Pro Bono? Cui Bono?
posted by Sarah Lawsky
Some large law firms require all their attorneys to do a certain amount of pro bono work. But a better approach might be to require the attorneys either to do a certain number of pro bono hours or to donate a certain amount of money to public interest law firms. (The law firm and lawyer could together donate the value of the lawyer’s time and the amount the firm would have spent on support staff, copying, tech support, and so forth had they taken on the project.) And perhaps an even better approach would be for law firms to do away with pro bono work altogether and just donate money. So why doesn’t this happen? Why services instead of money?
After the jump, an explanation of why money might be better, and some speculation about why law firms donate services.
As suggested elsewhere, the main advantage of directly funding pro bono, as opposed to donating services, is comparative advantage. That is, there are people who actually specialize in, say, veterans’ benefits law. Why shouldn’t the law firm give money to them, instead of spending hours teaching its attorneys how to file and appeal benefits claims? The veterans’ benefits lawyers will probably be faster and better at veterans’ benefits law. And the transaction costs savings would be huge, not only because less training would be required, but also because there would no longer be a need to match pro bono projects with law firms. And if law firms donated enough money, public interest and nonprofit organizations could grow, actually hiring more people who would specialize in these areas. While it’s probably true that some very, very large cases are better handled by a large law firm, many (most?) pro bono projects don’t meet that description.
So why services instead of money? The best answer I can figure out isn’t too surprising: the current scheme benefits large law firms and the lawyers who work there, especially when it comes to recruiting. Pro bono gives junior associates a chance to work on substantive projects instead of doing work they might view as dull or rote (like discovery). Law students who choose to go to law firms want to feel like they will still have a chance to make a positive difference in the world. And working on pro bono projects gives law firms lots of publicity. Law firms that work on high-profile pro bono cases can be featured in news articles or even books, and the American Lawyer celebrates pro bono work in its annual A List Rankings as well as in its separate Pro Bono Scorecard.
But if the recruiting and publicity aspect of pro bono takes over, choices about which people to help can become skewed. For example, according to the Wall Street Journal, some law firms pay cash out of pocket to certain public interest groups, like Lawyers Without Borders, for the privilege of providing them with pro bono services. This is not, of course, because all other legal needs are met; as the article notes, there are still plenty of landlord-tenant cases to go around. And it is not, I think, because law firms have carefully reviewed all the types of people in need and have decided that both their money and their services should go to these groups. Rather, as the article’s author, Ashby Jones, explains, “pro bono work has evolved from an act of noblesse oblige into, at least in part, a business initiative for elite firms. Some firms want strong pro bono programs as a way to recruit and retain top law students and junior lawyers, who are often more eager than their predecessors to do pro bono work.”
Of course, the recruiting and publicity benefits to law firms from donating services (as opposed to money) might be a large part of what’s motivating them to contribute to pro bono work. Because donating money would have fewer attendant benefits, law firms might end up contributing far less in money than they would have in services, and indeed might disengage from public interest goals altogether. So maybe donating services, which benefits both large law firms and their lawyers, on the one hand, and people who need but can’t afford legal services, on the other, is in fact the optimal solution. But we should acknowledge that pro bono work is actually pro bono publico et quaesto, and that sometimes self-interest may dominate when it comes to law firms’ decisions about the amount and kind of pro bono work they take on.
(There are, of course, questions about to the extent to which pro bono or public interest work actually helps the public interest more than does corporate law firm work; while interesting, those questions are perhaps somewhat outside the scope of this post.)
July 30, 2008 at 4:07 pm
Posted in: Uncategorized
Print This Post
Responses (16)
Donald Braman - July 30, 2008 at 4:42 pm
I like it. A couple more possible explanations for the puzzling persistence of pro bono work:
1. I think this is implicit in what you say, but just to be clear, firms may be getting better attorneys because the most capable attorneys might not come if they were facing a homogeneously corporate grind for the duration of their career.
2. Pro bono work might help attorneys do better work as corporate lawyers because boredom can hamper productivity and morale. (Backrubs and foosball tournaments might also help; see Google, Microsoft, etc.)
