Economic crisis brings pro bono to crossroads

PIRC Assistant Dean Tom Schoenherr in National Law Journal, May 18, 2009

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The National Law Journal and the Association of American Law Schools on April 4 sponsored "Pro Bono and the Economic Crisis: The Impact on Education and Practice." The event was part of the Building a Better Legal Profession's (BBLP) Inaugural Student Leadership Conference at Stanford Law School. Attending the roundtable were students participating in the BBLP conference.

Each member of the roundtable opened with remarks about the current state of pro bono representation. They then answered questions posed by students from the audience.

PARTICIPANTS

• William Abrams, partner, Bingham McCutchen
• Davida Brook, law student; president, Building a Better Legal Profession
• Diane Chin, director, Equal Justice Works-West
• Scott Cummings, professor, University of California at Los Angeles School of Law
• Leigh Jones, associate editor, The National Law Journal (moderator)
• Lynn Mather, professor, State University of New York at Buffalo Law School
• Rachel Moran, president, Association of American Law Schools; professor, University of California, Irvine School of Law (moderator)
• Deborah Rhode, director, Stanford Center on the Legal Profession
Thomas Schoenherr, assistant dean, Fordham University School of Law

DEBORAH RHODE: You already are busy people, and you will find that finding time to do pro bono work and, even more, to create institutional change that will make it possible, is a time-consuming proposition. It's hard, and in a profession where we've seen an escalation of billable hours over the last couple decades, what hasn't changed is the number of hours in a day. It's hard to carve out that kind of time for the hard work of institutional change, but it's enormously important that you make that time, and that work on issues of social justice and fairness is not just essential for our profession; it's also one of the most fulfilling things you can do with your life.

Still, less than half of this nation's law students graduate with a pro bono experience, let alone a well-supervised one. I'm reminded of the importance of this when I think back at my experience at Yale....At that time, there was no pro bono program at all, and there were, however, some clinics, and my best experience and, in fact, the experience that kept me in law school was working in a poverty law office.

I will tell you once again that money has done a lot of good things for me in my life, but there's nothing more satisfying than being able to send a message with your own resources. So if we want lawyers to take professional responsibility seriously, then we all have a personal responsibility to model it in our conduct and our priorities.

SCOTT CUMMINGS: The good news is that it's a big industry, and the bad news is that it's a big industry and, of course, like all industries in these economic times, it's suffering. The question, I think, that we keep hearing now time and time again is: What can we do to stem the decline in pro bono activity and convert the market crisis into a pro bono opportunity?

I suggest that the problems we're seeing now are manifestations of deeper tensions within the system that have been magnified but not created by the current economic stress. So what should we do? I have three proposals.

So first, we need to develop a very serious plan of action for dealing with market fluctuations. We know from the research that, when firms are doing well, we see more pro bono, and when they aren't, we see less pro bono. Of course, market downturns, as we now know very, very well, affect not just pro bono but other sources of funding for legal services — IOLTA [Interest on Lawyers' Trust Account] funds funding, government support, foundation giving. All of these have been tremendously impacted in the current economic crisis. So greater planning, I suggest, is crucial to avert crises in the future. Firms should have rainy-day funds to support pro bono in lean years, and we need to devise ways to link private and public investments and legal services so that when the private investment declines, the public rises to compensate for the lost capacity.

My second thought or proposal is that we need to rethink the emphasis on volunteerism as a sine qua non of professional services. I think it has at least three perverse consequences. First, it causes firms to try to make pro bono into something that it shouldn't be, which is a tool to gain market advantage. Pro bono shouldn't be a vehicle to outsource law firm training to public interest groups, and I think this is a tension that's been surfaced by the recent resistance by some public interest organizations to [large firms placing] furloughed lawyers [there]. They don't have the training and the skill to actually help the client base.

I think we need to heed a third and final proposal, which is to restructure the system of law firm rankings. To score high on the Am Law pro bono list, the incentive is to pump up total hours and spread them across as many attorneys as possible. Of course, you want more lawyers doing more pro bono, but this can create distortion. They enlist lawyers and projects that sometimes require little or even no legal expertise, and sometimes report hours of dubious integrity. In this way, the ranking games become severed from evaluating relevant outputs. We have to develop a system that actually evaluates the impact of what pro bono does in the world, which was Deborah's point. There needs to be systematic information about quality — case outcomes as well as client and organizational satisfaction.

Qualitative assessment actually has to come from outside the firm. It has to come from organizations like you, law students, who are willing to help build an alternative metric that really puts the public good front and center.

