Access to Justice in the New Millennium: Achieving the Promise of Pro Bono

Vol. 32 No. 2

By

Jeffrey D. Sachs is the director of The Earth Institute at Columbia University and is special advisor to United Nations Secretary-General Kofi Annan on the Millennium Development Goals.

Editor’s Note: The following article is adapted from The Politics of Pro Bono, 52 UCLA Law Review 1 (2004).

Two central trends account for this transformation: the decline of federal legal services and the rise of large law firms. Once the centerpiece of the poverty law system with 1,500 offices nationwide, the federal legal services program has been significantly curtailed, a political casualty of its own success in taking on high-impact lawsuits against the government and big business. By 1996, funding for the Legal Service Corporation (LSC) had been cut by 50 per­cent from its peak level in 1980. Although much of the lost federal money has been made up through state Interest on Lawyers’ Trust Accounts programs and private contributions, the legal services program has been hamstrung by congressional restrictions enacted in 1996 that ban LSC-funded organizations from mounting class action lawsuits and redistricting challenges, engaging in political advocacy, and representing many aliens and prisoners, among other things. Most drastically, the restrictions prohibit lawyers in LSC-funded organizations from using non-LSC funds to engage in any of the banned activities. After these restrictions were passed, many longtime legal services lawyers left LSC organizations, and those who remained were forced to scale back systemic challenges in favor of individual case representation, “unbundling” legal services, running pro se clinics, and setting up telephone hot­lines.

Shifting to Large Firm Pro Bono

The growth of institutionalized pro bono programs has filled in many of the gaps left by LSC’s decline. Such programs rose from about fifty in 1980 to over 500 in 1985. By the early 1990s, approximately 900 existed; today there are nearly 1,000. Most are either legal services organizations that use pro bono to supplement their direct advocacy, or bar-sponsored organizations that serve primarily to facilitate pro bono placements. As the number of programs has risen, more attorneys have participated in them. By 1995, over 17 percent of attorneys had performed pro bono work through organized pro bono programs, up from 10 percent in 1985.

The American Bar Association (ABA) has provided strong leadership in promoting pro bono on behalf of poor and underrepresented clients. In 1983, it passed Model Rule of Professional Conduct 6.1, which for the first time used the term “pro bono publico” to define a lawyer’s obligation to serve the public while asserting that a “lawyer should render public interest legal service.” Although nearly one-half of jurisdictions have adopted an ethical rule very similar to the 1983 Model Rule, the vague definition of “public interest legal service” permits non–poverty-related activities, like service to the local church or opera, as well as activities to “improve the legal profession,” such as bar committee work. The 1993 revisions to the Model Rules, which most jurisdictions have not adopted, tried to shore up this definition, stating that each lawyer “should aspire to render at least (50) hours of pro bono publico legal services per year,” a “substantial majority” of which should be targeted to “persons of limited means” or organizations that advocate on their behalf. The ABA’s Ethics 2000 Commission further amended the text of Rule 6.1 to state that “[e]very lawyer has a professional responsibility to provide legal services to those unable to pay.”

The Law Firm Pro Bono Challenge, launched in 1993 by the ABA-sponsored Law Firm Pro Bono Project, raised the stakes by calling on big firms to contribute 3 to 5 percent of their billable hours to pro bono and publicizing which firms succeeded in doing so and which failed. Recognizing the special needs of the poor for legal services, the firms agreed that

a majority of the minimum pro bono time contributed . . . should consist of the delivery of legal services on a pro bono basis to persons of limited means or to charitable, religious, civic, community, governmental and educational organizations in matters which are designed primarily to address the needs of persons of limited means.

In its first two years, there were over 170 signatories to the challenge, including many of the nation’s elite firms.

The challenge signified the new importance of big law firms to pro bono. Although many firms had a long history of distinguished pro bono service, not until the 1990s did pro bono become a prominent part of large law firm structure. Part of this was simply a function of firm growth. In 1991, the average size of the American Lawyer top 100 law firms was 375 lawyers. By 2001, it had increased to 621. As the big firms grew, they also made economic gains. Between 1990 and 1999, the top 100 firm revenue figures grew by more than 50 percent, while profits per partner increased by one-third.

This growth corresponded to changes in the internal structure of big firms. The rising volume of business meant that firms needed to hire aggressively. To lure new associates in an envi­ronment where increasing numbers of lawyers were defecting to take positions in start-up businesses, investment banks, and venture capital companies, firms significantly raised starting salaries, with some firms offering salary packages to first-year associates upward of $160,000 annually. To pay for this, law firms raised billable rates and ratcheted up billable hours expectations for firm associates.

At the height of the boom, these changes appeared to be taking their toll on big firm pro bono. In 2000, the New York Times reported that law firms were “cutting back on free services for poor,” noting that only eighteen of 100 firms surveyed in 1999 had met the ABA guideline of fifty hours of pro bono per attorney. American Lawyer’s head­line in its 2000 survey was “Eight Minutes,” which was the number of minutes per day that the average attorney spent on pro bono work. Yet the headlines and public hand-wringing over decreasing pro bono obscured what was, in many respects, the most significant development of the 1990s: the major investment by big firm leaders in strengthening the infrastructure of pro bono within the firms themselves.

The reasons for the push to institutionalize pro bono within big firms varied. A sense of deep professional commitment to public service and real concern about the impact of commercial practice on professional duty motivated many to think of ways to improve pro bono practice. There were also business reasons. When the American Lawyer began reporting data on the pro bono activity of the top 100 firms in 1992, law firms were forced to accept the importance of pro bono as a recruitment device.

