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Want to Do Socially Conservative Pro Bono? Good Luck.

The Careerist

August 2, 2016

-2Firms are loathe to admit it, but pro bono is political, and in the vast majority of cases, it skews left. Arguably, pro bono is by nature liberal. Assisting the indigent, immigrants, murderers, and the dispossessed—the usual pro bono fare—are not for lovers of the status quo.

So where does that leave conservative pro bono? Well, it depends on the cause. Big firms have few qualms about advocacy for economic conservatism. "We actively seek out libertarian cases," says Michael Williams, a partner at Kirkland & Ellis in Washington D.C. He says these cases often involve challenges to regulation, especially for entrepreneurs who face outdated, unfair regulatory schemes.

Far less acceptable is pro bono that promotes conservative culture, such as restrictions on abortion and the promotion of traditional marriage or religion. "We'd approach big firms and find willing individuals to take our cases only to be told that the firm won't get involve," says Horatio Mihet, chief litigation counsel for Liberty Counsel, an organization that fights for religious freedom. "You end up wasting a lot of time." As a result, Mihet says his organization and similar ones, such as Alliance Defending Freedom, have developed their own sizable legal staff or turned to smaller firms for help.

A few big firms have supported sensitive conservative causes—but they aren't bragging. Former Orrick, Herrington & Sutcliffe partner Samuel Casey, an anti-abortion activist, says Gibson Dunn & Crutcher provided critical help in getting the Bush administration to ban embryo research. Though Gibson never officially appeared on behalf of the anti-abortion group, says Casey, "it was largely led by Gibson lawyers." In particular, he lauds Gibson Dunn partner Thomas Hungar, former deputy U.S.solicitor general, for assisting on pro life matters. (The firm's pro bono coordinator Scott Edelman says Gibson Dunn also represents Planned Parenthood and that "the vast majority of our pro bono work would be characterized as liberal.")

Another prominent, but much smaller, firm that takes on controversial right-wing causes is Washington, D.C.'s Bancroft, where former solicitor general Paul Clement is a partner. Clement jumped over from King & Spalding in 2012 when it refused to let him take on the defense of the Defense of Marriage Act. At the time, Clement issued a statement that his defense of DOMA was not necessarily a reflection of his own opinion but that the act deserved a vigorous defense.

Bancroft seems to be practicing what it preaches. Recently, Clement scored a Supreme Court win for Little Sisters of the Poor, challenging the contraceptive mandate under the Affordable Care Act for religious orders. Despite the firm's conservative reputation, it takes on its share of liberal pro bono cases too, says Erin Andrews, a Bancroft partner, citing work for criminal defendants and illegal immigrants. "We like to play against type; if it's a good case, we'll take it," she says. "Large firms are more reluctant because they face different pressures."

Though some firms might take on cases that chip away at contraception or abortion under the cloak of religious liberty, it's unthinkable that a major firm would touch anything that could diminish gay rights. Indeed, once Republican stalwart and Gibson Dunn partner Ted Olson joined forces with David Boies in the fight to defeat California's Proposition 8 (which banned gay marriages ), it was clear that the legal establishment was on the side of LGBT rights. (Olson is now spearheading transgender rights, seeking to defeat North Carolina's law that requires people to use public restrooms based on the gender on their birth certificates.)

This institutional embrace of liberalism is what makes some conservative lawyers feel excluded. Roger Gannam of Liberty Counsel says he left his job with a large Atlanta-based firm because he was discouraged from doing Christian advocacy. Now the lead counsel for Kim Davis, the Kentucky clerk who made headlines for refusing to issue marriage licenses to gays, Gannam says, "there's cultural bias against Christians " in Big Law that has worsened in recent years. "The culture has changed in the last five or six years—with same sex marriage, and now transgenderism. It lends to the view that conservative causes like traditional marriage are not mainstream."

Olson probably agrees. And that, he suggests, is precisely the point: "Attitudes about [the LGBT community] have changed profoundly in a short time. Law firms and companies have to think about the business implications of their actions, particularly if you're making your employees uncomfortable."

 vchen@alm.com

Comments

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Thank you for bringing attention to this issue! As someone who supports both liberal and conservative causes, it can be challenging at best to publicly fight for causes on the right. I do have one quibble with your article, however -- providing pro bono service for the poor is certainly not just a "liberal" issue. So long as it doesn't use taxpayer money, caring for the poor is neither a liberal nor conservative cause -- it is a human cause. Some of the most dedicated legal aid volunteers I know are ideologically conservative yet very caring attorneys.

Great post, Vivia. Sounds just like (a) the New York Times and (b) the major universities.

Cheers,

Mary Campbell Gallagher

Thank you for reminding us of that big political elephant in the room regarding pro bono and public interest law. I often wondered whose public interest is being protected in these cases, certainly not traditional rights and beliefs.

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About The Careerist

The Careerist takes an inside look at how lawyers shape their careers and manage their lives. The blog aims to dissect developments in the profession, provide useful information and advice, and give lawyers a platform to voice their views. The goal is to provide a fresh, provocative take on the state of lawyering.

About Vivia Chen

Vivia Chen

Vivia Chen, The Careerist's chief blogger, has been covering the business and culture of law firms for a decade. A former corporate lawyer, Chen is fascinated by those who thrive (as well as those who don't) in the legal profession. Her take: Success in the law (and life) doesn't always travel a linear path. If you have topics you'd like to discuss or information to share, contact her: VChen@alm.com

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