Pro Bono

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When I practiced law, I did a lot of pro bono work. So, am I offended by the recent remarks of Dennis Jacobs, Chief Judge of the Second Circuit Court of Appeals, at the inaugural event of the Rochester, NY, chapter of the Federalist Society?

Of course not. There is nothing objectionable in the remarks; indeed, they are rather self-evident. Yet some have been highly offended, going so far as to say that Judge Jacobs should be ashamed. More here.

Judge Jacobs noted that much pro bono work that large law firms do is self-serving. I don’t see how this could be disputed.

The first two jury trials I ever did were both Section 1983 cases. I lost both, but gained valuable experience and confidence for when I tried my first case for a paying client.

Guess what? Large law firms feel the same way. They charge a lot of money per hour for even the most inexperienced of their associates, and derive a significant benefit from those associates gaining some first-chair litigation experience pro bono, rather than on the dime of a paying client.

So obviously, it is self-serving in a way; that doesn’t make it bad.

Judge Jacobs also notes that much pro bono work is agenda-driven. So what?

If I ran a large, high-priced law firm, our pro bono work would be agenda-driven, too. We’d represent property owners in disputes with environmental activists; property owners challenging land use laws; property owners facing eminent domain; firearm owners challenging gun control laws; tavern owners challenging anti-smoking ordinances; and federal defendants seeking to dismiss the charges against them on Commerce Clause grounds.

This would be pro bono work, and I would consider it very important pro bono work. But it would also be self-serving in that I would choose these sorts of cases, because I’m very willing to use the courts to accomplish what I can’t accomplish with my vote. I certainly wouldn’t be upset if a judge pointed that out to me.

Much of the pro bono work that large law firms do is also agenda-driven. It’s just a very different agenda.

Most of the pro bono I did when I practiced was just garden variety pro bono – representing poor people who had legal needs they couldn’t afford. It wasn’t anything glamorous like championing the Commerce Clause as a real limitation on congressional power.

In his speech, Judge Jacobs unambiguously encourages the sort of pro bono work I used to do.

We hear much about “unmet legal needs.” All Judge Jacobs did was to point out what should be obvious — much agenda-driven public interest litigation doesn’t really do much to meet those needs, and law firms should take a hard look at how much of their pro bono programs meet the needs of poor people, as opposed to their own needs and wants.