Pro Bono? Cui Bono?
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.)