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Should Law Firm Clients Control Law Firms' Pro Bono Work?
A few weeks back, I posted about how large corporations are demanding diversity in the ranks
of the law firms that serve them. While we may find that distasteful,
to me, that demand is also fair, consistent with a client's freedom to choose a lawyer. But do private clients have the right to demand that their law firms drop pro bono clients with unpopular causes? And how should law firms respond when clients make these demands?
What's gotten me thinking about these issues is this editorial, Unveiled Threats
(Washington Post, 1/12/07). The Post editorial harshly criticizes
recent comments by Assistant Deputy Secretary of Defense Cully Stimson
on large law firms' pro bono representation of Guantanamo detainees. Specifically, Stimson remarked:
Actually
you know I think the news story that you're really going to start
seeing in the next couple of weeks is this: As a result of a FOIA
[Freedom of Information Act] request through a major news organization,
somebody asked, 'Who are the lawyers around this country representing
detainees down there,' and you know what, it's shocking," he said.
Mr. Stimson proceeded to reel off the names of these firms, adding,
"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."
The Post editorial rebuked Stimson for his veiled threats against law firms. From the editorial:
It's
shocking that [Stimson] would seemingly encourage the firms' corporate
clients to pressure them to drop this work. And it's shocking -- though
perhaps not surprising -- that this is the person the administration
has chosen to oversee detainee policy at Guantanamo.
But is Stimson's position entirely off base? Back in January 2006, Deroy Murdock of the National Review questioned the decision
of so many large law firms to represent detainees. Somewhat like Stimson,
Murdock raised the argument that because law firms are working pro
bono, their Fortune 500 clients and shareholders "indirectly
subsidize legal aid and comfort to suspected Islamo-fascist
terrorists." But Murdock also wondered why firms would choose to
represent alleged terrorists rather than, for example, families
rendered homeless by Katrina.
Michael Froomkin at Discourse.net disagrees strongly with Stimson (and, presumably, Murdock as well), asserting here that Stimson's attempt to "put the economic screws on lawyers ... is just disgusting." Froomkin writes:
It's true that the list of law firms donating time to representing the
victims of torture, humiliation (and a total lack of due process) at
Guantanamo reads a bit like a who's who of the elite of the corporate
bar. And they deserve credit for it.
And Froomkin
also adds: "The first firm to cave on this issue is going to find
it awfully hard to recruit elite law students, as they will have
demonstrated a serious lack of moral fiber."
I agree with Froomkin that firms may have difficulty attracting top
students if they stop representing detainees under pressure from
clients. As I discussed here
in March 2006, Ropes and Gray dropped longstanding client Catholic
Charities after various gay and lesbian student groups from Harvard Law
School argued that Ropes' work for the charity conflicted with other
pro bono work the firm had done for gay and lesbian interest groups.
Apparently, Ropes feared that student criticism might impair its
recruitment efforts at Harvard.
As for me, here's where I come down on these issues. Personally, if I'd been on the law firms' pro bono committees,
I wouldn't have chosen to represent detainees when there are so many
far more compelling, but less sexy cases (such as defense of indigent
criminal defendants accused of capital crimes at the trial level
rather than up at the Supreme Court, for starters) where litigants
desperately need representation. But having decided to represent
detainees, law firms are obligated to follow through on their
commitment, irrespective of client objections (or student objections,
for that matter).
As to law firm clients, I see nothing reprehensible about them
complaining about and potentially dumping a firm that chooses to
represent detainees. Murdock is right on this one: Large firm fees
subsidize law firm pro bono programs. One reason why firms charge the rates that they do is to cover their overhead costs, which include pro bono projects. So in my view, clients have a legitimate gripe when firms handle pro bono matters
that clients don't support -- because paying clients' fees are
subsidizing those cases. But there, too, clients have a remedy -- they
can choose another law firm. And that's basically all that Stimson was
suggesting that they do.
Posted by Carolyn Elefant on January 12, 2007 at 05:15 PM | Permalink
| Comments (9)
Comments
Ms.Elfant,I do agree with you that corporate clients do subsidize law firms pro-bono projects and the companies can find outside counsel that might reflect the company's stance on funding legal representation for "alleged" terrorists. I do not understand why corporate in house counsel that want more diverse attorneys working on their matters is distasteful to you. Explain?
Posted by: Ron Jordan | Jan 13, 2007 3:47:47 AM
My first paragraph was less than clear, here, and I apologize. As I said in the first paragraph, I personally believe that corporate clients have a right to demand diversity at a law firm, because clients have a right to choose their lawyers. If a client wants to choose an African American lawyer or a female lawyer or a lawyer who wears a bow-tie, that's entirely up to them.
