The Economics of Pro Bono Litigation
posted by Dave Hoffman
Cliff May, of the Corner, has a beef with the Cully Stimson resignation:
[T]here . . . are scores of American attorneys representing detainees [at Guantanamo] on a pro bono basis.Why do they do that? Maybe it is because they are genuinely concerned about protecting due process for detainees. Or maybe it is because they are, as Stimson said “receiving moneys from who-knows-where.” (Or – and this is my conjecture – perhaps they are currying favor with governments and groups that are or can become rewarding clients.)
In any event, Stimson’s statement got him into trouble with what the wire services are calling “the legal community.” That “community” was not satisfied by Stimson’s subsequent apology. On Feb. 2 he resigned from his position. A Pentagon spokesman said the controversy over his statement “hampered his ability to be effective in this position.”
I suppose that it is possible that lawyers are representing detainees gratis because they are currying favor with foreign governments. But this strikes me as pretty implausible when you think about the way American law firms actually work.
First, as a percentage of billings, international governments are a low source of revenue for high-end firms. (Governments can be cost-conscious, of course, and there are limited firms that have the relevant expertise.) Most revenues instead arise from transnational corporations headquartered in the United States. It is not clear why such organizations would be more likely to give future accounts to a firm because they represented detainees (indeed, as Stimson initially observed, the opposite may well be true.) Moreover, the strategy is a pretty risky one. Success in litigation might lead to repatriation to a country (and consequent social services) that suddenly has a highly visible diplomatic problem with the global hegemon on its hands.
Second, I think that May really misunderstands the why of pro bono. Let’s assume, for a moment, that firms are not incented to do pro bono because for altruistic reasons, or because the profession’s self-regulation strongly suggests that they must do so. Pro bono pays for itself in ways unconnected with future grateful clients. Strong law students want to join firms that handle interesting and complex matters. Involvement with such matters justifies the expense of a law school education, and increases later job prospects. (I assume a future employer would rather hire a lawyer who was involved in fact gathering across three continents and arguments in a variety of tribunals than one who looked at boxes of documents in White Plains for a year.) The Guantanamo litigation(s) are highly complex and interesting. Thus, one way to see firms’ enthusiastic embrace of detainee clients is as a loss-leader, increasing their ability to attract professional talent, that can then, in turn, be deployed for paying clients.
That said, I don’t think firms are so calculating. Despite recent innovations in law firm structure, most firms are still relatively decentralized. Individual partners can choose to commit to costly pro bono litigation with remarkable freedom from central oversight. Such partners, I think, are driven by motives that are significantly less sinister than May – and Stimpson – suggest.
Finally, May “air quotes” the idea of a legal community. I assume, by this, he means to suggest that there were large groups of lawyers who endorsed Stimpson’s statements and want law firms shamed for pro bono work on behalf of detainees. Maybe May means to further assert that this silent majority was drowned out by the voices of a few liberal radicals. Like Charles Fried? What nonsense. I’ve got to say, commentary like this doesn’t inspire me to want to go on the National Review Cruise, even though their cruise ship, the Noordam, recently scored a 98 on its CDC inspection. (Docked for inability to leave the restroom without touching the door with your bare hands.)
February 5, 2007 at 11:48 am
Posted in: Economic Analysis of Law
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Responses (1)
Maryland Conservatarian - February 6, 2007 at 10:36 am
I don’t know how much you read NRO but if you kept on reading you would have read comments critical of Mr. Stimson and disagreeing with Cliff May. Although NRO is avowedly a conservative site, it still manages to exhibit more “diversity” of thought than many ostensibly non-partisan sites.
As for his air quoting “legal Community” – deservedly so! I understand him to mean that it is ridiculous to consider that there is a “legal community” out there that can express outrage, agreement or any other kind of sentiment. I know this concept of communities is an attractive one for many (Jesse Jackson, for one, has made a lucrative living off of it) as it de-emphasizes the individual but the idea that there is a legal community that would ever coalesce so they can be summed up as to collectively not accept an apology is wishful thinking…or journalistic laziness…or both.
I’m a lawyer so I guess I would be lumped into this so-called legal community but no one and no thing – not the ABA, the Maryland Bar Association or even the venerable Ed Meese – “speaks” for me as a member.
I have not been critical of these or other pro-bono efforts despite the ridiculous rhetoric that they sometimes produce. Hopefully all the grandstanders wailing and gnashing their teeth over Stimson’s statement will remember (although many of us will also be there to remind them) all these moral posturings when other members of this same legal community defend so-called polluters, tobacco companies, Right-to-Work organizers and Republicans in effort to make sure they too get a fair shake.
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