Professionalism in the 21st Century

Volume 1 • Issue 3 • March 2015
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The Rise of Pro Bono

Attorneys are increasingly taking the lead on pro bono and social responsibility

Attorneys are taking service seriously. According to the Pro Bono Institute, which tracks pro bono data, just over 48,000 attorneys performed 4.3 million hours of pro bono service in 2013, the most recent year for which figures are available. Close to 2 million of those hours went to low-income individuals or the organizations serving them.

Those figures have more than doubled in the past 20 years—in 1995, lawyers reported performing 1.6 million hours. A 2014 survey by Robert Half Legal also found more than a third of responding attorneys saying their pro bono time had increased over the past five years.

It’s no coincidence a rise in pro bono coincides with the lowest levels of public legal aid funding in decades. According to one estimate, pro bono’s contribution to civil legal aid in a 2005 study represented at least $246 million—three-quarters of the $331 million provided by the congressionally funded Legal Services Corporation, the main legal aid body in the United States, that year.

While the United States guarantees a lawyer in criminal cases—established in the 1963 case Gideon v. Wainwright—there is no such guarantee for “civil Gideon” representation in civil or family law. As a result, many legal needs in the United States go unmet.

 

“Pro bono is an important value for lawyers in law firms, and it’s also a meaningful aspect of in-house practice,” says the Pro Bono Institute’s Eve Runyon, who directs the institute’s Corporate Pro Bono program. “There are business arguments as to why institutions would want to promote pro bono,” she says, including professional development for younger lawyers, employee recruiting, engagement, and retention. “There’s lots of reasons why it makes sense for the business.”

There are also more personal reasons. “There’s a passion for doing the work,” she says. “There’s a recognition that, as lawyers, we have unique skills that can aid the communities in which we live and work, and that certainly drives many lawyers.”

Lawyers are increasingly showing support in dollars, too. The Pro Bono Institute found that the 128 reporting firms surveyed donated $24.5 million to legal services organizations in 2013, a 14.5 percent increase from the year before. The average firm donation was almost half a million dollars. This number has increased substantially since 1996, the first year PBI began tracking, when 81 firms reported donating $6.9 million.

Pro bono in the house

Pro bono work is even growing among in-house legal departments. Though 95 percent of chief legal officers reported not having a formal pro bono program in a 2013 Association of Corporate Counsel survey, in-house counsel reported having recently increased their time in the Robert Half study. Twenty-five percent said they had done so, though the average number of hours was lower than in private practice, at 41 compared to 56 hours per year.

There are some challenges unique to in-house pro bono, says Runyon. Lawyers may be concerned about a mismatch of the skills required to provide appropriate representation. There are other concerns about insurance, time, and resource constraints. The Pro Bono Institute helps interested counsel address these problems, Runyon says, “but what we have seen in the past 15 years is a tremendous growth in the number of legal departments that are moving to formalize pro bono.”

In addition, though it’s generally possible to work for an employer without being licensed in a state, 19 jurisdictions do not similarly permit pro bono activity without a local license. The Pro Bono Institute, Runyon says, has worked with local bar associations to change these rules; in the past two and a half years, 10 jurisdictions have done so. In August 2014, the ABA adopted a resolution urging appellate courts to allow in-house legal staff to do pro bono work in the jurisdiction they’re employed in.

“What we have seen in the past 15 years is a tremendous growth in the number of legal departments that are moving to formalize pro bono,” says the Pro Bono Institute’s Runyon.

Lawyering for good

Meanwhile, expectations of pro bono and other forms of community service are becoming increasingly common throughout the profession. The New York State bar made 50 hours of pro bono work a requirement for passing the bar in 2012, for example.

In January this year, the firm Hogan Lovells instituted a policy requiring its 5,000 employees, in 25 countries worldwide, to put in 25 hours of community service each year; 2,500 lawyers will be expected to do pro bono work. Dechert instituted a similar 25-hour worldwide requirement among its staff in 2014.

The 4,200-lawyer firm DLA Piper has long had an extensive pro bono program. “All of our lawyers are expected to do pro bono and are engaged in pro bono work,” says Lisa Dewey, DLA Piper’s US pro bono partner and director of New Perimeter, the firm’s global pro bono arm. DLA Piper’s lawyers put in an average 80 pro bono hours a year, she says.

Dewey was working as a commercial litigator for the firm when she moved to become full time pro bono counsel, and then was promoted to partner—a move, she points out, that demonstrates the firm’s broad commitment to pro bono.

DLA Piper integrates pro bono work into its evaluations and, Dewey says, into the firm culture as a whole. In the 1970s, she says, then Piper & Marbury lawyers gave street law clinics. “Piper & Marbury has a very rich history of pro bono. … All our firms do. The leadership of the firm has always been incredibly committed to access to justice and pro bono. … It’s just part of who we are, and integrated into everything that we do.”

