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Vol. 34, No. 1

With encouragement from bars, pro bono service is on the rise

by Robert J. Derocher

As news of shrinking legal income, lawyer layoffs, and deferrals of new law firm hires inundated the legal community this spring and summer, news of a better sort trickled out of the Pro Bono Institute in Washington: Pro bono hours at some of the nation’s largest law firms in the first half of 2009 were up from a year earlier.

Better yet, the forecast from many of those firms is that pro bono hours will continue to be ahead of last year’s numbers through the end of the year—even as layoffs, bankruptcies, and foreclosures dominate global headlines.

“It’s a very laudable response to this painful situation,” says Esther Lardent, president of the institute. “I think that over the last 10 years, pro bono has become more a part of the way of life at many firms.”

A comprehensive report issued earlier this year by the ABA Standing Committee on Pro Bono and Public Service also found that pro bono was gaining traction.

“I know that the ABA and bars across the country are working hard to meet the increasing demand,” says Mark Schickman, immediate past chair of the committee. “The challenge is that there is a greater need at the same time there are diminished resources. The issue is large—but the thing that [lawyers] do is that they keep fighting.”

Lardent, Schickman, and others active in the development and promotion of pro bono initiatives say they’ve been encouraged by statistics and anecdotes showing that lawyers are responding to calls for legal help in the current economic downturn—despite the profession’s own woes. Many lawyers, with encouragement from bar associations nationwide, are particularly involved in more and more foreclosure issues (see “Lawyers and bars help homeowners facing foreclosure,” page 20).

Still, they say, the uncertainty and fear surrounding the teetering economy and how that affects the legal community are formidable roadblocks in providing pro bono services. They hope that lawyers and their bars will continue to respond with the resources that are needed to cope with the continuing crisis.

Layoffs and deferrals

The numbers gathered by the ABA Standing Committee on Pro Bono and Public Service and the Pro Bono Institute appear to support that notion. The PBI survey, whose report was published in June, found that 54 of 95 firms that responded increased their pro bono hours in the first half of 2009, compared with a year earlier. Just 13 firms said their pro bono hours decreased. Looking ahead to the second half of the year, 41 of 93 firms planned to increase pro bono hours from a year earlier, while 10 firms said they would decrease hours. The remainder said pro bono hours would remain about the same, or they were unsure.

Three quarters of the lawyers surveyed for the ABA study released earlier this year had performed pro bono work in 2008—a 10 percent increase from 2005. The number of volunteer hours per lawyer increased more than 5 percent in that time span.

These results come as law firms continue to lay off and offer sabbaticals to their attorneys, and to delay the hiring of new associates and interns. Each issue of the ABA Journal’s weekly e-report seems to bring news of another round of layoffs at large firms. A “layoff tracker” at the Web site estimates that about 5,000 lawyers lost their jobs between January 2008 and July 2009. Solo and small-firm practitioners have also seen a slowdown in business.

Some laid-off lawyers and deferred associates are contributing to the pool of pro bono attorneys, Lardent says, with many out-of-work lawyers doing pro bono work to “stay in the game.” Some law firms are delaying hiring new associates for up to a year, and then promoting (or requiring) pro bono and public sector opportunities for those they’ve selected but can’t yet put to work.

At Boston-based Ropes & Gray, more than 40 incoming associates—along with several current associates—will take a variety of public service positions ranging from indigent criminal defense to immigration and foreclosure work, says Rosalyn Garbose Nasdor, the firm’s pro bono manager. They will receive one-year $60,000 stipends from the firm and will have their health benefits paid.

“We hope they contribute to the community and offer their services in a time of great need,” she says. “It’s an extraordinary opportunity—and they’ll have a job at the firm when they return.”

The notion of hundreds or thousands of associates put on hold seems like a gloomy economic indicator, but many say there’s a significant upside, beyond the fact that there are more hands available to provide much-needed service. The pro bono and public sector work being done as a stopgap during the economic slowdown might bode well for the future of pro bono in the profession, as young lawyers learn the value and benefit of such work early on, says Carol Bockner, director of pro bono initiatives for the City Bar Justice Center at the New York City Bar. It may also benefit the associates’ firms once they do arrive, she adds.

“It will provide their first-years with some wonderful training,” she explains, “and it will hopefully make them advocates for pro bono.”

But Bockner and others are quick to say that it is the efforts of front-line lawyers and law firms that are mainly responsible for the strong pro bono response.

