pro bono Publico Relations

For many Americans (and other inhabitants of planet Earth), "lawyer" and "liar" aren't just near-homonyms -- they're synonyms.  [Yes, I know you know this.] 

Now, imagine you're a group of bar leaders concerned with the public image of lawyers as lying, greedy shysters.  To be more specific, you're upset a survey by your state's Office of Court Administration shows that lawyers did even less pro bono work in 2002 than they had in 1997, the last year surveyed.  Add the additional factor that your association has been working very hard for years to increase the amount of pro bono performed by its members, in order to prevent the establishment of a mandatory pro bono rule, which would replace the current "aspirational goal" of 20 hours per year of pro bono per attorney.

So, what do you do?  If you're the leaders of the New York State Bar Association, you do something that is likely to increase both your pro bono numbers and your reputation as lying greedy shysters -- you redefine pro bono to encompass just about every legal service a lawyer might provide to any community, civic or public interest organization, and services done to "improve the legal system"  or "the legal profession."  Even better for lawyers in the State, pro bono [formerly thought of as "free" services by the rest of us] would include the "delivery of legal services at a substantially reduced fee to persons of limited means."   ["Substantially reduced" is not defined, and pro bono reporting is expected to remain voluntary, for purposes of measuring the bar's overall service.] 

-- due to technical difficulties, continued here--

Comments

[Carolyn Elefant]

David:

I'm so glad you posted on this. I had been thinking about a post as well but I was not quite sure what to make of the New York proposal.

On the one hand, I do believe that it's important to define pro bono, particularly if there's to be a mandatory requirement. My gripe now is that anyone is free to define pro bono services as they see fit. For example, the Pro Bono Institute, a consortium of large firms which exchange information for pro bono compiled this publication, http://www.probonoinst.org/pdfs/whatcounts.pdf (What Counts) where the group states its position on pro bono. Reading through, I took issue with a number of the responses. For example, the group stated that helping to revamp a legal system in a foreign country constitutes pro bono. Indeed, I remember that many large firms provided legal services at no charge in Eastern European countries after the fall of communism. But I don't think that was pro bono - it was a loss leader to get in the doors and market the firm to clients who might then need to navigate the legal system that the large firm helped put together. That's marketing, not pro bono.

In another situation, the institute said that firms are encouraged to recover of attorneys fees in pro bono cases where such fees are available. Nothing wrong with that. But the work still counts as pro bono even if the firms keep the fees to put into the pro bono program or towards partner profits. How ridiculous. If you're compensated at pretty good rates (the reimbursable fees, while below big firm rates, are still around $150 - $300/hr) how is it pro bono?

Still, at the same time, I think there are situations where people - yes, usually solo and small firm lawyers - work for a such a reduced rate, that maybe those efforts ought to count for pro bono. If an attorney handles a contested divorce for a lower income parent for $1000 where any other firm in town would charge $5000, why shouldn't some of that count towards pro bono?

Moreover, in many respects, I am starting to question, as a general matter, the wisdom of providing legal services completely for free. Many times, when clients are not paying anything, they have no economic interest to settle a case or take a reasonable position. I once represented a pro bono client in a subrogation action where the insurance company was coming after him for damages he'd cause to the company's insured (client was an uninsured driver). I negotiated and negotiated and finally got the insurance company to reduce its initial request of $2000 to $300, payable in $20 monthly installments. But the client almost nixed the deal - he felt that we could could fight both the amount owed and dispute that he was at fault (no proof of that). Finally, he agreed to take the deal. Now, if this guy knew that he'd have to pay me even $300 to litigate the case, there is no way he'd have suggested that strategy. Non-pro bono clients need to take economic exingencies into account all the time - so why should pro bono clients get better treatment?

I have always thought that the best way to provide legal services to the poor is simply for lawyers to all make a contribution to legal services organizations. There are hundreds of lawyers chomping at the bit to work for these groups so if they had more funding, they could hire more lawyers. I don't think it ought to be hard to privately fund those groups if the bars tried to get more firms to make pro bono contributions. In my view, the larger problem is helping those who don't make the legal aid cut off afford lawyers. And I think one way of doing that is to find ways to support those attorneys who do that - who are primarily solo and small firm lawyers.

[David Giacalone]

Thanks for writing, Carolyn, you raise a lot of important and tough issues. Privately funded lawyers serving the poor is a fine idea. I am reluctant to call any paid work "pro bono."

There are many exceptions, but I continue to believe that many solos who charge well under the so-called local market rate do so out of necessity, not virtue (which is why they are often willing to take assigned counsel work for well under "market" levels). Many are engaged in the perfectly rational economic behavior of price discrimination -- charging less to get additional business from those with high price elasticity. To call such work pro bono publico makes the definition meaningless. Either lawyers have a responsibility to regularly perform some modicum of volunteer legal services (at no charge) for the poor, or they don't. Of course, we should encourage fee-reduction and sliding-scales for those of moderate means, but that should be in addition to service to the poor.

As I've said often before, the best way to increase access to justice for all Americans, and especially the poor and middle class, is to greatly improve the availability of Self Help tools [such as programs like the one you recently pointed to at Kent State] Helping to put together such systems across each state is a service that would indeed be "for the good of the public" rather than for the profession. However, that would require our little Lawyers Guild to acknowledge that literate consumers can use the advantages of digital technology to solve much of their legal service needs on their own, or with limited "unbundled" services. [See ethicalEsq's Pro Bono Is Not the Answer to the Access Problem, and the many posts on the f/k/a Access/Shel Help Page; and check out The Pro Se Center for links to projects in many states.]