Law firms burnishing their social justice bonafides are lining up to watchdog police departments for the Justice Department even though lawyers say it’s a typically thankless job.
Legal watchdogs are expected to be in higher demand with Attorney General Merrick Garland stepping up oversight of police department activities that President Donald Trump let wane.
Garland has already staffed the Justice Department with social justice heavy hitters like Vanita Gupta as the Associate Attorney General and Kristen Clarke as the assistant attorney general for the Civil Rights Division. He also announced in April his department would investigate policing practices in Minneapolis and Louisville, Ky., following the deaths of George Floyd and Breonna Taylor at the hands of police.
The expectation is that more police departments will agree to oversight consent decrees—court-ordered agreements requiring police departments cited for widespread civil rights and other violations to overhaul their operations. Those deals need monitors to ensure compliance, which opens the doors to law firms looking to make a name for themselves as civil rights experts.
“There’s a very public interest in helping to reform police departments, particularly in this day and age when police departments have shown themselves so vulnerable to allegations,” said Merrick Bobb, the executive director of the Police Assessment Resource Center, which consults with law enforcement on practices and address potential problems.
Bobb was previously a court-appointed monitor for the Seattle Police Department and an attorney at Tuttle & Taylor and O’Melveny & Myers.
“So, there are lots of lawyers and law firms that very much want to have a role and have a piece of the action in this police reform. Also, it brings publicity, usually positive publicity, for the law firm to be so involved.”
Former Alabama Sen. Doug Jones has said he wants his law firm and lobbying shop Arent Fox to be more involved in consent decrees.
Lawyers at Schiff Hardin, Sheppard Mullin, DLA Piper, Venable, Saul Ewing, and Barnes & Thornburg are among those who have served as monitors or made bids for the job in cities like Baltimore, Chicago, and Ferguson, Mo. The work often goes to sole practitioners from a short list of lawyers and administrators who have made a career out of independent government oversight.
Many of the country’s largest firms have sought to rebrand as social justice advocates since the wave of protests following George Floyd’s killing in police custody in Minnesota last year. They’re still dealing with their own internal diversity issues at the same time: Less than 2% of law firm partners are Black, and less than 1% are Black women, according to National Association for Law Placement data.
However, being a successful monitor requires a suite of skills not every lawyer possesses, past monitors warn. And though being a monitor can bring a personal spotlight in high profile instances of alleged police misconduct, the oversight role isn’t always the most lucrative for law firms, they caution.
Getting it Right
To succeed, DOJ’s Civil Rights Division, which manages consent decrees, needs to clearly lay out what the agreement can and should try to achieve for the police departments, said Christy Lopez, professor at Georgetown Law and former deputy chief in the Special Litigation Section of the DOJ’s Civil Rights Division.
“Here’s what those outcome metrics should be,” said Lopez, a former consent decree negotiator. “Here’s what you should be looking at. I think that will solve part of the monitor problem.”
Lopez cautioned monitors are sometimes blamed for consent decree outcomes despite being historically difficult to agree on what successful policing and reform look like.
No Big Payday
Being a police monitor is often more about prestige than a payday. Even when law firms offer drastically reduced rates, they can be turned down. For example, DLA Piper unsuccessfully bid to be Baltimore’s monitor, offering its services for 1.475 million. Despite being well below the $2.9 million the firm said it would typically charge for that work, it was turned down.
"[Law firms] aren’t charging quite as much as they would if they were representing a large corporation,” Bobb said. “So, money might be an incentive, as long as they can recoup their costs and so forth to make a profit.”
Although lawyers have said it’s a matter of their civic duty, police monitoring can be a costly investment.
“I do have a concern that for some law firms, they’re looking at it as just another matter. And I think that’s problematic because lawyers tend to be expensive,” said David Douglass, managing partner at Sheppard Mullin in Washington, D.C., who has monitored the New Orleans Police Department since 2013
The financial burden that lawyers take on as monitor isn’t new , said Delores Jones-Brown, a former independent consent decree monitor who served on an oversight team in Ferguson, Mo., in 2016.
“Recently, during the time that I was serving on consent decree monitoring teams, I believe the funds that were expended were far less than when the lead monitors were primarily white males with law enforcement backgrounds,” said Jones-Brown, a visiting professor in Howard University’s department of sociology and criminology and retired professor at John Jay College of Criminal Justice.
“So, the concern about the fiscal burden that consent decrees place on the jurisdictions being monitored, has been an issue for a while.”
However, the onus for effective monitoring doesn’t rest solely on DOJ, but also the law firms, especially if they have the resources to help, said Tsedale M. Melaku, a sociologist.
“These are law firms that are making a lot of money, so clearly, they can afford to put their resources behind projects that are important,” she said.
A Needed Skillset
Lawyers have a place in leading monitorships because they bring a level of expertise that not everyone has.
“Consent decrees, even when they’re pretty straightforward, can have confusing terms and there might be different issues that might be hard for people without legal training to know whether certain provisions of a consent decree are being violated,” said Lauren Bonds, legal director of the National Police Accountability Project.
But a successful monitoring project requires a skillset not every lawyer possesses, Douglass warns.
“First, however, these things are about are project management skills, and lawyers are not particularly good at that because if you think of a consent decree, it’s just a big checklist of things that have to get done,” he said.
“And I don’t know that that’s a lawyer skill. Second, although consent decrees are about legal standards, they are really about policing practices. So I know on our team, most of the work is done by our police experts. I think a small portion of it is really legal work or should be legal work. It’s really about excellent police experts helping a troubled police department see how they can do things better.”
The good publicity of successfully reforming a police department accused of misconduct can be a lure for law firms. But with publicity typically comes a form of celebrity, which can be harmful to the police reform movement, said Ganesha Martin, former chief of the Department of Justice Compliance, Accountability and External affairs for the Baltimore Police Department
“It’s one of these things around consent decrees and police reform, it can make stars out of people. It takes people who were in the shadows that nobody was paying any attention to, to now they’re somebody. They’re in the news. They’re in a documentary. They’re on panels,” she said.
However, the hardest, most lasting changes happen when no cameras are around, she said.
“We need people with the right hearts and minds to help find solutions not sow more division,” Martin said.