Does it Really Matter?October 21, 2020
By Bob Glaves | CBF Executive Director
News Flash: Pro bono is not the complete solution to the huge gap in access to justice. That is actually not news to anyone involved in this work, but it seems a lot more people of late have been highlighting what pro bono can’t do as they make their case for other solutions, often implying in the process that pro bono is less important or less worthy of our resources and attention.
Well, that is just plain wrong. Just because pro bono is not the solution on its own does not mean it is not an integral part of the larger quest to fulfill our nation’s ideal of a fair and accessible justice system for all. Pro bono in fact has a big role to play, and it matters in many other ways as well.
What pro bono is not
Before jumping in to discussing the many ways pro bono plays a critical role in the larger solution, let’s be clear about what pro bono is not:
- Pro bono is not a substitute for adequate funding for legal aid and public defense services, which have long been grossly underfunded throughout the country. By one estimate, every lawyer in the country would need to provide 900 hours of pro bono to meet the unmet demand for legal help just for those who qualify for free legal services. Whatever the merits of that estimate, it underscores that pro bono can’t come close to filling the need for free legal services any more than doctors and nurses could close the gap in health care through volunteer work.
- Pro bono is not a substitute for regulatory reform and other measures to address the market failure that leaves most middle class and small business consumers struggling to find and connect to affordable legal services. These are people who make too much to qualify for free legal help, and our profession needs to own this issue and fix it.
- Finally, pro bono is not a substitute for the ongoing efforts to streamline and simplify the court and legal process and fully utilize modern technology. Put simply, our system is just too darn complicated for the bread and butter legal issues faced by everyday people and small businesses, and it is still way behind the times on technology. We will never be able to close the huge gap in access to legal services, through free or market-based solutions, without prioritizing court reform.
Given these realities, why do we spend so much time talking about pro bono, and why should we do it?
Helping people in need right now
Just because we cannot come close to helping everyone who needs legal help through pro bono is no reason not to help the many people who we can help and who need it right now.
The power and opportunity every lawyer has to stand with and stand up for someone in need is immense. And there are no shortage of ways lawyers can use that power and take advantage of that opportunity. We have a lot of lawyers in private practice, and we collectively can help a lot of people in need.
Truth to power
Government entities and other large institutions have tremendous power over our lives. When they overreach or when bureaucracy sets in, a lot of bad things can happen to people, especially those who are low-income or disadvantaged and are more vulnerable in these systems.
Legal aid and other public interest law organizations do great work every day to help people caught up in these systems, but those efforts are supercharged when lawyers in private practice from well-known firms and companies get involved. Pro bono lawyers can fundamentally shift power dynamics in these circumstances, particularly when the government is involved and the problem affects large numbers of people. Large firms in particular have the experience, reputation, and resources to take on these issues and command attention, and this recent immigration policy case is a great illustration.
Pursuing systemic reform
Closely related to speaking truth to power, pro bono has played a huge role in systemic reform for decades, and that work is important now more than ever. Pro bono lawyers from some of the most prominent firms have been at the forefront of major civil rights victories and policy advances in the courts and through other advocacy, working side by side with legal and public interest organizations.
The experience and substantive expertise of the public interest groups combined with the litigation and advocacy expertise and scale that major law firms bring to the table is a powerful force for good. Pro bono can and will play a key role in the overdue reckoning with racial justice issues in our country, through the new Law Firm Antiracism Alliance and other related efforts.
Helping nonprofits and social entrepreneurs
Another key way pro bono lawyers make a difference is by bringing their unique experience and expertise to help nonprofits and social entrepreneurs so they can go on to help others.
Just in the past year, the CBF has been fortunate to have pro bono assistance from several different firms on the following issues: intellectual property, employment, real estate, contract and policy issues, data privacy and security, research and drafting complex legislation, a major research project on an important regulatory issue, and a significant amicus brief in a case with larger consequences for access to justice.
There are some common threads to this pro bono assistance, starting with the fact that we did not have the expertise and/or bandwidth on staff to handle these issues and it would have cost tens of thousands of dollars that we don’t have in our budget. Most importantly, these pro bono partnerships allowed us to do more and better work in carrying out our core mission and exponentially increased our impact.
This is just one example and we are an organization led by lawyers. Imagine what it looks like for a community-based nonprofit or startup that does not start with that knowledge and experience and the impact pro bono can make for the health of those organizations and the people they serve.
Growing the base of leaders and ambassadors for the broader solutions
Beyond these many direct impacts pro bono makes on access to justice (and that was not even a full list), pro bono plays an essential role in solving the overarching challenges to access to justice noted at the outset of this article. Our profession needs to lead the way in those broader solutions to access to justice, and we won’t be able to understand the issues or be credible leaders in responding to those issues if we don’t have some experience with them ourselves. It is what the great Bryan Stevenson refers to as the power of proximity, and it could not be more important in the times we are in now.
Building a better profession
No time like the present
To sum it up, if someone tries to tell you that pro bono is the solution to filling the huge gap in access to legal services or tries to use it as an excuse for not tackling the broader challenges to making our system truly fair and accessible for all, by all means call bullsh*t on them. But if someone tries to tell you pro bono doesn’t matter or should not get the same priority, well, those there are fighting words.
There are all kinds of reasons pro bono is an integral part of the larger access to justice solution and makes such a big difference in our profession and our communities. And with this year’s Pro Bono Week almost upon us, now is a great time to get involved or get more involved. There are opportunities throughout the year for lawyers to make a difference as well, and the CBF is always here to help you find the best fit for your skills and interests. We all have a role to play, and it is no cliché to say it is more important than ever.