Pro Bono Activity at the AmLaw 100
I. INTRODUCTION: WHY THIS STUDY WAS CONDUCTED
This study is the product of a survey that the Federalist Society developed and executed in order to examine the various kinds of pro bono work undertaken by the legal community. The Federalist Society initiated this project because press and public interest organizations often inquire about whether the pro bono work undertaken by the nation's leading law firms is politically/ideologically balanced. However, no comprehensive survey has been completed on this subject to date.
The Society began its survey of the 100 largest American law firms in the Spring of 2000, and the findings from that effort are set forth and discussed here. Our study aims to provide an unbiased breakdown of the type of work that these leading firms handle. The reader can decide for himself whether this work reflects particular political or ideological preferences on the part of the law firm community.
The Federalist Society used The American Lawyer's 1998 list of America's 100 biggest law firms as its survey pool and sought to obtain data about these firms for 1998 as well as 1999 (See Appendix A). Volunteers of the Federalist Society's Pro Bono Subcommittee of the Professional Responsibility Practice Group collected information from publicly available sources, such as law firm websites, annual reports, or firm-generated pro bono summaries. The information collected comes only from the official literature or materials that are prepared and readily made available by the firm itself.
We searched for the following information:
· General statement of the firm's pro bono work (direct quotation taken from firm literature)
· Issue areas listed by firm as being covered by pro bono work
· Representative litigation matters listed by the firm
· Groups listed as represented or assisted by the firm
· Whether the firm has a Pro Bono Management Committee
This survey is not intended to be a comprehensive listing of pro bono work performed by the AmLaw100, and we openly acknowledge that certain limitations are inherent in the study. For example, it is possible that a firm undertakes work that it chooses not to advertise or disclose. Firms cannot highlight all the work they do. And, a number of senior partners have suggested that firms may choose not to disclose pro bono work that might be considered "conservative" or "libertarian" in its orientation. We have at least attempted to offset the possibility that some of the law firms do not advertise work identified as "conservative" or "libertarian" by polling all of the litigating organizations listed in the Heritage Foundation's Policy Experts 2000 guide, asking each whether any AmLaw100 firms have undertaken a matter for it on a pro bono basis. About 73 percent of these organizations responded to our inquiry.
Throughout the process, the Federalist Society has assiduously sought to avoid making any substantive or normative judgments about the kind, quantity, or range of pro bono work undertaken. In this regard, we provided a complete list of groups which the firm represented and would be recognizable by or familiar to the general legal community; we listed a broad range of litigation for each firm (when available); and we have chosen not to label particular kinds of pro bono work as liberal, conservative, or libertarian. We also do not make our own choices regarding how to describe the ideology of the groups supported by law firms, using instead the independently published and widely respected The Left Guide and The Right Guide as independent benchmarks. We believe the readers of this study are free and able to make normative judgments about the data on their own.
The following is a summary and some highlights of the data that the Federalist Society collected.
The AmLaw100 and General Statements About Pro Bono Work
Of the 100 leading firms, 88 provide general statements regarding the goals and commitments of pro bono programs. Here is a representative sampling of how some of the top firms generally describe the purpose of their pro bono programs. See Appendix B for statements from all 88 firms.
Hogan & Hartson: "Over 25 years ago, Hogan & Harston, LLP became the first major firm in the US to establish a separate practice group devoted exclusively to providing pro bono legal services. Since its inception in 1970, our 'Community Services Department (CSD)' has been charged with attracting and staffing both high profile matters raising issues of public importance, as well as smaller cases addressing individual problems."
Hunton and Williams: "Recognizing the growing severity of the unmet legal needs of the poor and disadvantaged in the communities we serve, and mindful that major law firms must--in the finest tradition of our profession--play a leading role in addressing these unmet needs, our firm is pleased to join with other firms across the country in pledging our best efforts to achieve the goals of the Law Firm Pro Bono Challenge."
Jones, Day, Reavis, & Pogue: "Jones Day lawyers engage in public service activity, including pro bono work, and many have held positions of significant responsibility in charitable and public service organizations. The type of activity and the amount of time spent are largely matters of individual preference. The Firm welcomes involvement in these activities. Jones Day also undertakes, as a firm, many law-related and charitable activities of general public interest."
Kirkland & Ellis: "Kirkland & Ellis encourages all of its lawyers to participate in pro bono activities. Each lawyer can work on projects and issues of his or her own choosing, and the opportunity to become involved in pro bono matters is available even to the newest associates, as well as to students in our summer program."
