For more than 40 years, associates at Dorsey & Whitney helped the Minneapolis City Attorney’s Office prosecute misdemeanor cases. Each year, a handful of the firm’s litigation associates would spend 14 weeks working with prosecutors and gaining hands-on courtroom experience.
But after George Floyd’s alleged murder by a Minneapolis police officer on May 25, which has sparked national and international protests against police brutality and inequities in the criminal justice system—and after seeing several studies showing that misdemeanor prosecution disproportionately affects people of color—Dorsey ended its relationship with prosecutors. The firm said it intends to be “part of the solution.”
Dorsey isn’t alone among large law firms in having developed such a relationship with prosecutors over the years. But it is so far the only firm that has been moved by recent events to end its partnership. In the wake of Floyd’s violent death and the weeks of protests that have gripped the world, Dorsey’s decision offers a window into the role law firms play in the criminal justice system, at a time when the system is being intensely scrutinized.
“A change is needed, and I think this is an area where, instead of just saying we’ll explore things … we can take some action and examine our own programs,” Dorsey managing partner Bill Stoeri told The American Lawyer when the change was announced in early June.
As of press time, no other firm had indicated that it intends to rethink its relationship with prosecutors in its local jurisdiction. They should, says Craig Futterman, a law professor at the University of Chicago and the director of the civil rights and police accountability project at the Mandel Legal Aid Clinic.
“I don’t think that law firms should be devoting pro bono resources to bring criminal prosecutions for local prosecutors,” Futterman says, adding that this doesn’t include law firms that are sometimes appointed as special prosecutors by courts. “That should be left to state and local governments accountable to the people of those jurisdictions.”
A large portion of taxpayer money already goes to prosecuting and incarcerating people, and private law firms shouldn’t contribute to that effort, Futterman says, noting that mass incarceration has a disproportionate impact on black people.
“Indeed, the racism in this very system is a primary reason why so many people are raising their voices in protest,” Futterman says.
The partnerships between law firms and prosecutors appear to be born out of mutual benefit: Law firms are constantly hungry for ways to bolster the experience of their young associates, and prosecutors only have so much money to take on a never-ending case load.
Cozen O’Connor’s secondment program with the Philadelphia District Attorney’s Office began in 2009, when the city’s prosecutors reached out to several law firms for help after the office implemented a hiring freeze, says Vincent McGuinness, Jr., the firm’s managing partner.
“It’s symbiotic. We both benefit in many different ways,” McGuinness says. “It gives us, as a law firm, an enriching experience and connectivity with the District Attorney’s Office. And I think for them, it gives them a contact and continuity with private practice in the city of Philadelphia.”
The Cook County State’s Attorney’s Office in Illinois began its secondment program in 2017 after its prosecutors began seeing an increase in their caseload, according to LaShawn Eddings Levesque, the director of the office’s legal hiring. Winston & Strawn publicly touted its participation in that program late last year.
Baker Botts launched a secondment program with the Harris County District Attorney’s Office in Texas earlier this year. In a press release, the district attorney spelled out the benefits to both sides clearly.
“The program puts some of Houston’s best new lawyers in courtrooms to get trial experience while lightening the workload for prosecutors assigned to those courts, without costing taxpayers a dime,” District Attorney Kim Ogg said in the release. “Because the lawyers are employed by large law firms, there is no added cost for Harris County.”
At this point, only Cozen O’Connor has definitively said it plans to continue its secondment program. McGuinness says he has heard no complaints about the firm’s participation. He notes that the secondment program has not affected the firm’s ability to work with the Pennsylvania Innocence Project, which seeks to exonerate people who have been wrongfully convicted of crimes. He specifically cites the firm’s representation of Dontia Patterson, who spent 11 years in prison after being wrongfully convicted of murder. On Patterson’s case, the firm served as an adversary to the district attorney’s office.
“We were not in alignment, but they were very professional in recognizing a lot of the shortcomings that took place in that specific case,” McGuinness says.
In May 2018, Philadelphia prosecutors declined to retry Patterson and withdrew all charges against him. McGuinness says that while he believes the secondment program led the district attorney to recognize the quality of the Cozen O’Connor attorneys representing Patterson, it didn’t affect how the firm approached the case, and he doesn’t anticipate any conflicts to come from the firm’s dual roles.
“It has not happened yet. It’s been tested and it didn’t happen, and I think that’s because of the way it is run and organized. I would be very surprised that it would become a problem,” McGuinness says.
Baker Botts is noncommittal about whether it will continue to its secondment program in light of the recent protests. A spokesman says the firm “regularly review[s] our pro bono programs to ensure optimal usage of our resources, and we strive to protect the legal rights of the most vulnerable members of our communities.”
Cook County’s secondment program is dependent on applications—it doesn’t have a regular relationship with any law firm, unlike its counterparts in Minneapolis and Philadelphia, Eddings Levesque says. At this point in time, its pool of prosecutors is made up entirely of assistant state’s attorneys and interns, and no secondments, she says.
“We would welcome it, because we continue to have demand,” Eddings Levesque says.
Winston & Strawn is reviewing its participation with the state’s attorney’s office within the context of its annual budget, according to one source.
Legal aid clinics like Futterman’s also benefit from relationships with law firms, in which partners and associates can donate hundreds of hours of work on a particular case. Law students, who play an active role in the clinic, get an introduction to the firm, while the firm gets to work on “significant pro bono work that can make a meaningful impact,” Futterman says.
For instance, Futterman’s clinic and other community groups were represented by lawyers from Cleary Gottlieb Steen & Hamilton in a federal lawsuit against the Chicago Police Department. That lawsuit sought a federal consent decree over the department, but it was put on pause after the state of Illinois sought its own.
“Some of that work garners a significant amount of public attention that can bring positive attention to the law firm’s community service,” Futterman says.
Now that it’s no longer partnered with the city attorney, Dorsey is considering working with the Hennepin County Public Defender’s Office and expanding its involvement with a program that provides legal representation to pro se litigants in federal court, Stoeri says.
“We want to put a greater emphasis on pro bono work that rebuilds communities or devote more resources to assisting those that are victims of injustice,” Stoeri says. “We will now have people—who had time at the city attorney’s—they now have time available for a different kind of work. That’s what we’re looking to do.”