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To KMZ Rosenman litigation partner Michael Verde, it was an ideal pro bono case. When Bronx resident Walter Hickey was shot by two New York City police officers in 1999, he had nothing in his hands but a cell phone. Hickey, who survived the shooting, and his mother were determined to make the city and police department pay for what they claimed was an excessive use of force. Verde saw in the case a serious injustice that needed to be righted. So he and five KMZ Rosenman associates got involved, bringing to bear all the resources of a large corporate firm. In February, the pro bono lawyers handed their client a big victory when, after a three-week trial in federal court, the jury came back with its verdict. For the officers. “Idealistic young lawyers taking on the NYPD as a client rather than a target, that’s probably a little counterintuitive,” acknowledged Verde, who represented the officers through a program launched by the city’s Office of Corporation Counsel. But perhaps not so counterintuitive these days. Though the public image of pro bono remains that of highly paid professionals selflessly donating their time to the poor, law firms and legal organizations, driven in part by marketing and recruiting concerns, have begun embracing a wider range of pro bono clients, matters and, according to some, political views. Though welcomed by many lawyers, the changes have alarmed those who fear broader definitions of pro bono may divert free legal services from those who need them most. Such voices were loud in their opposition to the New York State Bar Association’s recent adoption of a new definition of pro bono. The group recently voted earlier to expand its definition to include not just legal services for the indigent, but also work for civil rights groups, non-profit organizations and the government in cases “where the payment of standard legal fees would significantly deplete the recipient’s economic resources or would otherwise be inappropriate.” Though the revised definition states that legal services for the poor should be the primary focus of pro bono, an accompanying policy statement says that assistance should be extended to organizations that “benefit, protect and preserve society in myriad ways.” Critics say such language opens the floodgates for lawyers and firms eager to provide legal services to those who are not truly poor. Joseph Genova, a litigation partner and head of pro bono at Milbank, Tweed, Hadley & McCloy, said the test of whether a group’s resources would be significantly depleted by paying for legal services could be interpreted broadly. “The test shouldn’t be whether they can afford Milbank or Skadden,” he said. “It should be whether they can afford competent legal counsel.” Socially prestigious and relatively well-funded arts groups and non-profit organizations have the most to gain from expanded definitions of pro bono, said Genova. Such groups, he said, have the advantage of being tied into most big firm lawyers’ social networks. “There’s always been pressure to do work for well-connected friends and call it pro bono,” said Genova. Moves toward expanding pro bono definitions are symptomatic of this pressure, he said, not the cause. In counting pro bono hours, Milbank uses a strict interpretation of the American Bar Association’s definition, which states that the majority of pro bono work should be done for persons of limited means or for groups working on behalf of such persons. Genova said even that definition, while narrower than the State Bar’s, could easily be read more broadly. By comparison, DLA Piper Rudnick counts work done for non-profits not involved directly with the poor as pro bono. Sheldon Krantz, the partner who heads pro bono efforts at the firm, said he is not aware of how pro bono hours at the firm break down. But, he said, the firm does have an intake process to determine the economic needs of all non-profit groups. “We must never turn our backs on those who truly have nothing,” said Krantz, “but there are also other ways to give back. There are non-profits that do a lot of important work that are really struggling.” Krantz said expanding definitions of pro bono have allowed more lawyers who work in transactional areas to become involved. Such lawyers, he said, would probably not be found representing an individual poor person in a litigation. Esther Lardent, head of the Pro Bono Institute at Georgetown Law Center in Washington, D.C., agreed that there had been a dearth of pro bono opportunities for transactional lawyers. She said she sees no indication that expanding definitions of pro bono are weakening lawyers’ interest in working for the poor. Instead, she said, pro bono participation by law firms appears up across the board. TRANSFERRING RESOURCES But some public interest lawyers disagree, and the pro bono initiative of Michael Cardozo, New York’s corporation counsel, has become a lightning rod for critics who claim newly defined pro bono clients can take resources from more traditional ones. The program, which places big-firm associates in Corporation Counsel field offices and farms out major cases to firms, has been promoted as a means for lawyers to perform valuable public service. The office claims that about 40 law firms have donated legal work to City Hall for which the firms would normally charge almost $20 million. Verde’s case was one of the more high-profile matters handled through the program. But Amanda Masters, a senior staff attorney at New York Lawyers for the Public Interest, which works with firms on housing, disability and other cases on behalf of the poor, said the city’s program is already having a negative impact on her group’s work. She said one major law firm that had expressed interest in acting as co-counsel in a matter with her group recently dropped out due to a perceived conflict of interest arising from its participation in the Corporation Counsel program. She also said the city program is blurring the lines in terms of who truly needs help. Referring to cases involving charges of excessive force by police officers, Masters noted that the officers were indemnified by the city and could also call upon union lawyers. “The city is not a poor person by any stretch of the imagination,” she said. “In every one of those police brutality cases, there is someone on the other side who, more