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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 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 08:15 PM | Permalink | Comments (9)


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