you can’t find pro bono help if your opponent employs all the law firms

(Washington, DC) Let’s say you’re a nonprofit or an individual with a meritorious claim and you are in conflict with a big company. You should look for a law firm to take your case pro bono. But the firm will need a waiver (and a lot of persuasion) to take you on if they also work for the big company that is giving you trouble. That means that you’re out of luck if all the law firms in town work for that company. I’m told that this is the case with major banks and other corporations of their size: they have current or recent business arrangements with all the large law firms.  I could not find a way to tell how many outside counsel are employed by a corporation like Bank of America or Microsoft, but I did find this article from The Wall Street Journal in 2010:

Law firms usually can’t sue or investigate banks that they have represented, unless the clients take the unusual step of waiving the conflict. … [But] consolidation in the banking business has made it only harder for law firms to handle lawsuits against banks. It is increasingly difficult, lawyers said, for firms to find a major bank they haven’t represented at some point.

This piece doesn’t address the question of pro bono representation. It is mainly about the rise of small, specialty firms that gain market advantage by deliberately avoiding all banks as clients–so that they can sue banks. But that doesn’t solve the problem for pro bono clients.  I wonder whether consolidation in the legal profession is the root of the issue. Could companies be intentionally hiring every law firm in town so that nobody can sue them?

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About Peter

Associate Dean for Research and the Lincoln Filene Professor of Citizenship and Public Affairs at Tufts University's Tisch College of Civic Life. Concerned about civic education, civic engagement, and democratic reform in the United States and elsewhere.