Public Interest in the Private Sector

From The Practice May/June 2018
How private firms work toward the public good

Some law students view a stark divide between careers in the private sector and careers in the public-interest sector—a dichotomization that often produces intense anxieties about law students’ own professional identities as lawyers. Yet, as we see in “Mosaics of Lawyer Identities,” rather than being locked into a singular lawyer role from the start, lawyers often build multifaceted professional identities that shift over the course of their careers. This article expands on how the professional identity of lawyers minds the purported gap between “private” and “public interest” careers by adding an institutional perspective.

As John Bliss notes in the lead story, and as argued elsewhere in The Practice, the perceived dissonance between a desire to do public-interest work and a common progression toward private-practice employment often creates deep angst among students—even feelings of fraudulence. Yet this dichotomization is hardly reflective of the legal profession that awaits them. Indeed, there are a myriad of opportunities within the private sector to do deeply meaningful legal work oriented in public-interest values. Put differently, public-interest work is not the exclusive domain of traditional public-interest practice settings, such as nongovernmental organizations or traditional legal aid organizations. The legal profession contains other models for conducting impactful public-interest work that sit at the interstices of “private” and “public” and call into question the way we define the boundaries separating the two. Below, we look at organizational models and cultures that make it possible to conduct public-interest work in the private sector, examining the pro bono practices of large corporate law firms and the rise of “private public-interest” firms.

Private practice does public interest

In a seminal article on the development of pro bono services in the United States, Scott Cummings argues that, for most of American legal history, “pro bono was ad hoc and individualized, dispensed informally as professional charity.” This all changed in the early 1990s, when pro bono became “increasingly centralized and streamlined, [and] distributed through an elaborate institutional structure by private lawyers acting out of professional duty.” For instance, Cummings notes that corporate law firms began both designating partners to oversee pro bono programs in addition to their traditional practices and hiring lawyers and other professionals to work as full-time pro bono coordinators. As a result of this institutional shift, Cummings argues that “pro bono has thus emerged as the dominant means of dispensing free representation to poor and underserved clients, eclipsing state-sponsored legal services and other nongovernmental mechanisms in importance,” with the corporate law firm as the critical player.

Public-interest work is not the exclusive domain of traditional public-interest practice settings.

On one level, Cummings notes, the leadership role of the large corporate law firm within the pro bono movement made perfect sense. Beginning in the 1990s, unlike individual lawyers or small firms, large firms became increasingly leveraged and could therefore more easily absorb the costs of doing pro bono (at a time when government-funded legal aid was on the decline). And, just as true today, larger firms also boasted vast numbers of lawyers and well-developed administrative functions to manage the most complex and often highest-impact cases. Furthermore, Cummings observes, these corporate firms value the organizational benefits of doing pro bono work: “As part of the intense market competition to attract elite law school graduates, many of whom care deeply about pro bono opportunities, big firms have therefore designed pro bono programs to complement broader recruitment and retention plans.” He continues:

Big firms are also highly attuned to professional status. Indeed, lawyers’ standing as self-regulating professionals relies heavily on the legitimacy of their enterprise in the public eye… Particularly for big firms, whose bottom-line focus has long elicited public cries of commercialism, the ability to define organizational activity in terms of professional ideology becomes an important goal. In this way, big firm pro bono serves not merely as a vehicle to advance the public good, but also as a source of professional legitimation.

From this perspective, Cummings presents a vision of pro bono that is central to both the operation of the modern, corporate law firm and to the wider operation of public-interest work in the United States (even globally). But how do firms operationalize their pro bono functions within this broad organizational schematic? How do law firms carve out places for public-interest missions within their larger business structures? And, perhaps most important, how do they balance pro bono with their more traditional, paying work and thereby create a positive culture around the whole process? To help answer these questions, The Practice spoke with two top pro bono lawyers at White & Case—Jacquelyn MacLennan, partner and the firm’s global pro bono practice leader, and Louis O’Neill, the director of pro bono with a long history of development work in government.

MacLennan echoes Cummings with respect to the institutionalization of pro bono, describing how pro bono is structured within the firm. “For us, pro bono is its own global practice that cuts across all offices,” she says. “White & Case was once organized on a very office-by-office basis, but in the last decades we have begun to function on a more integrated basis, and that includes pro bono.” The fact that pro bono comprises its own practice is no accident. MacLennan explains:

By creating a global pro bono practice with senior partner leadership and responsibility for growing our pro bono work worldwide and setting priorities, as well as requirements to produce a business plan, work with a specific budget, and account for the success (or otherwise) of the practice in a structured manner to the firm chair, pro bono is treated on a par with other key practice areas in the firm. White & Case’s commitment to pro bono is transparently evidenced by the way pro bono is organized in the firm.

