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Has Pro Bono Become Recession-Proof?

Thursday, July 02, 2009

by David Bario,
The American Lawyer, July 2, 2009

During a downturn, pro bono work typically declines. But this time, that hasn't happened yet.

A year ago, Lehman Brothers appeared solvent, Bernard Madoff was a trusted name and the global economic crisis was still called a downturn. Even then, pro bono advocates worried that altruism would be a casualty of hard times at the country's top law firms.

Judging by firms' performance last year, those fears may have been unfounded. As a group, the nation's 200 highest-grossing firms devoted more hours to pro bono than ever. Nearly half of Am Law 200 lawyers committed 20 hours or more to pro bono last year, and on average, lawyers spent more than 60 hours on pro bono matters.

In the past, both recessions (such as the one in the early '90s) and periods of intense economic growth (such as the dot-com boom in the late '90s) have caused firms to cut back on pro bono. But the explosion in this type of legal work since 2004 has shown little sign of letting up. Pro bono may not transcend firm economics, but it's been able to resist the most recent boom-and-bust cycle. Why?

Pro bono specialists at firms, nonprofits and academia point to several factors. The institutionalization of pro bono at both firms and nonprofits has continued, spurred in part by the Pro Bono Institute's Law Firm Pro Bono Challenge and by our A-List rankings [see "A-List Rankings Show Power Shift Among Top Law Firms"]. A younger generation of lawyers at top firms expect pro bono work to be a central part of their careers. And the cataclysms of 9/11 and Katrina and upheavals over Guantanamo and the environment brought new lawyers into the pro bono ranks....By 2008, the average pro bono contribution by Am Law 100 lawyers had risen 87 percent, to 71.8. Lawyers at Second Hundred firms increased their average contributions from 29 hours in 1998 to 33.2 in 2008.

The boom that sent firm revenues and profits skyrocketing in the 1990s forced pro bono into retreat. The average amount of time that lawyers at Am Law 100 firms spent on pro bono work declined by 13 percent between 1995 and 2000, from 44.1 hours per lawyer to 38.4. (i>The American Lawyer did not begin tracking per-lawyer pro bono averages at Second Hundred firms until 1998.) "It was such a go-go period that you couldn't wring out excess capacity for pro bono," says Esther Lardent, president of the

Pro bono faced new challenges after the Internet bubble burst. The arrival of $160,000 associate salaries and the financial impact of 9/11 forced firms to hunker down, and the amount of time that Am Law 200 firms devoted to pro bono increased only slightly. Says Lardent: "Both upturns and downturns can be somewhat difficult times for pro bono."

Or at least they used to be. After enjoying double-digit or near-double-digit growth through 2007, in 2008 Am Law 100 firms recorded their worst financial performance since the first Bush presidency. Second Hundred firms suffered as well. Yet the commitment to pro bono has increased substantially in the past five years.

"The difference now is that firms understand the institutional importance of a healthy pro bono program," says Kimball Anderson, who founded Winston & Strawn's pro bono committee in 1977 and has chaired it ever since. Anderson says that the creation of the A-List in 2003 helped drive the change, since that designation had marketing and recruiting value. "Some might say [The American Lawyer's] profit and revenue rankings have had a pernicious effect on the profession," says Anderson. "In the pro bono area, the rankings' effects have all been good." (A firm's pro bono performance counts for one-third of its A-List score.)

During the recession of 1990-91, Anderson says his firm saw pro bono as incompatible with an urgent need to increase billables. Now firms are more likely to see pro bono work as a way to take up slack when billables are down, says Anderson, who expects pro bono numbers at Winston & Strawn will be "way up" in 2009. Last fall, the outgoing executive partner at Skadden, Arps, Slate, Meagher & Flom encouraged lawyers in the firm's New York office to take on pro bono projects if their practices slowed down. "Our monthly rates of increase in pro bono hours were already significant before that, but they've grown even bigger since," says Ronald Tabak, Skadden's special counsel for pro bono.

The institutionalization of pro bono, a process that began decades ago with the creation of committees like Anderson's at Winston & Strawn, has progressed to the point that it's almost unremarkable. Many Am Law 200 firms now have a full-time staff running their pro bono infrastructure or partners whose only responsibility is to the firm's pro bono program. "It used to be that firms would respond serendipitously to whoever knocked on their door," says Robert Juceam, another early pro bono pioneer who has practiced at Fried, Frank, Harris, Shriver & Jacobson since 1966. "Now they look at what's needed and seek that work out."

