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A Fresh Take

Insights on M&A, litigation, and corporate governance in the US.

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Pro bono in the Biden era: Will the change in administration affect how we help our most vulnerable clients?

Despite the markedly different policies of the Biden Administration, we expect that many pro bono efforts will continue apace. The following article is posted with permission from the July 28, 2021 edition of the New York Law Journal © 2021 ALM Media Properties, LLC. All rights reserved.

This month marks six months since President Biden took office. One might wonder if our new President’s very different policies and approach from his predecessor would call for a fundamental shift in the focus of U.S. pro bono work. Indeed, some of the highest-impact and highest-profile pro bono efforts over the past four years involved assisting those challenging Trump Administration policies. For example, law firms doing pro bono work were at the forefront of challenges to the Trump Administration’s efforts to rescind Deferred Action for Childhood Arrivals, to add a citizenship question to the decennial census, and to conduct wide-scale civil immigration arrests in state courthouses. Our firm, Freshfields Bruckhaus Deringer, joined the fray on many occasions, submitting friend-of-the-court briefs opposing the Trump Administration’s travel ban and taking on immigration cases at the border when children were being separated from their parents during the crackdown on illegal entry into this country. But despite the markedly different policies of the Biden Administration, we expect that many pro bono efforts will continue apace.

Changing lives, out of the limelight

While pro bono work against the federal government may enjoy the spotlight from time to time, it is hardly the lion’s share of pro bono efforts at U.S. firms. Much pro bono litigation is against state, municipal, or private parties. To take just a few examples, Freshfields, along with other law firms, represents victims of domestic violence in partnership with DVLeap, challenges state convictions with the Office of the Appellate Defender, and works with the ACLU to combat discriminatory policing. Indeed, one of Freshfields’ largest pro bono matters last year, a civil-rights action against an NYPD police officer, had no connection to the federal government.

And much pro bono work is not litigation: Firms routinely handle transactional, corporate governance, and policy matters to help those in need. In the past year, for example, Freshfields helped small businesses affected by the pandemic apply for federal funding (with the New York City Bar Association’s COVID-19 Small Business Clinic), worked to develop an international treaty to regulate animal welfare to reduce the risk of animal virus transmission to humans, and advised a major international humanitarian charity on U.S. corporate governance. This work is hardly unique to our firm, as others also report a mix of matters on their pro bono dockets.

We expect that pro bono legal advice to those who need it most, unrelated to the federal government—the core of U.S. pro bono work—will remain in demand regardless of who is in the White House.

Same dance, new partner

Representing the vulnerable against the federal government did not suddenly begin on Jan. 20, 2017. Law firm pro bono efforts were behind a number of landmark cases over the past decade, such as United States v. Windsor (invalidating §3 of the Defense of Marriage Act), and law firms will continue such efforts regardless of who occupies the Oval Office. This is certainly true at Freshfields: We recently enjoyed repeated victories over the Department of Justice in a suit brought during the Obama Administration seeking U.S. visas for Iraqi translators who helped U.S. forces, and we will continue to pursue a remedy for our class of clients under President Biden. New administrations may be reluctant to switch positions in pending cases, so in this case and others, new leadership will not necessarily translate to a new litigation strategy.

Even in cases that were initially brought during the Trump Administration, the presence of intervening parties may keep the controversy alive during the Biden presidency. For example, in the currently pending litigation over the Equal Rights Amendment—which would forbid the federal and state governments from denying anyone equal rights “on account of sex”—the plaintiffs seek to compel the federal government to add the Amendment to the U.S. Constitution. Regardless of the position the Biden Administration takes, five states intervened and will likely continue to resist any attempt to add the Amendment to the Constitution. (The challengers lost in the district court. Their appeal is pending.)

What’s more, the bulk of U.S. pro bono work concerns the rights of individuals. Whether petitioning for asylum or seeking parole for federal prisoners, law firms will often be adverse to some part of the federal government. Absent major policy shifts on issues like asylum and parole, expect firms to continue working to provide legal services to those who need it most in those cases, regardless of who occupies the White House.


litigation, pro bono