Mayer, Brown & Platt: "Our lawyers participate in a broad range of public service and community activities. The Firm staffs and supports a community legal clinic, which provides high quality legal services to the disadvantaged on a pro bono basis. Our lawyers are also increasingly active in providing a wide variety of legal services to poor and otherwise disadvantaged persons."
Mintz, Levin, Cohn, Ferris, Glovsky, & Popeo: "The firm believes that it has a corporate obligation as a law firm in Boston, Washington, and Reston to provide pro bono legal services within those communities. Pro bono services are defined generally to be legal services rendered without a fee or at a substantially reduced fee that fit one of the following descriptions: Civil Rights/civil liberties/international human rights, public rights, poverty law, or charitable organizations."
Morrison & Foerster: "Morrison and Foerster has a long history of commitment to providing free legal services to indigent persons and in matters of public interest. Our attorneys have volunteered their time and expertise in class action cases to the benefit of tens of thousands of people, and in thousands of other cases to help individuals who otherwise would have been denied access to the justice system. Pro bono activities…cover the full range of public interest work, from staffing legal services clinics and counseling over 150 nonprofit organizations to handling high-impact litigation."
O'Melveny & Myers: "O'Melveny and Myers LLP has a long history of providing legal services to individuals and organizations in the community who are in need of but unable to pay for such services…The firm encourages attorneys to participate, either by submitting proposed projects or by volunteering to respond to the many requests for pro bono assistance we receive."
Pepper Hamilton & Scheetz: "Pepper Hamilton LLP believes that each of its lawyers should provide public interest legal services. For at least four decades, Pepper lawyers have accepted unpopular and challenging cases, participating in pro bono activities ranging from death penalty litigation to civil rights class actions to individual civil matters for indigents."
Simpson, Thacher & Bartlett: "Commitment to public service and pro bono legal work is the defining characteristic of Simpson, Thacher & Bartlett. Lawyers in the Firm at every level make significant contributions to legal service programs, government, and not-for-profit groups throughout the year. The Firm's commitment to pro bono activities and community service is further illustrated by its sponsorship of fellows at the NOW Legal Defense and Education Fund and MFY Legal Services, Inc."
Of the 88 firms that report their pro bono activity, 52 belong to the Law Firm Pro Bono Challenge (PBC). The PBC is a joint project of the Pro Bono Institute and the American Bar Association's Standing Committee on Pro Bono and Public Service. According to the Pro Bono Institute, the project "was created to support and expand the pro bono publico activities of large law firms" to assist them in "developing effective pro bono programs and in integrating those programs into the practice, philosophy and culture of the firms."
A participating law firm commits to using its "best efforts to ensure that….[it] will either: (1) annually contribute, at a minimum, an amount of time equal to 5 percent of the firm's total billable hours to pro bono work; or (2) annually contribute, at a minimum, an amount of time equal to 3 percent of the firm's total billable hours to pro bono work."
Adherents to the Challenge adopt a number of general principles as well, including the following: "In recognition of the special needs of the poor for legal services, we believe that our firm's pro bono activities should be particularly focused on providing access to the justice system for persons otherwise unable to afford it. Accordingly, in meeting the voluntary goals described above, we agree that a majority of the minimum pro bono time contributed by our firm should consist of the delivery of legal services on a pro bono basis to persons of limited means or to charitable, religious, civic, community, governmental and educational organizations in matters which are designed primarily to address the needs of persons of limited means."
Principle 7 of the challenge defines pro bono as "activities of the firm undertaken normally without expectation of fee and not in the course of ordinary commercial practice and consisting of (a) the delivery of legal services to persons of limited means or to charitable, religious, civic, community, governmental and educational organizations in matters which are designed primarily to address the needs of persons of limited means; (b) the provision of legal assistance to individuals, groups, or organizations seeking to secure or protect civil rights, civil liberties or public rights; and (c) the provision of legal assistance to charitable, religious, civic, community, governmental or educational organizations in matters in furtherance of their organizational purposes, where the payment of standard legal fees would significantly deplete the organization's economic resources or would be otherwise inappropriate."
The PBC reflects the standard of Model Rule of Professional Conduct 6.1, which states that a lawyer "should aspire to render at least (50) hours of pro bono publico legal services per year…without fee or expectation of fee to: (1) persons of limited means or (2) charitable, religious, civic, community, governmental and educational organizations in matters which are designed primarily to address the needs of persons of limited means."