In the context of a corporate law firm, lawyers must balance their desire to do pro bono work with the demands of the firm’s billing clients—and there are only so many hours in a day.

O’Neill is charged with day-to-day management and operations of the firm’s pro bono activities. “Running our global pro bono practice is a big part of my day,” says O’Neill. “We’ve got 43 offices in 27 countries, and they’re all doing pro bono. My role is to be a curator or conductor for the global practice, connecting our lawyers with the right kind of pro bono work and supporting our institutional culture and vision of pro bono.” Lawyers come to law firms with a range of interests and passions that fuel their pro bono work, and to cover that range from an operational standpoint, White & Case divides its pro bono practice into three broad areas: access to justice, good governance and the rule of law, and assisting NGOs with an environmental or social mission. “We have tentacles everywhere in the world to get pro bono matters,” says O’Neill, “from clearinghouses to colleagues and former colleagues to universities to simply reading something in the newspaper, doing some research, and calling an NGO saying, ‘Hey, you are doing something special here. How can we help?’”

While pro bono is not required at White & Case, it is strongly encouraged. “No one is forced to do pro bono, but people tend to do it anyway because they want to,” says O’Neill. “They see it’s the right thing to do and as good for their careers as well.” In other words, there is a focus not only on the substance and mission of pro bono but on the culture that surrounds that work as well. “The messaging from the top of the firm down is clear and consistent,” adds MacLennan, “and we prioritize awards and internal ‘ranking’ competitions for offices and practice sections doing best in pro bono hours.” Under White & Case’s model of pro bono, lawyers seek out pro bono work they value rather than having work formally assigned to them. Available projects are advertised within the firm, lawyers volunteer, and—provided there is no conflict of interest—they are connected to the client.  Hands-on partner supervision is ensured for every matter, and teams of lawyers from different parts of the firm are encouraged. In this way, White & Case’s pro bono model is built on an institutionwide apparatus propelled by unambiguous support from the firm’s leadership and driven by individual lawyers who view doing public-interest work as a key part of their professional identities.

It should be noted that this public-interest-minded work is taking place in the context of a corporate law firm—and all the organizational underpinnings that entails. For instance, lawyers must balance their desire to do pro bono work with the demands of the firm’s billing clients, and there are only so many hours in a day. Take the example of a sixth-year associate who wants to take on more pro bono work but is working with a partner who places a premium on billable hours. How does she find the time for doing this kind of work that is central to her identity as a lawyer? We put this scenario to MacLennan and O’Neill to understand how White & Case’s leading pro bono lawyers approach the challenge.

“This issue is something we see all the time,” O’Neill says. “And our job is to make it work.” He goes on:

We do whatever we can to balance our lawyers’ pro bono interests and their time and their availability, and we bring that approach to assembling projects and teams. It’s a lot of vetting and getting buy-in, and we want to do everything we can to make good projects work. In your example, we would talk with this associate and say, “Look, let’s staff this up with some junior people who will take the burden off you. You’ll get the experience of leading the team, and it won’t take as much time as if you were hammering away at it by yourself. We’ll build a team around you. That way you can both continue to work on your demanding billable hours but also get that pro bono satisfaction and develop your leadership skills.”

We believe that there are lots of different aspects of need, but we have this amazing infrastructure of legal talent and resources.

Jacquelyn MacLennan, partner and global pro bono practice leader at White & Case

“We would also check out who the partner concerned was and if there was a general problem with pro bono participation in that particular office or business unit,” adds MacLennan. She continues:

Then I would, in an informal way, try to address the problem that the sixth-year perceived with the partner to find out if the partner’s commitment to pro bono is as good as I think it ought to be, and ensure that there is an understanding at the partner level of the wishes of the associate. That can be quite important because sometimes partners aren’t aware that somebody has a burning desire to do pro bono but this is not being satisfied. They may not realize that an associate is getting frustrated and therefore unhappy because of this. As a firm, we never want to lose good people. A judicious word here or there can make a real difference for everyone involved.

Both MacLennan and O’Neill stress that perhaps the most compelling value-add of pro bono comes through the impact of the work, which is in many ways unique to the law firm setting. Because corporate law firms tend to be well resourced, both financially and in terms of talent, they can take on high-impact public-interest work in ways that may not be feasible for more-traditional public-interest organizations. MacLennan sums it up succinctly:

The firm is committed to doing impactful pro bono work. We believe that there are lots of different aspects of need, but we have this amazing infrastructure of legal talent and resources. We want to use them in areas and for causes in which they are the most impactful and necessary. We don’t want our lawyers to be involved in cases where the legal skills involved could be handled either within an appropriate NGO or by a paralegal. What we can do really well are the really tough cases. We should be targeting our work in the right way, to the right cases, to have that impact.

