How Doing Good Can Help You Do Well
Many solos who'd like to perform more pro bono work can't do so for lack of time. So why not multi-task, and make pro bono work part of your marketing activities portfolio? Consider the example of lawyers profiled in this article, Creating a nonprofit helps others - and doesn't hurt business either (ABA Journal, April 2007), such as Anthony Hayes who created the non-profit organization Wills for Heroes (which provides no-cost estate planning documents for police, firefighters and emergency workers) or Wynnia Kerr who set up an animal adoption shelter in Seattle. In setting up these organizations, Hayes and Kerr simply wanted to help their respective communities, but their groups have expanded beyond their wildest dreams. And through their role as founders, Hayes and Kerr have gained positive visibility and developed contacts with other lawyers who have participated in their organizations. And eventually, these connections and publicity can potentially lead to referrals or generate clients.
Neither Hayes nor Kerr started their groups with any intention of building business. But to my mind, there's nothing wrong with using pro bono for part of marketing, so long as you're clear about your intentions. In fact, as I see it, many blogs, particularly those that are consumer-oriented, are pro bono, or at least public spirited in nature, in that they help educate the public about legal issues. And focusing on pro bono activities for marketing is also a great tool for lawyers who uncomfortable in traditional networking settings, like happy hours or cocktail parties, which some lawyers find intimidating or demoralizing. So the next time you're feeling guilty that building a practice hasn't left you time for pro bono or community service, instead of griping, figure out a way to help a worthy cause that's important to you and just go do it. You may just find, that by design, or accident or karma, that your good work for others will yield rewards for you.
Attention: RFP FOR PRO BONO SERVICE BY SMALL LAW FIRM. Honestly, do you think a large firm would respond?
Imagine that your law firm issues the following Request for Proposals:
Busy solo practitioner seeking large firm to partner on pro bono matters for small, walk in clients with no funds to retain an attorney at full rates. Firm must turn these clients down in the absence of pro bono support. Matters include messy family law and custody battles, eviction proceedings, Fair Debt Collection Act matters, bankruptcy and lawsuits against small business without insurance coverage. Benefits include court time before sometimes unqualified, nasty judges, (as opposed to civilized federal practice) and learning to prioritize issues, cut corners due to cost constraints and practice law at less than your full ability due to lack of resources.
Now honestly, do you think you'd receive even a single response? Yet when large corporation Intel posted an RFP for lawyers to partner on pro bono firms, biglaw came running, according to this article, Intel Recruits Firms for Pro Bono Partnering. But don't think for even a second that the firms had thoughts of winning a plum client through working side by side with Intel lawyers on pro bono matters:
Similarly, Nixon Peabody pro bono partner Stacey Slater said her firm was motivated by the opportunity to do a good deed, not the chance of winning a new client. "That's not at all why we're doing this," she said. "This partnership will help increase pro bono on both ends."
Do these people even believe what they are saying?
To the Bars: Don't Make Me Part of Your PR Scam With Mandatory Pro Bono Reporting
Evan Schaeffer posts here that the Illinois Bar is the latest bar to implement a mandatory pro bono reporting requirement whereby lawyers must report pro bono activity annually to the bar. According to Schaeffer, "the Illinois Supreme Court hopes that the new reporting requirement will serve as a reminder that pro-bono work is important. In addition, it will allow information to be gathered about lawyers' efforts overall."
On the surface, mandatory pro bono reporting seems innocuous enough. Lawyers aren't forced to perform pro bono and it's not really all that time consuming to fill out a form once a year and send it in to the bar. In fact, over at Legal Ethics Forum, Don Burnett analyzes mandatory pro bono reporting requiremens, concluding that those who oppose them are "really disputing the core message of ABA Model Rule 6.1." (providing that lawyers should aspire to 50 hours of pro bono annually).
