Kirkland is not unique in using its pro bono work to distract from the harm it is causing. If you look up any firm, you will find it highlighting its pro bono work and positive community impact. However, a quick search will then reveal the harmful work masked by the firm’s emphasis on its pro bono efforts. Several other firms have similar conflicts in their pro bono messaging.

Paul Weiss claims an “unwavering commitment to providing pro bono legal assistance to the most vulnerable members of our society.” Simultaneously, Paul Weiss is defending Exxon Mobil from being held liable for its contributions to global climate change. This successful defense enabled Exxon to maintain its leadership in greenhouse gas emissions, exacerbating the climate crisis and increasing the number of vulnerable communities. The firm also heaps plaudits upon itself for its work in Brown v. Board of Education, the Supreme Court case declaring school segregation unconstitutional. The firm drew ire for its all-white partner class in 2019. 

Baker McKenzie claims its pro bono work is committed to helping the “underserved and disadvantaged.” Meanwhile, Baker McKenzie is a key collaborator in protecting the assets of the wealthy, as revealed during the Panama Papers scandal. The International Consortium of Investigative Journalists, the group that broke the Panama Papers story, described Baker McKenzie as “an architect and pillar of a shadow economy, often called ‘offshore,’ that benefits the wealthy at the expense of nations’ treasuries and ordinary citizens’ wallets.” Baker McKenzie is creating the “underserved and disadvantaged” populations it purports to help.

These firms are shameless in using their pro bono work as a shield from bad press. For example, in 2021, Hogan Lovells received an “F” on Law Students for Climate Accountability’s (LSCA) Climate Change Scorecard. Among the largest and most prestigious law firms, Hogan Lovells received the second most money to lobby on behalf of the fossil fuel industry. Yet, in an interview with Law360, the Head of Hogan Lovells’ Environmental, Social, and Governance Practice quickly deflected to Hogan Lovells’ support of the U.N. Sustainable Development Goals. Then, the firm’s Global Managing Partner for Diversity and Inclusion and Responsible Business followed up with a similar point.

These firms’ actions are indicative of the way pro bono marketing distracts from harmful practices in the firms’ profitable work.

LSCA anticipated this deflection tactic in its scorecard. The organization put Hogan Lovells’ sustainability work into perspective, pointing out that “[t]he $500,000 of free legal services Hogan Lovells contributed to Lawyers for a Sustainable Economy initiative in 2020 makes up just 0.02% of the firm’s revenue.” In 2021, Hogan Lovells halved its donation to Lawyers for a Sustainable Economy. These big law firms are not outliers in their practice. Indeed, Kirkland & Ellis, Paul Weiss, Baker McKenzie, and Hogan Lovells are all well-respected, relatively progressive law firms. Rather, these firms’ actions are indicative of the way pro bono marketing distracts from harmful practices in the firms’ profitable work

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Despite the inadequacies, those doing pro bono work often have good intentions. However, sometimes big law firms and big law attorneys use the moniker of pro bono to advocate for harmful outcomes. Take Gibson Dunn, for example.

According to Vault, a leader in big law rankings, Gibson Dunn is a top twenty firm when it comes to pro bono work. The firm’s most recent big pro bono case is Brackeen v. Haaland, currently before the Supreme Court. Gibson Dunn represents the Brackeen family. The Brackeens agreed to foster a Navajo child. They then changed their mind and sought to adopt the child outright. However, the Indian Child Welfare Act (ICWA) prioritizes tribal sovereignty and a Tribe’s right to choose who can adopt Native children. To adopt the child they are fostering, the Brackeens and Gibson Dunn are challenging the constitutionality of ICWA. Gibson Dunn’s true goal in this pro bono effort is to unravel tribal sovereignty and boost its profits. 

Gibson Dunn’s true goal in this pro bono effort is to unravel tribal sovereignty and boost its profits. 

Gibson Dunn is notoriously hostile to Native American rights. The firm represented the company installing the Dakota Access Pipeline, and it has fought against tribal nations in other Big Oil and casino cases. Seeking to increase profits further, Gibson Dunn has entered family law. Gibson Dunn’s attorney of record on Brackeen, Matthew McGill, has little if no connection to family law. However, he is a leader of Gibson Dunn’s “Betting and Gaming” practice. The legal theory McGill and team are advancing would put tribal sovereignty at risk, benefitting the firm’s bottom line. 

