Stacie Strong recently posted Pro Bono Publico Versus Pro Bono Presidential on SSRN. It’s a look at the propriety of agreements to perform pro bono work to escape punitive executive orders against law firms. This is how the abstract describes it:

This Essay considers the propriety of these pro bono agreements from several perspectives. First, this Essay considers the voluntary nature of pro bono and examines the propriety of the executive branch coercing private lawyers to accede to particular pro bono obligations. Second, this Essay discusses the nature of pro bono activities as a means of assisting indigent individuals and considers whether presidential efforts to direct how private law firms fulfill their pro bono obligations constitute an improper privatization of the executive branch’s policy goals, particularly given presidential cuts to and curtailment of conventional public means of fulfilling those policy goals. Third, this Essay considers whether and to what extent the executive orders and settlement agreements discussed herein violate hard or soft principles of international law. The Essay concludes with brief suggestions about how to proceed going forward.

My initial reaction to these orders was to wonder whether services performed as consideration for a settlement even qualify as pro bono. The lawyers are being paid with the settlement of a claim–does that mean it isn’t really pro bono? Strong notes that the “conception of pro bono can vary by state.” She also agrees that “the legal services at issue fall outside the standard definition of pro bono.”

They appear to fall outside at least one federal definition as well. The Department of Justice has a definition for the Executive Office for Immigration Review (EOIR). That definition provides that “Pro Bono legal services are “those uncompensated legal services performed for indigent aliens or the public good without any expectation of either direct or indirect remuneration, including referral fees (other than filing fees or photocopying and mailing expenses).” 8 C.F.R. § 1003.61(a)(2) (emphasis added). 

If you’re performing services as part of a settlement, I’d prefer not to classify those services as pro bono.

My quibbles to the side about the definition of pro bono, Strong raises some, well, strong arguments that the orders violate separation of powers principles and undercut the rule of law. It’s worth a read for an informed take on the issue.