What Sort of Pro Bono Work is Big Law Signing Up For?

 

Big Law is on the hot seat. Major firms have unexpectedly been thrust into the front lines of the war against Trump, and all their options are bad.

I wrote about this two weeks ago, and since then a slew of big firms have either made a deal with the devil or joined the side of the angels.

On the minus side, all but one of the top twenty firms have either taken the “deal” or stayed silent. I personally think they’re playing a bad hand badly.

On the plus side — beyond those top twenty behemoths — there are hundreds of very large firms who have taken a stand, of sorts, against the junta.

If you’re interested in keeping score, you can do so, but the whole thing keeps getting weirder. As we watch these “deals” being made, the one common denominator — and the most publicized aspect — is the “pro bono” work these firms are committing to. About a billion dollars’ worth of lawyering is available to be used in “conservative” causes.

What does this mean? What exactly will this billion buy the junta, if anything?

Keep in mind, this could all be smoke and mirrors, and who would be surprised to hear there’s no plan at all? Trump never turns down corrupt money, but I don’t think he cares about anything so much as making these hot-shit lawyers sweat. In his mind, such as it is, they were all out to get him, and damn near did. For him, seeing them grovel is the payoff.

That said, there are any number of uses, say, a Stephen Miller might have for private lawyers he could throw at the dark side of an immigration issue. So we’ll need to see the details, which will probably remain vague for a while.

But let’s take a step back. Working pro bono — “for free” — is what a law firm does for the causes its lawyers choose to support. In Big Law firms, lawyers are often required to devote three-to-five percent of their time to pro bono work.

In this rarefied air, the word ‘time’ has a very specific meaning. It refers to “billable hours,” hours that the client generally pays for. But for pro bono work, those hours are paid instead by the firm itself.

Pro bono is embedded in the legal industry, and much good work comes from it. Lawyers tend to put their hearts into their causes, many working tirelessly on behalf of the battered, the harassed, the exploited, the sex-trafficked, the wrongly imprisoned, and the gazillion other people with just causes who would otherwise be priced out of the legal system.

Yes, every firm gets marketing value from this, and they’re happy to tout it on their websites. Yes, some lawyers use pro bono to distract from their real work, which can be tedious, soul-sapping, or both. And yes, some use it to soothe their consciences after time spent representing the darker sides of corporate America. But all that is secondary to the actual legal help that is provided free to causes that need it.

In a top twenty firm, with 1,000-or-so lawyers, the investment in pro bono can be substantial. $100 million a year is not unusual. Which is exactly the number Trump is now extorting from at least two major firms. In the words of one understandably anonymous attorney, it’s “a $100 million transfer of value from a firm to the administration. That’s a straight-up heist scheme.”

So what are the dimensions of that heist? As usual, the official communications are not helpful. They refer to “veterans’ issues,” “tariff negotiations,” and “combating antisemitism” as targets for pro bono work, but it’s hard to know what any of it means. And since Trump’s operatives themselves probably don’t know, let’s indulge in some speculation.

Start with “veterans’ issues.” Seeing that the junta is actively engaged in a massive betrayal of veterans — firing disproportionate numbers of them from government jobs — these “issues” would likely center around fighting off the blizzard of lawsuits that will be coming from veterans fighting back. As this will not sit well with lawyers forced into this, how effective will they be at arguing the wrong side of such lawsuits?

“Tariff issues” could involve negotiating tariff “exemptions” with companies, municipalities, or even whole countries that are willing to submit to the emperor and contribute generously to his coffers. Again, what lawyer wants to do that?

The inclusion of “antisemitism” among the so-called issues is especially laughable, given that the junta is more likely to promote antisemitism than fight it. Reading between the lines, this is probably a way of forcing Big Law firms to defend the persecution of immigrants, especially Muslims. It could also be tied to the Netanyahu junta in Israel.

But these are just vague ideas. If the regime were truly to get serious about deploying private-sector lawyers to fight for the causes near and dear to a fascist government, there is no shortage of causes they could choose. But how effective will the lawyering be?

Let’s say you’re a lawyer with more-or-less conventional notions of liberal democracy and the rule of law. Let’s say your firm assigns you to represent pregnancy clinics, those creepy operations that take in pregnant teenage girls, indoctrinate them in lies about abortion, and harass them into having babies they can’t possibly raise. How eager would you be to defend those clinics?

Or let’s say you’re put on a second amendment case, and told to defend gun manufacturers in a lawsuit brought by victims of gun violence? Would you put your heart into that one?

Would you enjoy being on the wrong side of environmental issues? Or of selling off government land to energy companies? Or of voter suppression laws? Could you go into court and argue, with a straight face, that the 2020 election was stolen and Trump deserves a do-over? Or that wrongly-deported immigrants should stay trapped in some Central American hellhole? Or that white people are the real victims of racism?

But the peril goes deeper than that. Because even if your firm did not make a deal with the devil, how eager would you be to take on cases that go against that devil’s wishes? Not taking a pro bono case can be just as damaging as taking the wrong side of one.

In short, this is not what you went to law school for. Which is why one of the biggest problems these top firms will soon face is defections — lawyers quitting in disgust. It’s already starting.

And these aren’t just any employees leaving just any companies. Big-time corporate lawyers all have their own “books of business” — clients who are more loyal to them than to the firm, and who would happily follow those lawyers out the door. Lawyers are a law firm’s only assets, and those assets are famous for moving elsewhere if they’re not happy.

If enough lawyers — or enough clients for that matter — can’t stomach what their firms ask them to do for Trump, the loss of revenue from defections could be fatal to the firm.

Whatever we think about lawyers in general, and corporate lawyers in particular, Big Law firms are now caught in one of Trump’s reality distortion fields. The very notions of right and wrong, guilt and innocence, legal and illegal have been turned on their heads.

Where this goes is still anyone’s guess. But it seems each firm — and each individual lawyer — will need to choose sides at some point. It will fall to the firms’ clients and prospective clients — as well as to their own lawyers — to be the final judges of their conduct. Many will vote with their feet.