I. Introduction
In a survey by the American Bar
Association (“ABA”), an overwhelming majority of lawyers asserted that
legal professionals should do pro bono work. [1] Indeed, the Supreme
Court’s majority stated in a 1989 decision that “in a time when the
need for legal services among the poor is growing and public funding
for such services has not kept pace, lawyers’ ethical obligation to
volunteer their time and skills pro bono publico is manifest.” [2]
Though 93% of attorneys polled by the ABA agreed with this statement,
only 66% of these attorneys backed belief with action to do pro bono
work, averaging 39 hours a year per attorney. [3]
In this day and age, almost every major corporate law firms has a
large pro bono program. [4] These programs are publicized in news
releases and in large, splashy sections of their web sites. [5] But
is this pro bono policy a central firm policy or mere self-promotion,
and what place does it have in today’s modern corporate practice?
II. The Debate
The age old debate has persisted through generations of lawyers [6]
– is pro bono work mandated by the practice and profession of law?
Some assert that it is not an attorney’s professional obligation to
help ensure equal access to justice; that this is a role of society at
large. [7] These critics of pro bono as a lawyer’s duty make arguments
about personal liberty, choice, and interference with billable hours as
reasons to avoid pro bono. [8] After all, “Those projects don’t pay
the bills,” [9] and these critics state that lawyers should devote
their time solely to paying clients as part of their undertaking to
advocate. [10] Proponents of pro bono assert that lawyers have a
monopolistic control of access to the legal system. [11] Because of
the complexity and permanency of adjudicated rights, attorneys are
ethically bound to ensure that no matter the class of the individual,
the same access to justice is granted to all. [12]
No matter what side one comes down on, one undisputed fact is the
need for pro bono services in today’s American society. Recent ABA
studies illustrate that more than 80% of legal problems experienced by
individuals in low-income households are not resolved or handled by the
assistance of counsel. [13] Legal assistance in both civil and
administrative matters is still a “luxury available only to a small
segment of society.” [14] At best, there is one public interest legal
aid attorney per every 6,861 low-income individuals; in comparison, the
general population has a ratio of one attorney per 525 individuals. [15]
In the end, the debate over the ethical obligation to provide pro
bono is superfluous. In the 1970 ABA Code of Professional
Responsibility, lawyers were called upon to render “free legal services
to those unable to pay reasonable fees,” and it was considered an
“obligation of each lawyer” to do so. [16] In short, it is within the
profession’s self defined duties and regulations to contribute pro bono
work. Today’s ABA rules establish a benchmark amount of “at least 50
hours of pro bono public legal services per year” for each member
attorney. [17] It is true that such a public service requirement may
reduce lawyer fees, so do other rules of professional responsibility –
such as continuing education, competence and due diligence. [18] Most
states have also adopted some form of this rule in their own version of
state ethical rules. [19]
III. Current Status
Currently there is sparse data about how much pro bono work is
actually being performed, and states are beginning to make efforts to
determine exactly how much through voluntary or mandatory reporting.
[20] However, data demonstrates that almost 40 percent of attorneys in
top American law firms donated at least 20 hours of pro bono services
last year. [21] Earlier this year, a total of 150 large law firms are
signatories to the Pro Bono Institute’s Law Firm Pro Bono Project’s
Corporate Pro Bono Challenge. [22] This is a simplistic and voluntary
statement of a commitment to pro bono service by that firm’s lawyers,
legal departments, and staff. [23]
Lawyers from big firms going into in-house practice at large
corporations missed the pro bono opportunities at their new careers.
