Pro Bono

 Posted on June 05, 2007 in Uncategorized

A few recent blog posts about pro bono representation...

• Carolyn Elefant's (Legal Blog Watch) recent post on Arbor Hill v. Albany, in which she comments on (among other things) my post about that case:

The problem here was that Gibson Dunn took the case pro bono, and as such, its fee agreement may not have provided for compensation by the plaintiff - which is why the court alluded to nonmonetary benefits.

• Scott Greenfield's post, The Meaning of Charity, on his Simple Justice blog:

I do, on rare occasion, represent a client free of charge, but I reserve the right to pick these clients with great care. I receive requests constantly from defendants who decry their innocence and poverty, but to accept such cases would be to strangle my practice.

• Brian Tannebaum's Please don't call me if..... post on his Criminal Defense blog:

[3] [Please don't call me if y]our first question is going to be whether I "do pro bono."

How, you might be asking, is all of this related? How is related to the subject matter of this blog?

Let's work our way backwards to Gibson Dunn and its "pro bono" work in the Arbor Hill case from Brian's post. Brian is an excellent chronicler of the frustrations of being a defender - especially a private defender. See his posts, The Wrong Things Potential Clients Say to Criminal Defense Lawyers and Why, Dear Clients, Hints You're Not Getting Hired as Criminal Defense Counsel, and A Criminal Defense Lawyer's Wishful Thinking for 2007.

Brian voices aloud some of the things that we all mutter to ourselves. If we "do pro bono," do we do it for people who ask for it? Generally not. Why not? Because, as Scott Greenfield says, we reserve the right to pick our pro bono clients with great care. Most criminal-defense lawyers, I have observed, provide more pro bono representation per lawyer than those in any other field. We will spend our invaluable time where it will do the most good; the first step in choosing pro bono clients is a sort of triage. One of the (previously unwritten) rules of telephonic defense triage is this: the people who need our help so badly that we feel compelled to give it for free are never the ones who ask for it. (If you're not a defender, you'll have to take my word for that.)

Scott Greenfield writes, "Charity is giving something of significance without the expectation of anything in return. Not recognition. Not even a thank you. It is giving for its own sake." I agree with Scott. Whether I "do pro bono" is none of your damn business. Asking a lawyer about his pro bono work is rude. Boasting about pro bono diminishes its value.

I'm reading Edward O. Wilson's excellent and Pulitzer Prize-winning 1978 On Human Nature; in the chapter on altruism he distinguishes between "hard-core" altruism, which is irrational and unilaterally directed at others; and "soft-core" altruism, which is "ultimately selfish."

The psychological vehicles of soft-core altruism, writes Wilson, "are lying, pretense, and deceit, including self-deceit, because the actor is most convincing who believes that his performance is real." Which brings us from Scott Greenfield's irrational and unilateral anonymous charitability to Gibson Dunn and the Arbor Hill case.

According to Adam Liptak's editorial ($? link) in the New York Times,

In an e-mail message, Mitchell A. Karlan, the Gibson, Dunn partner who argued the appeal, said he had taken the case without expecting to be paid - if he lost.

"My agreement with the plaintiffs," Mr. Karlan continued, "was that I would apply for a fee on their behalf if I won, and that any fee the court awarded I and the other lawyers would keep."

I had read this before Carolyn's post about Gibson Dunn taking the case pro bono, so I thought when I read it, "surely she must be mistaken. Mitchell Karlan is saying that he expected, or at least hoped, to be paid if he won the case." That wouldn't be pro bono work at all, but rather contingent work.

Googling "gibson dunn arbor hill pro bono" turned up three mentions of the Arbor Hill case on the "Why Gibson Dunn? Pro Bono" pages of their website. So not only does Gibson Dunn call its work for Arbor Hill "pro bono," but it also aggrandizes itself by publicizing the pro bono work. Knowing this, I can better appreciate the Second Circuit's decision to slash Gibson Dunn's requested fees in this one case: if Gibson Dunn took the case pro bono it should have expected no fee (or, at most, substantially reduced fees - the New York State Bar's soft-core Policy Statement With Respect to Voluntary Pro Bono Publico Service suggests that reduced-fee services are pro bono as well). I still disagree with the principle stated by the court, that lawyers working toward their perceptions of societal good should be paid less than lawyers not, but cutting Gibson Dunn's fees by 2/3 wouldn't have been unreasonable.

Gibson Dunn decided to take the case pro bono. It boasted about that decision in the recruiting section of its site. When it won the case, it was paid a substantially reduced fee, as it should have expected. It continued spending its valuable time fighting the fee reduction. I don't have anything against Gibson Dunn, but somewhere in there are the "lying, pretense, and deceit" that Wilson described as the psychological vehicles of soft-core altruism.

So what does this have to do with the art and science of criminal defense trial lawyering? Just this: BigLaw, which represents corporations, often against people, wants to hire young lawyers and lawyers-to-be who want to work where they can help people. I want unselfish, altruistic young lawyers to work where they will actually, every day on every case, help people. (Why do I care? Because it's better for people, better for society, and better for the young lawyers.)

So, young lawyers: if your altruistic impulses are soft-core and ultimately selfish, I don't much care what you do; BigLaw may be the place for you.

If your altruism is hard-core, irrational and unilateral, you'll be happier in a career that, by its nature, involves helping people. Defend them. If you're defending people you are helping people every day. If you want to work pro bono you don't have to look any further than the people who need the help you would ordinarily provide but can't afford you. You don't need to publicize your so-called pro bono work to convince yourself or others that you are working for the public good. You don't have to deceive others or yourself. Defend.