DIANE CHIN: I'm here, in many ways, to bring a lot of different perspectives, I think. I have been a public interest practitioner for 20 years, and I've lived almost all of my life in earthquake country. So I think that I can tell the difference between kind of a mild tremor and the big one, and folks, we're in the big one. What I am hearing is a recognition that right now what we are experiencing as a society, as a country, as hopefully a people of morals and values, is a recognition that poverty is on the rise and will continue to be. What we are seeing is that we don't have skill sets in many of the law schools to figure out on the career services end and on the financial end what it means.

Is anyone here experiencing the deferred associate program syndrome? Are you entering summer programs where you have no idea what you're going to be working on, and they're saying that they're going to line you up with pro bono? We've started to hear about that a lot, and I really welcome a dialogue about how to manage that for your careers.

But we're seeing, in many law schools, a complete lack of skill sets to know exactly how to advise those of you who are moving forward and trying to establish careers. We're seeing a lack of, I think, knowledge within many of the law firms who are setting up these programs about what can be effective in terms of working with nonprofits to meet both the needs of the community and the nonprofits' legal services organizations and not just the needs of the [human resources] departments of law firms who really want to be able to hold onto you and are trying to make this up sort of as they go along.

We're hearing from the nonprofit sector that, with the decline in donations, a decline in the IOLTA funds, that there is a great concern that they are also going through furloughs, layoffs, et cetera, which the press really hasn't covered as effectively as it has the big news of layoffs at large firms. And we're hearing from practitioners in the nonprofit field that we are always concerned, I think, with leadership. Who is coming in after us? Who's the next generation who will be committed to social justice, be it the pioneering pro bono kinds of leaders in the law firms, and those of us who just sort of have done public interest?

So there is a huge amount, I think, of energy and attention being placed on this right now because of this shifting landscape — because we are experiencing the big one. There is a huge shake-up.

WILLIAM ABRAMS: As Diane was speaking, I was thinking about this ironic confluence of several things. One is we have an economy which has created an even heightened demand, more heightened demand for the need for legal services for people who don't have the means to pay for them. But law firms are also experiencing the need to tighten their own budgets, and yet law firms recognize the vital importance of pro bono programs for a lot of reasons. One is it's a great training tool. It also binds people together. It creates teams. Pro bono is the best way to do that, at least that I've experienced. And so the law firms are acutely aware of this but, at least in my firm and the firms I'm familiar with, I haven't seen any diminished commitment to pro bono work.

In fact, in large part, I think that there is a heightened commitment, and probably the main thing which is restraining law firms is having enough people to supervise pro bono work. I do between 500 to 1,000 hours a year, and one of the things that I try to do is to get my partners, the senior lawyers in the firm, interested and engaged in pro bono work so that, one, it's a good thing to do and, two, there are more people who can energize the younger lawyers. Sometimes we find that the younger lawyers think that pro bono is a dead end, that you don't want to express your interest in pro bono because somebody might think you're less committed to the legal profession. I think it's exactly the opposite. I think the young lawyer that says I really want to get involved in pro bono is the person who demonstrates the passion that was spoken about in the last presentation.

Now, we all recognize that you're not getting hired at any firm, big or small, to just do pro bono work. Law firms have to bill hours and have to get revenue in order to make it necessary. Your job is to be actively seeking out those opportunities with the things that are of interest to you. I am confident that the law firms are very interested in this and, by and large, are going to be supportive.

So I guess the bottom line is: I have great optimism for pro bono work in this environment, but the optimism is going to be based upon, the reality will be based upon, your interest, your desire and the energy that you bring when you go into practice.

THOMAS SCHOENHERR: I would imagine most of you come from law schools where there is some sort of a structure for pro bono and community service work, and that's a good thing. I really wanted to direct my comments to your law school experience.

If there are existing structures on your law school campuses, or pro bono and community service work, you can get involved, and if you don't like the structure that's there, you can help to create it. The profession starts with you, and every single member of the profession started in exactly the same spot where you are.

Certainly you are super overtaxed with the existing curriculum..., but what I would ask you and challenge you to do is...create for yourselves a minicourse. Create a minicourse for yourself, a one-semester course on what you will do on your own campus to create change, and I would encourage and hopefully direct you toward doing something in the area of pro bono. What population are you most interested in? What drives you? What are you passionate about? What cause? The environment, economic justice, whatever it is. And what do you see as something that still needs to be built right where you are, and who do you want to work with, and what do you have five hours of your time every week to devote to? And set a plan, set a 10-week plan, and do it, and I'd love to continue to talk more about it.

DAVIDA BROOK: I'm here to give the student perspective, but since everyone in this room has chosen to be a student activist, I'm going to give the student activist perspective on pro bono, and I really just want to touch on two quick things. I want to tell you one story about something that students did do, and I ask if anyone on the panel knows the punch line, please keep it to yourselves. And the second thing I want to do is I want to talk about what BBLP is doing now, almost four decades later.

