Kirkland & Ellis celebrated A BIG pro bono victory earlier this year when the U.S. Supreme Court upheld a lower court's ruling striking down a North Carolina voter identification law.
In July 2016, Dan Donovan, a Kirkland litigation partner, led a team that persuaded the U.S. Court of Appeals for the Fourth Circuit to overturn the law, by arguing that North Carolina lawmakers had passed it with the intent to discriminate against minorities.
But a few months after that Fourth Circuit ruling, in September 2016, Kirkland hired Paul Clement, former U.S. solicitor general and a top U.S. Supreme Court and appellate lawyer. Clement represented North Carolina in its effort to re-instate the voter identification law. He argued at the Fourth Circuit that the law increased African-American turnout. The timeline highlights the knotty questions firms can face when it comes to selecting pro bono matters. How does a firm balance pro bono causes chosen by its lawyers with obligations to paying clients? Are conflicts often created? How do firms deal with it?
These weren't questions Kirkland wanted to talk about, with the firm, Clement and Donovan all declining to comment.
But others spoke about what can be a tricky process.
"Our firm's approach is chaotic democracy," Neal Manne, a managing partner of Houston's Susman Godfrey, writes in an email. "Our case acceptance decisions whether for pro bono matters or other cases are made on the same basis on which we decide almost all firm issues: one person, one vote. Sometimes the votes are close, but usually we work toward broad consensus," Manne says.
On a pro bono basis, Susman's lawyers have taken on causes that proved to be politically unpopular in the firm's region and ones that have drawn the ire of the business community. Susman lawyers defended a city ordinance that banned discrimination on the basis of sexual orientation, which voters then invalidated. They defended the International Rescue Committee when Texas statewide Republican leaders sued the nonprofit resettlement agency in an attempt to bar Syrian refugees from coming in. They won an injunction and a motion to dismiss the state's case against the IRC. They defended Seattle's $15 per hour minimum wage ordinance against a challenge by business organizations and eventually won a favorable ruling from the U.S. Court of Appeals for the Ninth Circuit.
"For any potential client matter, the lawyers seeking approval circulate a memo to all attorneys in advance of the firm meeting, explaining the case and why they believe we should accept it. We handle pro bono matters the same way," Manne says. The firm does not have a pro bono coordinator or formal internal process for identifying pro bono opportunities.