Even though I agree that lawyers have a professional obligation to perform pro bono because the requirements would disproportionately penalize solos. Most pro bono requirements do not recognize that the work that many solos perform day to day is pro bono. But at the same time, biglaw firms would be free to characterize as pro bono work at the rate of $400 an hour, marketing efforts and even a loss on attorneys fees representing high profile defendants. (under this last definition, given the firm's potential loss in connection with representing Jeff Skilling, O'Melveny, Meyers would win a pro bono award!).
And that's what I despise about mandatory pro bono reporting. Lawyers send in hours for any kind of pro bono work, whether it's really pro bono or not. The bars collectsthese numbers and then uses them to give themselves a huge public pat on the back (hey, look at how much pro bono are lawyers are doing) - similar to what the ABA did last summer. Yet as I described in my ABA post, for all the millions of hours of pro bono that lawyers allegedly perform, we've still not made a dent in providing lower and middle income people in this country with meaningful and affordable access to law.
Mandatory pro bono reporting forces me to participate in this massive PR sham, it takes the pro bono hours that I report and uses them to make the bar look good, when frankly, when it comes to providing the poor with access to law, we still have a long, long way to go.
Please Don't Call This Pro Bono
Why is it that when small firm attorneys represent court appointed indigents at rates equivalent to one third of market that the work is not classified as "pro bono," but when a large firm takes a bath on fees for representing the former governor of Illinois, an ABA committee chair recognizes that as pro bono? Why is it that when a solo lawyer runs a blog on some aspect of legal practice that provides first rate substantive information at no cost (as in here or here or here to name a few of dozens of examples) it's called marketing, but when a large firm provides substantive information at no cost, it's deemed pro bono?
You might ask, "what's in a name?" and why it matters whether we classify some free work as pro bono or not. Well, here's why it's so significant. Every so often, various state bar associations float the idea of mandatory pro bono requirements. Like many solos, I'm opposed to this requirement because I believe that it's more of a burden for solos to meet than our biglaw counterparts. But even more, I'm concerned that large firms will be able to meet pro bono requirements by classifying as pro bono efforts such as free representation of well known politicians or work on cutting edge issues for high profile non-profits. This would mean that large firms could meet pro bono obligations by handling matters that they'd handle anyway for publicity or marketing purposes, while solos who are frequently stiffed by poor clients or accept cases at low costs would be required to take on even more non-fee matters to meet pro bono requirements.
We live in a country where the legal needs of the poor and lower middle class still go unmet. Representing a famous politician or doing work for free to gain entre into a new market don't address those needs that many solos help to meet every day of their practices.
Business As Usual When It Comes to Pro Bono
Last Saturday, the Washington Post published this op-ed piece, Pro Bono: A Better Alternative by Joel Sheptow, a Stanford Law student who's participating in a student project that provides pro bono service. Based on his experience, Sheptow proposes that rather than refer pro bono matters to already over-worked large firm associates, the bar should encourage them to give money to fund legal aid programs. It's an idea that I endorse, though not particularly new; I wrote an almost identical piece entitled "Just Give Money" that appeared in American Lawyer in January 1993 (yes, I go back a long way with ALM).
Predictably, the idea of money in lieu of pro bono is no more popular now then it was back then when I wrote on it. In today's post, Esther Lardent of the biglaw funded Pro Bono Institute responded with this Letter to the Editor boasting about the major firms' contribution of 3 million hours of pro bono service and conclusions that "pro bono is not an inefficient response to [the] dismal reality" that the U.S. provides inadequate funding for civil legal services. What Lardent doesn't mention in her letter is that if large firms stopped running pro bono services, she'd be out of a job, because the Pro Bono Institute provides consulting services and support to biglaw pro bono projects.
But what Lardent and the bar don't stop to think about are the results. Because as I posted here this past summer in spite of reports that law firms purportedly provide 20 million hours in pro bono service (that's $ 4 billion annually at a paltry $200 an hour billing rate), the need for lawyers for those of lesser means persists. Four billion dollars could pay for an awful lot of legal aid attorneys or even to subsidize small firms and solos to provide services at reduced rates to those who can't afford to pay. But I guess that people like Esther Lardent would prefer to spend money to keep themselves employed and make biglaw firms look and feel good instead of using it to make a real difference.
