it as the wellspring for the firm’s sense of obligation to public service. A&P’s Horton traces his firm’s work back to the 1950s, when the firm defended China scholar Owen Lattimore and several government officials accused of disloyalty by then-Sen. Joseph McCarthy. The Wilmer firm wasn’t born until 1962, but the next year, founders Lloyd Cutler and John Pickering were two of the first to answer President John Kennedy’s call for private lawyers to join in the fight for civil rights. They helped found the Lawyers’ Committee for Civil Rights Under Law; partners at A&P and Covington were also among the early members. The D.C. ecosystem has allowed those early commitments to flourish. “Washington practice attracts lawyers with a slightly different bent, lawyers with a healthy interest in the process of government and policy, and those issues are easily pursued in the pro bono realm,” says A. Stephen Hut Jr., co-chair of Wilmer’s pro bono program. The statement is confirmed by the slew of D.C. firms that round out the top 30 in this year’s survey: Steptoe & Johnson (No. 22), Patton Boggs (No. 25), Crowell & Moring (No. 26), Dickstein Shapiro Morin & Oshinsky (No. 29), and Hogan & Hartson (No. 30). The District can seem like a small town, which means that these firms see a lot of each other, as they did during last year’s Supreme Court battle over campaign finance reform, when Wilmer represented the legislation’s sponsors (pro bono), while Covington represented the Republican National Committee (and was paid for it). Although they share similar histories, the type of work done by A&P, Covington, and Wilmer has diverged over time. Pro bono work can be divided into poverty work (nuts-and-bolts work for indigent clients referred by the Legal Aid Society and other community groups) and impact cases (big, complex matters with far-reaching constitutional or policy implications). Historically, big firms focused on impact cases, regarding them as something like their birthright. But starting in the 1960s, a shift to poverty work took place. “There was a growing sense that lawyers weren’t the best agents for social change,” says Herman. “Most of the civil rights battles had been fought. A lot of people thought, �We’ve done all we can in the legal system, and it hasn’t worked that well.’ ” Poverty work, on the other hand, allowed lawyers to make a concrete difference, albeit on a small scale. Covington was one of the firms that led the move to poverty work when it established a rotation with the District of Columbia’s Neighborhood Legal Services Program in 1969, and the majority of its pro bono time is still spent on poverty work. Wilmer also spends most of its time on poverty work, although both firms take impact cases as well. Last year, for example, Covington represented more than 50 African-Americans in two states who allege they were discriminated against by the Cracker Barrel Old Country Store chain of restaurants. Paul, Hastings, Janofsky & Walker defended Cracker Barrel. Wilmer’s recent impact work includes the representation of dozens of African-American residents of Tulia, Texas, who had been wrongfully imprisoned on drug charges. (Hogan & Hartson was also involved in this case.) A&P lawyers, on the other hand, spend most of their time on impact cases, such as last year’s challenge to Mississippi’s funding of legal services for poor criminal defendants, following the trail it blazed four decades ago in Gideon v. Wainwright. When it comes to impact cases, firm demand exceeds supply, and the competition can be fierce. “It’s the same in pro bono as it is in banking,” says Hut. Explains Horton: “Twenty years ago, referrers [public interest groups that match lawyers with cases] had trouble placing the big cases. Now firms like ours compete for them. A couple of months ago, I got a call on a Friday evening from the Lawyers’ Committee for Civil Rights Under Law about an interesting case. Right away, I tried to find some volunteers. I didn’t want to wait until Monday and give Covington or Wilmer a chance to take it away from us.” “The public interest organizations have become very savvy about it,” adds Herman. “They used to call one firm, then wait for it to get back to them. Now, when they get a case, they call all three of us. If you don’t call them back in 10 minutes, somebody else is going to take it. One of the reasons we hired a second pro bono coordinator is so we could move more quickly.” Unfortunately, there’s an almost unlimited supply of poor people with legal problems, so firms don’t have to fight for those clients. Surprisingly, referral agencies don’t have trouble placing controversial cases. One would think that the firms would be afraid of alienating commercial clients, but they’ve taken on some of the most divisive issues around, and none of the pro bono directors recalls getting an angry call from a client. A&P, for example, is lead outside counsel to NARAL Pro-Choice America, and Hut successfully argued a recent case in the Southern District of New York, which last week enjoined the federal ban on so-called partial-birth abortions. They do, however, avoid positions that directly conflict with their clients’ business. Both A&P and Wilmer represent a number of financial institutions, so both firms avoid creditors’ rights cases. Similarly, the Microsoft Corp. is a client of Covington’s, so the firm stays away from matters involving privacy and the use of the Internet. Being in the District means that the firms have to worry about the government as well as their clients. A&P, Covington, and Wilmer are all part of the political establishment; lawyers from these firms go in and out of the government, and political connections are crucial to their practices. So when they challenge government policy, as Covington is doing now by representing detainees at Guant�namo Bay, they hear about it. “Occasionally, people try to bring political pressure to bear,” says Herman. “Occasionally, we get a call asking, �Why are you taking a case like that?’ We routinely rebuff them. Taking unpopular causes is part of the duty of being a lawyer. That’s what we do.” Another reason they do it: It’s good for business. “It’s hard to quantify in terms of dollars, but clients are looking at it more and more. They want written reports on our program; they want to know our hours; they want a description of the major projects we have done,” says Horton. Herman agrees: “As the legal business has gotten fiercer, we’ve made a huge effort to build our pro bono program. It’s a net benefit to the firm in terms of publicity, recruiting, associate development, and associate morale.” Especially recruiting. “There’s nothing more important,” says Herman. “Young lawyers are eager, and they want to make a difference.” Horton recalls interviewing a Supreme Court clerk last year: “Actually, it was really her interviewing me, and the purpose of her interview was to make sure that we were as committed to pro bono work as we say we are. She’s with the firm now and doing a tremendous amount.” But there’s a danger with these idealistic young do-gooders: “You’ve got to be careful not to overpromise,” says Hut. “Some people expect to do nothing but pro bono. That’s just not possible.” In order to run its program, each firm has an established infrastructure. Each is headed by a chair (or co-chair) who meets with public service organizations, has budget responsibilities, and answers questions that the various business and management committees might have. Each firm also has a pro bono coordinator (or coordinators), some of whom aren’t lawyers, who handle the day-to-day mechanics of the program, including staffing. The chairs also decide which cases their firms will take. Herman, Horton, and Hut all say their decisions aren’t driven by any political agenda, and each says he has approved cases to which he’s personally opposed. Herman, for example, describes himself as a liberal, but recently approved a case in which the firm represented a George W. Bush appointee to the U.S. Commission on Civil Rights against a Democratic incumbent who refused to vacate the seat. (The Bush appointee won.) Herman also won’t work on death penalty cases, saying, “I couldn’t live with myself” if somebody who committed murder went free, but he approves them for other Covington lawyers. Beyond the various points of self-interest, why are these firms doing the work? All three pro bono directors say they feel a sense of responsibility. “Lawyers have a special obligation,” says Hut. “We alone can deliver the benefits of law to sectors of society that can benefit from it.” Working in some of the most powerful firms in the country adds to that sense of responsibility. “Look at the McCain-Feingold [campaign finance] case. It was so enormous, the timetable was so compressed,” says Hut, referring to the statutorily created special court that first heard the case and expedited the appeal directly to the Supreme Court. “Without firms like us, it couldn’t be done.” And Horton asks, “If we don’t take on cases like that, who’s going to? If we can’t withstand the various pressures involved, how can we expect a smaller outfit to?” Paul Braverman is a senior reporter with The American Lawyer magazine, where this article first appeared in the September issue.

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