Law.com has an article discussing the increasing popularity of pro bono work for conservative causes.
Every law student is indoctrinated with the theory that, as lawyers, they have a solemn duty to do pro bono work, offering their legal abilities to various causes for free. Some classes give credit for such work; others work pro bono causes into internships. And students are frequently told that it's not particularly important what the cause is--whether it is family law, criminal law, even employment law (I handled a case for a man who hadn't been paid his final wages at a previous job)--legal work should be open to virtually everyone.
For the most part, however, such cases have been notably liberal causes: women's rights, abortion rights, gay rights, anti-religion, so-called "freedom from religion" cases, and more have used up considerable pro bono hours from prestigious firms. Now that trend is finally shifting to include conservative causes.
They are not the poor, the infirm or the otherwise dispossessed. Instead, Harry Korrell III's pro bono clients are parents -- predominantly white -- from a comfortable suburb of Seattle. Last fall, Korrell, a partner at Davis Wright & Tremaine, took their case to the U.S. Supreme Court, arguing against the Seattle school choice program in which race is a factor in the allocation of coveted slots. In a controversial 5-4 decision in June, the Court ruled against the use of race in public school enrollment.
Even before the decision, the case sparked fury far beyond Seattle, galvanizing both supporters and foes of affirmative action. "People view it as reverse discrimination," says Korrell. "It's not popular." Even some of Korrell's partners disagreed with his view of the case. Nevertheless, Korrell says, Davis Wright has supported his work -- and he says that the case has not caused client defections or hiring problems. "We do well in recruiting minority lawyers," he says. "If a lawyer is afraid of coming here because of a case I handled, I wouldn't be sure of that person's judgment."
Korrell's case exemplifies a quiet phenomenon, 20 years in the making: major law firms supporting conservative pro bono causes. Contrary to conventional wisdom, pro bono is not just the province of liberals. Bolstered by influential groups like the Federalist Society, religious organizations and pro bono advocates, big firms now regularly champion libertarian causes such as free speech and property rights. More surprisingly, some are challenging race-based policies and representing groups opposed to gay rights and abortion. Indeed, the politics of pro bono are evolving -- they're more fluid than the stark line usually drawn between the left and the right. Conservative causes are not monolithic, and the distinctions between liberals and conservatives sometimes blur. In the "Bong Hits 4 Jesus" case recently argued before the Supreme Court, for instance, the American Civil Liberties Union sided with evangelical Christian groups to challenge speech restrictions on high school students, while conservative stalwart Kenneth Starr (now of counsel at Kirkland & Ellis) led the opposition. Even such a die-hard conservative as James Bopp Jr., general counsel of the National Right to Life Committee, is collaborating with the ACLU in challenging political advertisement restrictions in the McCain-Feingold campaign finance law. In Harry Korrell's school choice case, his clients aren't rabid conservatives, just parents who were "furious," he says, that because of racial preferences, "their kids couldn't go to school down the street." For big-firm lawyers like Korrell, pro bono no longer begins with a litmus test.
This phenomenon naturally has liberal voices screaming at the "unfairness" of using pro bono lawyers to undo their handiwork. Indeed, they don't believe that such causes deserve free legal help. Let 'em pay! After all, they're just a bunch of racists, sexists, and bigots and the Constitution doesn't include them, does it?
Well, unfortunately for the folks at Pandagon and other places, the Constitution is available to all Americans, including those folks you disagree with. And, similarly, pro bono work should be available for all sorts of causes, not just liberal ones. This doesn't necessarily make those lawyers popular, though.
Such advocacy is not without risk, says Terry Pell, founder of the Center for Individual Rights. "Race goes to the bottom line," Pell says, noting the Fortune 500's insistence on diversity at its law firms. Maslon, he adds, is still getting grief for its work on the Michigan cases; last year, a local consortium of firms and corporations working on diversity rejected the firm's membership. Maslon partner Kirk Kolbo, who argued the cases before the Supreme Court, says he's stunned at the fallout. "The irony is that the firm has a liberal history," he says, citing Maslon's school desegregation work. Some of the firm's clients also expressed "dissatisfaction" with the representation, says Kolbo, though "to my knowledge, no client removed their business."
I don't have a problem with clients expressing their own dissatisfaction if their lawyers take on causes with which they disagree. But it just bolsters a powerful argument conservatives make: liberals love "X" as long as it agrees with them. You can insert the word "speech" or the phrase "the courts" into that blank, and it has the same meaning. It goes to the hypocrisy on display many times on the left that they enjoy using some particular tactic for their own causes but cry "Foul!" when conservatives use the same tactics. This is largely behind the moaning from the Left about the latest Supreme Court term. They considered the courts to be their domain for bullying the American populace into accepting their ideas, rather than using the legislative process to persuade people (they knew they would never get many of their ideas through the legislature).
The rise of pro bono work for conservative causes hasn't happened in a vacuum. Indeed, it is mainly possible because of the creation and success of conservative think tanks and legal institutions.
Some groups, such as the American Center for Law and Justice, created by Pat Robertson in 1990 and now headed by Jay Sekulow, have become so successful that they handle most of their advocacy in-house. But others, like the Alliance Defense Fund, are making a determined play for a piece of the legal establishment's pro bono pie. With 35 full-time lawyers and annual revenues of $22 million, Scottsdale, Ariz.-based ADF vies with Sekulow's ACLJ as the Christian ACLU. Though clearly ideological (freedom of religion, sanctity of human life, and defense of marriage and traditional family values are its cornerstones), ADF is practical about how it approaches big firms. "We don't throw Bibles at people," says Jeffrey Ventrella, ADF's senior vice president. Instead, Ventrella says, ADF tries to find matters that will resonate with big firms, such as freedom of speech or religion cases. Or it reframes sensitive social issues, such as combating gay rights, as business matters.
ADF also underwrites a training program that's starting to attract big-firm lawyers. Dallas-based Akin Gump Strauss Hauer & Feld partner Randall Kucera, for instance, trained at ADF two years ago. Since then, Kucera says, he's taken on constitutional challenges that he wouldn't have handled before. In one case he's defending a school district in Texas that's been sued by the ACLU for including the Bible in its curriculum. In another, now before the 5th U.S. Circuit Court of Appeals, he's defending a school board's right to hold prayer meetings. Just a few months ago, in the highly publicized Baby Emilio case in Austin, Texas, Kucera fought to keep the fatally ill child on life support. (The case became moot when the child died.) Kucera says that Akin Gump has been nothing but encouraging about his pro bono matters.
Another conservative group, the Christian Legal Society, had no problem enlisting Gibson, Dunn & Crutcher in a 2001 fight over embryonic stem cell research. Representing an agency that promoted "adoption" of human embryos stored at fertility clinics, the firm filed suit against the U.S. Department of Health and Human Services to overturn guidelines that allowed for federal funding of embryonic stem cell research. CLS head Samuel Casey says that he became acquainted with Gibson Dunn when about half a dozen of its lawyers joined CLS for Bible studies. "We prayed with them on a number of cases they were doing," recalls Casey. A former Orrick, Herrington & Sutcliffe partner, Casey says that Gibson Dunn's work was key in persuading the Bush administration to back the embryo research ban. And should the ban be lifted, Casey says, "We'd take it to Gibson again. ... They treated us like IBM." (Former partner Thomas Hungar, now deputy U.S. solicitor general, led the stem cell case; he declined to comment.)
It's refreshing to see articles about this side of the legal system. The fact is, the legal system should be open to everyone...whether you like their opinions or not.
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