Can We Lawyers Please Stop Patting Ourselves on The Back?
What if you went to a client and boasted that in the past year, you spent 300 hours working on his case? The client would probably respond, "So what, what kind of results did you get me?" Yet apparently, the American Bar Association (whose efforts at blogging the ABA annual meeting are a little bit pathetic) believes that this type of hourly standard is the best way to measure lawyers' pro bono activities. At least, that's the impression I gathered when I read this ABA Press Release (July 28, 2005) boasting that 66 percent of lawyers gave away free legal assistance to people of limited means, volunteering an average of 39 hours a year. Well, that's alot of hours, but it tells me nothing worth celebrating. Because in spite of all that time (20,592,000 hours, assuming 66 percent of 800,000 lawyers performing 39 hours a year), there's still a substantially unmet need for legal services.
So just like a client, what I want to know is how are those 20 million hours being spent? How many cases were closed out, how many indigents were saved from eviction or wrongful conviction? How many wives were granted custody of their kids and a divorce from an abusive spouse? How many poor children were removed from homes of drug addicted parents and placed in a happier foster care environment? And how many more people are out there who claim that they need a lawyer but can't afford one?
The bar tells me that lawyers are doing 20 million hours a year of pro bono. So what? If there's still a problem with access to justice, then 20 million hours isn't nearly enough time or the pro bono that's being done simply isn't efficient or effective enough. In fact, it's embarrassing to me that lawyers can do 20 million hours of pro bono work and apparently not have made a dent in the problem of helping citizens gain access to the legal system. The 20 million hours doesn't make us look good - it makes us look pretty darn ineffective. So, ABA, if you are listening to me (apparently not, because no one in the ABA reads blogs), please - don't issue a press release about lawyers' pro bono work unless you can back up that work with results.
How Is this Pro Bono - Sounds Like Marketing To Me!
This Press Release (PR Newswire 8/4/05) proudly proclaims that "for the first time in the history of bioethics, a major global law firm, (that would be Milbank, Tweed) makes its legal resources available, pro bono publico, for the analysis of biotechnology and its impact on women." The release goes on to describe that Milbank will be providing a range of pro bono legal services to the Women's Bioethics Project, a Seattle-based non-profit and non-partisan think tank. Milbank services will include legal research, analysis, and counsel on a wide range of bioethics issues, including women's health, reproductive technologies, and the emerging field of neuro-ethics.
You can correct me if I'm wrong - but I just don't see how this is pro bono. Rather, it sounds more like a marketing idea (and a clever one at that) to bone up on hot issues while working for a well respected entity like the Women's bioethics project and to make contacts in the potentially lucrative bioethics field. The only pro bono element to this project, as far as I can tell, is that Milbank won't get paid...in the near term.
For the past few months, I've been working on a similar concept - creating a trade association to serve the ocean renewable energy industry. Almost all of the lobbying and legal work I've done for the group in the past has been free, but I'm hoping it will eventually convert to billable work, as our membership roster grows or as others in the industry who've come to know me through my work decide to retain me. But I don't consider my work even remotely pro bono, even though ocean renewables are environmentally benign technologies and thus, have a "public interest" type of component.
I'm not saying that firms like Milbank shouldn't do what it's doing. As I've learned from my own trade association experience, uncompensated legal work can serve as a great marketing tool (as long as you don't get too carried away and sacrifice billable work!) But uncompensated work for non indigent clients which has the potential to lead to a lucrative practice area is plainly and simply, marketing. It's not pro bono.
