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December 19, 2022

From the Chair: Haaland v. Brackeen and Rule 6.1

Henry Su

In November 2022, the United States Supreme Court heard oral argument in Haaland v. Brackeen, a case concerning the constitutionality of the Indian Child Welfare Act of 1978 (ICWA), a federal statute that establishes, among other things, default preferences for the adoptive placement of American Indian children with “other Indian families,” and pre-adoptive placement in “Indian foster home[s].” Defending the statute are the United States, led by Deb Haaland in her official capacity as Secretary of the Interior, and five American Indian tribes. Among those challenging the statute are three non-Indian couples seeking to foster or adopt children with American Indian ancestry.  The case presents a thorny question of whether ICWA’s default preferences amount to unlawful racial or ethnic classifications that violate the Constitution’s guarantee of equal protection, or legitimate political classifications that emanate from the Constitution’s recognition of Indian tribes as separate sovereigns.

The law firm representing the couples, Gibson, Dunn & Crutcher LLP (Gibson), has received a fair amount of flak from the public and the press for taking on this high-profile case pro bono.  Given my role as Chair of the American Bar Association’s (ABA) Standing Committee on Pro Bono and Public Service, I want to weigh in here as well—but not on the merits of the case, or the motives of the litigants or their counsel, whatever they may be.   Rather, I want to take this opportunity to clarify what counts as pro bono publico service under Rule 6.1 of the ABA’s Model Rules of Professional Conduct.  It’s important to me that when people talk about a case being taken on a pro bono basis, they understand the difference between pro bono representation and other representations where the client isn’t being charged a fee by his or her lawyer or law firm.

Pro bono doesn’t simply mean rendering legal services to someone for free. Lawyers and law firms may provide free services for any number of reasons. Doing a favor for a family member, a close friend, or even a longtime corporate client presents an immediate and common example of a situation where a lawyer or a law firm may choose not to charge for services.

Instead, Rule 6.1 specifically embodies a lawyer’s “professional responsibility to provide legal services to those unable to pay."  It reflects the fact that a lawyer, as a member of the legal profession, is “a public citizen having special responsibility for the quality of justice,” which includes an obligation to “ensure equal access to our system of justice for all those who because of economic or social barriers cannot afford or secure adequate legal counsel."  Accordingly, first and foremost, pro bono means rendering legal services for free directly to or for the benefit of persons who cannot afford to pay.   Rule 6.1 thus recognizes and addresses “the critical need for legal services that exists among persons of limited means,” a crisis that the Supreme Court itself has acknowledged.

Based on what I’ve read, the three couples represented by Gibson in Haaland don’t appear to be “persons of limited means.” On the contrary, one article from June 2019 describes the Brackeens as “self-conscious about their material success: a large brick home on an acre, with pool, greenhouse, zip line and a kitchen big enough for Zachary and their two biological sons, 10 and 7, to zoom around it on Rollerblades."An amicus brief filed by Robyn Bradshaw, the grandmother and adoptive parent of the child whom the Cliffords unsuccessfully sought to adopt, points out that the Cliffords had counsel who “aggressively litigated” the child’s pre-adoptive and adoptive placement in the underlying state court proceedings that preceded the federal lawsuit.

Assuming that I’m correct, Gibson’s representation of the three couples for free doesn’t fall within the primary definition of pro bono under Rule 6.1(a). But there’s a secondary definition of pro bono under Rule 6.1(b)(1) that may apply—namely, the “delivery of legal services at no fee or substantially reduced fee to individuals . . . seeking to secure or protect civil rights, civil liberties or public rights[.]"  The accompanying commentary stresses that services rendered under paragraph (b), which include “certain types of legal services to those whose incomes and financial resources place them above limited means,” are meant to fulfill a lawyer’s professional responsibility to the extent that responsibility cannot be met by providing services to or for the benefit of persons of limited means under paragraph (a).

Here’s where it gets interesting. True, the three couples in Haaland v. Brackeen have filed a federal lawsuit asserting that ICWA’s placement preferences violate their rights to equal protection under the Constitution. But one of the questions being considered by the Supreme Court is whether they have Article III standing to challenge these provisions. As the United States argues in its merits brief, none of the individual plaintiffs can “demonstrate actual or imminent injury that is fairly traceable to enforcement of the challenged provisions." By the time they filed the federal lawsuit, the Brackeens had already successfully petitioned to adopt the American Indian child in question, and therefore “they faced no injury traceable to ICWA’s application in any ongoing proceedings." As for the Cliffords and the Librettis (as well as Hernandez), the child-custody proceedings in which they were involved “concluded many years ago, rendering any injury from ICWA’s application moot."

Whether the three couples have actually suffered some constitutional injury-in-fact that would make their equal protection claim justiciable makes me wonder whether they can be viewed as “individuals seeking to secure or protect civil rights, civil liberties or public rights” under Rule 6.1(b). If there’s no actual or imminent injury that can be traced to enforcement of ICWA’s placement preferences at issue, then there are arguably no civil rights to secure or protect. And if that’s the case, then Gibson’s representation of the three couples for free might not fall within the secondary definition of pro bono either. At least it’s food for thought.

As I indicated earlier, I’ll leave to others to delve into the relative merits of the positions being taken on ICWA’s constitutionality, including the potential broader implications for tribal sovereignty. I’ll also leave to others to speculate about the motives of the three couples and their lawyers, who are taking this case to the Supreme Court for free. I just want to clarify for the record what is—and isn’t—pro bono.

    Henry Su

    Chair, ABA Standing Committee on Pro Bono and Public Service

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