Model Rule 6.1 adds that a lawyer should "provide any additional services through: (1) delivery of legal services at no fee or substantially reduced fee to individuals, groups or organizations seeking to secure or protect civil rights, civil liberties or public rights, or charitable, religious, civic, community, governmental and educational organizations in matters in furtherance of their organizational purposes, where the payment of standard legal fees would significantly deplete the organization's economic resources or would be otherwise inappropriate; (2) delivery of legal services at a substantially reduced fee to persons of limited means; or (3) participation in activities for improving the law, the legal system or the legal profession. In addition, a lawyer should voluntarily contribute financial support to organizations that provide legal services to persons of limited means."
Public Interest Groups Receiving Assistance from the AmLaw100
There are two ways of classifying what law firms are doing in the pro bono arena. One is by looking at the public interest groups that the law firms are representing. The characteristics and missions of those public interest organizations will say much about the nature of pro bono practice these days. The second way of classifying law firm pro bono work is by breaking down the types of cases or matters that are handled. This can be accomplished by reviewing law firm materials that identify issue areas that have been the subject of pro bono work and that occasionally reference cases that have been litigated as well. This section of our report summarizes some data respecting public interest groups that have been represented; the next section of the report focuses on the substantive types of work that have been handled by law firms.
Within the AmLaw100, 70 law firms identified public interest groups that they represent or assist on a pro bono basis. Several public interest litigating groups that are listed in The Left Guide recur frequently as organizations represented by these 70 firms:
PUBLIC INTEREST GROUP # OF FIRMS LISTING GROUP ACLU or other "CLU" group 21 (30%) Lawyers Committee for Civil Rights 21 (30%) Lawyers Committee for Human Rights 17 (24.3%) NY Lawyers for the Public Interest 10 (14.3%) NAACP 9 (12.9%)
With respect to public interest groups that concentrate on particular substantive areas, here are some highlights from our investigation:
-- 29 of the 70 firms (41.4%) stated that they have represented various "AIDS/HIV" organizations: AIDS Action Committee of Boston, AIDS Foundation of San Francisco, the AIDS Law Project, AIDS Legal Council, the AIDS Legal Referral Panel, AIDS Legal Services Center of Orange County (CA), the AIDS Project of Los Angeles, the AIDS Project of Minnesota, AIDS Services of Lower Manhattan, the Children Affected by AIDS Fund, the Gay Men's Health Crisis Center, the Momentum Project, and the Whitman-Walker Clinic/Legal Services.
-- 23 of the 70 firms (32.8%) named various "Arts" groups that they represented on a pro bono basis. These included the Lawyers Committee for the Arts, Lawyers for the Arts, art museums, and Volunteer Lawyers for the Arts (16 firms listed this one particular group).
-- 21 of the 70 firms (30%) identified various "environmental" groups that they have represented on a pro bono basis: the Conservation Law Foundation of New England, the Conservation League, Defenders of Wildlife, Five Valleys Land Trust, Grand Canyon Trust, Massachusetts Environmental Justice Network, National Audubon Society, the National Tribal Environmental Council, Natural Resources Defense Council, the Nature Conservancy, Northwest Environmental Watch, the Royal Society for Nature Conservation, Save the Prairie Society, Sierra Club, Trust for Public Lands, and Wilderness Society. Of these 16 groups, 7 are listed in The Left Guide; none appear in The Right Guide.
-- In the area of "gun control," 4 firms have listed organizations they represent. The Center to Prevent Handgun Violence is represented by 3 firms, and one represents Handgun Control, Inc. Both are listed in The Left Guide.
-- 9 of the 70 firms (12.8%) listed "homosexual rights" public interest organizations: Gay and Lesbian Community Center Project, Gay Men's Health Crisis Center, Lambda Legal Defense and Education Fund, Lambda United Community for Civil Rights, and National Gay Rights Advocates.
-- 15 of the 70 firms (21.4%) listed "immigration" public interest organizations: the American Immigration Law Foundation, the Asylum Project, the Central American Refugee Center of San Francisco, the Lawyers Committee Asylum Project, Legal Assistance for Vietnamese Asylum Seekers, the Mexican American Legal Defense & Educational Fund, the Midwest Immigration Rights Center, the Northwest Immigrant Rights Project, the Northwest Immigration Legal Services Organization, the Political Asylum Representation Project, and the UN High Commissioner for Refugees.
-- 11 of the 70 firms (15.7%) identified organizations that focus on prisoner rights issues: ABA Death Penalty Project, Battered Women in Prison Organization, Coalition for Battered Women in Prison, Chicago Legal Aid to Incarcerated Mothers, Pennsylvania Post-Conviction Defender Organization, Prison Law Office, the Prisoner Litigation Pro Bono Project, Prisoners Legal Service, and the U.S. District Court Prisoners' Rights Program.