Why would a law firm do pro bono? As Bill mentioned, law firms are, at their core, about making revenue, making money. Why even do it? And the story actually goes back to students. So it was just around the time of the Vietnam War, and law schools then were primarily made up of, you know, white guys, and a lot of...other white guys were going off to war, and those nice guys in law school felt pretty bad about themselves, that while everyone else was going off to like defend country and do this sort of ultimate sacrifice of public service, they were sort of sitting pretty in their law schools and, you know, pretty safe and sound from the realities of the outside world. As a result, they mobilized, and they got together, and they started doing letter-writing campaigns just as Professor Rhode talked about here in Stanford to encourage those firms that they were going to, to develop pro bono programs.

They told those firms — these are elite law students just like you, getting together, just like us, and speaking with a collective voice to say that we will only go to your firm if you actually have a pro bono program developed for us, and they were successful. This is how pro bono really got started at law firms.

Professor Rhode also mentioned, though, that just having a pro bono program's not enough. You have to have a quality pro bono program. You need to actually have a pro bono program with teeth, with the force and weight and money of the firm behind it.

Virtually every big major law firm that the people in this room are considering has a program. It comes with a glossy brochure. It's really pretty, but what does that mean? And it's a really hard question that, let's face it, we as law students don't necessarily have time to research in-depth in that like [the] three-week [on-campus interview] period when we're making decisions that impact the rest of our lives. So Matthew [Schwieger]'s done the work for you, along with the other students in the course, and he's written this fantastic chapter in the BBLP's Guide to Law Firms that really helps you pick out sort of the things about a pro bono program that distinguish it from other not-so-good pro bono programs.

LYNN MATHER: My perspective is actually one, first, of an empirical researcher who wants to find out why people do pro bono, what are the differences, what's occurring, and that is [to] try to harness research to understand pro bono and what is occurring with it. And, secondly, from that research, to try to make some generalizations, look at some ways in which what is working and what's not working. My book before this last book is on family law practice in New England, which I spent hundreds and hundreds of hours interviewing solo practitioners and small-firm lawyers in family law, and I ended up writing about the varieties of legal professionalism in practice. Legal professionalism isn't a one-size-fits-all. It is differentiated across the legal profession.

So what's the small-firm and solo practitioner view on pro bono? First of all, remember that, within the private bar in the United States, there are only 16% of practitioners who work in firms that have 100 or more lawyers. There are 48% of private lawyers who are solo practitioners. Another 20% work in firms of two to 10 lawyers each. So if you're thinking about the profession more broadly, there is this wide array of other lawyers besides the large law firms. How did they do pro bono? Well, first of all, they do more of it than in any other and, secondly, they do it differently, and that's what I want to address in these couple of minutes.

Every survey that's been done of who does pro bono and how frequently, you know, the percentage of participation in pro bono, shows that solo practitioners do more than any lawyers in other types of practice or firm sizes. Just to give an example, the latest American Bar Association survey that came out last month showed that 84% of solo or small-firm practitioners has provided free legal services to those who needed it — significantly higher than those even in large law firms, which come next. The middle-tier law firms are the lowest.

In terms of hours of participation — that is, hours contributed — actually the large law firms contribute more hours, but then they're spread out across the lawyers within that firm. So it's actually a different view of who's doing pro bono. Now, secondly, in small-firm and solo practitioners, when they do pro bono, I want to distinguish between formal pro bono and informal pro bono. I was surprised when we did our interviews with lawyers to find out that the solo practitioners initially said they took fewer pro bono cases than those in the slightly larger firms. That is, percentage-wise, statistically significant. It's like, "what's going on here?" From my interviews, that's not what was going on.

It's because they were seeing pro bono in terms of formal pro bono programs organized by local groups and bar associations. Informal pro bono is what small-firm practitioners and solo practitioners do. They take people, because the pro bono is part of what they do in practice. People come to them. They're in need. They need a lawyer, and they can't afford one, and the lawyer then says, "Oh, OK. Yeah, I will help you. You know, you're right. My God, you've got a terrible plight here." Secondly, there's a difference in the kind of pro bono that is done. Those solo practitioners and very small-firm lawyers are much more likely to actually serve individuals in need. Those are the individuals with the housing projects, the immigration, Social Security, criminal law and so forth. They have one-to-one contact with them.

I just want to conclude with sort of a plea again to think about what kind of pro bono work is actually being done with all the pro bono hours that are logged by lawyers across the country. And are those hours actually contributing in the most efficient and effective way possible to meeting the legal needs of the poor, of those without means?

