Lawyers use volunteer hours to step up the fight for racial justice

Lawyers at major firms are refocusing their pro bono efforts – which traditionally cover a range of issues – to explore the root causes of racial inequalities in the US since the killing of George Floyd and the rise of the Black Lives Matter (BLM) movement to tackle

These events prompted companies across all sectors to step up efforts to combat racial injustice. There has been a new hunger in the legal industry to harness the culture of pro bono and community service and channel it into racial justice work, says Mark Fleming, partner at WilmerHale and co-chair of the Racial Justice Reform Initiative.

By working with non-profit racial justice organizations, law firms have been able to target their efforts with a level of dedication never seen before.

“It really seemed like a racial awakening,” says Michael Jones, partner at Kirkland & Ellis. “Law firms invested resources in reviewing policies that had not previously been challenged.”

Of 126 firms surveyed by the Washington DC-based Pro Bono Institute in 2021, 99 percent said they either maintained or increased the time attorneys devoted to unpaid racial justice work compared to the previous year.

In response to the BLM movement, WilmerHale’s attorneys focused on police retraining, suffrage and bail reform – all of what Fleming calls “systemic” problems of racial injustice. They advocated for Michigan to prioritize Covid vaccinations for those incarcerated and questioned the legality of the Georgia state legislature’s voting cards because they diluted black voting power.

WilmerHale and other law firms have also worked with nonprofits and advocacy groups that have expertise in racial justice, Fleming says. Businesses have the resources to amplify the impact that these groups would have had alone.

In 2021, Kirkland donated $5 million to the Center for Racial Justice at Dillard University in New Orleans, where Jones, who serves as a board member, is helping brainstorm how police reform can be pushed forward without getting caught up in partisan politics to entangle. “It’s something I don’t think would have been on my radar screen before George Floyd was killed,” he says.

Kirkland’s contribution to Dillard was part of a $12.5 million donation to Historically Black Colleges and Universities (HBCUs). The funds came from $22 million in statutory attorneys’ fees, which the firm earned by reaching a $577 million settlement for Maryland’s HBCUs last year. The institutions had sued the state over historic underfunding that had made it nearly impossible for them to remain competitive.

Meanwhile, in Sidley Austin, George Fatheree, a partner with the firm, helped complete the restitution of Los Angeles County beachfront lots known as Bruce’s Beach to the heirs of a black couple who faced racial harassment from white neighbors and the Ku Klux Klan had suffered . The couple had lost the property in the 1920s when the state claimed it for public use and sold it to private investors.

The case created a potential template for others to reclaim property lost due to racially unjust practices by authorities, says Fatheree, who receives daily calls from black families with claims.

His motivation to focus on real estate as a source of racial injustice stems in part from reading The color of the law by Richard Rothstein, a senior fellow emeritus at the Thurgood Marshall Institute of the NAACP Legal Defense Fund. The book examines how, up until the last quarter of the 20th century, racially explicit policies defined where whites and African Americans should live, leaving a legacy of racial inequalities that persists today. “In real estate, we probably have some of the best evidence of deprivation because we have ownership records,” Fatheree points out.

In Louisiana, Dana Foster, a partner at White & Case, saw an opportunity in the summer of 2020 to “take concrete action” to focus his firm’s pro bono efforts on racial injustice. He now represents 16 mostly black defendants in the state seeking criminal convictions overturned by non-unanimous “Jim Crow” juries. Segregationist legislators in Louisiana first allowed them to oppress blacks in the 1880s, and it wasn’t until 2020 that the US Supreme Court ruled them unconstitutional.

However, that ruling was not retroactive, so the men and women incarcerated because of non-unanimous juries “were screwed by this unconstitutional law,” says Foster. “They have no chance of getting those convictions overturned unless we help them.”

For Timothy MacDonald, a partner in Arnold & Porter’s Denver office, standing up for the BLM protesters was important. He helped secure a $14 million judgment for 12 protesters who were victims of police brutality in Colorado – an 18-month task that required more than 14,000 attorney hours. “Our litigation made it clear that there were systemic flaws in the way the police department worked,” he says.

Many law firm executives also recognize that a new generation of attorneys they wish to retain want the volunteer resources of their employers to address the underlying causes of racism, rather than isolated controversies as they used to do.

Our litigation made it clear that there were systemic flaws in the way the police worked

Associate candidates at Arnold & Porter see the firm “taking an active part in this reckoning” and say they want to be a part of it, MacDonald notes.

However, there are limits to what donating resources and legal hours for systemic change can do. What constitutes pro bono work for racial justice “remains lacking in clear boundaries and consensus,” according to the Pro Bono Institute report.

Although firms say in the report that they work on things like policing related to racial justice, prison reform, and economic empowerment, only 8 percent of respondents devoted at least 80 percent of racial justice pro bono hours to “systemic matters” (such as law reform).

Ultimately, the nation’s political will dictates the limits of attorneys’ pro bono efforts — as do the laws and what judges will enforce. “Advocates are a critical part of any kind of lasting change, but they can’t be the entirety of it, and they can’t do it alone,” says Fleming.