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Five myths about pro bono

Friday, February 10, 2012

  • Esther F. Lardent
  • The National Law Journal

Esther LardentAs a stereotypical inside-the-Beltway political junkie, one of my favorite media features — especially in election years — is The Washington Post's "five myths" column. The columns are timely ("Five myths about the Iowa Caucuses" being a recent entry) and quirky, as in the "Five myths about Margaret Thatcher" piece that arrived just in time for the release of the Thatcher film The Iron Lady. What I like best about the feature, other than the opportunity to be informed, is its approach as signaled by the tagline "challenging everything you think you know."

As 2012 gets under way, and the number of inquiries we at the Pro Bono Institute receive from firms, legal departments and the media spikes after a somewhat quieter holiday season, the questions we are getting — and the assumptions underlying them — have inspired me to write this piece. We could even take a page from the Post and subtitle it "challenging everything everyone thinks they know about pro bono." At the Pro Bono Institute, we are committed to a data- and evidence-based approach to expanding and improving pro bono service, and so, with a tip of the hat to The Washington Post, the following are the most common myths we've heard recently about law firm and corporate pro bono.

Myth No. 1: Law firms only want "sexy" pro bono matters. This is perhaps the most frequently repeated piece of misinformation about the pro bono services undertaken by large law firms. The definition of "sexy" pro bono varies — representing Guantánamo Bay, Cuba, prisoners or death row inmates; counseling starving artists; undertaking matters that address the great policy issues of the day such as challenges to Arizona's immigration laws or the Defense of Marriage Act — but the premise is the same: Large law firms are unwilling or unable to handle traditional legal services matters, i.e., civil legal cases for low-income individuals or families.

There are two problems with this myth. First, the data indicate that just the opposite is true. Annual statistical reports from the many large law firms that are signatories to the Pro Bono Institute's Law Firm Pro Bono Challenge indicate that at most large firms a substantial percentage of the pro bono work undertaken by the firm's lawyers is, in fact, composed of individual legal aid-type matters in the areas of landlord/tenant, consumer, family law, public benefits, wills and the like. In 2010, the amount of pro bono service provided in these types of matters increased, despite the overall downturn in pro bono.

It is true that a number of firm lawyers do not handle divorces, but other family matters, including adoption, domestic violence and guardianship are part of the pro bono docket at many firms. This broadened participation of firms and their lawyers in pro bono work for individuals is due, in part, to firms' commitment to an important, but often overlooked, element of the Pro Bono Challenge principles — that a majority of the pro bono time contributed by each firm should consist of the delivery of legal services on a pro bono basis to persons of limited means or to charitable, religious, civic, community, governmental and educational organizations whose primary purpose is to serve persons of limited means.

Why, then, the misperception? In great part, it is because it is typically the "sexy" cases that are highlighted in the media, offering a somewhat skewed view of law firm pro bono. The second problem with the myth, however, is the idea that complex, time-consuming and often controversial pro bono matters — and only those types of matters — are inherently sexy. Post-conviction death penalty appeals are emotionally and psychologically exhausting, and, for years, virtually all law firms shied away from Guantánamo cases because of concerns about a public backlash. Broad involvement occurred only after key leaders of the legal profession embraced and recognized the value of these draining and time-consuming matters. What makes pro bono matters attractive — to firms or individual lawyers — is education and passion. Making the case for the need for representation, and finding, for every lawyer, the type of matters that capture the imagination and address the passion for justice can be done for all kinds of pro bono legal work. Every area of pro bono work is potentially "sexy" for someone.

Myth No. 2: Pro bono at large firms is dropping precipitously. Pro bono at large law firms is not in free fall. Yes, the amount of pro bono work undertaken by major law firms dropped more than 8 percent in 2010 — certainly cause for concern. However, it is important to look at that decline in context. Longitudinal studies conducted by the Pro Bono Institute reveal two important points. First, pro bono hours at firms typically decline somewhat in the "recovery" year after an economic downturn. That has routinely been the case even in recessions that were far less severe and widespread than the recent global economic crisis. Second, 2010 pro bono hours were still, even with the reduction, the third-highest hours logged in the past 15 years.