But while these arguments help explain why firms support pro bono work, they don’t say anything about whether that it’s better for society at large. You address this by suggesting/assuming that substitution away from legal services to the indigent might be a bad thing. But even assuming, as you have to in order to not annoy everyone, that the work pro bono lawyers are doing is actually good for society, there are possible effects that might still cut against it. Capable lawyers who care about the public interest might, for example, substitute away from corporate law and become dedicated legal advocates or legal reformers. In fact, pro bono might be the opiate of the corporate law masses; without it a host of bright folks might substitute away from corporate law and into some other form of work that really benefits the public. You know, like legal blogging.
Paul Gowder - July 30, 2008 at 5:09 pm
Here’s another way pro bono work might be better for society than money: it might help lawyers understand the situation of those worst off. Having to actually see, and work with, the tenant who is getting evicted, as opposed to just give money, may give the white-shoe corporate lawyer a broader perspective on life, society, and justice, and this might lead to more socially beneficial behavior. It might, that is, improve the characters of the people doing the work.
Edward Swaine - July 30, 2008 at 5:34 pm
Great post and comments on an important question. I agree with much of this, but suspect my prescription would be less dramatic than yours.
1. As to whether big firm incentives skew their contributions . . . If we accept that donating money is more efficient and constructive than donating time, should we object to the kind of up front payment that certain organizations seem to be able to extract? The bigger issue is that the firms get to choose whom they favor, and may not direct their assistance to those in greatest need, but that is a failing with all voluntary charities — and, one assumes, with labor supply as well.
2. As to whether we “acknowledge that pro bono work is actually pro bono publico et quaesto.” Sure, because we should tell the truth, and the question’s been posed. But if we’re trying to assess what’s best for society at large, as Don rightly suggests, query whether it’s always for the greater good to identify mixed motives and inefficient solutions. If the Annual Lawsky/Braman Hors d’Oeuvres for the Homeless gets pilloried on the grounds of the huge opportunity costs for its brilliant academics/hopeless chefs, and their obvious zeal for self-promotion, what result? Maybe a sounder contribution, but maybe neither cocktail weenies nor more nourishing fare gets served in the end.
3. Maybe part of the answer lies outside the firms. Probably some public interest groups discourage donated services due to lack of expertise, etc. Others may find it helpful, or believe in buy-in, etc. Organizations like Habitat for Humanity have made a choice to accept (non-legal) services, and had to put up with a lot of builders of questionable value (myself included); perhaps they might lend insight as to why beneficiaries in the legal area don’t always push for money, exclusively, instead.
Dave - July 30, 2008 at 5:39 pm
I think there are other benefits to the big firms, the pro bono clients, as well as the rest of society.
Firms: As noted, pro bono may increase recruitment, retention and productivity. But it also may help big firm lawyers feel better about their jobs and choices, and thus foster a sense of camraderie that the firm would not otherwise have. I think it would be foolish to think this is purely a business move; I believe the owners of law firms (principals) like to work in places where they feel connected to their community, just like other people. A corporation with disaggregated stockholders may feel differently, but firms, even large ones, are owned by their employees. Further, pro bono offers hands-on training opportunities to junior lawyers that they may not have had otherwise, for example junior litgators may get their first few court appearances through pro bono, rather than paid client work.
Benefits to pro bono clients: First, I think there are some matters that large firms handle that would not be handled as efficiently by pro bono lawyers. Pro bono agencies that I have worked for are very good at doing rote work, but often outsource appellate work or more difficult matters to large firms on a pro bono basis. Further, large firms often have scaleable infrastructure (staff, telecoms, facilities) that pro bono firms do not. The benefit received from reduced Lexis rates, for example, certainly could not be reproduced with cash contributions. Those costs are also simply subsumed into firm overhead, and usually not counted in terms of a firm bragging about its pro bono contributions (though presumably they take a deduction for it!). Even smaller scale work may be benefitted by pro bono lawyers. My experience has been that often pro bono lawyers bring a lot of zeal to that work (since it is a samll part of their day-to-day) whereas public interest lawyers can sometimes be a bit jaded.
