While a great deal has been written about the recent pressure the second Trump administration has brought to bear on some of the largest law firms in the United State, I want to focus for a minute on the pro bono financial commitments. I do not intend to write about the strategy of negotiation here, or the legality or illegality of the administration’s demands (e.g., political retaliation and the First Amendment, investigations by the Equal Employment Opportunity Commission to evaluate race-based classifications in law firm employment, etc.).
As someone who recently wrote about law firm pro bono practices in a narrow domain (amicus briefs before the Supreme Court), I’ve thought about the pro bono and big law practice, along with motivating factors.
Let me start with economics. Pieces like this Axios article are typical—they are uncritical, de facto press releases that simply repeat the claims made in the “settlements” with law firms, and they introduce material misrepresentations of the work. Here’s the lede:
America’s most prestigious law firms have agreed to provide almost $1 billion worth of legal work to President Trump — and that total will likely grow.
It is not “to President Trump,” it is for a list of particular causes (more on that in a moment). And it includes this provisio:
As more firms have capitulated, Trump has been able to extract significantly bigger concessions using significantly less leverage, even from firms with which he had no personal grievance.
This should probably make one pause and wonder—what is the economic cost of this number? Like, a real cost? Because $1 billion sounds tremendous to the uncritical observer.
The Wall Street Journal gets at one subtlety:
But the monetary figures were less onerous than they might seem, some lawyers argued. For example, the pro bono commitments in some instances were to be completed “during the Trump administration and beyond.” Beyond, could stretch until the end of time, a lawyer involved in one of the deals said.
Others do have time frames, including, for Paul Weiss, “during my term in office,” $40 million over four years.
Let’s use the Paul Weiss deal to figure out what $10 million a year may look like:
dedicating the equivalent of $40 million in pro bono legal services during my term in office to support causes including assisting our Nation’s veterans, fairness in the justice system, and combating anti-Semitism; and other similar initiatives
Paul Weiss noted:
Instead, we have agreed to commit substantial pro bono resources, in addition to the $130+ million we already commit annually, in areas of shared interest. We will continue all of the existing pro bono work we already do and will continue in our longstanding role as a leader of the private bar in the pro bono and public interest sphere.
$10 million is less than 10% of the total pro bono spending from Paul Weiss in a year. An 8-10% growth in pro bono is significant, but not overly so.
Relatedly, it all depends on how one calculates pro bono.
For instance, imagine a lunchtime talk during the summer associate program for 120 summer associates about the court of veterans claims. At $400/hour, that’s a $50,000 contribution to the project.
Pro bono expenditures are not simply attorneys, either. They include paralegals and staff who work on cases. It is entirely possible to bulk up such projects with staffers that involve less attorney time.
Pro bono “expenditures” also can be calculated at the full cost of attorney and staff time; transportation costs and time; costs with paperwork and mailings; and, really, everything that might otherwise be written off or billed at a reduced rate.
Additionally, it is quite possible to retrofit existing pro bono projects as meeting these very capacious rules. What are causes that “assist[] our Nation’s veterans”? Look back at your existing work—if you are representing convicted veterans in First Step Act proceedings or sentencing appeals, or you are representing veterans in housing eviction claims, you are probably doing so. “Fairness in the justice system” is even more capacious, and “other similar initiatives” more so.
In short, it is quite possible to retrofit the vast majority of the $10 million into existing projects, as long as the apparent overall pro bono budget has increased—and even that seems ambiguous when terms like “$130+ million” are used, or where firms have not committed to add funding beyond the baseline.
This is not unlike other commitments made in other spaces. Justin Trudeau, for instance, boasted, as part of a tariff negotiation deal between the United States and Canada, “Canada is implementing our $1.3 billion border plan . . . . Nearly 10,000 frontline personnel are and will be working on protecting the border.” The words is and are are telling. Pre-existing commitments can be leveraged as concessions to stave off future consequences.
This helps explain why firms may include apparantly-escalating dollar figures. The delta in pro bono work at many law firms may not materially change in many places, although I do expect some very public-facing announcements on anti-Semitism and veterans issues at these firms in the years ahead, highlighting existing, new, or, well, new-to-the-public projects.
This gets to one of the larger questions—why do law firms do pro bono work? Or, really, what motivates them? I suggested in my piece that it could be external or internal factors. And, obviously, this is an external factor. But it is a factor that appears to be linked more to clients than political pressure—or, the political pressure is affecting clients more than the firms.
That is, some firms are resisting the pressure, because it appears their clients are not leaving or threatening to withhold business. At other firms, they are capitulating to the pressure because of concerns about losing clients.
This is not unlike other pressure I indicated in my pro bono article. Law firms often react. They reacted, for example, in the immediate aftermath of the George Floyd and Black Lives Matter protests in 2020 by pivoting toward more racial justice matters. Pro bono may look different in a New York-based firm than a Texas-based firm. Clients may demand certain kinds of public-facing pro bono (or resist some kinds of public-facing pro bono), and firms adjust.
Of course, another is internal pressure at firms. As I suggested in my article, it’s possible that pro bono committees are “captured” by a particular ideological viewpoint at some firms and “tilt” the pro bono work in a particular direction. It might satisfy a cohort of associates to take on particular pro bono causes, and firms, happy to satisfy those associates, allow them to do so—and perhaps those projects “tilt” a particular way.
Some associates—or summer associates, former associates, or prospective associates enrolled in law schools—have expressed some frustration about the external pressures on pro bono. Of course, the external pressures have always been there; here, they are manifesting themselves in a particular form (yes, a form of some legal doubt, see the opening proviso of this post), but one that creates some greater cleavages between internal and external pressures than might have previously existed.
We have already seen some firms “fight” through litigation, and others “capitulate” with deals. In the end, however, the capitulation may not materially change very much at the firm for its day-to-day operations, even in pro bono work, exception some additional accounting, some additional press releases, and a few new projects, consistent with the kinds of new projects that have sprung up as a result of different internal and external pressures over the years. Instead, the symbolism—that is, the symbolism for those praising such “deals” or lamenting the firms that have “bent the knee” the a presidential administration—might end up being the more salient one. But time can only tell whether such symbolism yields the political effects or law firm business model shake-up that one might be worried about.