-- 19 of the 70 firms (27.1%) listed organizations that deal with "reproductive rights," "family planning," or "abortion rights." These represented groups were the Center for Reproductive Law and Policy, the Massachusetts Family Planning Association, the National Abortion Foundation, the National Organization for Women, the National Women's Law Center, the Network for Women's Services, Planned Parenthood, Women's Law Project, and Women's Way.
In all, of the 697 organizations listed as represented by the 70 firms which provide such information, 157 (22.5%) can be found in The Left Guide. 3 (0.4%) of the listed organizations can be found in The Right Guide or the Heritage Foundation's Policy Experts 2000 guide.
To account for the possibility that firms are representing conservative and libertarian organizations but not advertising that fact, we conducted an independent survey of the litigating organizations listed in the Heritage Foundation's guide of "conservative" and "libertarian" organizations and experts. We asked each organization whether an AmLaw100 firm had undertaken a matter for them on a pro bono basis. The survey results revealed that 22 of the 70 (31.4%) AmLaw100 firms that list the groups they represent assisted or represented conservative or libertarian groups on a pro bono basis (19 more than we had discovered using data obtained from or made available by the law firms themselves). By way of comparison, 60 of the 70 (85.7%) AmLaw100 that list the groups they represent assisted organizations which are contained in The Left Guide.
Breakdown of Types of Pro Bono Work
Of the AmLaw100, 80 firms provide information about the types of pro bono work they have undertaken. The kinds of cases and other legal matters that these firms have handled are, not surprisingly, quite varied. The following is a summary of some of the work that may be of special interest.
Representation of inmates in capital and prisoner rights cases appears to be a common feature of big-firm pro bono work, with about 54 percent of the firms mentioning cases in these areas. A few of the firms set forth the particulars of some of the high-profile cases they handled. The New York firm of Cahill, Gordon & Reindell, for example, notes in its materials that it "reversed client’s capital conviction on grounds his confession violated the Fifth Amendment in Mincing v. Mississippi" and "reversed client’s death sentence in Johnson v. Mississippi." The Washington, D.C. firm of Covington & Burling references its constitutional challenge to facilities at the Lorton Maximum Security Prison in Virginia and the representation of defendants in five capital cases in Alabama and Florida. A number of other New York and Washington, D.C. firms specifically summarize similar types of cases in their materials.
Civil rights is an area that receives substantial attention as well from the AmLaw100. About 23 percent of the 80 firms for which data is available undertake matters in this area. 1 (1.25%) law firm—Steptoe & Johnson—referenced work that challenges affirmative action. All other firms list groups supportive of preferences in conjunction with its mention of civil rights work (e.g., NAACP, Lawyers Committee for Civil Rights, etc.). Here are some of the matters that firms discuss in their literature or on their websites, which include efforts to challenge practices alleged to constitute racial discrimination and to defend affirmative action and ongoing school desegregation and busing decrees:
* "[R]epresented black and female employees seeking to uphold affirmative action consent decrees in Martin v. Wilks…[and] represented minority children in continuation of Brown case in Coalition to Save Our Children v. Delaware." (Cravath, Swaine & Moore)
* "Counsel to nationwide class in Denny’s restaurants litigation concerning race discrimination…represent Prince George’s County (MD) NAACP and minority school children in county school desegregation lawsuit…challenged several Louisiana parish school boards to adopt non-discriminatory reapportionment plans following 1990 census in time for 1994 elections." (Hogan & Hartson)
* "In Smith v. University of Washington, defended university in challenge to its affirmative action program." (Perkins Coie)
* "[I]n Hopwood, defended the University of Texas on appeal in affirmative action litigation brought by applicant to the law school." (Vinson & Elkins)
Also in the civil rights area, a number of law firms highlight cases involving practices that are challenged on the ground that they constitute unlawful discrimination on the basis of sex or sexual orientation (5 firms specifically list gay/lesbian issues as one type of their pro bono work). Here are some illustrations:
* "Represented National Women’s Law Center in Amicus Brief in VMI case." (Arnold & Porter) (Davis, Polk & Wardwell cites amici work in this case as well)
* "Represented Sgt. Justin Elzie in Elzie v. Aspin in Elzie’s discharge from the Marine Corps after he announced he was gay." (Covington & Burling)
* "Working with Lambda to develop strategy to address federal issues arising out of Baehr v. Levin (Hawaii gay marriage case)." (Davis, Polk & Wardwell)
* "Filed amicus brief before Supreme Court encouraging Court to reverse Colorado’s Amendment 2 banning preferences against gays, lesbians or bisexuals." (Heller, Ehrman, White & McAuliffe)
