Doing Good, Doing Well Symposium: Note

Positioned at the intersection of big-money practice and social change litigation, mass torts provide a useful study in multiple motivations. Despite the difficulty disentangling reasons from rhetoric and rationalization, it is worth exploring the significance of mixed motives for lawyers who are committed to policy objectives as they pursue litigation on a contingent fee basis. The combination of monetary and policy goals may create a lawyer-client conflict of interest, but in the mass collective representation that typifies mass tort litigation, the risk of conflicts is greater with a lawyer fully devoted either to particular policy objectives or to the pursuit of wealth than with a lawyer motivated by multiple considerations. By reflecting the various interests of a large group of clients, mixed motives tend to mitigate rather than exacerbate the conflicts of interest that inhere in mass collective representation. The mix of financial incentives and policy objectives invites a rethinking of the prevailing conception of public interest lawyering. Lawyers equate "public interest" with low-paying law jobs, and they use the phrase "for the public good" (pro bono publico) to refer to services without fee. The prevailing definitions of these terms are based on market-undervaluation, which makes sense for purposes of determining subsidies such as loan forgiveness and the ethical duty of pro bono representation. But defining public interest work in terms of undercompensation may have an unintended consequence in its effect on the attitudes of lawyers whose work does not fall within the narrow definition. If public interest lawyering is what lawyers do for little or no pay, does that imply that most lawyers should pursue wealth and raw client interest without regard to whether their work serves the public good? Whether a redefinition of public interest lawyering would contribute to lawyers' overall commitment to the public good, however, is unclear given the ease of overvaluing the good achieved by one's own practice. I. INTRODUCTION On the fiftieth anniversary of Brown v. Board of Education,1 it is fitting that we should take account not only of what has become of school desegregation but also of the heroic public interest lawyer figure embodied by Thurgood Marshall. For his role as "the chief litigator for the civil rights movement,"2 Marshall is widely regarded as a preeminent role model for public interest lawyers.3 Descriptions of Marshall's career as a public interest advocate emphasize not only his ability to "use the legal system as a tool for social change,"4 but also his personal sacrifice as a lawyer who persevered despite low pay.5 The Marshall image thus encompasses the dominant elements of the prevailing conception of the public interest lawyer: advocacy for social change and commitment to the cause rather than to income. For his work as a civil rights litigator and especially for his success in Brown, Marshall is viewed as a shining example of a lawyer who used his legal skills to advance the public good.6 Indeed, in addition to the case's importance for school desegregation and equal protection, Brown holds a significant place in the history of the American legal profession as a symbol of litigation as a transformative force and as an inspiration to more than a generation of lawyers.7 Given the power of the Marshall legacy, it is no surprise that many scholars and attorneys invoke his name to describe lawyers working to advance their vision of the public good. Beatrice Dohrn, legal director of Lambda Legal Defense and Education Fund, has been called "the Thurgood Marshall or Ruth Bader Ginsburg for gay and lesbian civil rights."8 The American Bar Association's section of Individual Rights and Responsibilities annually honors "long-term contributions by other members of the legal profession to the advancement of civil rights, civil liberties, and human rights" with its Thurgood Marshall Award. …