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The Pro Bono Docket and the Legal Blowhards Who Exploit It: Part I

In insular legal culture—law schools, lawyers, law firms, bar associations, the judiciary, and the various industry publications that cater to them—few beliefs are as ingrained and unquestioned as the benefits of pro bono work. Yet few topics are as poorly understood and, at the same time, go so thoroughly unexamined. Pro bono is shorthand for “pro bono publico,” a Latin phrase meaning “for the public good.” In common usage, “pro bono” has come to mean any legal work performed without charge, usually for indigents. That may be how the concept began, and what many people assume is still the case, but it has morphed into a much bigger and more amorphous—and controversial—enterprise, largely without notice. It is well past time to ask Qui bono? Or, “who benefits?”

Some of the “pro bono” work performed by large law firms and law school clinics undeniably assists non-profit organizations and low-income people with routine legal problems (such as adoptive families, domestic violence victims, and veterans seeking benefits). However, much of pro bono litigation amounts to advocacy of leftist causes, such as fighting voter ID laws, challenging immigration restrictions, promoting prisoners’ rights and the LGBT agenda, opposing capital punishment, and reforming—via judicial edict—public education, foster care, and other government-run services.

There is nothing wrong with such progressive activism, so long as it does not masquerade as benefiting the public, particularly when the goal is to raise taxes or prevent the enforcement of—or even to overturn altogether—democratically-enacted laws.  The “public,” to be honest, is not the clientele for most pro bono work; currently fashionable “victim groups” are.

Heather Mac Donald attempted to start a serious conversation on the subject of pro bono nearly 20 years ago, in a provocative City Journal article entitled “What Good is Pro Bono?” Mac Donald traced the evolution of “public interest” legal services from colonial times to the present, charging that:

The nation’s massive culture change during the 1960s brought into currency a radically different philosophy of helping the poor, one that entailed a novel use of the courts. Once converted to the new view, the legal profession became among its most fervent evangelists…. Starting in the 1970s, the ABA and local bar associations began furiously cranking out position papers on pro bono work and revising relevant codes of professional responsibility to further the bar’s involvement in the advocacy agenda.

Surveying the activist mischief many large law firms regularly engage in as “pro bono,” Mac Donald concluded that “many lawyers [believe] they are specifically fitted to improve society by creating new rights that a heartless majority refuses to recognize. The pro bono docket exemplifies this newfound hubris. Its failure to bring about any visible improvement should inspire humility.” Unfortunately, it appears that Mac Donald’s broadside failed to prompt the legal profession to reevaluate its commitment to activist “pro bono” litigation, as the trend she noted in 2000 continues to accelerate.

But Mac Donald was not alone in her skepticism about the benefits of what lawyers piously call “pro bono.” In 2008, then-Chief Judge Dennis Jacobs of the U.S. Court of Appeals for the Second Circuit (who was a partner at the prestigious firm Simpson Thacher & Bartlett before being appointed to the federal bench by President George H.W. Bush) delivered an address to a Federalist Society audience entitled “Pro Bono for Fun and Profit.” Jacobs’ remarks were, if anything, even more biting than Mac Donald’s critique. Jacobs called into question the fundamental premise of most pro bono work—i.e., that it is in the public’s interest at all.

Jacobs’ comments bear quoting at length:

[M]uch of what we call legal work for the public interest is essentially self-serving: Lawyers use public interest litigation to promote their own agendas, social and political—and (on a wider plane) to promote the power and the role of the legal profession itself. Lawyers and firms use pro bono litigation for training and experience. Big law firms use public interest litigation to assist their recruiting—to confer glamor on their work, and to give solace to overworked law associates…. Much public interest litigation, often accurately classified as impact litigation, is purely political, and transcends the interest of the named plaintiffs, who are not clients in any ordinary sense.

Jacobs was just warming up. He continued:

Representation of the public interest is high moral ground, the best location in town; so everyone struggles to occupy that space. The field is crowded: the activists and public interest lawyers, the professors and law school clinics, and the pro bono cadres in the law firms. They’re in competition with government lawyers, and they often overwhelm government counsel with superior resources. But their standing to speak for the public is self-conferred, nothing more than a pretension. As a group, they (of course) do both good and harm. But, unlike public officials, they never have to take responsibility for the outcomes—intended and unintended—of the policy choices they work to impose in the courts. (Emphasis added.)

Jacobs explained the “conspiracy of silence” within the legal profession that characterizes the topic of pro bono:

It is very rare for anyone to question the usefulness of public interest lawyering…. [Y]ou will hear no criticism of public interest litigation or impact litigation at the bar associations, and I submit that is for essentially the same reason. When matters of public importance are brought within the ambit of the court system, lawyers as well as judges are empowered. True, we have an adversary system, but the adversary system is staffed on every side by lawyers. There is a neutral judge, but judges are lawyers too; and it is hard for a judge to avoid an insidious bias in favor of assuming that all things important need to be contested by the workings of the legal profession, and decided by the judiciary.

