November 02, 2020

Pro Bono in a Pandemic

By: Hon. Elizabeth S. Stong

*This article originally appeared on October 5, 2020 in the ABA Business Law Section's Business Law Today online publication. 

A whole lot has changed in the last six months.  But one thing that seems to remain constant is a common desire to do something – anything – to make a difference.  Many lawyers, and all judges, are lucky enough still to have jobs and meaningful work, but we are surrounded by people who don’t.  Many individuals and families in our communities that always expected to be able to pay their bills now find themselves unable to do so.  Sometimes, those bills are the monthly rent.  And sometimes, landlords who no longer are able to collect the monthly rent are unable to pay their mortgage and real estate taxes, perhaps for the first time ever.

Of course, individuals and families are not the only ones who may not be able to keep up these days.  Small businesses, too, are struggling – you can see it on a socially-distanced walk through any downtown area, whether it’s my local neighborhood in Brooklyn Heights or a two-stoplight small town in a rural community.  Many businesses are struggling to hang on, navigating a complicated path to resuming operations safely.  Others have shut down, at least temporarily.  Some businesses are already lost, with their oval “OPEN” neon signs replaced by large “FOR RENT” signs.

What does any of this have to do with pro bono?  The answer is, a whole lot, in a lot of ways.  Pro bono representation of an individual or small business that otherwise would not have access to legal advice always makes a difference.  Not just usually, but always.

But now, as we face a triple pandemic of a public health emergency, a significant economic downturn, and a historic national reckoning with a plague of institutional racism, it could not be more important for lawyers individually and the legal profession as a whole to step up to the challenge of providing adequate legal services to those who cannot find or afford them, for so many reasons.  Here are just a few.

It seems likely that an unprecedented number of individuals won’t be able to pay their monthly bills, including their rent or mortgage.  Many states, including New York, have adopted moratoriums on evictions – but these will expire, and soon.  It’s bad enough not to be able to pay the rent, or to miss a mortgage payment (or two).  But it must be terrifying to face that situation, and to have no-one to help you identify your options, negotiate with your landlord or the bank, and find the best path forward for yourself and your family.  Pro bono counsel can help.

There’s another party to each of these relationships too – and many large landlords and most mortgage lenders are well represented.  I see many situations in my virtual courtroom where those counsel truly rise to the occasion, and embrace a problem-solving approach.  After all, a good tenant who has been furloughed, but has good future prospects, may well still be a fundamentally good tenant.  The temporary disruption to that landlord-tenant relationship may well be a solvable problem.

But not every landlord is a large, well-heeled (and well-represented) corporation.  Some are family businesses.  Much urban housing is small, not large, perhaps a mixed use building with a few residential and commercial units.  Maybe the owners live downstairs and rent one or two floors upstairs, and have their own mortgage to pay, not to mention real estate taxes and utilities.  And maybe the owners have never missed a payment or even considered how to respond to a tenant – and neighbor – that can’t pay the rent.  Maybe that’s also a solvable problem.  Again, pro bono counsel can help.

What about a job loss?  The news reports tell us that record numbers of individuals are seeking unemployment benefits.  And what access to federal and other benefits programs designed to sustain businesses through these times?  Access to these benefits may require fluency in legal language that comes naturally to lawyers – but not necessarily those who are in need.  When a process is frustrating, those who need it most may just give up – and give up hope too.  Here as well, pro bono counsel, fluent in the law and not likely to be intimidated by an administrative process, can help.

Perhaps most important, what about that intangible sense that someone – anyone – is on your side?  That someone thinks that helping you is their job, and not the other way around?  I recall representing pro bono clients in my practice days, and seeing the transformative effect of simply greeting them at our firm’s fancy reception desk, walking them to a conference room, asking how they take their coffee or tea (and making a mental note to remember it for the refill), and listening to their narrative until they were done with the whole story, until the answer to the question “can you tell me more about that” was a smile and a shake of the head, just as if they were the senior investment banker on the big deal that was headed to litigation.  Whatever else that client knew by the end of our meeting, they knew – for sure – that someone was absolutely in their corner and on their side.  Pro bono counsel can do this too, and so much more.

These are tough days, and tough times.  More than ever, lots of people and small businesses need recognition and assistance with solving their problems.  Some of these problems are existential.

And pro bono counsel can help.  Please don’t wait – whether it will be your first or your one hundred and first pro bono case, someone needs your help.  Yes, yours.  And soon.