Pro Bono Myths and Realities: The Role of Government

By Bob Glaves | CBF Executive Director

As important as pro bono is to the larger efforts to ensure equal access to justice, the idea that it somehow could be a replacement for adequate funding for legal aid and other critical public service legal functions is terribly misguided. While pro bono indeed does play an integral role in the larger access to justice landscape, it is just one part of the larger solution.

Equal access to justice is one of our foremost principles as a nation, reflected in the fact that our founding fathers chose to establish justice at the start of the Constitution, and in the Pledge of Allegiance’s familiar refrain of liberty and justice for all. The promise of justice for all is an empty one without access to necessary legal assistance, and the laws our governments pass are meaningless if they are not applied equally. Access to quality legal assistance is absolutely essential to ensure that everyone receives the equal protections of our nation’s laws.

Given the fundamental importance of legal assistance to our core values as a country, the idea that we would depend on volunteers as the primary means to deliver it for those who have limited means is ludicrous. If that were posed as a solution to meet other core needs like the national defense, public safety or medical care, it would never be taken seriously. It should have no more merit in this context. Ensuring the justice system is fair and accessible for everyone requires the appropriate public investment in legal aid and public service lawyers. Pro bono is an important supplement to that investment, not a replacement for it.

One Part of the Broader Solution

We first need to recognize that the volume of people who need legal help and cannot afford it requires significant investment in full-time advocates to represent them.

In addition, all people including those who are low-income or disadvantaged have legal needs of varying types, ranging from relatively simple and straightforward matters to highly complex and difficult issues. Just as is true in medical care, some of those needs can be met by practitioners with general knowledge and experience, while others require specialized expertise. And just as we wouldn’t want a volunteer podiatrist doing open heart surgery on someone who couldn’t afford to pay a specialist, we need to recognize the limits of pro bono for complex legal matters that require more specialized experience and expertise that is not typically found in the private bar. Whether we are talking about criminal or civil matters, there is no substitute for properly investing in career legal aid and public service lawyers who can develop the necessary expertise for more specialized matters impacting low-income and disadvantaged people in our community.

Finally, even for the many legal areas where pro bono can be an effective part of the solution, it still requires funding to be effective. As Mark Marquardt, the Executive Director for the Lawyers Trust Fund of Illinois aptly puts it, pro bono is cheap but it’s not free. Pro bono lawyers need good legal aid and public service organizations as partners to provide the necessary infrastructure to support their pro bono work. As noted in my prior post in this week’s series, that includes proper investment in professional staff and appropriate support for their work.

How Government Can Support Pro Bono

Along with providing the necessary financial support for pro bono and legal aid organizations, government can encourage organizations receiving that funding to incorporate pro bono into their work as much as practicable in their particular community. What that looks like will vary quite a bit by locale depending on the legal community and other players in that area, and it is important to recognize that blunt, one-size-fits-all instruments aren’t appropriate in this context.

The old political adage of asking how it will play in Peoria doesn’t work in the pro bono context. What plays well in Peoria for pro bono may not work well at all in Chicago or Carbondale (to use some Illinois examples), and we always should be careful to account for the local environment in designing standards to encourage pro bono. What is fair to expect is that any pro bono and legal aid organization receiving funding should be looking at how it can incorporate pro bono as part of its larger strategic plan.

Read more in the Pro Bono Myths and Realities series

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