Jacobs concluded:

Great harm can be done when the legal profession uses pro bono litigation to promote political ends and to advance the interests and powers of the legal profession and the judicial branch of our governments. Constitutionally necessary principles are eroded: the requirement of a case or controversy; the requirement of standing. Democracy itself is impaired: The people are distanced from their government; the priorities people vote for are re-ordered; the fisc is opened. These things are done by judges who are unelected (or designated in arcane ways), at the behest of a tiny group of ferociously active lawyers making arguments that the public (being busy about the other needs of family and work) cannot be expected to study or understand.

Predictably, the Left attacked Jacobs for his heretical remarks. Writing in the National Law Journal, liberal legal scholar Erwin Chemerinsky condemned Jacobs, stating that he “should be ashamed of himself” for calling pro bono “self-serving” and “anti-social.”  As they say, if you’re not drawing flack, you’re not over the target. Legal reformers such as Overlawyered.com’s Walter Olson came to Jacobs’ defense, but the upshot of the exchange was to place pro bono off-limits from criticism in polite society. And so, for the past decade, scarcely an unkind word has been uttered about pro bono work, at least within the legal community.

I recently endeavored to correct that in an article on my blog, Misrule of Law, entitled “White Shoe Social Justice Warriors: The Pro Bono Racket.” In a subsequent post I will delve into some often-overlooked aspects of pro bono: who is promoting it, how it is defined, and the underlying ideological agenda.

This essay continues here.

Reader Discussion

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on October 30, 2018 at 10:07:04 am

Mark:

Great piece; the entire essay at Misrule of Law was even better.

The only hope I see is that many of the new crop of young associates are increasingly resentful of the 60-70 hour weeks expected of them for their $175K starting salaries and are complaining that it interferes with their ability to watch a soccer game at 3:30 in the afternoon.
One can only hope that the added burden of "pro bono" will also be seen as an impediment to their sports watching activities. I would rather that they march (european style) through the streets singing their teams song than spend time in an office doing pro bono. Ha!

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gabe
on October 30, 2018 at 10:21:27 am

What is the difference if law firms promote causes for free or for money? Why is either illegitimate? Presumably there will be legal offices that will fight for contradictory ends (and there are conservative and libertarian offices). So what?

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Avraham Keslinger
on October 30, 2018 at 10:59:03 am

I don’t contend that pro bono is “illegitimate.” (Indeed, I don’t know what illegitimate would mean in this context.) I argue that engaging in left-wing activism in the name of promoting the public interest is a fraud. Law firms can use their resources as they please, but undermining democracy does not benefit the public lawyers pretend to be helping. Lawyers should be honest about the agenda they are pursuing. And more transparent.

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Mark Pulliam
on October 30, 2018 at 14:16:12 pm

Look, there is quite a bit of truth to this argument (and I do pro-bono litigation as my profession). But still, I wouldn’t agree. It is true, that many pro-bono lawyers usually have some kind of agenda of their own (social or political). But that agenda is usually to make the world a better place (as they see it).

But just because you file a lawsuit doesn’t mean you will win. What is required to win is to convince a neutral party selected by the President and the Senate to agree that what the pro-bono lawyer is arguing is correct. In other words, that is the true and correct meaning of the statute or constitutional provision. While it is true it might be used “even to overturn altogether—democratically-enacted” statutes, but doesn’t mean those statutes are the law (even if they are passed by Congress and signed by the President). The statutes must also be constitutional to be the law of the land. And any judge who correctly rules a statute is unconstitutional isn’t overturning the will of the people, he is upholding the will of the supermajority who ratified the constitution over the mere majority of today.

Now this power of judges can be abused, but that is why we have impeachment and the power to remove the jurisdiction of judges and seats of judges. It is only by the will of Congress and the President that any federal court has jurisdiction to hear any case. If Congress and the President wish to, they can remove the jurisdiction of any federal judge (including the appellate jurisdiction of the Supreme Court) by a simple majority vote. If Congress and the President believe an entire circuit court is not acting according to the law, by simple majority vote, they can dissolve the entire circuit and refuse to seat the judges in new circuits. The Congress and the President have plenty of power to stop judges who they believe are violating the Constitution. And if the people don’t like that Congress and the President are allowing judges to do this, they can vote them out of office. It is then ultimately the people who decide what the law is, not pro-bono lawyers. If you don’t like it, take it up with them.

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Devin Watkins
on November 08, 2018 at 06:33:25 am

[…] the first installment of this series on pro bono work, I explained why the term “pro bono” is often an egregious […]

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Image of The Pro Bono Hoax: Part II
The Pro Bono Hoax: Part II
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on May 27, 2020 at 08:15:07 am

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