Privatizing Public Interest Law
- Author(s): Cummings, Scott L
- et al.
Financial and legal constraints on nonprofit public interest organizations have focused attention on possibilities for pursuing public interest goals from within market-driven private practice. In this context, the private public interest law firm has been held out as an alternative site for “doing well” and “doing good,” allowing lawyers to take on large-scale social change litigation that nonprofit groups cannot because of resource limits—and big-firm pro bono programs will not because of business conflicts—while also addressing other deficits associated with nonprofit practice, such as low salaries, lack of training, and high turnover. Yet there is little research on how such firms operationalize their conception of public interest advocacy and what tradeoffs are required by the need to generate attorney’s fees.
This Article examines these tradeoffs through a case study of a nationally prominent private public interest law firm, Hadsell & Stormer, which is located in the Los Angeles area. It focuses on how the relationship between Hadsell & Stormer’s private form and public mission plays out across three key axes: principle (how the lawyers understand their obligations to causes, clients, and communities); power (how the lawyers make decisions about firm governance); and profit (how the lawyers build case portfolios, staff matters, and co-counsel with other firms). Across each dimension, we see that the firm’s hybrid form (part public, part private) is reflected in a set of hybrid ideals and practices (neither entirely public-oriented nor market-driven), which are continuously negotiated by the lawyers. I make three general observations based on the data.
First, Hadsell & Stormer’s effort to merge profit and principle results in a distinctive notion of professionalism, in which broad obligations to society, such as pro bono service, are generally viewed as inconsistent with firm radicalism, while micro-obligations to clients, such as zealousness, are embraced as part of the firm’s commitment to litigation excellence. Lawyer autonomy in defining organizational culture and selecting cases is highly valued, which (in combination with the firm’s strong client-centered ethos) results in a relatively weak sense of firm accountability to a well-defined external political constituency. Second, with respect to internal power relations, Hadsell & Stormer works to balance its commitment to egalitarian values—creating an internal firm culture that matches its vision of the outside world—with the reality of running a financially viable firm built upon litigation success. In general, firm governance tends to track the public-private divide, with broad decisions relating to firm politics, such as whether to pursue new categories of cases for political impact, made in accord with democratic ideals, and specific questions relating to firm economics, such as staffing and case management, made in a more hierarchical manner. Finally, although Hadsell & Stormer is categorically not driven by profit, it must make one in order to survive. To do so, the firm deploys three main strategies. (1) It spreads risk through case selection by (a) choosing cases across different categories based on double-bottom line considerations, and (b) cross-subsidizing high-risk “righteous” cases with lower-risk, higher-yield “bread and butter” cases and, less frequently, non-PIL cases that can be quickly resolved for predictable fees. (2) It increases productivity and spreads risk through case staffing, by (a) leveraging associate work in a conventional pyramid pattern, and (b) entering into flexible collaborations with other firms that allow it to expand or contract based on the volume of work. (3) It hedges downside risk through fee arrangements that allow it to profit from its comparative expertise (trial work) and recover irrespective of the award of statutory fees; the firm also over-selects damages cases relative to injunctive relief cases, which pose greater risks of no fee recovery.
In the end, I conclude that firms like Hadsell & Stormer play a unique role in the broader public interest law field. They are optimally suited to complement their nonprofit counterparts by bringing more legal muscle to bear and filling in substantive gaps in the system of legal representation. They therefore achieve a central aim of the public interest law movement: giving voice to less powerful groups. In this sense, although private PIL firms may not provide more justice in the aggregate, they provide justice when it counts.