When Pro Bono is a Con

Nonprofit legal expert Sean Delany discusses unprecedented agreements between the Trump administration and major law firms pledging $125 million each in pro bono services for administration-selected causes. These vaguely defined arrangements could significantly reduce legal resources for traditional nonprofits serving disadvantaged communities while potentially violating established pro bono standards and creating a chilling effect on attorney participation.

You can listen to this episode, "When Pro Bono is a Con," on Apple Podcasts or Spotify.

Jamie: You are listening to “After Hours with Jamie Rubin,” a Vital City Podcast. I'm Jamie Rubin.

Okay, so in the last few weeks there's been a lot of interaction between the presidential administration and some of the largest law firms in the country. What some of those firms have agreed to with the administration — it's all been publicly disclosed — could have real impacts on one of the most important sectors in New York City, which is the nonprofit sector.

So in light of that, I decided it was time for another “emergency podcast,” and I couldn't think of anybody better to talk to about what all this might mean than Sean Delany. Sean was the executive director of Lawyers Alliance for a long time. He ran the Charities Bureau of the Attorney General's office in New York State, which means that he was sort of overseeing a lot of the nonprofit sector. He has intimate knowledge of what it means to do legal work for and around nonprofit organizations, particularly in New York State and New York City. And we'll talk about what it all means and how this all might work its way through the system in the next couple of years. So Sean, thanks for being with us.

Sean: Happy to be here. Thank you for inviting me, Jamie. I've been a nonprofit lawyer for more than 30 years at this point, and relevant to this conversation, as you've already mentioned, I was the executive director at Lawyers Alliance for New York for 20 years. By way of background, Lawyers Alliance provides free and low cost legal services to nonprofits that are working to improve the quality of life in New York City's low income neighborhoods. That 20 year period from 1999 through 2009 was an extraordinary period in the pro bono world, but nothing like what we're experiencing today, which is completely unprecedented. 

Jamie: Sean, why don't you tell us your version of how we got here. 

Sean: So, it's my understanding that representatives in the Trump administration began to initiate conversations some weeks ago with the leaders of selected large law firms, ostensibly about their diversity, equity and inclusion programs, and whether they were out of compliance with the law or the administration's priorities. Those conversations evolved into threats that the administration extended to punish those firms by cutting them off from the access that they would need in order to represent their clients before the federal government. Two to three weeks ago, those conversations began to emerge as agreements. Those agreements have not been shared publicly. There's considerable doubt about whether they exist beyond a set of bullet points, in a Truth Social posting or emails between the parties. We now have nine firms that have consented to provide uncompensated pro bono services to support causes that the administration maintains have not historically been supported by the firms in either their paid practices or their pro bono practices. 

Jamie: By those specific firms?

Sean: By those specific nine firms. That's right. The “arrangements” list examples, at least in the social media postings from the administration and from the President, that give an indication of what kind of work he has contemplated. So for example: “assisting veterans and other public servants, including among others, members of the military, gold star families, law enforcement, and first responders, ensuring fairness in our justice system and combating antisemitism. The law firms will take on a wide range of pro bono matters that represent the full political spectrum, including conservative ideals.” That's a statement that was made following the most recent of these arrangements that involve five different law firms, each pledging $125 million in uncompensated services supposedly to do that work.

Jamie: Those were, those are just examples of work that could be —

Sean: — not limited to including, right, At the same time, however, there have been other postings on social media by the president in which he has mused about whether this work could also include negotiating trade deals on behalf of the Trump administration, or doing legal work associated with supporting the profitability of the coal industry, or indeed even providing personal legal services to either the president or his businesses. One can't tell at this point whether those musings are serious or not, but they suggest that there's a certain amount of ambiguity in what's been agreed to by the parties. 

Jamie: I think the answer is no, but the law firms in question haven't really responded exactly. Is that right? 

Sean: What we know about the law firms is primarily from internal messaging that has pretty much uniformly spoken about this as no change at all in their pro bono policies and practices, that it is something that's intended to encourage them to do what they already are doing without any modification, and that the firms would have a “right to refuse.”