When I referenced the "distaste," I was referring to some who have argued that what corporations are doing is racist, and if that the tables were turned, and corporations demanded that only white lawyers serve them, people would think differently. I think this argument does have some validity, but ultimately, I believe that the client's right to choose trumps other considerations. And I do believe that in this particular case, corporations have advanced far more quickly than law firms in promoting diversity - and there's nothing wrong with them pushing law firms to come along with them.
Posted by: Carolyn Elefant | Jan 13, 2007 7:08:14 AM
Stimson is trying to deny legal representation to people he is responible for. Does that bother you?
Posted by: lws | Jan 13, 2007 3:34:26 PM
I agree with your points about clients being able to choose their own attorneys. But there's a larger problem here. Mr. Stimson is a high-ranking civilian official in the Department of Defense, and either a current or ex-Navy JAG attorney who is responsible for instructing other JAG attorneys. He's also the senior civilian in charge of the detainees. He has publicly expressed a dim view of those who serve as defense attorneys for Gitmo detainees, implying that they are supporting terrorists by carrying out their defense duties. Apart from their effect on large firm pro bono practices, his statements send a very chilling message to military lawyers who have been tasked to defend these detainees. If I were such a lawyer, I might easily conclude that the Department of Defense looks with disfavor upon my work, and that my promotion possibilities were going to be harmed if I undertook this work. Many military lawyers may now be unwilling to serve as defense attorneys in Gitmo cases, and when turning down a request to perform this duty, can point to Mr. Stimson's remarks to justify their refusal to accept these assignments.
DOD has been heavily criticized internationally and domestically for its detention hearings, and these statements by a high level DOD official will confirm these criticisms and undercut DOD's attempts to show that the hearings are fair. Mr. Stimson is in charge of these detainees and has an obligation to carry out his duties consistent with DOD policy. He has now seriously undermined his own mission, as his comments will only make it harder for DOD to show that it is treating these detainees fairly. It's one thing for National Review to raise these issues (all the power to them for doing so), but it's another thing for a high-ranking DOD official and senior JAG attorney to make these accusations. I"d be very interested to hear your opinion on this issue.
This statement is my opinion only and not the opinion of any government agency.
Posted by: Margaret Stock | Jan 13, 2007 5:51:03 PM
Whether the work is paid or pro bono, the minute a law firm lets Client A use its financial clout to interfere with another attorney-client relationship with Client B, which poses no direct conflict as defined by ethical rules, you are talking about tortious interfverence with an attorney-client relationship, and violating ethical rules about allowing anyone but the client to dictate in a client's case.
Suspected terrorists, like suspected murderers and suspected corporate polluters and rip-off artists, and hteir executives and employees, are entitled to competent and effective representation. If they're indigent, then they should have pro bono
representation.
Ropes & Gray was very wrong to allow a third party to pressure them to drop an existing pro bono client whether you or I agree with the client or not.
This is first and foremost an issue of lawyer and law firm independence and ethics
Administration official with authority over JAG lawyers even appearing to suggest that corporate clients pressure law firms to drop or avoid clients accused of crimes, including terrorism, should alarm all lawyers and others concerned for their own and others' Constitutional rights to counsel. Joe from a private company can say what he feels about who one represents, but someone with the government behind them, and sworn to uphold the Constitutuion, should know better.
Posted by: Peter S. Chamberlain | Jan 13, 2007 11:38:12 PM
I enjoy your post on MyShingle and find them very helpful, but my jaw dropped when I read your reaction to Stimson's comments. All members of the Bar should be outraged over this comment. He has accused big firms of representing terrorists when in fact the government does not even have sufficient evidence to hold many of the detainees. His comments suggest contempt for basic constitutional rights and therefore he is not fit to hold his post. Indeed, how can an Administration with such contempt for basic civil rights credibly claim that it is trying to spread democracy abroad? Stimson's attempt to deprive the detainees of counsel is shocking and I hope that he has the decency to resign.
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Posted by: Pankaj Parnami | Jan 15, 2007 1:55:04 AM
Carolyn, I'm sure Katrina victims bring great pro bono cases (great in the sense of affording an opportunity to help someone in need). But defending GITMO detainees isn't just about helping that client, but about defending the Constitution and the rights it affords to everyone. Get it?
Posted by: | Jan 16, 2007 12:21:14 AM
The reprehensible element is for a government official to attempt to orchestrate, or even just talk up, an organized economic boycott designed to achieve the denial of representation to the very people that administration is holding in such extraordinary conditions.
That -- a small part of a larger strategy to redefine and thus undermine a whole set of Constitutional rights -- is quite obviously the issue here, and your focus on the client-law firm side conveniently elides it.
Posted by: Michael Froomkin | Jan 18, 2007 5:24:14 PM
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