McGill has recruited former Kirkland partner Paul Clement to work on the Brackeen case. Paul Clement, who has also been aiding Kirkland’s legal team in the 3M MDL case against veterans, has made the time to try to upend tribal sovereignty for free. Clement normally charges $1,000 an hour. Moreover, he “regularly attacks existing Indian law” and was even seen in family court to achieve this goal. Rebecca Nagle, host of the podcast “This Land,” compared Paul Clement, a former U.S. Solicitor General, showing up to family court as the equivalent of “the head of cardiology at Harvard popping in to take your blood pressure.”

Unfortunately, this most recent example of pro bono subverting the “public good” is nothing new. For instance, in the companion case of Brown v. Board of Education, Davis Polk’s named partner, John Davis, fought against desegregating schools. He did this act of violence pro bono.

Pro bono, at its best, is a well-meaning public relations effort that does often help those in need. At its worst, pro bono can be a tool for cruelty.

Every year, students come to law school with the aspiration of bettering the world. However, due to the systemic pressures of law school, many are pushed out of public interest. These students fall victim to the well-documented “public interest drift phenomenon,” where nearly half the students who enter law school hoping to do public interest work veer away from their initial goals. 

Big law firms contribute to the systemic factors pulling people from public interest. These firms widely advertise their pro bono work and wave around the promise of doing good while paying off student loans to recruit fresh associates. Firms make pro bono work central to their identity and rely on pro bono work as a recruitment mechanism. 

The sales pitch is easy: in big law, you can make a starting salary of $215,000, plus bonuses, and you get to do meaningful work. 

Law firms are intentionally leveraging their pro bono to recruit new lawyers. In 2021, Law360 ran an article titled “Why Pro Bono Can Be a Game-Changer in Recruiting.” The article describes how pro bono is “a potent tool to attract, recruit and retain talent.” The article includes perspectives from three different big law recruiters, all confirming the same view: a marketable pro bono practice is an integral tool for effective recruiting.

Law students’ experiences confirm firms are taking this approach. For example, Frank*, a law student who worked at a big law firm last summer, spoke about their recruitment process experience, saying, “the amount [the firm] shoved pro bono down our throat as a recruitment tool was wild. [It] was one of the main ways [the firm] recruit[s].”

Often, firms fail to deliver on these promises of doing a lot of good work.

For instance, Skadden claims to be deeply committed to pro bono. The firm comes in the top twenty-five pro bono performers by one metric and scores an “excellent performer” rating from another. The firm’s website makes clear that “pro bono work is a core aspect of [its] culture,” with the firm dedicating over two million pro bono hours over the last ten years. Skadden allows attorneys to count pro bono hours as billable, which seems to be a major indicator that a firm takes pro bono seriously. Moreover, the firm is famous for its prestigious Skadden Fellowship, which pays for public interest placements at nonprofits. 

Compared to most firms, Skadden appears committed to pro bono work. The firm highlights that, in 2021, 65% of its attorneys accrued twenty or more pro bono hours, suggesting 35% of Skadden’s 1,644 attorneys did twenty or fewer hours of pro bono. The American Bar Association’s recommended minimum is 50 hours. 

In the Firm’s Own Words: Skadden Pro Bono

The story is the same at other firms considered leaders in pro bono. For example, White & Case received an “elite” ranking for its pro bono efforts, the highest ranking there is and one which only ten firms obtained. However, Adam Aliza*, a former White & Case summer associate, described his firm experience: “pro bono is clearly a sham …. I was in contact with attorneys who also constantly dismissed summer associates who were doing a public interest split… [and] actively laughed in our faces and told us that it was a waste of time.” One White & Case attorney went so far as to call Adam’s public interest aspirations “silly.” 

White & Case’s pro bono numbers bear out this experience. The firm brags about the 113,110 hours of pro bono it did last year. However, in the context of the 2,464 attorneys the firm has, the number becomes less impressive. After accounting for the fact White & Case includes non-attorney legal staff in these calculations, the actual average likely keeps pace with Skadden’s poor showing. 

Again, Skadden and White & Case are part of the industry-wide practice. Confirming this trend is Kirkland, which performed a comparable number of pro bono hours. No matter the intention, these firms are built to create profit, and aside from being a helpful recruitment tool, pro bono work is not profitable.