[24] Some lawyers making this jump view pro bono work as an essential
ingredient to career satisfaction and urge their companies to become
more involved in such work. [25] This trend launched the Corporate Pro
Bono initiative by the Association of Corporate Counsel, with 50
companies already signing onto the pro bono challenge similar to that
of the one signed by large law firms. [26]
IV. Future Proponency
A. Law Firm Initiatives
An ABA survey revealed that the two most important factors
detracting from pro bono participation were lack of time, and billable
hours expectations/discouragement from employers. [27] As a result,
new firm policies are being fostered within large firms. Some
initiatives currently being used by large corporate firms to encourage
pro bono work are: 1) Counting pro bono hours as billable hours in
terms of promotion and pay, 2) Awards and recognition in external and
internal publications to attorneys performing exceptional pro bono
efforts, 3) Encouragement of senior lawyers within the firm to
participate and therefore lead by example, 4) Requirement of newly
hired attorneys to participate in a minimum of one pro bono matter in
their first year, and 5) Making access available to training materials,
mentors, manuals, and other support for lawyers’ pro bono efforts.
[28]
B. Other Initiatives
The government is doing its part to assist corporate lawyers in
facilitating ease of pro bono practice. One previous potential
obstacle was that of malpractice; attorneys fretted that pro bono work
outside of their field of expertise might lead them to make mistakes in
the course of their client representation. [29] To ameliorate this
situation, many states have recently enacted bills that provide
malpractice insurance for pro bono work done through any nonprofits or
government agencies. [30]
According to a commission on pro bono and public service by the
American Association of Law Schools, a central recommendation was that
law schools make available a “well-supervised law-related pro bono
opportunity” to every law student. [31] Clinics and curricula giving
the opportunity to gain experience with pro bono work increases the
likelihood of participating students to pursue pro bono work in the
future. [32] Law schools should push the idea of corporate law
combined with pro bono onto their students to engender a belief that
even within the bounds of a corporate law career, pro bono work is
still a feasible and desirable option to supplement their professional
life. Currently, students view their choices after law school as black
and white: they either choose to dedicate their career to public
interest, or “sell out” into corporate law. [33] However, there is a
middle ground wherein the corporate lawyer of current and future
generations can enjoy the best of both worlds by having a fulfilling
career at a firm while also contributing a substantial amount of pro
bono work to the community.
C. The Buyout Alternative
Because of concerns by some critics that a half-hearted, involuntary
pro bono effort is more harmful than none at all [34], a buyout option
has been suggested by several scholars as another solution. [35] In
this scheme, there can be no argument of a Thirteenth Amendment
constitutional taking; each attorney is free to provide services or
money. [36] The amount of money would be the lesser of two numbers –
for example, $500 per year, or 1% of the total annual revenue of a
practicing attorney. In this scheme, the rational relationship basis
test to pass the constitutional threshold is met, and this buyout may
be seen as a variant on franchise fees and traditional taxes on a
profession. [37] In the corporate arena, some large law firms have
taken this notion to heart. Skadden’s Fellowship Foundation has spent
millions on its fellowships and monitor funding into several different
areas of public interest, with 25 fully funded lawyers each year all
providing services to the poor full time. [38]
V. Conclusion
When a large corporate law firm participates in pro bono, they lend
a certain weight and prestige to a particular case or claim with their
firm name. [39] In today’s world of corporate law, pro bono service
should not be viewed as some kind of tax or penitence for lucrative
private practice. [40] Indeed, pro bono is beneficial for lawyer
recruitment, retention, and development of professional skills. [41]
The firm itself benefits by improving its public image in the eyes of
the public as well as in the eyes of its clients. [42] Besides being a
central tenet to the ABA Code of Professional Responsibility and state
ethical counterparts, pro bono is personally fulfilling to the
corporate lawyer and beneficial to society as a whole.
Endnotes:
[1] Donna
Walter, ABA Survey Finds Most Lawyers
Favor Pro Bono Work, Kansas City
Daily Record, Aug. 10, 2005.
[2] Mallard v. United States Dist. Court for
Southern Dist., 490 U.S. 296, 310 (1989).
[3] Walter,
supra note 1.
[4] When the Concept of Pro Bono Service is Part
of a Law Firm’s Collective Personality, 9 The
Metro. Corp. Counsel 69 (Sept. 2006).
[5] Scott
Carlson, Law Firms Find Pros in Pro Bono
Work: Providing Free Legal Services Helps the Needy – And Boosts Recruiting and
Public Relations for Law Firms, St.
Paul Pioneer Press, Sept. 21, 1999 at 1C.
