I. Introduction

In a survey by the American Bar Association (“ABA”), an overwhelming majority of lawyers asserted that legal professionals should do pro bono work.  [1]  Indeed, the Supreme Court’s majority stated in a 1989 decision that “in a time when the need for legal services among the poor is growing and public funding for such services has not kept pace, lawyers’ ethical obligation to volunteer their time and skills pro bono publico is manifest.”  [2]  Though 93% of attorneys polled by the ABA agreed with this statement, only 66% of these attorneys backed belief with action to do pro bono work, averaging 39 hours a year per attorney. [3]

In this day and age, almost every major corporate law firms has a large pro bono program.  [4]  These programs are publicized in news releases and in large, splashy sections of their web sites.  [5]   But is this pro bono policy a central firm policy or mere self-promotion, and what place does it have in today’s modern corporate practice?

II. The Debate

The age old debate has persisted through generations of lawyers [6] – is pro bono work mandated by the practice and profession of law?  Some assert that it is not an attorney’s professional obligation to help ensure equal access to justice; that this is a role of society at large. [7]  These critics of pro bono as a lawyer’s duty make arguments about personal liberty, choice, and interference with billable hours as reasons to avoid pro bono. [8]  After all, “Those projects don’t pay the bills,” [9] and these critics state that lawyers should devote their time solely to paying clients as part of their undertaking to advocate. [10]   Proponents of pro bono assert that lawyers have a monopolistic control of access to the legal system. [11]  Because of the complexity and permanency of adjudicated rights, attorneys are ethically bound to ensure that no matter the class of the individual, the same access to justice is granted to all. [12]

No matter what side one comes down on, one undisputed fact is the need for pro bono services in today’s American society.  Recent ABA studies illustrate that more than 80% of legal problems experienced by individuals in low-income households are not resolved or handled by the assistance of counsel.  [13]  Legal assistance in both civil and administrative matters is still a “luxury available only to a small segment of society.” [14]  At best, there is one public interest legal aid attorney per every 6,861 low-income individuals; in comparison, the general population has a ratio of one attorney per 525 individuals. [15]

In the end, the debate over the ethical obligation to provide pro bono is superfluous.  In the 1970 ABA Code of Professional Responsibility, lawyers were called upon to render “free legal services to those unable to pay reasonable fees,” and it was considered an “obligation of each lawyer” to do so. [16]  In short, it is within the profession’s self defined duties and regulations to contribute pro bono work.  Today’s ABA rules establish a benchmark amount of “at least 50 hours of pro bono public legal services per year” for each member attorney.  [17]  It is true that such a public service requirement may reduce lawyer fees, so do other rules of professional responsibility - such as continuing education, competence and due diligence. [18]  Most states have also adopted some form of this rule in their own version of state ethical rules. [19]

III. Current Status

Currently there is sparse data about how much pro bono work is actually being performed, and states are beginning to make efforts to determine exactly how much through voluntary or mandatory reporting. [20]  However, data demonstrates that almost 40 percent of attorneys in top American law firms donated at least 20 hours of pro bono services last year. [21]  Earlier this year, a total of 150 large law firms are signatories to the Pro Bono Institute’s Law Firm Pro Bono Project’s Corporate Pro Bono Challenge. [22]  This is a simplistic and voluntary statement of a commitment to pro bono service by that firm’s lawyers, legal departments, and staff. [23]   

Lawyers from big firms going into in-house practice at large corporations missed the pro bono opportunities at their new careers. [24]  Some lawyers making this jump view pro bono work as an essential ingredient to career satisfaction and urge their companies to become more involved in such work. [25]  This trend launched the Corporate Pro Bono initiative by the Association of Corporate Counsel, with 50 companies already signing onto the pro bono challenge similar to that of the one signed by large law firms. [26]