likely than not, really is a poor person.” But Cardozo said he did not see the situation as a zero-sum competition for resources. “We all have a limited amount of time and we all reach different decisions about how to use that time,” he said. Cardozo said he encourages all lawyers, including those on his own staff, to undertake work for the poor. But he also said he thinks public service for the government is a valid option. Some public interest lawyers expressed less concern over the program. Doug Lasdon of the Urban Justice Center, a critic of the city’s program in the past, said he does not believe lawyers who donate their time to defend police officers are likely to take on cases for the poor instead. Indeed, Verde acknowledged he never really got involved in pro bono matters before the Hickey case. He said the time he devoted to client matters and the sameness of the usual pro bono offerings weakened his interest. “I’ve heard a million sob stories before,” he said. Verde and James Tampellini, a KMZ Rosenman associate who also worked on the matter, had a particular interest in the Hickey case, though. Both were former New York police officers who felt strongly that their former comrades were being unfairly targeted in a baseless suit. The jury agreed with their contention that Hickey had tried to commit “suicide by cop” by provoking the officers into shooting him. The case is under appeal. “You have to believe in what you’re doing,” Verde said, adding that, as a former officer he could not see himself taking on the sort of prisoners’ rights case that struck him as more typical of the firm’s pro bono offerings. A RECRUITING TOOL Law firms’ views of what constitutes typical pro bono may be changing as more firms look at pro bono with an eye on its marketing and recruiting value. Genova said it is clear that firms tout their pro bono efforts and programs much more than before. He said it is a positive development insofar as it focuses more lawyers’ attention on pro bono. But he also expressed concern that some firms would seize on expanded definitions of pro bono to exaggerate for marketing purposes the hours and resources they devote to services for the poor. Lardent of the Georgetown Law Center said recruiting and marketing concerns might be partly behind the greater willingness firms have shown in recent years to take on highly controversial matters. She noted in particular the several law firms that are representing inmates at the government’s detention center for suspected terrorists at Guantanamo Bay, Cuba. High-profile, consequential matters clearly have appeal to law firm associates, who often turn to pro bono for a respite from the anonymous grind of their daily work. Firms have seen providing that respite as essential to recruiting law students and retaining young lawyers. As such, individual lawyers’ interests and inclinations have become more important in determining a firm’s pro bono mix, said Krantz. But those interests may be changing as the demographic composition of associate classes changes. Krantz noted that the generation of lawyers that came of age in the 1960s and ’70s had an overwhelming focus on litigation on behalf of the poor. While that focus remains important, he said, the current generation of young lawyers embraces a wider range of interests when it comes to pro bono. Krantz said DLA Piper was responding to widespread interest among lawyers at the firm when it recently launched a subsidiary called New Perimeter devoted exclusively to long-term international legal assistance projects. Among its projects are assisting legal reform efforts by the United Nations peacekeeping mission in Kosovo. A wider range of political viewpoints may also be driving changes in pro bono. Four years ago, the Federalist Society, a conservative lawyers’ group, issued a report charging that pro bono at major law firms was being undertaken overwhelmingly on behalf of groups identified with the political left. Last year, the group launched its own pro bono center to coordinate with law schools and law firms. Peggy Little, a Connecticut lawyer and the director of the Federalist Society Pro Bono Center, said the response to the group’s efforts on law school campuses demonstrated that political views within the profession are changing. “The landscape is changing in a healthy direction,” she said, noting that many law students are expressing interest in relatively novel pro bono efforts like providing tax assistance to small businesses. But Little downplayed the role of ideology in most pro bono, noting that the idea that lawyers should donate their services to the poor is one that enjoys broad support across political lines. Lardent of the Georgetown Law Center, who describes herself as an “old lefty,” also said she thinks most lawyers on both sides of the political divide agree on the need to provide legal services to the poor. But with more groups of all kinds clamoring for legal assistance, some have sought to solidify relationships with firms. Lardent said she had set up some law firms in “preferred partnerships” with public interest groups. Latham & Watkins, she said, had agreed to work with immigration groups and accept all cases of unaccompanied minors in immigration custody. Lincoln Center for the Performing Arts has worked with law firm partners on its board to establish a 15-lawyer panel that will handle most of the center’s legal work for free. Lardent said there is more pro bono assistance available than ever before but she noted that some public interest groups may be having a harder time adjusting to law firms’ new approach. “Law firms used to be viewed as passive vessels,” she said. “Now they’re affirmatively approaching groups. That creates discomfort with some public interest groups.” Masters of New York Lawyers for the Public Interest agreed that groups like hers are not as geared toward meeting firms’ requests as the other way around. She said some large firms had told her they preferred working with groups that could offer firms “neatly packaged” pro bono work. “They have matters ready to go to trial or they can prepackage 50 depositions,” she said, adding that she understood the appeal of such convenience but did not believe it should drive firms’ decisions on pro bono. “Those kinds of concerns fall on deaf ears with me,” she said.

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