Benefits to society: I think there is a benefit to society and the profession in having corporate lawyers be connected to their communities. My firm does a lot of large-scale pro bono work, filing Supreme Court briefs and advising UN agencies and the like. But personally I try to find more simple pro bono work, such as immigration. It may be more efficient to have an immigration attorney do that work, but I find that taking time out from massive corporate work to simply help another person with a problem that is fundamental to their day-to-day experience is something that humanizes me and my firm. It reminds me in the rest of my day-to-day work that there are people behind all those corporate transactions. Is there a benefit to society there? Perhaps not a quantifiable one, but I think there is.
James Grimmelmann - July 30, 2008 at 6:12 pm
If we allow attorneys to buy their way out of pro bono service, I propose that the price be $300.
Dave - July 30, 2008 at 7:42 pm
I think Mr. Swaine is on the right track with considering volunteerism in other areas. One might just as easily ask why Habitat volunteers don’t just hire contractors to work in their stead, or soup kitchen volunteers do not donate so that the kitchen can hire food service employees. The fact is that volunteerism has many benefits to both the volunteer and the person receiving the benefit of that service. Just ask the American Red Cross. While managing a volunteer work force has many inefficiencies, just ask a disaster victim whether they had better interactions with a FEMA employee or a Red Cross volunteer. And ask the volunteer whether the experience of the service they rendered would have been the same as if they just cut a check for their time.
An additional consideration is whether each hour rendered by a corporate lawyer in pro bono would have otherwise been billed. Volunteers would not have otherwise spent their volunteer time working. Lawyers likewise would not likely have spent pro bono time billing. I see pro bono as something that comes out of personal time, not work time. If I wasn’t doing pro bono, I would likely have more personal time. That my firm chooses to bonus me for the time I spend on pro bono is certainly one of the reasons why I like working here, though.
Carolyn Elefant - July 30, 2008 at 9:21 pm
This is an age old question – it’s the topic of a law review piece that I wrote in 1991 for the Journal of the Legal Profession – you can read it here (at least the first page, full w/Hein Online subscription) at http://scholar.google.com/scholar?hl=en&lr=&q=info:YB8bZ_eyLHoJ:scholar.google.com/&output=viewport
I am skeptical about the value of large firm pro bono programs, at least inasmuch as they address the need for representation.
Carolyn Elefant - July 30, 2008 at 9:24 pm
This is an age old question – it’s the topic of a law review piece that I wrote in 1991 for the Journal of the Legal Profession – you can read it here (at least the first page, full w/Hein Online subscription) at http://scholar.google.com/scholar?hl=en&lr=&q=info:YB8bZ_eyLHoJ:scholar.google.com/&output=viewport
What I argue in my article is that there is a distinction between the individual obligation to provide pro bono endorsed by the Code and the obligation of the firm as a business entity. I don’t believe that the two are mutually exclusive. Firms should donate money to pro bono programs, like the Skadden fellowships. At the same time, individual lawyers should make time to handle pro bono work on their own, not necessarily through a firm wide, organized effort. That way the individual lawyer gets the personal reward and meets an obligation while we still effectively address the needs of the indigent to obtain counsel
A.J. Sutter - July 30, 2008 at 10:25 pm
I agree with Paul Gowder and Dave 07:42. The qualitative benefits to the volunteer, and the insights gained, which can last beyond the pro bono time donated, are not substitutable by money.
There’s some merit to Sarah’s observations that firms have some self-interest in pro bono work. But I’d think that someone who thinks efficiency arguments are compelling in this connection (comparative advantage ‘n’ such) would be loath to deny the ability of the invisible hand to effect mutual benefit.
One problem with most pro bono programs, at least when I was at big firms, is that they were almost exclusively litigation-oriented. (My baseline is 2000, when I was last at a firm.) As a transactional lawyer this was very frustrating, since I had neither the skills for nor interest in litigating. Do firms nowadays have some training about, e.g., the special features and needs of not-for-profits, to make it easier to partcipate in non-litigation pro bono work? And are there agencies looking to connect lawyers and NPOs in need of transactional help? If the situation hasn’t improved in the last few years, such clearing-houses and one-day, or even half-day, training programs would be good ways to start.