IV. Future Proponency
   
    A.  Law Firm Initiatives

An ABA survey revealed that the two most important factors detracting from pro bono participation were lack of time, and billable hours expectations/discouragement from employers. [27]  As a result, new firm policies are being fostered within large firms.  Some initiatives currently being used by large corporate firms to encourage pro bono work are: 1) Counting pro bono hours as billable hours in terms of promotion and pay, 2) Awards and recognition in external and internal publications to attorneys performing exceptional pro bono efforts, 3) Encouragement of senior lawyers within the firm to participate and therefore lead by example, 4) Requirement of newly hired attorneys to participate in a minimum of one pro bono matter in their first year, and 5) Making access available to training materials, mentors, manuals, and other support for lawyers’ pro bono efforts. [28]   

        B.  Other Initiatives

The government is doing its part to assist corporate lawyers in facilitating ease of pro bono practice.  One previous potential obstacle was that of malpractice; attorneys fretted that pro bono work outside of their field of expertise might lead them to make mistakes in the course of their client representation. [29] To ameliorate this situation, many states have recently enacted bills that provide malpractice insurance for pro bono work done through any nonprofits or government agencies. [30]

According to a commission on pro bono and public service by the American Association of Law Schools, a central recommendation was that law schools make available a “well-supervised law-related pro bono opportunity” to every law student. [31]  Clinics and curricula giving the opportunity to gain experience with pro bono work increases the likelihood of participating students to pursue pro bono work in the future.  [32]  Law schools should push the idea of corporate law combined with pro bono onto their students to engender a belief that even within the bounds of a corporate law career, pro bono work is still a feasible and desirable option to supplement their professional life.  Currently, students view their choices after law school as black and white: they either choose to dedicate their career to public interest, or “sell out” into corporate law. [33]    However, there is a middle ground wherein the corporate lawyer of current and future generations can enjoy the best of both worlds by having a fulfilling career at a firm while also contributing a substantial amount of pro bono work to the community. 

      C.  The Buyout Alternative

Because of concerns by some critics that a half-hearted, involuntary pro bono effort is more harmful than none at all [34], a buyout option has been suggested by several scholars as another solution. [35]  In this scheme, there can be no argument of a Thirteenth Amendment constitutional taking; each attorney is free to provide services or money. [36]  The amount of money would be the lesser of two numbers - for example, $500 per year, or 1% of the total annual revenue of a practicing attorney.  In this scheme, the rational relationship basis test to pass the constitutional threshold is met, and this buyout may be seen as a variant on franchise fees and traditional taxes on a profession. [37]   In the corporate arena, some large law firms have taken this notion to heart.  Skadden’s Fellowship Foundation has spent millions on its fellowships and monitor funding into several different areas of public interest, with 25 fully funded lawyers each year all providing services to the poor full time. [38]

V. Conclusion

When a large corporate law firm participates in pro bono, they lend a certain weight and prestige to a particular case or claim with their firm name. [39]  In today’s world of corporate law, pro bono service should not be viewed as some kind of tax or penitence for lucrative private practice. [40]  Indeed, pro bono is beneficial for lawyer recruitment, retention, and development of professional skills. [41]  The firm itself benefits by improving its public image in the eyes of the public as well as in the eyes of its clients. [42]  Besides being a central tenet to the ABA Code of Professional Responsibility and state ethical counterparts, pro bono is personally fulfilling to the corporate lawyer and beneficial to society as a whole.

Endnotes:

[1] Donna Walter, ABA Survey Finds Most Lawyers Favor Pro Bono Work, Kansas City Daily Record, Aug. 10, 2005.

[2] Mallard v. United States Dist. Court for Southern Dist., 490 U.S. 296, 310 (1989).

[3] Walter, supra note 1.

[4] When the Concept of Pro Bono Service is Part of a Law Firm’s Collective Personality, 9 The Metro. Corp. Counsel 69 (Sept. 2006).

[5] Scott Carlson, Law Firms Find Pros in Pro Bono Work: Providing Free Legal Services Helps the Needy – And Boosts Recruiting and Public Relations for Law Firms, St. Paul Pioneer Press, Sept. 21, 1999 at 1C.

