Kirkland & Ellis celebrated A BIG pro bono victory earlier this year when the U.S. Supreme Court upheld a lower court’s ruling striking down a North Carolina voter identification law.
In July 2016, Dan Donovan, a Kirkland litigation partner, led a team that persuaded the U.S. Court of Appeals for the Fourth Circuit to overturn the law, by arguing that North Carolina lawmakers had passed it with the intent to discriminate against minorities.
But a few months after that Fourth Circuit ruling, in September 2016, Kirkland hired Paul Clement, former U.S. solicitor general and a top U.S. Supreme Court and appellate lawyer. Clement represented North Carolina in its effort to re-instate the voter identification law. He argued at the Fourth Circuit that the law increased African-American turnout. The timeline highlights the knotty questions firms can face when it comes to selecting pro bono matters. How does a firm balance pro bono causes chosen by its lawyers with obligations to paying clients? Are conflicts often created? How do firms deal with it?
These weren’t questions Kirkland wanted to talk about, with the firm, Clement and Donovan all declining to comment.
But others spoke about what can be a tricky process.
“Our firm’s approach is chaotic democracy,” Neal Manne, a managing partner of Houston’s Susman Godfrey, writes in an email. “Our case acceptance decisions—whether for pro bono matters or other cases—are made on the same basis on which we decide almost all firm issues: one person, one vote. Sometimes the votes are close, but usually we work toward broad consensus,” Manne says.
On a pro bono basis, Susman’s lawyers have taken on causes that proved to be politically unpopular in the firm’s region and ones that have drawn the ire of the business community. Susman lawyers defended a city ordinance that banned discrimination on the basis of sexual orientation, which voters then invalidated. They defended the International Rescue Committee when Texas statewide Republican leaders sued the nonprofit resettlement agency in an attempt to bar Syrian refugees from coming in. They won an injunction and a motion to dismiss the state’s case against the IRC. They defended Seattle’s $15 per hour minimum wage ordinance against a challenge by business organizations and eventually won a favorable ruling from the U.S. Court of Appeals for the Ninth Circuit.
“For any potential client matter, the lawyers seeking approval circulate a memo to all attorneys in advance of the firm meeting, explaining the case and why they believe we should accept it. We handle pro bono matters the same way,” Manne says. The firm does not have a pro bono coordinator or formal internal process for identifying pro bono opportunities.
“Many important pro bono cases are controversial in some way. I cannot recall a single instance in which we declined to take a pro bono matter simply because it would be controversial, or because it might offend a client,” he writes.
How does that work out at Susman? “Overall, we get tremendous positive feedback from our clients about our firm’s deep involvement in pro bono work—including in controversial cases,” Manne writes.
Firms are going to work out this issues each in their own ways, says Reena Glazer, an assistant director for the Law Firm Pro Bono Project, a nonprofit with a mandate to explore new approaches and resources for legal services for indigent population.
“There is not one sort of master plan that law firms must follow. Pro bono is about where passion meets purpose,” Glazer says.
Conflicts and controversy, however, represent only “a small piece of the overall pro bono discussion,” Glazer says. Firms “have gotten much more sophisticated in their policies and procedures” to avoid conflicts, if not controversy. They particularly focus on conflict questions when onboarding clients, “so they have all their ducks lined up in a row from the get go,” Glazer says.
“This is a big ethics area. It’s layered and nuanced,” she says. Many firms steer clear of particular sectors of pro bono work—employment related, for instance—to avoid future conflicts or concerns for existing clients, she says.
Alan Hoffman, chairman and managing partner of Blank Rome, says in an email that his firm vets every potential pro bono clients through its client intake department in the same way paying clients are vetted. The firm’s director of pro bono services reviews each new matter, “to ensure that there are no direct conflicts and to consider whether the proposed representation might pose a positional or business conflict,” Hoffman says. Then, an internal practice group leader makes a similar review.
“Through these multi-level reviews, we avoid representations that are at odds with the interests of our current firm clients, whether those are fee-paying or current pro bono clients of the firm,” Hoffman writes.
“Fortunately, we have never had to devise a tactic for how to address a scenario when a fee-paying client is irked by one of our pro bono representations. This is due, perhaps, to the fact that the vast majority of pro bono work is simply not controversial,” Hoffman says.
In the end, it seems many firms take on cases important to them, no matter how controversial. And as with paying clients, they manage conflicts, real and perceived.