Pro Bono Procedures and Internal Law Firm Politics
As an associate and then partner at Arnold & Porter D.C. (Aug. 1992–Jan. 2006) who had many pro bono clients — National Endowment for Democracy, U.S. Committee for Human Rights in North Korea, a refugee relief effort in Kosovo, a pro-democracy-in-Iran foundation, U St. Business & Arts Coalition, D.C. Regulatory Reform Commission, minority indigent crime victims, minority indigent convicts, several Ph.D. scientists seeking the right to advocate for “intelligent design,” the Washington Legal Foundation (in an open-government suit against the U.S. Sentencing Commission), the 1993 Clinton administration transition, the first successful effort to win a Presidential pardon issued posthumously (for the first black graduate of West Point, Lt. Henry Flipper, USMA 1877), the International Sculpture Center, Source Theater (D.C.), and others — and as one of the few Republicans at Arnold & Porter, I have been following with interest the arguments advanced as the motivations for lawyers to represent the Gitmo terrorists.
At Arnold & Porter, there is a “pro bono committee” and any partner seeking to pursue a pro bono matter must make the case to that committee why the client and the matter are in the public interest and why the firm will benefit from taking on the matter (associates do not have the authority to propose a pro bono client). During my six years and six days as a partner I proposed perhaps a dozen such matters, and in every case the pro bono committee approved — even as to the several “intelligent design” matters I brought in that proved to be very unpopular with the vast majority of the lawyers, partners in particular, at the firm. Approval was also required from the “billing and intake” committee, which would take into account the estimated out-of-pocket cash expense as well as the estimated lawyer time. This committee also approved all of my proposals.
I think it likely that the large, prominent law firms engaged in the “Gitmo terrorist” cases also have similar review and approval procedures for pro bono cases, particularly where the cases involve cash-out-of-pocket expenses. And thus the decision to represent the Gitmo terrorists was, in each case, a decision of the leaders of the firms involved, and not merely of the individual lawyers….
Every associate, and every partner who does not have a personal, portable client base, can survive in a firm only by being invited to join in the matters of the partners who have the clients. Every associate, and every client-less partner, must win the friendliness of those partners. Taking on a pro bono case and running it in a manner that advances the political interests of those partners is a good way to get invited onto those partners’ cases. Taking on a pro bono case and running it in a manner that disrupts the political interests of those partners is a good way to be cut out of all paying cases, and is a fast-track to leaving the firm. I experienced this personally by taking on the “intelligent design” matters; invitations for me to join in paying cases dried up, and my cash-earning billable hours declined. I knew this would happen when I proposed those matters to the firm; but a matter of conscience ought not be swayed by such concerns.