It’s a rare day when law firms get called out for their pro bono work.
But that’s exactly what happened when Pentagon official Charles “Cully” Stimson rattled off a list of firms representing Guant�namo Bay detainees � such as Mayer, Brown, Rowe & Maw; Jenner & Block; WilmerHale; and Covington & Burling � predicting that businesses would shun their outside counsel for making the companies foot terrorists’ legal bills.
“I think, quite honestly, when corporate CEOs see that those firms are representing the very terrorists who hit their bottom line back in 2001, those CEOs are going to make those law firms choose between representing terrorists or representing reputable firms. And I think that is going to have major play in the next few weeks. And we want to watch that play out,” said Stimson in an interview with Federal News Radio Jan. 11.
And it has played out, but not in quite the way Stimson expected. Instead of Fortune 500 companies such as Microsoft, DaimlerChrysler, and Pfizer dumping their outside counsel in a fit of political protest, firms have largely gotten support from corporate America and from within their partnership ranks.
“Pro bono service and the rule of law are great traditions in the American legal profession, and we at GE have no intention of � and strongly disagree with the suggestion of in any way � discriminating against law firms that represent us on the basis of the pro bono, charitable, or public service that the lawyers in those firms choose to engage in,” Brackett Denniston, senior vice president and general counsel at General Electric, said in a statement. Jenner & Block and Covington, two firms involved in representing detainees, have done legal work for GE.
GE’s not alone in its position.
“I intend to continue to use the firms that regularly represent us. The fact that they engage in pro bono work or work for other clients that I don’t necessarily agree with doesn’t affect my decision,” says William Barr, general counsel of Verizon Communications and former attorney general under President George H.W. Bush. Debevoise & Plimpton and WilmerHale have both represented Verizon and are active in representing detainees.
Since his initial comments, Stimson has apologized; the Defense Department, the Bush administration, and Attorney General Alberto Gonzales have distanced themselves from him; and conservative, liberal, and nonpartisan groups including the Center for Constitutional Rights, the American Bar Association, and the National Lawyers Guild, among others, have refuted the position that detainees should not have well-equipped legal counsel.
“His egregious comments gave us a great educational moment,” says Karen Mathis, president of the ABA. “Every accused person should receive adequate legal representation, and it’s encouraging to see that his comments were universally rejected.”
AN ALL-VOLUNTEER ARMY
Large law firms haven’t always been so passionate about representing accused terrorists. Shortly after Sept. 11, 2001, when President George W. Bush announced that detainees could be held indefinitely in Guant�namo Bay, Cuba, and would be tried by military commissions, Center for Constitutional Rights President Michael Rattner got together a small group of lawyers to take on the case of Australian detainee David Hicks. The lawyers mostly specialized in death-penalty cases, with one exception: Thomas Wilner, a partner at white-shoe firm Shearman & Sterling, who was representing 12 Kuwaitis detained at Guant�namo.
The public’s reaction to lawyers representing detainees was less than enthusiastic: In 2002, the center received more than 300 pieces of hate mail.
But Rattner and the other lawyers, including Theodore Shaw from the NAACP Legal Defense and Education Fund and Joseph Margulies, soldiered on, and by June 2004 the U.S. Supreme Court had ruled in Rasul v. Bush that detainees who had not been formally charged could bring habeas corpus petitions.
“Within days, we decided the best strategy was to get as many habeas petitions filed as possible,” says Rattner.
Rattner started calling law firms and other lawyer associations, such as the American College of Trial Lawyers, to organize legal counsel for detainees. The response was overwhelming: The trial lawyers alone placed about 75 detainees with outside legal counsel even after warning lawyers of the financial cost. The group estimated that each case would cost at least $10,000 in out-of-pocket expenses, says Dennis Suplee, former chairman of Philadelphia-based Schnader Harrison Segal & Lewis.
“We just wanted to make sure people knew what they were getting into,” says Suplee.
Since the initial call for counsel, there have been at least 500 lawyers from more than 120 corporate law firms that have gotten involved, including Venable; Weil, Gotshal & Manges; Alston & Bird; and Perkins Coie.
Although almost 380 detainees have been released, there are nearly 400 detainees suspected of links to al Qaeda and the Taliban that are still at Guant�namo Bay. The Pentagon has charged at least 10 suspects with war crimes.
Despite Stimson’s comments that firms would see a backlash for representing detainees, firms such as WilmerHale and Heller Ehrman say they have not gotten negative feedback from clients.
“All the reaction we’ve had from our clients have been very supportive of the representation that we’ve undertaken,” says William Perlstein, co-managing partner of WilmerHale. The firm is representing six Bosnian detainees.
One of Stimson’s central arguments was that corporations hit by Sept. 11 were, in effect, paying for the legal bills of detainees. Although firms acknowledge that expenses for pro bono cases come out of their general operating budget, they contend that fees are negotiated with clients up front, and how the firms choose to spend the money thereafter is their own decision.
“I think he just doesn’t understand the economics of law firms,” says James Jones, a former managing partner at Arnold & Porter who is a consultant with Hildebrandt International. “Clients are paying lawyers’ fees determined by the market, and they are getting, presumably, value for the money they are paying.”
This isn’t the first time a law firm has struggled with or been taken to task for having controversial clients. During World War II, lawyers wrestled with a call from the federal government and the American Bar Association asking American attorneys to represent internees of Japanese ancestry. More recently, D.C.-based Arent Fox struggled in 1997 over whether the firm should represent a European insurance company being sued by Holocaust survivors.
“Usually, our partners have the discretion to work on any matter they want to work on, be it a conservative political issue [or] liberal. As long as it’s not a conflict, we don’t tend to stop them from doing it,” says Marc Fleischaker, chairman of Arent Fox.
During the 1997 controversy, Fleischaker says, the firm, which has long represented the U.S. Holocaust Memorial Museum, had an open meeting with partners on both sides of the issue debating whether to take on the client. Ultimately, the firm decided not to represent the insurance company.
The decision for many of the firms involved in the detainee representation wasn’t as controversial. WilmerHale; Mayer, Brown; and Heller Ehrman used the firms’ regular process of checking conflicts with other clients and having management sign off on detainee cases, but didn’t check with clients or have an all-partner vote before deciding to take the cases.
“We don’t have any policy against taking controversial matters or taking unpopular clients; it’s part of what we do as lawyers,” says Kit Pierson, head of Heller Ehrman’s pro bono practice, who has been representing eight detainees. “We view that as part of our mission as lawyers and pretty fundamental to the system of justice.”
Anna Palmer can be contacted at firstname.lastname@example.org.