The combination of professional and business motives has prompted many large firms to augment their pro bono programs. Many firms now have committees that oversee the intake of pro bono matters, assign cases to lawyers, develop firm-wide policies, and track data on performance. Of the fifty firms on American Lawyer’s A-List, which is the list of the nation’s most elite firms, at least forty have formal committee structures. In addition, most of the major firms have also devoted resources to dedicated pro bono staff. As firms have sought to compete in the rankings game, they have hired full-time pro bono coordinators, charged with increasing pro bono output and adequately tracking efforts for reporting purposes. Of the A-List firms, nearly forty have pro bono coordinators.

Is the New Pro Bono Working?

Assessing the consequences of the changes in pro bono is difficult and depends on one’s vantage point. The power of pro bono as a way of mobilizing large amounts of resources to help those in need is undeniable. The response of the New York City bar in the aftermath of September 11, 2001, is a case in point. In its report on the legal community’s response to the terrorist attack, the Association of the Bar of the City of New York described the huge need for help as over 4,000 individuals and families struggled to arrange funerals and burials, apply for aid, administer estates, find new homes and jobs, and deal with a range of other issues stemming from the disaster. To respond, the city bar convened a meeting with leaders from pro bono programs, public interest and legal services groups, and other legal organizations. The outcome was the Facilitator Project, which provided clients with an individual lawyer to give comprehensive, ongoing representation on all legal issues arising from the attack. The city bar started a comprehensive training program for over 800 lawyers on topics such as death certificates, probate, public aid, unem­ployment assistance, life insurance, personal finance, immigration, and landlord-tenant issues. Law firms provided the most volunteers, drawing upon preexisting pro bono structures and combining their resources. The city bar deemed the project an extraor­dinary success, providing “a comprehensive textbook on how best to deliver pro bono services.”

However, the reach of pro bono only goes so far. Indeed, what is striking about the September 11 example is not just the power of professional service but also the narrowness of its scope. The focus was on brief service, referrals, and individual representation in areas where firms had little at stake from a business perspective. To underscore this, the city bar crafted an engagement letter for the Facilitator Project that specifically limited representation for tort claims. Thus, while law firms diligently assisted individuals and families probating estates and applying for public benefits, they ruled out the prospect of litigation against possible business targets.

A similar story emerged in New York City’s recent civil lawsuit against the gun industry, alleging that its marketing and distribution prac­tices fostered an illegal market in firearms. To match the gun industry’s muscle, the city retained New York heavyweight firm Weil, Gotshal & Manges to represent it on a pro bono basis. However, after more than two years of work, the firm withdrew on the eve of trial, citing positional conflicts. This meant that a corporate client was concerned that the firm was setting precedent that was adverse to its business interests. Although another major firm eventually stepped in as pro bono counsel, the lesson was clear: when it comes to big firm pro bono, business considerations can trump professional commitments.

Of course, most pro bono cases are not so dramatic. Private lawyers do a tremendous service representing poor clients in routine matters and lending their institutional resources to support the reform agendas of public interest groups. Their volunteer work ranges from the mundane to the transformative. But the central dilemma of pro bono remains. A system that depends on private lawyers is ultimately beholden to their interests. This means not just that private lawyers will avoid categories of cases that threaten client interests but also that they will take on pro bono cases for rea­sons that are disconnected from the interests of the poor and underserved—and often contrary to them. This is most apparent in the use of pro bono for law firm associate training. Associates who gain skills in the volunteer context spend most of their time using them to vigorously advocate against the interests served through pro bono representation.

There are other drawbacks. Pro bono lawyers do not typically invest heavily in gaining substantive expertise, getting to know the broader public interest field, or understanding the long-range goals of client groups. The partiality and narrowness of pro bono representation is striking, particularly in contrast to the way big firm lawyers seek to under­stand and advance the goals of their client community. And the disparity of the resources devoted to billable versus pro bono work—which, even at the most generous firm, rarely constitutes more than 5 percent of total hours—underscores the vast, persisting inequality in legal services. Indeed, there are no parallel resources available to press the interests of marginalized social groups, who are left to depend heavily on volunteer efforts to respond to their needs, a fact that distinguishes them from their adversaries, who spend lavishly to purchase the best legal counsel money can buy.

In the years to come, pro bono will be a growth industry, not simply shaping the American system of free legal services, but informing the global discussion about equal access to justice. Questions about pro bono’s effectiveness as a model for meeting the legal needs of poor and underserved groups will therefore take center stage. It is important that the advantages of pro bono receive full attention. Yet these advan­tages must be carefully weighed against the systemic challenges that pro bono poses. Instead of professional platitudes about the virtues of volunteerism, robust debate is in order, debate that includes a full airing of both the promise and perils of pro bono and provides a rigorous account of what equal access to justice looks like in practice. To avoid this debate invites the uncritical expansion of pro bono as a stop-gap measure rather than a thoughtful response to the dilemma of unequal legal representation.

More funda­mentally, the failure to confront pro bono’s limitations risks elevating professional interests over concerns of social justice—promoting the image of equal access without the reality.

Finding Pro Bono Programs for Clients in Need

The American Bar Association maintains a nationwide directory of pro bono programs. See www.abanet.org/legalservices/probono/directory.html# to locate a program in your area. The ABA also provides links to hundreds of national pro bono organizations, state pro bono programs, and public interest legal organizations and support centers. See www.abanet.org/legalservices/weblink.html#probono. To explore volunteer opportunities, visit www.abanet.org/legalservices/probono/volunteer.html.

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