Pro Bono

-- By SkylarPolansky - 15 Feb 2012

Introduction

During my 2-year experience working at a firm pro bono was both the area of law with which I was most disgusted, and the area of law the firm increasingly touted as its saving grace. Pro bono cases were consistently referenced as the only times an attorney felt they’d done well, yet pro bono work was spoken of as though it were a side dish to the main course of insurance amalgamations and antitrust defense. Below is an exploration of the meaning of pro bono to a law firm, and a potential solution to fix this part of the law.

Problem

It is part of every lawyer's obligation to serve the public without fee some of the time. This concept is commonly known as pro bono. But the pro bono system as currently practiced, is neither fee-less nor functions to serve the public to the extent it should. Arguably, it best serves the needs of those who are least in need - the biggest private firms who in fact make money off this concept. Firms keep track of pro bono work via hours. Partners – whose time is most valuable monetarily – pass off their pro bono hour obligations to associates who bill out at lower hourly rates. This allows firms to make good on their pro bono obligations in a cost effective way. Additionally it gives firms an easy way to keep public count of their mitzvahs, which they use as marketing material to improve their reputation. Reducing pro bono to billable hours also robs attorneys of the full emotional benefit of doing work for the public good, thus ensuring they will not jump ship to board a non-profit lifeboat. Firms don’t want attorneys to fully feel the effect of helping a fellow human in need so they define pro bono not by its elements – the people helped, the emotions felt – but by reductive, numerical processes that devalue the potential benefit of pro bono.

Maybe I'm misunderstanding, but in what sense is pro bono fee-less, at least with regard to the client? Do pro bono clients have to pay the law firm for the law firm's services? To me this seems counter to the definition of pro bono. Also, do you really think that the reason big firm lawyers don't jump ship to non-profits is because they have been robbed of the full emotional benefit of doing good for the public? I guess my question is, do you think that if they could feel the full emotional benefit, they would find the emotional gain so overwhelming that they would disregard the financial considerations that motivated them to start working at the big firm at the start?

Solution

For two years post-law school, every law student will be required to do exclusively pro bono work, or law students will be required to spend the entirety of their 3L year exclusively doing public interest clinics and their first year out of school doing exclusively pro bono work. Post-grads can either work for the government, non-profit institutions, or large firms (with the understanding they will work exclusively on pro bono cases for the first two years). Large firms can have independent pro bono departments run by attorneys hired to train and oversee the first and second year associates handling the cases.

This system would provide a service to the larger community, it would allow recently graduated law students to get "real world" experience in various specialities while abolishing the ridiculous notion that the only way law students can receive training necessary to being a lawyer is while doing corporate work, and it would guarantee all lawyers get to experience the full emotional wonderfulness one gets from helping someone in need.

I think it might be worthwhile to spend some time thinking about what you mean when you refer to the emotional gain of helping someone in need. Is it a feeling of joy? My first instinct would be that many post-law school grads, if forced to work two years in pro bono, would still not experience the full emotional joy because they would be too preoccupied with the fact that they have to take a pay cut (in the face of the impending loan crisis) in order to satisfy a two year pro bono requirement. I guess my question is, do you think forcing people to do pro bono work is the solution for people not being able to fully appreciate pro bono work because of the way law firms monetize the concept?

Who will fund such a public works project? Salaries at firms will be capped for post-grad law students during their first two years in the workforce, with the money firms would be spending on new associate salaries going instead to supplement the salaries of employees at non-profit institutions (firms could claim the tax write-off). Firms who do not comply and instead continue the current method of pro bono practice will be responsible for a tax or contribution (based on pro bono services rendered) and/or law schools who do not comply will be required to submit a portion of excess tuition to a subsidy fund which will be distributed in the form of loan forgiveness to attorneys working in public interest programs.

The system can model that of medical residency programs. Some might claim society has an interest in funding medical training and promoting doctor education, which is non-existent for the law. I believe an analogous argument can be made for lawyers if law schools and law firms re-focus the emphasis on the duty lawyers owe to the public and the good that can be reaped. One reason people don’t focus on the good lawyers do is because lawyers themselves are forced not to focus on this part of their work. If lawyers were encouraged to feel the full depth and benefit of their pro bono work, perhaps some focus would shift towards the public responsibility lawyers have and the vested interest society has in training these lawyers.

Conclusion

Too many times at Skadden I listened to associates speak listlessly of illusions they had of doing good with their license. Too many times throughout this first year of law school I listened to classmates who came to school with the intention of helping people now say “I’ll work at a firm and do pro bono work.” Big firm pro bono work will not satisfy their urge to help, but rather quash whatever vision they had of pro bono and replace it with feelings of guilt, emptiness and a split unconscious.

As currently practiced pro bono is a misnomer. It is not for the good of the people; it is for the reputation of the firm and the mollification of the collective conscious of the attorneys doing the work. But the mollification doesn’t work and the public image of firms is broken. “All concepts that cannot be defined in terms of the elements of actual experience are meaningless." (Cohen, 826). Instead of the parade of hours by which pro bono is currently measured, it would be better, more functional, to redesign pro bono so that it places more emphasis on the duty lawyers owe the public, the good lawyers are able to do and the emotional experience obtained from doing that good. Conscripting law students takes them beyond the Ayn Rand self interest they learned in high school, and teaches them (and potentially instills an interest in) the obligation to society inherent in their license.

I think there are actually two issues in play here - one is the experience of lawyers in big firms, and the other is the public need for lawyers. They are obviously connected (if lawyers were able to "satisfy their urge" to help more, then more people would be helped), but I think it is important to distinguish the two concepts and decide which one you think is the more important issue, because I think isolating the problem is the first step in finding an adequate solution. For example, I think the solution you propose might be better at getting more help out there for the public, but not be as effective in eliminating listlessness in Skadden associates produced from a lack of a meaningful experience doing pro bono work.

Professor Moglen - As I see it the main flaw in this paper is the lack of personal story, coupled with too much emphasis on a solution which is only discussed on a surface level. If you agree then I could modify the paper accordingly, by starting with the personal story that sparked this thought process for me, and wrapping up with a brief discussion of my proposed solution. I left this draft here so as to address what I believed were the main points of your previous critique: I needed to point out more interesting things about what is wrong with pro bono, offer a more detailed solution, and address potential counterarguments.

You might find a personal story by more thoroughly diving in to your experiences pre-law school with lawyers who were dissatisfied with their pro bono experience, and try to flesh out more vividly what bothered you about what you saw. In any case, I very much liked this paper; I thought it touched on an important point that needs addressing. - Prashant