DLA Piper has what it calls “signature projects,” which are comprehensive, long-term collaborations focused on specific issues, such as improving educational outcomes for children at risk and fighting hunger and domestic violence. For example, it works with the federal Department of Education’s Promise Neighborhoods program, which provides “cradle-through-college-and-career” assistance to specific neighborhoods, on the premise that doing so will improve educational outcomes.

“If you’re in school and you’re hungry, or you can’t see the chalk board, or you have these other needs that aren’t being met, it’s going to be very hard to do well in school,” Dewey explains. The firm worked with Promise Neighborhoods to provide a monthly legal services clinic in the Woodlawn neighborhood on the South Side of Chicago, she says, “with the idea that if we could provide more stability to the families in that neighborhood, the children will do better in school, if they’re not moving around because of landlord-tenant issues or family law issues.”

University of Chicago law school students joined the clinic upon finding out about it, Dewey notes. “They were like, we want to be a part of this, too,” she says. “Once you begin a collaboration, other people want to join the party, oftentimes, and can add so much.” In-house counsel from Discover, a DLA Piper client, have also staffed the clinic.

 

The firm has also created a legal services clinic for veterans at a VA hospital in New Jersey in partnership with Verizon, a longtime client. Enhancing relationships with clients is a business benefit, Dewey acknowledges. “It’s a form of service, and doing it together makes it that much more gratifying, I think, for everybody. … Fundamentally we do it because it’s the right thing to do, and it’s our ethical obligation as lawyers. That’s always the starting point. But are there business benefits? Absolutely,” she says.

She notes that it can be particularly helpful in a large firm. New Perimeter brings together lawyers from the firm’s global offices for projects like teaching for a week in Zambia. “It’s an incredible bonding experience. … I see it every day. Our lawyers have this transformative positive experience when they do pro bono work. The impact they have on people’s lives is amazing.”

Public-private partnerships

GE’s 1,000-lawyer team has long practiced extensive pro bono. But a recently announced program may signal a new approach to funding legal aid.

In December 2014, General Electric announced a partnership with United Technologies, Xerox, PriceWaterhouse, and other funders to help provide legal aid in the state of Connecticut as part of a program called LawyerCorps. Connecticut Chief Supreme Court Justice Chase Rogers, inspired by Teach for America, provided the impetus for the project, says Brackett Denniston III, GE’s general counsel, in an interview with The Practice.

LawyerCorps will hire, place, and fund three fellows in legal aid offices around the state for three years as part of a pilot program the organizers hope will serve as a national model.

GE’s legal team will provide mentoring and training to the fellows. “Legal assistance for those who cannot afford that assistance is significantly underfunded,” Denniston says. “So this is a means of augmenting what are stretched resources while providing an excellent training opportunity, while providing a service.”

In 1997, former GE general counsel Ben W. Heineman Jr. founded the company’s Pro Bono Partnership, which provides legal aid to nonprofit organizations in a number of U.S. cities. Globally, GE focuses on anti-corruption and rule of law initiatives.

“This is about our heart,” says Denniston. “We feel an obligation to improve the broader system, and this is one element of it, by providing legal help in a variety of ways to those who can’t afford it.”

But LawyerCorps is closer to home in GE’s longtime headquarters, says Denniston. Connecticut’s current legal aid programs can serve only about 18 percent of those who qualify for legal help in the state, according to LawyerCorps. “In our organization, what we do in our legal function is … high-quality work,” Denniston explains. “But we’re also about our hearts, and this is about our heart. We feel an obligation and try to discharge an obligation to improve the broader system, and this is one element of it, by providing legal help in a variety of ways to those who can’t afford it.”

A unique responsibility

Scott Cummings, a professor of law at the UCLA School of Law who has studied pro bono and public interest law, notes that the rise in pro bono coincides with increasing discussion of legal ethics. “Professionalism in the sense of advancing the public good gets expressed through a commitment to doing pro bono work,” Cummings says.

It may also express a deeper discontent with the legal services industry. The division between pro bono practice and commercial work allows lawyers to separate out their public and private identities—making pro bono, perhaps, an implicit apology for the public service they’re often unable to incorporate into commercial work.

“There’s two faces to all these things,” Cummings says. “In one sense, it is all one big apology, and in another way, it is an expression of people’s deeply felt commitments to actually do something good with their professional skills. I don’t think they’re mutually exclusive. I think these things are happening at the same time, and you have to kind of embrace the good, and try to harness the good, and use it to its best effect.”

Pro bono is an important effort to support, observers widely agree. “Pro bono is not the answer,” PBI’s Runyon says. “But it is a part of the access to justice landscape, and it’s an important part of the access the justice to landscape. It’s a way that private lawyers, firms, and legal departments can contribute … but it does not eliminate the need for legal services and funding of legal services organizations. It’s important that those things work in companion.”

Either way, the legal profession seems increasingly aware of its unique responsibilities to the justice system. In a vacuum of outside political support and an era of sharply decreased public funding for legal aid around the world, that’s a good thing.

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Professionalism in the 21st Century Volume 1 • Issue 3 • March 2015

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