[The work] would have to be mutually agreed upon by the administration of the firms before it could be considered part of this compliance. 

Jamie: Got it. Okay. So the first set of examples — veterans and … I forget exactly what gold star families are. I think that's people whose kids were killed in combat or —

Sean: Right.

Jamie: — Okay, and conservative advocacy, let's call it, by nonprofit organizations. At least in theory, there's no particular reason to think that Paul Weiss — to take one law firm — there's not somebody at Paul Weiss doing pro bono work for somebody who is ideologically conservative. [Paul Weiss] chose [it] because it's a nonprofit organization, and they could use pro bono help. 

Sean: I can't speak specifically to Paul Weiss in this regard, but certainly there are firms who have no problem devoting some of their pro bono resources to folks who might be at that end of the spectrum. 

Jamie: Okay. And, as somebody who has overseen pro bono work, you have told me that there are standards – actual standards in pro bono work that actually mean something. So maybe you could explain what it means and then explain whether a lot of that would pass muster. 

Sean: The standards come primarily from the Pro Bono Institute in Washington, which has a mission of promoting greater, better, more effective pro bono work by law firms and corporations. And as you can imagine, because there are always gray areas as to what is or isn't appropriate pro bono representation, they have created a set of principles that helps to explain when it's appropriate for a law firm to call a project a pro bono project and to get the appropriate credit for it. But those standards essentially require, and I'm gonna quote here as well, “that the work that is done would have to be the delivery of legal services to persons of limited means or charitable religious, civic community, governmental educational organizations in matters that are designed primarily to address the needs of persons of limited means. Number two: the provision of legal assistance to individuals, groups, organizations seeking to secure or protect human rights, civil rights, civil liberties, public rights, environmental rights, or three: The provision of legal services to charitable, religious, civic community, governmental educational organizations and matters, and further into their organizational purposes where standard payment of fees would significantly deplete the organization's resources.”

Jamie: So in all of that — and I haven't practiced law in some 30 odd years, but — I don't think that representing, for example, the coal industry would really fall under any of those. I mean, it would be pretty hard to drive that particular truck through the standards. 

Sean: I think that's right. I'm having a hard time seeing how it could fit the basic criteria that the Pro Bono Institute has articulated.

Jamie: Okay. And likewise — I'm just gonna go ahead and go out on a limb and say — representing the federal government in negotiating trade deals? That’s probably not gonna meet the test of, you know, paying the lawyers, which would significantly impoverish the federal government. 

Sean: Likely you are right. There is, as you may have noticed in the definitions that I quoted, the possibility that representing the government in some respects might be all right. The commentary that accompanies all this suggests that that's because often government offices like the District Attorney's office or the Attorney General's office have limited resources, right? And it might be appropriate to work on their matters and claim pro bono credit for it. I don't think you can say that about the vast resources of the federal government.

Jamie: Having worked in the federal government, I'm gonna tell you that that's not really a problem. And I don't care how many people D.O.G.E. fires. It's not a problem. So then the question for you, Sean, is, as somebody who spent a lot of time overseeing lawyers and managing lawyers who did this kind of pro bono work, real pro bono work, fully accredited, pro bono work — this city is full of nonprofit organizations. Most of the work they get done is pro bono. It's critical to their survival. And I've gotten services from Davi, Polk and Cleary Gottlieb, and Paul Weiss, and Cravath, and lots and lots of other firms. A hundred million dollars or $125 million worth of pro bono work, which is the numbers that are getting thrown around here. We don't know how many years, but let's just say two years. That is an enormous amount of pro bono work. I'm just gonna do my back of the envelope math here. A hundred million dollars — let's just say that your average senior associate in a law firm is billing out at, I don't know, a thousand bucks an hour. So at a thousand bucks an hour, a hundred million dollars is, I believe, a hundred thousand hours. Let's say it's two years, so it's 50,000 hours of senior associate work a year. Then you've got 50 weeks at a thousand hours. I mean, it's a lot of lawyers. It's 40 senior associates, full-ish time for a year or two.