We simply do not know yet — particularly since we have not yet begun to analyze the law firm pro bono data for 2011 — whether this is another in a series of cyclic results for pro bono in response to the overall and legal economy or whether the recent changes in law firm practice have resulted in a less pro bono-friendly environment. What we do know is that when law firms make profound changes to their operations, policies and practices, pro bono must also transform to accommodate those changes.

At the Pro Bono Institute, we are seeing a continuing institutional commitment by firms to pro bono and an undiminished investment in time, talent and resources to support pro bono work. We are also seeing thoughtful and resourceful changes to law firm pro bono practices, dockets and projects that will enhance and strengthen pro bono in this new legal environment. Why then the myth? In great part, it stems from commentators (myself included) who have conflated the growing desperate crisis in legal services and access to justice with the need for more pro bono work. The truth is that, although the situation with respect to legal aid and the courts is at its all-time worst, pro bono, at least at major law firms, is sustaining surprisingly well. But, given the times, it needs to do much, much better.

Myth No. 3: In-house pro bono is a passing fad. We hear a great deal of skepticism about the growing interest and participation of in-house corporate legal departments in pro bono service, both within the profession and from journalists who often view this development as nothing more than a cynical public relations ploy in response to the growing public disenchantment with big business. The available data regarding this myth is sketchier; we're still in the early stages of tracking legal departments' pro bono service. However, through the work of Corporate Pro Bono, a partnership project of the Pro Bono Institute and the Association of Corporate Counsel, we do know that literally hundreds of legal departments have put formal pro bono programs in place over the past decade.

The amazing trajectory of in-house pro bono, at least as measured by the number of legal departments with whom Corporate Pro Bono is working to establish or expand a pro bono program, shows no sign of diminishing. Even more notably, the growing importance of corporate social responsibility at corporations and the continuing trend of law firm partners — often from firms with very strong pro bono cultures — moving into leadership at legal departments supports the vision of a future with better, stronger and more mature in-house pro bono.

Myth No. 4: Pro bono can supplant legal aid. This is perhaps the most pernicious of the myths about pro bono — the notion that pro bono service can and should make up for the deep reductions in congressional funding, Interest on Lawyers' Trust Accounts (IOLTA) revenues, state and local contributions and foundation grants that continue to plague legal services and public interest programs. The ABA Journal reported last year, for example, that "U.S. Rep. Frank Wolf has a suggestion to make up for proposed Republican budget cuts of $70 million for the Legal Services Corp. Private lawyers could do additional pro bono work, the Republican congressman said at a House budget hearing."

Other political leaders have echoed the same implausible suggestion. The reality is that, although pro bono is a model public/private partnership that can leverage large contributions of donated service and expertise, it simply cannot function effectively in the absence of fully funded programs that specialize in legal services to the poor and disadvantaged. And the idea that access to justice — the goal and value at the heart of our democracy — should be not a public function, but instead essentially reliant on charity has been repeatedly tried and failed.

The reality is that pro bono can, at best, supplement but never supplant legal aid and legal services. Without a robust legal services network that pro bono lawyers can rely on for referrals, expertise and assistance, pro bono will surely diminish and wither.

• Myth No. 5: It's all about the hours. Rankings and reports about pro bono performance (including those of the Pro Bono Institute) have focused on hours and percentages of pro bono time contributed. That metric is certainly relevant, but it is inadequate. Particularly in light of the current crisis in access to justice, it is no longer enough to simply contribute time to pro bono service. It is essential that the pro bono work undertaken address critical legal needs, that it be done in the most efficient and effective manner possible, that it provide the greatest benefit for the greatest number, and that it provide the best possible, most sustained solutions to the problems faced by pro bono clients.

That is why the Pro Bono Institute has embarked on a difficult but vitally important project — to give the law firms and in-house legal departments the tools and capacity to carefully assess the pro bono work they have undertaken, and, using that information as a starting point, to work to improve the quality, impact and effectiveness of their pro bono work. At a time when pro bono is so desperately needed, we must ensure that every pro bono hour and each pro bono engagement produces the greatest value possible for the client and for our system of justice.

In order to remain relevant, vibrant and effective, pro bono cannot be static. In determining what is working and what needs to change, however, it is essential that we do so on the basis of fact and empirical evidence, not ill-conceived myths.

Esther F. Lardent is president and chief executive officer of the Pro Bono Institute in Washington.








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