David Bernstein - July 31, 2008 at 9:49 am
Even more puzzling to me is why some very high earning individuals spend an occasional Sunday hammering nails for Habitat for Humanity, when they could donate just an hour of their income to the poor and do much, much more good.
anonymous - July 31, 2008 at 9:56 am
A somewhat disturbing point worth bringing up – pro bono does allow associates to gain valuable experience, but does the pro bono client really get the same quality of services as a paying client?
I’ve seen associates (with the best of intentions) give less than adequate attention and vigor to the pro bono matters that they take on. When faced with serious time constraints, and one task that involves a paying client and a partner breathing down your neck, and the other involving a pro bono matter where you are largely unsupervised, where do you think the associate is going to put their time?
And if some of the pro bono work being done is below par quality, isn’t the firm making out like a bandit by taking the credit for doing all that pro bono, while the actual pro bono client may not be getting very good or effective legal help? This situation smacks of hypocracy and leaves a bad taste in my mouth…
Carolyn Elefant - July 31, 2008 at 10:09 am
On the flip side of the foregoing comment, I would ask whether a lawyer who handles a case pro bono gets real experience. Most lawyers who handle work for lower paying clients develop a budget and adhere to it. They also come up with ways to handle the matter efficiently. Contrast that with the experience of the pro bono associate who, for example, may be handling an eviction matter. He/she may have an administrative assistant call the court, contact the client and produce the documents. And he/she may pursue a matter that’s a sure loser because the firm is paying the bill, not the client. But that’s not how many of us solo and small firm lawyers do business in the real world.
lawyer - July 31, 2008 at 12:20 pm
I’m not sure how useful it is to speculate. The Law & Society crowd has been doing quantitative and qualitative studies of law firm pro bono for many years. There’s a lot in the literature.
Jennifer Hendricks - July 31, 2008 at 12:23 pm
Traditional pro bono work benefits the lawyer if the rest of her practice involves appearing in front of the same judges who hear the pro bono cases. Judges would rather deal with lawyers than with pro se litigants, so taking on those cases is a chance to personally please a judge before whom you appear in other cases.
Edward Swaine - July 31, 2008 at 1:10 pm
“Even more puzzling to me is why some very high earning individuals spend an occasional Sunday hammering nails for Habitat for Humanity, when they could donate just an hour of their income to the poor and do much, much more good.”
This, to me, is the easy part. Probably they do it because it makes them feel good, in a way that is different than donating their money: they feel personally engaged; they’re doing something different than billing another hour; they’re enjoying the society of others; they feel personally valued and recognized for their contribution, as opposed to simply being the name behind a check; etc. As to how they can live with themselves when they could do more good by some other means, I suspect that many realize, quite sensibly, that the tradeoff is largely hypothetical: that they would not, in practice, be disposed to spend that time working and thereafter donating the after-tax returns. Most everyone draws these kinds of lines, and doing something is better than doing nothing, so I say we should celebrate rather than question this kind of behavior.
The more difficult question has to do with why others facilitate this when, in theory, both firms and clients would benefit from the highest value use of the individual donor’s time. For firms, it’s probably the reputational, recruiting, retention, and training reasons earlier offered. (Indeed, as someone astutely remarked, this is all the subject of papers presented, inter alia, at the most recent Law & Society meeting.) These, added to the individual’s preferences (and firms are composed of, well, individuals), may tip the scale.
As to the recipients, probably the calculation is that inexpert hours are better than nothing, that rejecting volunteered services will not result in a windfall of donations based on newly billed hours, and that constructively engaging lawyers and firms may ultimately yield monetary donations too.
Carolyn Elefant makes an interesting point that’s relevant to a lawyer’s objectives, but presumably the experience that big firms are trying to obtain for their charges is *not* that particular to practicing as a small firm lawyer — so if it’s not real-world in that sense, so much the better, from their vantage!
Mike McDougal - August 3, 2008 at 7:41 pm
“Even more puzzling to me is why some very high earning individuals spend an occasional Sunday hammering nails for Habitat for Humanity, when they could donate just an hour of their income to the poor and do much, much more good.”
I don’t think that’s even remotely puzzling. People volunteer because it makes them feel good. Actively contributing often makes donors feel better than writing checks.
Leave a Reply