[6] Jonathan R. Macey, Mandatory Pro Bono: Comfort for the Poor or Welfare for the Rich?, 77 Cornell L. Rev. 1115, 1115 (1992).

[7] Erika Martin-Doyle, Note: Massachusetts Rule of Professional Conduct 6.1: One Small, But Needed, Step for Lawyers, An Even Smaller Step for the Commonwealth’s Poor, 9. B. U. Pub. Ind. L. J. 53, 57 (1999).

[8] Id.

[9] Michael E. Kanell, Helping Out, Atl. J. Const., May 12, 2007.

[10] Jennifer Gerarda Brown, Rethinking “The Practice of Law,” 41 Emory L. J. 451, 455 (1992).

[11] Martin-Doyle, supra note 5, at 60.

[12] Id. at 61.

[13] Brown, supra note 10, at 457-58.

[14] Timothy P. Terrell & James H. Wildman, Rethinking “Professionalism”, 41 Emory L. J. 403, 412 (1992).

[15] Alan W. Houseman, Symposium on Strategies to End Poverty and Inequality: Article: The Future of Civil Legal Aid: A National Perspective, 10 D.C.L. Rev. 35, 45 (2007).

[16] Model Code of Prof’l Responsibility Canon 2 (1970).

[17] Model Code of Prof’l Responsibility Canon 2 (1980).

[18] Brown, supra note 10.

[19] Houseman, supra note 13, at 58.

[20] Id. at 57.

[21] Ashley Petry, Law Firms Charged Up About Pro Bono Work: Donating Time, Expertise to a Diverse Clientele is Rising in Popularity and Importance Locally, The Indianapolis Star, Aug. 15, 2007, at 5.

[22] Houseman, supra note 13, at 57.

[23] Id.

[24] Adele Nicholas, Helping Hands, Inside Counsel 55 (Jan. 2007).

[25] Id.

[26] Id.

[27] Walter, supra note 1.

[28] Bettina Plevan, Letter From the President of the Association of the Bar of the City of New York, The Metro. Corp. Counsel 57 (Jan. 2006), President’s Letter. See also Proskauer Rose: Taking A Program to the Next Level, 15 The Metro. Corp. Counsel 56 (Aug. 2007)(noting that pro bono time is counted equally with billable time, with pro bono activities noted in annual evaluations of each associate).

[29] Walter, supra note 1.

[30] Id.

[31] American Association of Law Schools, Learning to Serve (1999), available at http://www.aals.org/probono/report2.html#recommendations.

[32] Houseman, supra note 13, at 59.

[33] A. Benjamin Archibald, Departments: The Profession: The False Dilemma, 47. B. B. J. 16, 16 (2003).

[34] Richard Devlin, Breach of Contract?: The New Economy, Access to Justice and the Ethical Responsibilities of the Legal Profession, 25 Dalhousie L. J. 335, 370 (2002).

[35] See Rob Atkinson, Historical Perspective on Pro Bono Lawyering: A Social-Democratic Critique of Pro Bono Public Representation of the Poor: The Good as the Enemy of the Best, 9 Am. U. J. Gender Soc. Pol’y & L. 129, 138-45. See also Martin-Doyle, supra note 7, at 83-84.

[36] Mary Coombs, Your Money or Your Life: A Modest Proposal for Mandatory Pro Bono Services, 3. B.U. Pub. Int. L. J. 215, 222 (1993).

[37] Id. at 222-23.

[38] Bob Yates, Big Firms Take On Public Interest In a Big Way, Chi. Law., Sept. 2006 at 18.

[39] Martha F. Davis, Historical Perspective on Pro Bono Lawyering: Our Better Half: A Public Interest Lawyer Reflects on Pro Bono Lawyering and Social Change Litigation, 9 Am. U. J. Gender Soc. Pol’y & L. 119, 120 (2001).

[40] Brown, supra note 10.

[41] Kanell, supra note 9.

[42] Carlson, supra note 5.