“For the last 10 years, pro bono is becoming more and more a part of the way that firms do business,” Lardent says. In New York, Bockner adds, “pro bono has become institutionalized at firms and corporate legal departments.”

And it’s not just the large and medium-size firms that have stepped up, Schickman notes. While statistics are difficult to gather, the solo and small-firm practitioners who do the majority of pro bono work are continuing to do so. “It’s the solos and small firms who are really connected to their communities,” Schickman explains, “and if there are people who need help, they help.”

The role of the bar

Whether by setting aspirational service goals, tracking lawyers’ service, setting up special projects, or through some other means, bar associations continue to play a vital role in encouraging pro bono service, Schickman and others say. In many cases, bars provide the critical bridge between their lawyer members and the public interest organizations that are often “the gateway to the poor,” Lardent says.

“Bar associations should send the message that pro bono is something that is such a core value to the profession that it should be a major part of the bar’s activities,” she says. “They need to make sure that pro bono doesn’t get lost.”

That message isn’t lost in Washington state, where the Washington State Bar Association spent more than $300,000 to help launch the Home Foreclosure Legal Aid Project in June. When the bar told its members it was looking for lawyers to help, more than 100 signed on in the first 24 hours, says Paula Littlewood, the bar’s executive director.

“This is what lawyers and bar associations should be doing—leading where only lawyers can lead,” Littlewood says. “Law is a service profession.”

Dozens of other bars have also stepped up during the economic crisis, Schickman says, and while he’s been heartened, there is still long-term concern.

“Unfortunately, though, crises keep coming up, so when this crisis passes another will come along,” he cautions. “The bar has done amazing things to promote pro bono over the three-plus decades I’ve been in this fight, and we have increased the inventory of pro bono hours immensely.

“But the proliferation of legal problems has matched the bar’s efforts step for step, yielding the one constant for all the decades we’ve been looking at it: Eighty percent of the legal needs of the poor remain unmet.”

That means the fight goes on, he says—but it’s a fight bolstered by a profound response from a concerned profession.

Lawyers and bars help homeowners facing foreclosure

New York, Philadelphia, Jacksonville, Columbus, San Francisco, and Seattle are just a few of the many places across the country where the spirit of lawyers doing pro bono work and the support of their bar association leadership have joined to meet a pressing legal need in the current fallen economy: home foreclosure defense.

Representing clients with limited means facing foreclosure is “complicated, exasperating work,” says April Charney, senior attorney at Jacksonville (Fla.) Area Legal Aid and a nationally recognized expert in foreclosure law who has trained hundreds of lawyers in the pro bono effort. “We’re not just defending foreclosures. We’re defending entire communities from losing their tax bases.”

Charney has given training sessions at more than 20 bar associations throughout Florida, and she has traveled to Ohio, South Carolina, and Iowa, as well. Lawyers attending her training do double duty: They not only get necessary training, they’re also asked to do 20 hours of pro bono work in their communities after the sessions.

Foreclosure defense has emerged as one of the greatest needs over the last year, and many bars and their members have stepped up to help, says Mark Schickman, immediate past chair of the ABA Standing Committee on Pro Bono and Public Service. Among the efforts:

The Philadelphia Bar Association was a co-winner of this year’s ABA Harrison Tweed Award for its Residential Mortgage Foreclosure Diversion Pilot Project, credited with saving hundreds of low-income homeowners from losing their homes.

The Ohio State Bar Association has helped place more than 1,300 lawyers offering pro bono service to Save the Dream: Ohio’s Foreclosure Prevention Effort.

The Washington State Bar Association’s Home Foreclosure Legal Aid Project launched in June with a hotline, Web site, and more than 300 lawyers trained in pro bono foreclosure defense.

To help launch the program in Washington, the WSBA provided $150,000 to its partner in the project, the Northwest Justice Project, and diverted $175,000 in internal funds toward development of a Web site and other support for the initiative, says Paula Littlewood, the bar’s executive director.

After a successful start, the WSBA is already setting its sights on expanding and continuing the project, which is currently set to last through May 2010, Littlewood adds.

That, says Charney, is a good idea.

“From what I’ve read, we’re looking at 13 million [new] residential foreclosures in the next two to three years,” she says, “and we’re going to see a whole new wave of commercial foreclosures.

“I feel like I’ve been drafted into an army, and I need to train a lot of privates.”