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Closing the US justice gap

US editor Seth Singh Jennings talks to Gibson Dunn and Morrison & Foerster lawyers on why law firms have an obligation to seek out pro bono work

The concept of pro bono – literally ‘serving the public good’ – is intrinsic to the profession of law, and nowhere more so than in the US.

In 2017, chart-topping Gibson, Dunn & Crutcher LLP clocked an impressive 180,000 pro bono hours worldwide, equating to roughly 129 hours per lawyer, and many other firms are posting similarly impressive numbers.

These sorts of figures (which are not anomalous) show a dogged commitment to pro bono work, but it’s not often that we stop to consider what it actually means to serve the public good – either in theory or in practice.

As Gibson Dunn’s pro bono director Katie Marquart explains, the concept can mean different things to different people, and there are therefore ‘many laudable ways to serve the public good’.

At the heart of it, though, Marquart says lawyers have ‘a special ability – and indeed duty – to influence and impact society in furtherance of the public good through the courts and through the practice of law’ and specifically to ‘promote and uphold the rule of law, individual rights, civil liberties, and human dignity’.

In the US, where the judicial system is premised on every individual being equal before the law but access to legal aid is limited, one of the most obvious, tangible ways in which lawyers can serve the public good is through providing representation to those who otherwise could not afford it. ‘We live in a society with an enormous justice gap’, says Marquart, ‘pro bono work can
help close that gap’.

Gibson Dunn’s caseload of pro bono work ranges from First Amendment defence, to fighting on behalf of domestic violence victims, to advocating on behalf of veterans. However, two recent matters that standout for Marquart are the firm’s work for the Trevor Project in fighting the transgender military ban and its work in Tanzania and Kenya leading anti wildlife trafficking efforts.

In February 2017, the firm also found itself in the news alongside the likes of Hogan Lovells, Paul Weiss, Latham & Watkins, and Kirkland & Ellis thanks to its swift and coordinated response to the Trump administration’s ‘travel ban’, with teams of attorneys sent to international airports in New York, ashington, Los Angeles, Oakland, and Dallas to assist people at risk of being blocked at the border.

It’s possible to see this as just a legal response to a legal issue – lawyers defending civil liberties and the rule of law – but for corporate law firms, which typically shun controversy for risk of upsetting clients, this moment stood out. It was an impassioned response, not a calculated one.

For Marquart, who played a key role in the firm’s response to the travel ban, this rings true: ‘I do think that events in our nation over the last several years have sparked an increased passion and desire to get involved among lawyers and non-lawyers in our communities.’ Another firm that has played a part in challenging the travel ban is Morrison & Foerster – it filed an amicus brief in the Supreme Court case regarding the ban’s legality – and one of the firm’s strongest advocates for pro bono legal services, San Francisco-based partner Susan Mac Cormac, also sees something different about this moment in history. ‘There is a sense of urgency that I – and I suspect many of my fellow attorneys – feel around our current issues.’

Gibson Dunn tackles family separation at the US border

Gibson Dunn has been a big part of the effort to help families affected by the Trump administration’s ‘zero tolerance policy’ at the US border, implemented in May 2017, which resulted in the forced separation of adults from accompanying minors.

By June 2018, more than 2,300 children had been separated from their parents under this policy. President Trump signed an Executive Order meant to end the separation of families on 20 June, but this didn’t address the reunification of families already separated. Gibson Dunn’s efforts included deploying attorneys to several of the detention centres in south Texas and traveling to local detention centres where detained parents had been transferred.

It has also worked with Catholic charities to locate hundreds of parents the government failed to adequately track, and committed to representing many of these families long term as they apply for asylum or other forms of relief and attempt to settle in the US.

Like Marquart, Mac Cormac recognises that there are many ways to serve the public good, and that among the many issues that require legal solutions, the best way to effect real change is to focus your efforts on the one thing you’re most passionate about. For Mac Cormac, this is climate change. ‘It keeps me awake at night,’ she says, ‘even when my other deals and three young sons do not!’

To make a real difference, Mac Cormac says, ‘attorneys should tie their day-to-day legal work to the social and environment impact that they wish to achieve as much as possible. This can be much more effective that doing a little pro bono on the side’. As chair of the firm’s social enterprise and impact investing group, as well as its energy and cleantech groups, Mac Cormac has done just this.

Although she continues to dedicate a significant percentage of her time to pro bono matters, and believes lawyers have ‘an affirmative obligation’ to seek out such work, and she feels she can accomplish even more by working with private sector clients.

With respect to climate change, she says: ‘The private sector, including non-profits, has stepped up in a major way. I am hopeful because I see groundbreaking solutions in my work with social entrepreneurs and impact investors.’

Something Mac Cormac is keen to stress, however, is that, ultimately, a lawyer’s professional duty is to advocate for their client’s best interests. Her success in her field means she is largely able to choose her clients, but even if you don’t like your client, ‘if you agree to represent them, your ethical duty is to advance their interests’.

Beyond traditional pro bono assignments and building social impact into your work, there are still other ways in which lawyers can serve the public good. One example is the pursuit of diversity and inclusion, which is something The Legal 500 has been attempting to shine a light on.

The legal professional – especially private practice – has a way to go in this space, but there are moves in the right direction. Mac Cormac certainly sees it as something that should form part of a lawyer’s ethical duty. Early on in her career, she says, she was often in the position of challenging older men – ‘to a certain extent this is still true’ – and because of this she became ‘an advocate and mentor for women in the legal profession, and generally, which I do view as a civic responsibility’.

It’s clear in the current climate that there are many issues that need solving and thus many ways for lawyers to serve the public good, so it’s encouraging that the next generation seem to have fire in its belly.

‘Our younger associates are particularly galvanised by the current state of politics and an understanding of their own impact on the world,’ says Mac Cormac. Perhaps, she speculates, they ‘see more clearly that money does not beget happiness and are willing to accept greater trade-offs’.

A deep dive into hybrid (AKA tandem) enterprises

‘My favourite project from the past year has been the establishment of a tandem structure, the Carbon Endowment, to retire coal assets at scale while securing a revenue stream for community reinvestment and job training in the coal communities,’ says Susan Mac Cormac, MOFO’s chair of social enterprise and impact investing, and energy and cleantech.

‘Some other fabulous projects of late have included spinning out PRX from Public Radio International (which helps generate new revenue flows up to the nonprofit), forming a for-profit joint venture with nonprofit Medicines360 (which allows the nonprofit to distribute its healthcare products to women in the developing world), and structuring a for-profit evergreen fund that allows The Nature Conservancy to aggregate
return-seeking and donor capital in order to invest in preserving our natural resources.’