Viewed in this way, not only does the pro bono work of firms like White & Case challenge traditional views of where public-interest work takes place, but it also illustrates that, in certain cases, firms may be the most effective agents of public-interest work given their resources and capabilities. That being said, from an organizational standpoint, the challenge for law firms may be finding the right way to balance the hours put toward their lawyers’ pro bono goals against the billable hours required for a corporate firm to compete at the highest level in the legal market. For corporate lawyers, the goal is to develop a professional identity as a lawyer who integrates personal and professional values.

It’s about getting really great, smart, motivated people moving in one direction and putting the whole force of the firm behind them to make the world a better place.

Louis O’Neill, director of pro bono at White & Case

What does the future hold? As Cummings notes, “The story of pro bono is still being written. Questions about pro bono’s effectiveness as a model for meeting the legal needs of poor and underserved groups will therefore take center stage.” It is thus critical that both the advantages and disadvantages of the pro bono model are made clear. What is obvious now, however, is that corporate law firms are major players in the public-interest world, and there is ample space within these firms to do well and do good at the same time.

A Bit of Both Worlds

Firms are also finding ways to embrace and foster law students’ desire to engage with public-interest work, such as facilitating “split summers” as an alternative to full-time summer associate positions. A split summer could be any instance where a law student divides his or her employment between two entities, typically with one being a law firm and the other being a public-interest organization, a different law firm, another office within the same firm, or even a business. Some law firms are even offering their own split-summer programs and fellowships to entice law students who may want to sample legal work in both corporate law firm and public-interest organization practice settings. Morgan, Lewis & Bockius, for example, offers the ML Community Experience through which law students can spend the first part of the summer in the firm’s traditional summer associate program and the second at a public-interest organization—all while earning the same compensation as a typical summer associate. Similarly, Akin Gump Strauss Hauer & Feld offers the Pro Bono Scholars Program, a two-summer commitment through which law students spend significant time in their 1L summer working with a public-interest organization and the rest of the time between their 1L and 2L summers based at the firm—again, compensated the same as any other summer associate at the firm. For recent law school graduates, Skadden Arps Slate Meagher & Flom offers the Skadden Fellowship to support new lawyers pursuing careers in the public interest, typically to those providing legal services to vulnerable populations. These examples demonstrate an effort on the part of law firms to support law students’ desire to perform public-interest work as well as exhibit the firms’ commitment to those values through their pro bono efforts.

The private public-interest firm

While traditional private law firms doing public-interest work through pro bono is perhaps a well-known phenomenon, a less well-known model is the “private public-interest firm.” These firms could take a variety of forms, but they typically incorporate a combination of revenue-generating work with a focus on public-interest causes. Whereas public-interest nonprofits and legal aid organizations may rely heavily on grants or donations for the bulk of their funding, private public-interest firms typically generate their own revenue. How they do this often depends on the particularities of a given firm and, as Scott Cummings and Ann Southworth note, the distinction between these sorts of hybrid firms and more-traditional private law firms is often difficult to pinpoint by the very nature of the “in-between” spaces they occupy. To learn more about how these hybrid firms operate, The Practice sat down with Tara Ramchandani, a partner at the civil rights law firm of Relman, Dane & Colfax (henceforth, “Relman”), itself a private public-interest firm.

It is a mission-driven culture, and that is what brings us together as a team.

Tara Ramchandani, partner at Relman, Dane & Colfax

Relman, a civil rights law firm based in Washington, D.C., with approximately 25 attorneys, follows an innovative, two-pronged business model. Like many civil rights firms, one prong takes advantage of fee-shifting provisions in civil rights law that require the defendant to pay the legal fees of the plaintiff in the event that the plaintiff prevails. The difficulty with that, of course, is relying on fee shifting alone would depend heavily on its lawyers’ success in court and limit the types of cases they could even consider in the first place. Were this the only prong of Relman’s approach, it would risk leaving the firm vulnerable to gaps in which no revenue was coming in to keep its lights on and pay its lawyers. Therefore, in addition to fee shifting, Relman also offers paid legal counsel to companies to help them comply with civil rights law—work that spans advising financial institutions on fair lending practices to conducting a civil rights audit of Facebook’s online platforms. Relman leverages its legal expertise in civil rights law to generate revenue, providing stability for the firm from an operations standpoint while also furthering the private sector’s understanding of and adherence to civil rights law through the firm’s compliance work. Under this model, Relman can offer legal services to plaintiffs in civil rights cases without ever having to charge them.