* "Represented client in divorce proceeding where client's legally recognized sex change was used by spouse in attempt to deny client's parentage of child born of the marriage (with ACLU)." (Morrison & Foerster)
* "Represented Irish Lesbian & Gay Organization in connection with exclusion from St. Patrick’s Day Parade." (Paul Weiss)
* "Challenged Citadel’s tradition of banning women from the college." (Shearman & Sterling)
Amongst the 80 firms identifying types of pro bono work, 13 (16.25%) firms cited matters pertaining to "education," "welfare," or "public benefits." At least one of these firms states that it conducted some work in support of charter schools, and through our survey of conservative and libertarian organizations, we know that at least one other AmLaw100 firm is defending school voucher programs. Here are some representative descriptions of other work in this area:
* "Filed class action suit alleging violations of IDEA and challenged severe restrictions imposed by DC public schools on reimbursement of legal fees." (Baker Botts)
* "Brought two class actions challenging the 1997 Pennsylvania Welfare Law: in one case, Dechert lawyers obtained an injunction on constitutional grounds against a portion of the law that limited the amount of welfare payments awarded to residents of less than a year to what they would have received in their old state of residence." (Dechert, Price & Rhoads)
* "Tax exemption and general advice to groups administering Annenberg Challenge Grants to improve public education." (Sidley & Austin)
* "Co-counsel in education reform lawsuit challenging adequacy of funding of the New York City public schools and the sufficiency of the education provided." (Simpson Thacher & Bartlett)
About 18 percent of the firms (14) listed "environmental protection" as one area of pro bono work. This area is normally listed alongside references to the Sierra Club, the Natural Resources Defense Council, and related groups. Two of the firms specifically mentioned its efforts to broaden environmental standing. We do know that one firm undertook "property rights" litigation on behalf of a conservative or libertarian group listed in The Right Guide; though the firm did not report this case in its materials, we obtained that information through our independent survey of conservative and libertarian litigating groups.
Only 4 firms listed pro bono work in the religion area, and that work appears to be rather varied. These firms described their work as follows:
* "In Bennett v. Barry, represented District of Columbia and several current and former officials in lawsuit…brought by former firefighter alleging that he was subjected to religious discrimination and deprivation of other Constitutional rights." (Akin Gump Strauss Hauer & Feld)
* "Represented Orthodox Sikh schoolchildren and parents against California School District which barred children from school because their religion required them to carry ceremonial daggers." (Heller, Ehrman, White & McAuliffe)
* "First Amendment rights challenge on behalf of Columbia Union College litigating the college’s claim that they were denied state funding based upon their religious viewpoint." (Hunton & Williams)
* "Assisted Cristo Rey Jesuit High School in structuring work study program to satisfy separation of church and state issues." (Winston & Strawn)
Of the 80 firms for which data is available, 5 (6.25%) listed that they undertook work in the areas of "abortion" and "reproductive rights." No firm stated that it defended or supported any type of "abortion restrictions." The firms refer to work supporting abortion rights or opposing anti-abortion protesting. For example:
* "Represented physicians and reproductive health care workers in receiving $108 million verdict in Portland, OR against anti-abortion protesters." (Paul Weiss)
* "Preparing an amicus brief for NOW Legal Defense and Education Fund in Edwards v. City of Santa Barbara regarding the constitutionality of buffer legislation that seeks to protect abortion clinics." (Proskauer Rose)
* "Prepared amici curiae which challenged the scope and constitutionality of late term abortions restriction." (Sullivan & Cromwell)
There are a number of very broad areas that are not well-defined but that clearly constitute a significant share of law firm pro bono time. These deserve brief mention even though, for the most part, the firms do not set forth the particulars of the work that they are doing in these areas:
* "Arts/Historical"—18 firms (22.5 percent).
* "Child Advocacy," "Children’s Rights," "Child Abuse," "Disabled/Autistic Children"—17 firms (21.25 percent).
* "Criminal Defense"—17 firms (21.25 percent).
* "Domestic Violence"—32 firms (40 percent).
* "Fair Housing" and "Landlord/Tenant"—45 firms (56.25 percent).
* "Immigration" and "Political Asylum"—45 firms (56.25 percent).
* "Non-Profit/Corporate Tax" (includes tax advice and assistance with incorporation and related issues to non-profit groups)—28 firms (35 percent).
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The preceding sections were intended simply to provide some highlights of the substantial amount of data that has been collected regarding the pro bono work of the AmLaw 100.