Last month, Chief Judge Dennis G. Jacobs (2d Cir.) questioned whether much "public interest" is in the public interest, criticizing suits against the government (whose elected officials should have a better claim to representing the public interest than unelected lawyers) and impact litigation. Pro Bono for Fun and Profit, Oct. 6, 2008 (speech at Rochester Federalist Society).
My point, in a nutshell, is that much of what we call legal work for the public interest is essentially selfserving: Lawyers use public interest litigation to promote their own agendas, social and political--and (on a wider plane) to promote the power and the role of the legal profession itself. Lawyers and firms use pro bono litigation for training and experience. Big law firms use public interest litigation to assist their recruiting--to confer glamor on their work, and to give solace to overworked law associates. And it has been reported that some firms in New York City pay money to public-interest groups for the opportunity of litigating the cases that public-interest groups conceive on behalf of the clients they recruit.See NY Judge's Remarks Cause Stir Over Goal of Pro Bono Work, N.Y.L.J., Oct. 31, 2008.
There are citizens in every profession, craft and walk of life who are active in promoting their own political views and agendas. When they do this, it is understood that they are advancing their own views and interests. But when lawyers do it, through litigation, it is said to be work for the public interest. . . . Well, sometimes yes, and sometimes no. When we do work of this kind, a lot of people would see it as doing well while doing bono. Prosperous law firms that prevail in pro bono litigation do not hesitate to put in for legal fees where the law allows, and happily collect compensation--often from the taxpayers--for work they have touted as their service to the public. And even if the firms donate all or part to charity, the charities are usually groups that have as their charitable object the promotion of litigation rather than (say) medical research or hurricane relief.
Judge Boyce F. Martin (6th Cir.) replies: It's All for the Clients, Nat'l L.J., Nov. 24, 2008
ecause Jacobs' critique flows from the premise that clients merely fulfill a "technical requirement," it is understandable that he fails to consider the value that victims of discriminatory government policies and actions place in having someone speak up for the injustice they face. His indictment of public interest lawyers' motives simply overlooks the struggles of the workers, prisoners, parents and children whose struggles inform the work of public interest lawyers.
The 2d U.S. Circuit Court of Appeals must be a far different place from the 6th Circuit, because I cannot recognize among the cases before us the lawyers that Jacobs accuses of abdicating their responsibilities to clients to advance their own social agendas. Indeed, I am immensely grateful for the efforts of lawyers who represent very real clients in a variety of difficult cases — including in the broader "impact" litigation that Jacobs decries. In my view, the value of such representation cannot be overstated when litigation of an individual's claim exposes systemic violations of the law. Regardless of the legal issue, the presence of experienced and qualified counsel lends stability and order to the proceedings before us.