Pro Bono Myths and Realities: Lawyers, Law Firms and Corporate Legal DepartmentsOctober 27, 2015
By Bob Glaves | CBF Executive Director
Any discussion about pro bono should start with lawyers, law firms and corporate legal departments because of the special responsibility our profession holds towards this cause as trustees of the justice system. Fulfilling our special responsibility requires contributions of time and money as well as a strategic use of the influence lawyers, firms and companies have in our community. Pro bono clearly is an integral part of that no matter how much we may be doing on other charitable and community service fronts. It also is just one part of a larger, integrated solution to ensuring equal access to justice.
Not Like Other Community Service
While lawyers and law firms support and participate in a wide range of charitable community service initiatives, as a profession we have a special responsibility to ensure that the justice system is fair and accessible to everyone regardless of their income or circumstances. As lawyers, we have been given a special privilege, effectively having been handed the keys to the justice system. With that privilege comes a special responsibility to use our training and skills to help ensure that people who can’t afford our services have access to the justice system. In Illinois, that responsibility is underscored in the Preamble to the Illinois Rules of Professional Conduct, in the questions about pro bono and related giving in our annual attorney registration statements, and in the CBA’s standing Pro Bono Resolution.
That responsibility extends not only to individual lawyers, but to law firms and corporate legal departments (who in effect take on the responsibilities of firms by bringing that function in-house). As the Preamble to the Illinois Rules of Professional Conduct underscores, [i]t is the responsibility of those who manage law firms to create an environment that is hospitable to the rendering of a reasonable amount of uncompensated service by lawyers practicing in that firm.
Looking at Pro Bono Through the Proper Lens
While our special responsibility for pro bono is clear, the next key is making sure we are looking at it through the proper lens. Lawyers can make an impact through pro bono service both by providing legal help directly to people in need and to the nonprofit organizations that serve them, as well as through training and providing legal representation on larger policy issues that impact disadvantaged communities (e.g., civil rights and civil liberties).
There are three essential prisms that lawyers, firms and law departments should use to determine the type of pro bono work they will undertake: comparative advantage, those areas where the lawyer or firm is particularly well positioned to efficiently provide compared to others who might provide those services; proximity, which the great Bryan Stevenson notes is the importance of getting closer to the problems that low-income and disadvantaged people experience in the justice system; and opportunity, which reflects the many benefits that come from doing pro bono work.
Comparative advantage essentially focuses on those areas where the lawyer or firm has relevant experience and expertise that can easily be translated to pro bono work that connects to a real need in the community. That may be volunteering to help a low-income client in one of the lawyer’s core practice areas, or a firm or corporate legal department providing an array of support for nonprofit organizations serving people in need (e.g., corporate, real estate, dispute resolution, IP, etc.), or a large firm taking on major civil rights litigation using the full array of resources they uniquely possess to help their paying clients facing complex litigation.
Firms sometimes are unjustly criticized that these latter examples of pro bono are somehow less worthy than pro bono for bread and butter matters impacting low-income people. So long as the proximity prism is also utilized and helping low-income and disadvantaged clients is a meaningful part of the firm’s pro bono program as well, that criticism is misguided and fails to recognize the very significant impact firms make through these other types of pro bono work.
Proximity is the second key prism to consider pro bono. Unless your practice is one where you are regularly working with low-income and disadvantaged clients (e.g., criminal, consumer), in which case the comparative advantage prism already will guide you towards that work, proximity is a critical consideration. Many of us find ourselves in day to day practices far removed from where regular people are experiencing the justice system, and we can’t realistically fulfill our responsibilities as trustees of the justice system if we don’t ever experience it from this vantage point. So long as you have the requisite experience/expertise to be able to get up to speed relatively quickly in the practice area involved which with some training and support is generally true for just about all but the most specialized areas of law you can make a big difference for your client. And even in a properly funded legal aid system, which we are far away from today, there will always be vulnerable people who slip through the proverbial cracks and need the legal help only lawyers can provide.
The third key prism to consider pro bono through is opportunity. Aside from it being our responsibility, pro bono offers tremendous opportunities for us to be happier, better, and more productive lawyers, firms and legal departments. The most successful lawyers regularly point to pro bono cases as the most satisfying experiences in their careers, and that is no accident. Most of us went to law school with the idea of making a positive difference in the world, and pro bono offers us a concrete way to do that.
There are many other benefits as well. Anyone with a practice that involves having to make their cases to juries and other regular people can learn a lot about humility and connecting to people by representing vulnerable people in our legal system. Transactional lawyers can gain invaluable experience navigating complex regulatory thickets by helping a low-income family navigate often byzantine public benefits systems. And for firms and legal departments, it is widely recognized today that having a good pro bono program is good business for the firm and an essential part of the firm’s long-term success. A firm or legal department’s pro bono program generates important benefits in recruiting, training and retaining the best and brightest young lawyers, and can yield significant marketing and public relations benefits as well.
Looking at Pro Bono in Its Proper Context
The last key point for lawyers, firms and law departments is to look at pro bono in the proper context. Pro bono does not exist in a vacuum, and while it is one a key part of the larger strategy necessary to fulfill our nation’s promise of equal access to justice, by itself it’s no panacea.
First, pro bono does not exist in a vacuum for a lawyer, law firm or legal department. While there are some occasions where a client in need connects directly with a lawyer who specializes in that area of law and provides pro bono service with no outside support, that is more the exception to the rule today, particularly in larger cities like Chicago. Lawyers and firms need good partner organizations in order to ensure effective pro bono programs, and investing in their work by providing the lawyer or firm’s financial backing and other support is a necessary complement to pro bono. Legal aid organizations provide the necessary infrastructure to support pro bono work for lawyers and law firms (i.e., pro bono programs with solid screening, referral, training and support functions for volunteers). Legal aid programs also provide critical legal assistance to the most vulnerable members of our community in matters where pro bono is not a practical solution.
A corollary to this first point is for lawyers and firms to understand that pro bono rarely works on demand. As appreciative as organizations are to have pro bono volunteers, it takes preparation and work to match real community needs with often unpredictable volunteer capacity, and it is a constant chicken and egg process. In addition, lawyers and firms often have very specific interests in pro bono that don’t easily match up with actual needs in the community. Being understanding and flexible is critical.
Second, as noted at the outset pro bono is just one part of a larger, integrated solution to ensuring equal access to justice. As I’ll talk more about later this week in discussing the role of government and the courts, justice for all is one of our country’s most fundamental principles and pro bono never can be the primary means of carrying that out. Wherever we are in the legal community, as lawyers, firms and law departments we need to understand and embrace that our professional responsibility requires us to contribute our time, our money and our influence to advance this common cause of our profession. Some of us have more time to give than money, while for others the opposite is true. All of us have important influence in our networks, in the justice system, and in the policymaking process. The CBF’s new Justice Pledge reflects this comprehensive nature of our responsibility as trustees of the justice system.
Every day that goes by when people in our community can’t count on the justice system being fair and accessible, we lose a key part of who we are as a profession and as a country. By accepting our responsibility to take the lead in this common cause of our profession, looking at pro bono through the proper lens, and looking at pro bono in the proper context, we all can make a real difference.
Part 1 Pro Bono: Myths, Realities, and Its Proper Role in Access to Justice
Part 2 Lawyers, Law Firms and Corporate Legal Departments
Part 3 Legal Aid Organizations
Part 4 The Role of Government
Part 5 The Role of the Courts
Part 6 Bar Associations, Foundations, Access to Justice Commissions, and Other Systemic Players
Part 7 Final Thoughts