ABRAMS: From the law firm point of view, we've never looked at it from the efficiency issue. We do have a separate range of community-involvement projects, which we don't count as pro bono. Those are community-involvement projects, and we serve on boards. Sometimes they get mixed together, so I'm on two legal service agency boards, and part of it is a community-involvement part, and part of it is the donation of time. One other aspect I'd like to just mention: The legal profession has a long tradition of providing services on a pro bono basis, and Davida mentioned, you know, the Vietnam War is perhaps a centerpiece, and actually the Lawyers Committee for Civil Rights was founded in the aftermath of the Martin Luther King riots in Washington, D.C., in 1968, but going way, way back, this profession has taken on causes for people who don't have a voice in the legal system, and we're very proud of that. That's something that we've done.

CUMMINGS: Could I add one footnote? I think also, just from a political point of view, it may be advantageous to think about having linkages between the public and the private sector. So it's nice that everyone who does or is interested in serving the public good and advancing social justice isn't marginalized off in nonprofit organizations that are subject to restrictions based on political whims. Also, there are some things at which firms have more flexibility to do. They have more resources, and, again, they're not subject to the same sort of constraints and legal limitations.

NOAH SMITH (student in audience): I think it's great that firms are increasing sort of their pro bono commitment or maybe making more of an effort in [an] economic downturn, but one of the side effects that I've heard of that is that it's maybe displacing people who want to become career public interest attorneys. I just was wondering if some of you could comment on that.

CHIN: I think we don't know yet, unfortunately. I think it's very early in the process. I think when a lot of these deferred-associate programs were announced, or the enhanced severance for laid-off associates was announced, there was this bizarre feeding frenzy on both sides. So on the one hand, law firms that were starting these programs were basically saying, "We want the best placements for our laid-off people. We want the best placements for our associates who we are saying 'see ya later' to." And they weren't defining what that meant, but honestly it meant the [American Civil Liberties Union] and the Lawyer's Committee. It didn't mean rural Montana. Because we operate in such a hierarchical profession, as well as relationships to their offices, so that the goal would be to, again, place people at the national ACLU office if you were a Manhattan firm and cement that relationship. What I'm hearing from the nonprofit world is really, really mixed.

SCHOENHERR: What's becoming apparent is that there's a market that's evolving, and there is more supply than demand for individual offices. So, for instance, at the public defender's office, they're anticipating hiring six or seven people, but they have many more people than that who are interested, so what they're doing is they're starting to vet the people from the different sources that they have, and they will select people based on relevant background and training.

HEATHER STEVENSON (student in audience): I know that in a lot of firms young associates technically get the same billable, get to count their pro bono hours, but we also know that relationships to clients and relationships to partners perceived as the most powerful are very important to avoiding being laid off and to ultimately making partner. So how can we change the culture of firms so that pro bono isn't just counted but actually really valued?

ABRAMS: It's firm by firm and individual by individual. There will be firms that have a stated policy of a commitment, and when you scratch below the surface, it may not really be that. It may be a lot more difficult, and there are firms that may not broadcast it and advertise it, but they really do have that commitment, and it's not always an easy thing to gauge, but that is part of the useful kind of probing you can do as you look for law firms to find out who's really doing what. Pick up the newspaper. Look at what firms are doing, and it doesn't always have to be an enormous impact case. It's often the smaller kinds of cases, the landlord/tenant cases that are out there that the firms are committed to taking on and letting the people handle those cases with good mentoring that will give you the best experience.

MATHER: Actually, first of all, not all of the firms do count the hours toward the billables, so that's one shift, and second was Bill's point of scratching beneath the surface. Practice groups really differ even within a firm in how they actually look at those pro bono hours. So I think doing some research to find that out is one of the things. But then another — actually, to pick up on Davida's point earlier in terms of collective mass protests — is how you make your views as elite law students heard in a culture like this? Well, you say, "We all believe this is really important, and this is how we are deciding where we want to go. This is one of the criteria that we're looking at." How do you value pro bono hours, and how do you really value it? And trying to get that through. It wasn't so much that the students in the late '60s felt badly that they weren't going off to war; it's that they wanted to stop the war, and they wanted social justice [to be] more important than war. So they said, "Look, we won't go to corporate firms and work for big money unless you're doing something to help the poor, to help social justice." The number of Harvard Law and Stanford Law grads that were begging to get into the public defender's office of Los Angeles was what [made] the Hogan & Hartsons of the world say, "Gosh, we're not getting these great students anymore," and that was, of course, an enormous political movement among students that made that happen. Different economic times, too, though.

RACHEL MORAN: I think it's appropriate that, as the student voice and the voice of future, you get the last word.

BROOK: If you guys and I are all willing to go to our law firms this summer and actually collect information, and not just collect it but share it, then think about how much better information we will have about [what] Bill and Lynn are talking about, whether or not this is a scratch-the-surface program or whether or not it's a real program.