The practice of law is a business. And when American companies need legal services, they treat the decision of whom to hire as a business decision. Companies disinclined to fund litigation promoting left-wing policies ought to ask another question, too: Will the money I pay to the firm seeking my work be used to subsidize liberal pro bono projects?
A new study in the Harvard Journal of Law & Public Policy highlights the need to ask this question. I’m referring to “Ideological Leanings in Likely Pro Bono Biglaw Amicus Briefs in the United States Supreme Court,” by Notre Dame Law Professor Derek Muller. This study looks at the positions that the 100 biggest American law firms — the “AMLaw 100” — took in their pro bono briefs before the Supreme Court.
Muller’s work shows that, from October Term 2018 through October Term 2021, these firms filed approximately 850 “likely pro bono” briefs. About two-third of the time, those briefs take the “liberal” position. And things are even more skewed in the highest-profile cases, such as those touching on the Second Amendment, abortion, and issues of sexual orientation. In those cases, AMLaw100 firms, when they file pro bono briefs, side with the liberal policy position 95 percent of the time.
This data is illuminating. But it’s hardly surprising to those of us within the legal profession. We noticed when King & Spalding and Paul Clement — the greatest Supreme Court advocate of his generation — parted ways after Clement agreed to defend the constitutionality of the Defense of Marriage Act. We noticed when, about a decade later, Paul Clement left Kirkland & Ellis so that he could continue litigating Second Amendment cases. We noticed when Hogan Lovells allegedly fired the former head of its bankruptcy practice after she made comments defending the decision in Dobbs.
I could go on.
And beyond these examples, it’s no secret that the politics of lawyers at America’s biggest law firms are dramatically to the left of the American public. Another study by Derek Muller establishes that point, using political donations as a proxy.
Given all this, it’s hardly surprising that firms are willing to give away their services pro bono in support of causes that the overwhelming majority of their partners support.
It’s less clear to me, however, that those in charge of hiring outside counsel fully appreciate the degree to which, by retaining what Supreme Court Justice Antonin Scalia called “tall-building lawyers,” they are helping to subsidize those efforts.
Muller’s study should help drive home those points.
Businesses uncomfortable with subsidizing left-wing legal work have choices. For starters, not all Big Law firms are the same. Professor Muller’s paper makes that plain. Some firms, like Paul Weiss, filed no briefs supporting positions coded “conservative” by Professor Muller’s dataset. And Big Law generally skews heavily in the same direction. But a few firms, such as Jones Day, filed about evenly in support of “conservative” and “liberal” positions. General counsel are free to ask about a prospective firm’s pro bono work.
Of course, general counsel also have options beyond Big Law. In the last decade or so, more and more top-notch conservative lawyers are leaving Big Law (or eschewing it after serving in government) and joining or forming boutique firms. At these firms, lawyers can work hard without fear that the money they earn will fund efforts they don’t (or can’t morally) support. And businesses uncomfortable with funding those efforts can pay their invoices without worrying that, by doing so, they will fund such efforts.
Examples of these firms abound. Paul Clement and his longtime colleague Erin Murphy — an elite Supreme Court advocate in her own right — founded Clement & Murphy. Consovoy McCarthy, Lehotsky Keller Cohn, and Stone Hilton are other boutiques composed of experienced and well-credentialed lawyers — many of them former Supreme Court clerks and state solicitors general — who left or declined to join Big Law in favor of boutique work.
I followed this path myself when I joined an Ohio-based boutique, Ashbrook Byrne Kresge, when I stepped down as Ohio solicitor general in October.
Perhaps segments of corporate America want to subsidize left-wing litigation. But those that do not, need not.
Benjamin Flowers is a partner Ashbrook Byrne Kresge, the former Ohio Solicitor General, and a former law clerk to Supreme Court Justice Antonin Scalia.
The views and opinions expressed in this commentary are those of the author and do not reflect the official position of the Daily Caller.