Juceam and others say that a symbiosis has developed between law firms and the nonprofits that refer and coordinate pro bono work. As executive director of Human Rights First, Elisa Massimino has worked with pro bono attorneys from dozens of Am Law 200 firms, particularly on asylum cases. She says better infrastructure has made working with firms much easier over the past six or seven years. "There's better organization on both sides of the relationship, and that makes pro bono a more productive enterprise," she says.

Firms - -and a younger generation of lawyers -- have also become more ambitious in the types of projects they consider, says Miriam Buhl, pro bono coordinator at Weil, Gotshal & Manges. When Buhl first met with Weil's pro bono committee members five years ago and asked if they wanted to concentrate on a single area, they said no: "They said, 'We want to make new law.'" Betsy Cavendish, executive director of Appleseed, has seen the evolution on the nonprofit side as well. "As the law firms have gotten larger and more sophisticated, we're learning how to take advantage of those resources and find the best ways to use that talent at a significant level," she says.

With the machinery and the appetite firmly in place, the past eight years have provided plenty of grist. Mitchell Bernard, litigation director for the Natural Resources Defense Council, says his organization filed 71 cases in the final two years of the Bush administration, many of them drawing on pro bono lawyers (Bernard estimates that close to a dozen firms commit pro bono time to NRDC each year). At Akin Gump Strauss Hauer & Feld, pro bono partner Steven Schulman says he saw a similar increase in pro bono work on asylum cases.

Whether the issue was Guantanamo, asylum, the environment or privacy, firms found ways to get in on the action. Says Juceam: "Every time there is public outrage, there is a pro bono aspect -- if not in the courtroom, then in a policy matter. In the last eight years, there has been a lot of outrage." Whether outrage translated into more hours may be open for debate, but it's clear that the zeitgeist of the Bush era energized much of the pro bono bar. Janet Reno promoted pro bono through U.S. Department of Justice initiatives; her immediate successors were targets of pro bono litigation.

For years, Bingham McCutchen associate Jason Pinney has been pro bono counsel for a Boston nonprofit that mentors and coaches city kids through a lacrosse league; he devotes a few hours a year to the organization. But since 2005, Pinney has also represented a group of Uighur inmates at Guantanamo whose cases became central to the legal battle over the prison. He's already logged more than 2,100 hours on the project. Pinney, now a sixth-year associate, says the experience changed his view of pro bono, making it a more fundamental part of his career. "If it had just been me and MetroLacrosse, I might not have that perspective," he says.

According to pro bono advocates, the lesson isn't that lawyers were engaged in a war on the Bush administration. Sometimes firms showed great reluctance to take on the administration, especially when it came to representing terror suspects immediately after 9/11. The point is that lawyers who had the opportunity to tackle significant pro bono matters -- and the legal battles of the past eight years have certainly been significant -- are likely to stay engaged with pro bono throughout their careers.

Vincent Warren, who helped oversee the efforts of more than 500 pro bono lawyers for Guantanamo detainees as executive director of the Center for Constitutional Rights, says Pinney's experience is typical. "These cases profoundly changed the lives of the lawyers who were involved," he says. In a similar fashion, lawyers who aided victims of 9/11 and Katrina have tended to remain involved in pro bono work, says Patricia Brannan, pro bono partner at Hogan & Hartson. "People really keep going back," she says.

Depending on how bad things get, the spiraling economy could still undermine pro bono's gains. No amount of infrastructure can save pro bono programs at failing firms. Former Thacher Proffitt & Wood pro bono Chairman Walter Van Dorn Jr. says that as the firm collapsed in 2008, its lawyers were working on their resumes, not pro bono projects. While some firms may be able to move associates to pro bono work when billable hours are scarce, many will continue to have no choice but to lay them off instead.

The shift in power in Washington, D.C., presents new challenges too. "Obama and Bush are demonstratively very different, and some people are adopting a wait-and-see attitude in terms of how the needs may have changed," Warren says.

For others, particularly on the right, the advent of the Obama era may signal a pro bono renaissance. "When people think a president supports their values, they have a tendency to take a seat on the sidelines," says Glen Lavy, senior counsel at the Alliance Defense Fund, a nonprofit that promotes conservative Christian causes. Last month the group held its annual litigation academy, a free week of training in exchange for a commitment from participating lawyers to devote 450 pro bono hours to one of its causes. Usually the course doesn't fill up until nearly summer. This year, Lavy says, all 100 seats were booked by February.


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