[6]
Jonathan R. Macey, Mandatory Pro Bono:
Comfort for the Poor or Welfare for the Rich?, 77 Cornell L. Rev. 1115, 1115 (1992).
[7] Erika
Martin-Doyle, Note: Massachusetts Rule of
Professional Conduct 6.1: One Small, But Needed, Step for Lawyers, An Even
Smaller Step for the Commonwealth’s Poor, 9. B. U. Pub. Ind. L. J. 53, 57 (1999).
[8] Id.
[9]
Michael E. Kanell, Helping Out, Atl. J. Const., May 12, 2007.
[10]
Jennifer Gerarda Brown, Rethinking “The
Practice of Law,” 41 Emory L. J.
451, 455 (1992).
[11]
Martin-Doyle, supra note 5, at 60.
[12] Id. at 61.
[13]
Brown, supra note 10, at 457-58.
[14]
Timothy P. Terrell & James H. Wildman, Rethinking
“Professionalism”, 41 Emory L. J.
403, 412 (1992).
[15] Alan
W. Houseman, Symposium on Strategies to
End Poverty and Inequality: Article: The Future of Civil Legal Aid: A National
Perspective, 10 D.C.L. Rev. 35, 45 (2007).
[16] Model Code of Prof’l Responsibility Canon
2 (1970).
[17] Model Code of Prof’l Responsibility Canon
2 (1980).
[18]
Brown, supra note 10.
[19]
Houseman, supra note 13, at 58.
[20] Id. at 57.
[21]
Ashley Petry, Law Firms Charged Up About
Pro Bono Work: Donating Time, Expertise to a Diverse Clientele is Rising in
Popularity and Importance Locally, The
Indianapolis Star, Aug. 15, 2007, at 5.
[22]
Houseman, supra note 13, at 57.
[23] Id.
[24] Adele
Nicholas, Helping Hands, Inside Counsel 55 (Jan. 2007).
[25] Id.
[26] Id.
[27]
Walter, supra note 1.
[28]
Bettina Plevan, Letter From the President
of the Association of the Bar of the City of New York, The Metro. Corp. Counsel 57 (Jan. 2006),
President’s Letter. See also Proskauer Rose:
Taking A Program to the Next Level, 15 The
Metro. Corp. Counsel 56 (Aug. 2007)(noting that pro bono time is counted
equally with billable time, with pro bono activities noted in annual
evaluations of each associate).
[29]
Walter, supra note 1.
[30] Id.
[31] American Association of Law Schools, Learning to Serve (1999), available
at http://www.aals.org/probono/report2.html#recommendations.
[32] Houseman,
supra note 13, at 59.
[33] A.
Benjamin Archibald, Departments: The
Profession: The False Dilemma, 47. B.
B. J. 16, 16 (2003).
[34]
Richard Devlin, Breach of Contract?: The
New Economy, Access to Justice and the Ethical Responsibilities of the Legal
Profession, 25 Dalhousie L. J.
335, 370 (2002).
[35] See Rob Atkinson, Historical Perspective on Pro Bono Lawyering: A Social-Democratic
Critique of Pro Bono Public Representation of the Poor: The Good as the Enemy
of the Best, 9 Am. U. J. Gender Soc.
Pol’y & L. 129, 138-45. See also
Martin-Doyle, supra note 7, at
83-84.
[36] Mary
Coombs, Your Money or Your Life: A Modest
Proposal for Mandatory Pro Bono Services, 3. B.U. Pub. Int. L. J. 215, 222 (1993).
[37] Id. at 222-23.
[38] Bob
Yates, Big Firms Take On Public Interest
In a Big Way, Chi. Law., Sept.
2006 at 18.
[39]
Martha F. Davis, Historical Perspective
on Pro Bono Lawyering: Our Better Half: A Public Interest Lawyer Reflects on
Pro Bono Lawyering and Social Change Litigation, 9 Am. U. J. Gender Soc. Pol’y & L. 119, 120 (2001).
[40]
Brown, supra note 10.
[41]
Kanell, supra note 9.
[42] Carlson, supra note 5.