Government Strong-Arms Law Firms into Providing Compulsory Pro Bono Legal Services
The Trump regime is perverting a vaunted practice of the legal profession and extracting hundreds of millions of dollars of value from U.S. law firms.
Providing free legal services to indigent clients “pro bono publico” — for the good of the public — has long been an important professional responsibility that American lawyers take on when they enter the legal profession.
Now, however, the Trump regime has perverted the very meaning of what constitutes pro bono work. The government is wielding executive orders against major law firms as virtual cudgels to extract hundreds of millions of dollars worth of free legal services on behalf of government-approved causes and, it seems, even on behalf of the government itself (such as negotiating trade deals). Firms that have refused have been sanctioned with suspension of security clearances, termination of government contracts, and restrictions preventing firm employees from accessing federal buildings.
This all sounds more like a demand for protection money. Do what we say or we’ll break your [metaphorical] legs.
Some Personal Reflections on Pro Bono
I went to law school to save the world — to wield the tools of the law to help the underprivileged and underserved in American society. Was I naive? Of course I was. But my idealism was genuine, and though it’s been battered by reality over the years, I have never lost that youthful determination to use my education and experience to help others and defend against injustice.
Unfortunately, a divorce that left me penniless compelled me to pivot early in my career from legal aid to private practice. After a couple of false starts, I landed in a congenial law firm that focused on employment-based immigration: representing large multinational corporations, smaller U.S.-based start-ups, nonprofit organizations, healthcare institutions and universities in their visa petitions on behalf of talented foreign workers.
It wasn’t my dream job, but I got to work with some the best lawyers in the field of immigration law; I didn’t get rich, but that was never my goal and I earned enough to get myself out of debt and to pay for my child’s education; I got to work directly with immigrant families making a major life decision about relocating to another country; and I enjoyed learning the larger lessons of how the global mobility of labor powers the world’s economy. I even had the good fortune to work in a firm that gave me the flexibility to become something of an academic, and I spent a lot of time writing about U.S. immigration law and policy, as well as teaching immigration law to law students.
But what really got me through a quarter century of corporate immigration work was the opportunity to use my skills and my law firm’s resources to take on pro bono cases on behalf of indigent immigrants. I also worked hard to make the doing of pro bono work a meaningful part of my firm’s culture. Collectively, lawyers taking on pro bono immigration cases in the United States have helped thousands of immigrants escape persecution and other types of harm, obtain humanitarian protection, and fulfill their American dreams. And those lawyers did all of that work for free.
So I take it personally when the federal government steps in and demands that law firms provide pro bono legal services for government-approved causes or even government functions — or else. But everyone should be worried about this development. This is not the way pro bono, or government, is supposed to work.
The Legal Ethics of Government-Imposed Compulsory Pro Bono
There has been a lot of chatter among law nerds about the legal ethics of law firms complying with the government’s executive orders — which as
points out are about “extract[ing] obedience from the legal profession.” As she goes on to say:This is ground zero for the battle between autocracy and democracy, the question of whether a president can strip away people’s rights at a whim. Trump is willing to win that battle by abusing the levers of power he controls as president…. Lawyers have more tools to resist than most people, so when they don’t, that’s bad news for all of us.
Some lawyers and law firms are resisting, however (including Perkins Coie, WilmerHale, Jenner & Block and Susman Godfrey). In a recent amicus curiae (“friend of the court”) brief filed in federal district court in support of Jenner & Block’s challenge to the executive order targeting that firm, a group of law professors and legal ethics scholars focused on three simple points:
The law firms targeted by executive orders who gave in to Trump’s demands have created a conflict of interest for their lawyers.
These same law firms may have violated federal anti-bribery laws by accepting the Trump regime’s terms.
Trump’s demands violate the historic independence of the legal profession and the rule of law.
I would add a fourth argument:
The free legal services Trump is demanding do not constitute pro bono work, and providing compulsory free legal services on behalf of government-approved matters implicates all three of the foregoing points.
As
put it in Big Law Calls It Pro Bono. Gimme a Break:You don’t have to be a legal scholar to know what pro bono means: it’s providing free legal representation to those in need — the indigent, the disenfranchised, and the powerless. It does not mean serving the will of the most powerful ruler in the world who also happens to be hostile to those constituents.
Then Chen goes in for the kill:
This isn’t about pro bono but protection money. And if you have any doubts, consider this: right after Kirkland Ellis, A&O Shearman, Simpson Thacher, and Latham Watkins each coughed up $125 million for Trump’s “pro bono” projects, the EEOC letters directed at those firms for possible DEI violations were withdrawn, with the announcement that the EEOC “will not pursue any claims related to those issues.” (The EEOC also withdrew its letters targeting Skadden and Milbank after they signed agreements with the administration….)
If there was still any doubt about the government’s agenda, the New York Times reports that White House Press Secretary Karoline Leavitt said in a statement, “Big Law continues to bend the knee to President Trump because they know they were wrong, and he looks forward to putting their pro bono legal concessions toward implementing his America First agenda.”
Wrong about what exactly? No matter. Not surprisingly, Trump’s attacks on law firms are reportedly already chilling pro bono work on causes he does not like (such as cases involving immigrants’ rights, civil rights and voting rights).
It is Now 1933 in America
I tend to agree with James Carville, who has compared law firms and companies working with Trump to Nazi collaborators in World War II.
To quote Joyce Vance again:
[W]here it starts is not where it ends…. Once you’ve bent the knee to the bully, you’re at his mercy forevermore. He can always come back to demand more. You’ve already demonstrated your weakness.
It turns out that some of the law firms targeted by Trump — for example, Chicago-based Kirkland & Ellis — don’t even have written agreements setting out the terms of their deals with the government.
Dear Reader, I beseech thee: hire not a law firm that wouldst agree to forfeit a levy to the crown absent an inked parchment setting out the terms of their tribute.
I have also learned from Josh Marshall on Talking Points Memo about a scoop published by the Wall Street Journal: that none other than Boris Epshteyn — Trump’s personal attorney, who doesn’t even work for the government — has been Trump’s chief negotiator (or as the Daily Beast termed him, Trump’s “enforcer”) for these ruinous deals with some of the nation’s top law firms. (Reminder: Epshteyn is the Russian-born lawyer who led Trump’s efforts to try to overturn the results of the 2020 presidential election.)
We are at an important potential inflection point. Many powerful institutions are buckling to the Trump regime’s demands to protect their bottom line — or to ensure their very existence. A few others — such as the aforementioned law firms, and now Harvard University — are fighting back.
Where do you stand? What will you do?
Thank you for this analysis. It's important to hear about the first hand experience of lawyers who have done pro bono work and know truly what it means and how important it is.
Fight back! Harvard and Maine’s governor are setting the examples to resist and protect Democracy and the Rule of Law. It’s a sad day that those law firms caved, and now they are at the continuing mercy of the (illegal) whims of the Administration.
Perhaps they (these law firms) could reconsider, rejecting the vague agreements they accepted and pay the (hefty, no doubt) consequences of changing their minds, but come out, in whatever form it takes, to be ethical once again, and be able to sleep at night.