Unfortunately, a lack of commitment from firms and dueling interests often manifest in negative outcomes for the clients receiving these pro bono services. Pro bono programs generally span many issue areas, including immigrant rights, veterans’ benefits, housing, employment, LGBTQIA+ advocacy, and much more. Each of these areas is profoundly important and deeply complex. With firms prioritizing paid work, pro bono attorneys are limited regarding the cases they can take on and often lack the time necessary to adequately represent people on these claims.

Before law school, Kylie,* a student at Harvard Law School, worked at a legal aid organization that relied heavily on pro bono attorneys to provide clients with legal services. Her organization had several legal programs, each generally with two attorneys and a coordinator. The programs placed cases with teams of pro bono attorneys and supervised their work, often with big law firms. Her experiences show how limited big law attorneys are when practicing pro bono. 

Several big law firms offered to help with the organization’s bankruptcy project. However, conflicts quickly materialized, as many firms represented the big banks that the pro bono clients needed legal assistance fighting against. As a result, the organization had to retool the entire program.

In addition to the types of cases that big law attorneys could take, they were also constrained by their busy work schedules. During our discussion, Kylie identified a lack of availability, training, and cultural competency as critical factors preventing pro bono attorneys from being effective advocates.

Kylie, whose program focused on child advocacy, described many pro bono attorneys as “hard to pin down” and said they would “go MIA.” She said a lot of her time was spent “tracking down attorneys who hadn’t shown up in court or [who had] sent someone else from their firm to show up in court,” even though they hadn’t done any work on the case. She also noted that much of her team’s time was devoted to editing the work of pro bono attorneys and that the staff attorneys could have done the cases better. She said, “often, when a case got complicated, it got handed back to us.” Despite their intentions, big law attorneys are simply limited in doing meaningful work because they have paid obligations that their firm prioritizes above all else. 

Some of the pro bono attorneys who worked with Kylie lacked the training necessary to be effective in these cases. Many of these firms saw pro bono as a way to get untested associates courtroom experience. However, without training from the firm, Kylie and her team had to spend a lot of time “hand-holding” these attorneys as they navigated the process. 

Worse, big law associates have limited time to interact with clients and do not always have the cultural competency necessary to provide effective advocacy. Kylie told me about a team of all-white attorneys who asked whether it would be “safe” to have their client, a 14-year-old Black child, come to their office. A pro bono attorney on a different case described their client’s grandmother as “ghetto.”

Unavailable and ineffective pro bono attorneys harm their clients and prevent services from being provided to others. The pro bono model requires the supervision of subject matter experts, who could otherwise be assisting more clients directly. 

In an article he wrote for Balls and Strikes, Steve Kennedy explained the problem a little more bluntly: “in my experience, the quality of representation varies significantly; often, clients get what they pay for. When nonprofit staffers need to spend more time checking and correcting pro bono attorneys’ work than it would have taken to do it themselves, the system is broken.”

This broken system can have near-fatal consequences. The case of Cory Maples illustrates this problem. Two Sullivan & Cromwell attorneys were representing Maples on his death sentence appeal, but they failed to notify Maples when they left the firm. As a result, Maples missed his appeal. The Supreme Court fortunately made an exception for Maples. Clients should not need to rely on a rare exception from the Supreme Court for their survival.

Despite the promises firms make to aspiring public interest attorneys, their business model prevents most associates from doing meaningful and effective pro bono work.

The current pro bono system is primarily for public relations purposes, often minimal compared to the harmful work that firms prioritize, and frequently ineffective and detrimental to clients receiving pro bono services. So, should we give up the practice entirely? Maybe not, suggests an anecdote of Kylie’s. Though describing deeply committed pro bono attorneys as the exception, Kylie said there were times when her organization needed the firms’ resources. One particularly compelling example was when a party in a case flew the child Kylie’s organization was representing from Illinois to California. The judge in the case demanded her organization find the child and bring them back to Illinois. Unfortunately, Kylie’s organization had nowhere near the funds necessary to locate the child. A firm saved the day by paying for one of its attorneys to fly to California and find the child.

Steve Kennedy makes a similar point about firms’ resources. He argues that firms should do less pro bono and instead “dedicate their considerable resources to addressing the systemic inequities that drive the need for free legal services in the first place.”

Firms donating their vast resources to public interest organizations doing the complex legal work while still assisting on more straightforward cases could significantly improve the quality of free legal assistance for those in need. Better funded legal services would draw more people to public interest work, further expanding the availability of legal assistance. However, if firms continue doing harmful work and exacerbating inequality, even the best free legal assistance will be unable to achieve systemic justice.