Sean: It's a big commitment almost, no matter how you measure it. Whether we're talking about two years, four years or more, whether we're talking about junior associates or mid-levels or partners, it's a big commitment even for firms that have already made a huge commitment of many hundreds of millions of dollars in pro bono work today. And that number keeps going up. The latest announcement was $125 million each from the firms that were announced most recently. 

Jamie: Let's assume for a moment that you suck all of that work out of the existing pro bono system. What does that do to the nonprofits? 

Sean: Well, even though there are more lawyers in New York City than anywhere else in the world, there are also more nonprofit groups in New York City than anywhere else in the world. So the demand is also very great for pro bono legal services. Pro bono is not mandatory in New York. It's encouraged in various ways, and it's certainly encouraged by the firms, but it's not required. And what that means is that the number of lawyers who were ever willing to do this work is a small portion of those who work at the firms. And that means that the pro bono resources are gonna be strapped by this diversion of talent to work that isn't currently being done by the firms. 

Jamie: And if you think realistically about what this is gonna mean inside the firm — I'm trying to stay away from these kinds of things — but it has to have a chilling effect on the lawyers at these firms. If they're thinking about doing work for one of their traditional pro bono clients, they're for sure gonna have to think very carefully about whether there's gonna be scrutiny on that. So even that just tamps down the availability. As you said, it's probably not gonna be the same lawyer who does work for one kind of an organization who now decides I'll just do pro bono work for, I don't know whatever conservative organization it is, even if it's perfectly legitimate. So now you're taking out of play this whole class of lawyers who really would do pro bono work. So the overall supply of lawyers willing to do pro bono work for the traditional nonprofits who serve disadvantaged New Yorkers — there is no way to think that this isn't going down dramatically if these settlements are for real.

Sean: It remains to be seen just how much pressure they'll be under to take on work that they're not already doing today. So far, this is poorly defined, poorly explained and poorly understood, so we don't really know what this is gonna look like in practice, but the expansive view that the administration has taken, at least in its public statements about what this could mean — that there could be lots and lots of work that firms are taking on that is nowhere near what their current pro bono practices look like.

I think it's also important to understand this in the context of why firms have pro bono programs in the first place. Large law firms are businesses. They're not charities, and their pro bono programs are a part of their business strategy. Their pro bono programs help them with public relations in the broader sense.

They make them look like good citizens for doing that work. It helps them to say that to their clients, some of whom care about pro bono service, that this is one of the things that they're proud of and they do. But most importantly, it's a recruitment strategy for these firms. Large law firms are competing for the best and the brightest from among the top law schools, especially the law firms that are entering into these arrangements today.  They want to be able to demonstrate to those recruits that they are more humane than that other “sweatshop down the street.” There will always be young lawyers who are eager to work at these firms, don't get me wrong, but you've seen the press and the ferment that's now arising among the associates at so many of these firms that have made these arrangements. They're not happy. And that's gonna also be true of those that the firms would like to recruit, who have any kind of a public interest orientation.

Jamie: Just to finish this off, Sean, you know, I'm just an observer. I'm a headline reader. You've been immersed in this world for basically your entire career. I bet you're right. 

Sean: We'll see how it works out. It's all very much in play, as you know, but the ambiguity in what we know so far about these arrangements is delivered on both sides. I think the administration thinks the ambiguity gives them continuing leverage. And I think the law firms think that the ambiguity gives them some wiggle room as to what they can refuse to do if they find that it's distasteful. I think we'll see. I think only one of them is going to be right. 

Jamie: Only one of them is gonna be right unless they just decide to dance off and hand in hand into the world of ambiguity together. Sean Delany, thank you so much for taking the time. 

Sean: I'm happy to do it. Thank you for having me, Jamie.

Jamie: Thanks so much for listening. We'll be back soon with another episode of After Hours with Jamie Rubin.