Federal Judges Honor Pro Bono - But Exclude Solos
According to this Press Release, the Chief Judges of the D.C. Circuit will be honoring eight Washington D.C. law firms for commitment to pro bono as evidenced by meeting a benchmark of 40 percent of lawyers performing 50 hours or more of pro bono service. But sadly, though I'm a member of the DC Bar, neither I nor any of my solo colleagues qualify for such honor despite the fact that many of us have met or exceeded the fifty hour pro bono commitment for which the large firms are being honored. And the reason we're excluded is because we're solo; according to the press release, only firms of 25 attorneys or more are eligible to enter the so-called "40 for 50" Competition to begin with.
Seems a little inconsistent with what this type of event is supposed to accomplish. According to this quote from Chief Judge Hogan in the Press Release:
"To realize the idea of 'justice for all' we must realize that all must play their part. Although this award recognizes law firms, our true intention is to recognize those who donated their time and talent -- the firm leaders who fostered meaningful pro bono programs, the attorneys who took on cases when their workloads were already full, and the support staff who no doubt served a needed role."
So, the bar wants everyone to play its part in realizing "justice for all" - and yet it refuses to acknowledge the efforts of solo and small firm attorneys who help bring about justice day by day, whether through performing pro bono outright or reducing rates to serve clients who could not otherwise afford legal services. And in many instances, we provide that pro bono when our workloads are already full - and without support staff to help out.
To add final insult to injury, the tag line at the bottom of the Press Release says that the Judge's reception is a private event. Meaning that no one from the bar or the public, outside of the press, can watch these large firms bask in glory or learn of their accomplishments, despite the fact that the judges hosting the reception are on the public payroll. Why is that? Are the achievements not worthy of public display? Or is the reception not so much an award but rather a quid pro quo where big firms cash in on pro bono service by obtaining one-on-one access to the federal judges at an exclusive ceremony. Sounds harsh, but let's face it - that's how it looks from the outside peering in.
Come on DC - let's follow the example of the Florida Bar Association which honors lawyers for real pro bono service, regardless of the size of their law firm. Take a look at Local Attorney Honored for Pro Bono Work which reports on the FBA's award to small firm attorney Jacqulyn Mack for pro bono service that included work with Legal Aid of Manasota and Florida Rural Legal Services Inc, serving as a guradian ad litem, acting as a legal advocate for children in court cases and has co-chairing the annual "law week" event in South County that teaches fifth-graders about the legal system. Isn't that the kind of pro bono service that we want to honor and inspire - the kind that's borne out of a sense of professional responsibility and not an opportunity for professional gain?
Small Firm Does Pro Bono
Bob Ambrogi reports here on the pro bono work of a two attorney firm, Moran and Gottlieb and links to this story about the firm in the Poughkeepsie Journal. Subsidizing their pro bono work with revenues from paying clients, Moran and Gottlieb maintain a free telephone hotline to field questions from anyone who cares to call them. And once a week, Gottlieb dispenses free legal advice at a local homeless shelter. Moran and Gottlieb's efforts should inspire other solo and small firm lawyers to do our share as well.
Is $400 an Hour Pro Bono?
In this prior post, we discussed whether discounts given by solo and small firm lawyers on work performed for low income clients might count as pro bono. For those who don't endorse that idea, consider this: big law firm Skadden Arps wants to claim that its work to bring a school district into compliance with the American Disabilities Act is pro bono, not withstanding that the firm is seeking $9 million in attorneys fees.
According to the this article, Pro Bono Case May Bring Windfall, ABA e-report (2/4/05), Skadden and another civil rights firm in the case spent 20,000 hours in lawyer and paralegal time on the case and are seeking fees of $9 million. I did the math and even subtracting $1 million for costs, $8 million over 20,000 hours comes to an average of $400/hour. And that average presumably includes paralegal time. In fact, the article notes that one of the Skadden partners involved in the case has a billing fee of $810 an hour. Moreover, apparently, because of the amount of resources, the firm went all out in many of its pleadings, using a "cannon ball" to respond to a "tennis ball."
So how is $400 an hour pro bono whereas a solo charging $50 or $75 an hour is not? If someone has an explanation, I'd love to hear it.