By Esther F. Lardent
President and Chief Executive Officer
The US legal system is facing a crisis of unparalleled proportions: With the spike in the US poverty population resulting from the Great Recession, and the precipitous drop in funding and staffing of legal services programs, it is likely that the more than 80 percent of low-income Americans without access to a lawyer in 2009 has grown over the past two years to an unthinkable 90 percent. Given the dimensions of the crisis, is it time for the profession to address the lack of access by mandating that every lawyer provide pro bono service to those in need?
Despite the dimensions of the current crisis, I do not believe that we should implement a policy of mandatory pro bono work. However, as I suggested in a National Law Journal article, there is much that the legal profession should do voluntarily to ease the crisis and restore the public’s faith in our justice system.
For both philosophical and highly pragmatic reasons, I believe that mandatory pro bono should be the last possible resort. Mandating pro bono presents several challenges that, at this time, exceed the benefits of requiring pro bono. Those challenges include:
- Defining pro bono — a necessary prerequisite for mandatory pro bono — poses significant problems. Past experimentation with mandatory pro bono shows that defining “what counts” is incredibly difficult. Should community service count? Should activities beyond client representation count? Who should be served by mandatory pro bono efforts— the near poor or just the poor? Should mandatory pro bono include a “buy out” provision? These are just a few of the scores of issues that must be considered when defining pro bono for the purpose of mandating it.
- There are insufficient systems in place to accommodate the number of lawyers that would be compelled to volunteer if state regulators mandated pro bono. Many legal aid providers find they currently do not have the staff or resources to screen clients, train volunteers, source and oversee cases, and maintain adequate records. Adding capacity to accommodate a tidal wave of new volunteers would simply overwhelm an already overloaded system.
- There will always be some who are resistant to the idea of doing volunteer work. It is not advantageous to have our most vulnerable citizens represented by resistant and/or resentful lawyers. It also may be harmful to the morale of an organization to force its employees to engage in pro bono.
- Practice barriers for in-house lawyers who are not barred in the state in which they are working for their corporate employer often make it impractical for these lawyers to undertake pro bono work. Without changes in practice rules, lawyers may be unfairly subjected to discipline.
- There are categories of lawyers who, because of the nature of their job and/or the services they already provide, may not be in a position to volunteer — most notably judges, but also legal service and government lawyers.
- Enforcement is unrealistic. First, it is a waste of resources. We should not divert scarce resources to enforcing mandatory pro bono and disciplining non-compliant attorneys. Second, management will never fire a key rainmaker or member of the legal department simply because she refuses to do pro bono work.
For these reasons, mandatory pro bono will not ultimately serve its intended goal of increasing legal services to the poor. Instead, there should be a focus on making voluntary pro bono as effective as possible and incentivizing voluntary participation. Toward this end, legal departments could tie advancement and promotion to pro bono participation or make pro bono a part of the evaluation process.
Interested to learn more? Join Corporate Pro Bono (CPBO), the joint venture of ACC and the Pro Bono Institute (PBI), at the PBI Annual Conference March 28-30 in Washington, D.C., where Brad Smith, general counsel and executive vice president, Legal and Corporate Affairs at Microsoft Corporation; Leslie Turner, general counsel, Coca-Cola North America; and ACC’s own Veta T. Richardson will debate the issue. In addition, CPBO and PBI will host three days of programming for pro bono leaders from in-house departments, law firms and public interest organizations. To learn more, click here or email firstname.lastname@example.org. We hope to see you at the conference in March!
Esther F. Lardent is the president and chief executive officer of the Pro Bono Institute.