Can and should BigLaw firms cutting deals with Prez Trump meet pro bono commitments through First Step Act work?

The question in the title of this post is prompted by this new Bloomberg Law podcast titled “Trump Gets Millions in Pro Bono Work, But Details Still Fuzzy.”  Here is the set up to the discussion:

Law firms are striking deals with President Trump to avoid getting hit with punitive executive orders, pledging hundreds of millions of dollars combined in pro bono legal work….  The details of how these deals will work in practice are scant to nonexistent.  How will the legal work be tracked?  What qualifies as a conservative client?  Can the White House reject certain clients as not conservative enough?  And does this mean these firms will now turn away liberal-leaning pro bono clients?

The emphasis throughout the podcast is how much uncertainty and ambiguity surrounds the commitments by various BigLaw firms to dedicate the equivalent of tens of millions in pro bono legal services during Prez Trump’s time in office.  Notably, though, the basic substantive focus of the various pro bono pledges have been specified: eg, Paul Weiss (“causes including assisting our Nation’s veterans, fairness in the justice system, and combating anti-Semitism; and other similar initiatives”); Skadden (“Assisting Veterans and other Public Servants…; ensuring fairness in our Justice System; and combatting Antisemitism”); Willkie Farr (Assisting Veterans and other Public Servants …; Ensuring fairness in our Justice System; and Combatting Antisemitism”). 

The reference to pro bono work focused on “ensuring fairness in our Justice System” drives my thinking that these firms and other BigLaw firms ought to give particular pro bono resources and attention to advancing the implementation of the First Step Act.  After all, Prez Trump advanced and signed the First Step Act into law back in 2018, and so pro bono work seeking to implement that law fully would surely qualify, in the view of this Administration, as efforts to advance fairness in our federal criminal justice system. 

And there is no shortage of First Step Act implementation work still needing to be done that BigLaw firms could seek to help with in a variety of ways.  In her confirmation hearings, AG Bondi acknowledged widespread problems with the Bureau of Prisons and failures to “follow through on the promise of the First Step Act.”  Additional pro bono advocacy and litigation efforts supported by BigLaw to advance BOP reforms might be of great value to enhance DOJ “follow through.”  There is already considerable litigation concerning federal prisoners being denied earned-time credits under the First Step Act, including an on-going ACLU’s class-action lawsuit.  And thousands of elderly federal prisoners, as well as tens of thousands of low-risk federal prisoners, might well have viable arguments for a sentence modification under the enhanced “compassionate release” procedures and rules created by First Step Act. 

Beyond specific issues realted to the First Step Act, one could argue that all pro bono efforts to help prisoners with legal claims who cannot afford private counsel should qualify as advancing “fairness” in our legal system.  After all, once direct appeals are complete, prisoners no longer have a right to an appointed attormey, but wealthy prisoners can and ofter do hire private counsel to continue pressing legal claims.  It surely is unfair if only those few prisoners who can afford lawyers can get legal help with various post-convictions claims.  (I regularly receive letters, emails and calls from federal prisoners and their families seeking pro bono help with their cases; I would love to be able to refer these inquiries to a BigLaw firm working on “ensuring fairness” in our justice system.)

Ever eager to turn BigLaw lemons into “fairness” lemonaide, I sincerely hope the firms making pro bono commitments will significantly invest in First Step Act work and broader criminal justice reform efforts.  Prez Trump’s robust and wide-ranging clemency grants in just his first few months in office demonstrates he sees many, many, many individuals being “treated very unfairly” by the federal criminal justice system.  There are no shortage people who claim that the justice system has treated them unfairly, and it would be great to see BigLaw firms making big pro bono commitments in this arena.