Ramchandani is quick to stress that her firm offers just one possible model of a private public-interest firm. “There are a variety of ways firms do this,” she says, explaining that the playing field for private public-interest firms is a diverse one:

Some firms approach public-interest work with a balance of types of cases, and their docket will include paying clients. They may have a trust and estates practice. They may have a family law practice, or an antitrust practice where clients are generally abler to pay for legal services, which then offsets the costs of the lawyers’ fee-shifting work. Some firms will function on a purely class action model. Class action settlements often have larger awards than individual cases, so these firms tend to put their eggs in fewer, larger baskets. Then you’ll also see practices, such as civil rights practices, housed in larger firms. That is, there would be a group of lawyers in a large firm doing—in this case—civil rights work that is funded out of the profits from the firm’s other practices. Those are, roughly speaking, the models you see out there.

This overview offers a glimpse at the possibility for variation at an organizational level, but who are the lawyers in these private public-interest firms? In many ways, the professional identities of the lawyers align with the mission and vision of the larger organization. “The vast majority of our lawyers are lawyers who, if they were not at Relman or in some similar private public-interest practice, would be either in a nonprofit or in the government,” explains Ramchandani. She continues:

It is a mission-driven culture, and that is what brings us together as a team. There are many wonderful things about being in a nonprofit, but many of the challenges you often hear come back to fund-raising—the constant need to be thinking about the grant application process, the priorities of donors, and whether you can use funds for the cases you want to bring based on the restrictions attached to those funds. On the government side, the issue is how long it can take to investigate and file a case and all the levels you have to go through to do so. As a private public-interest firm we are nimble enough to address problems as we see them without having to worry about all these external constraints. That was really the idea behind the firm—that if we can bring resources to bear on these problems, we can litigate the cases well and we can litigate them as we choose.

I have never felt that the most important thing about a case was the money it was going to bring in.

Tara Ramchandani

Whatever the model, these firms are finding ways to offer legal services that advance public-interest causes in ways that are financially viable without depending on donations or grants. Private public-interest firms use the financial freedom that comes with private enterprise to advance causes and address issues in the law that do not traditionally drive profit. “The availability of resources and the flexibility to use those resources in the manner we deem most useful—that side of it certainly feels more akin to what you might find elsewhere in the private sector,” says Ramchandani. “On the other side, the office dynamics are much more similar to a nonprofit or many government offices.” Then there is one other clear distinction she draws:

While we are a for-profit entity, I have never felt that the most important thing about a case was the money it was going to bring in. When we get a case, we don’t ask, “Is this a case that is going to make us a lot of money?” We ask, “Is this a case where there is an issue that we care about where we think our expertise and competencies can make a difference? Can we move the ball a bit here?” And in those cases, we will get involved. That is what makes it successful—to have a for-profit entity that wants to use its profits to advance these causes. Our lawyers earn a livable dollar (with salaries akin to government salaries), but at the same time they are not coming to the firm expecting the kind of compensation you might get elsewhere in the private sector. We all come to the firm with this commitment and this social compact, and it’s really an incredible way to spend your legal career.

Where there’s a will

It’s easy to typecast law firms as merely profit-seeking entities, just as it is easy to assume that “doing good” requires a purely not-for-profit mentality. The reality, of course, is just not that simple. While the work done by traditional legal aid and public-interest organizations cannot be overlooked, legal work for the benefit of the public is not exclusive to lawyers in these settings. Lawyers in the private sector, whether in traditional firms or in private-public firms, offer an incredibly valuable public service. Indeed, they have carved out spaces to directly and indirectly contribute overwhelming amounts of “public interest” legal work. And, for the lawyers working within these organizations, it is often this interplay and balance that drives to the heart of their own roles and identities as lawyers. “We are all mission-driven lawyers who want to be working on these issues,” says Ramchandani. “That is really the unifying theme of our attorneys: we are all committed to being civil rights lawyers.” Explaining the impact that a big corporate law firm like White & Case can have, O’Neill also sheds light on his own professional identity as a lawyer—an identity that is inextricably intertwined with the public good:

It’s about getting really great, smart, motivated people moving in one direction and putting the whole force of the firm behind them to make the world a little bit of a better place. And that’s why I like this job so much. My colleagues are fantastic—so dedicated, so hardworking, so caring, so sharp, and so international. To help them to realize this potential and leverage the strength of the firm to move the world in the right direction is deeply rewarding.