BigLaw and “Mandatory Pro Bono”

To mandate or not to mandate.  That is the…actually I’m not sure that’s always a question, grammatically speaking.

(photo: wikimedia commons)
(photo: wikimedia commons)

Anyway, the New York Law Journal ran a piece, “Mandatory Pro Bono: Get Ahead By Giving Back,” on May 4.  Two Blank Rome partners who facilitate firm pro bono work, Grant Palmer and Norman Heller, make the case for large law firms adopting lawyer pro bono requirements and also explain the Blank Rome experience: as of Jan. 1 of this year, “…every attorney…is required to perform, at a minimum, 25 hours of pro bono work per year—though our hope is that everyone will do at least 65 hours.”  (More on the Blank Rome pro bono policy here.)

Heller and Palmer frame mandatory pro bono as “the wave of the future” – as a next evolutionary step given the rapid sophistication of large-firm pro bono programs taking place in the past 25 years or so.  They catalog benefits of “mandatory” – I have thoughts on that word’s use for this purpose below – pro bono, all of which are meritorious if familiar to pro bono stakeholders, including:

  • Foremost, pro bono is the “…right thing to do. We should do everything we can to seek equal access to justice for everyone, regardless of their ability to pay.”
  • Good for business.  “corporate clients care about pro bono work by the law firms they retain. Charitable legal work by lawyers in corporate legal departments is growing exponentially.  [T]hey want their outside lawyers to be equally generous….”
  • Lawyer training (w/ supervision): “[A]ssociates [may] take a lead role in a case and also receive advice and mentoring from senior attorneys. This is a critical pro bono benefit…at a time when fee-paying clients are more resistant to working with less experienced attorneys.”

The Blank Rome experience has been positive, write the authors.  In implementing the policy, they cite investment from firm leadership (at various levels of the managerial totem pole) as being key.  As for results, the policy’s helped stimulate, “renewed enthusiasm and excitement about giving back to our communities. Our attorneys are more active in pro bono, including our senior partners.”  As for stats, they cite the increased percentage of lawyers doing pro bono.  That’s an obvious outcome, so I’d be more interested in seeing the figure on pro bono hours, and more importantly what kinds of pro bono work are being done.

The article prompted a response letter from pro bono leaders at Akin Gump, published in the NY Law Journal on May 14: “[M]andating pro bono may be good for the health and strength of some law firms, but is not a healthy prescription for the entire industry.  [The policy] may work in some firm cultures, and is one way to send an important signal from leadership, but is not a substitute for the hard work of creating a pro bono culture that meets the needs of both the firm and the community.”

*** 

There is, anytime the ol’ “mandatory pro bono” battle is joined, a lot to unpack.  This is a blog, and I’m not supposed to write long posts.  So I’ll hit only on some ideas that I find important:

  • The most important: the question of law firms – private actors in the commercial marketplace – requiring pro bono is entirely different from the larger question of law-practice regulators, i.e. state bars and high courts, requiring pro bono.  No jurisdiction now requires pro bono of its lawyers*, although nine states require attorney reporting of pro bono service.  These policies have been uncontroversial, except recently in New York (the newest adopting state).
  • I don’t feel strongly either way about law firms adopting requirements.  If the firms conclude that this would (or should) reflect firm culture, more power to them.  Plenty of law schools already require pro bono/public service.
  • If a firm chooses to adopt a requirement, the kind of pro bono work required should be a factor.  “Pro bono” is defined differently in different places, but ABA Model Rule 6.1, which encourages lawyers to perform at least 50 annual pro bono hours, is a good touchstone.  6.1 emphasizes that lawyers should “provide a substantial majority of the (50) hours of legal services…to persons of limited means or [organizations that serve them].” (Emphasis mine.)  That means low-income people and families.  6.1’s definition is more expansive, but again the emphasis is on so-called “tier one” pro bono service to people who are poor and most vulnerable.  So if I were crafting a law firm pro bono policy, I’d work with my local legal aid providers (civil and criminal) and bar association to identify a category of folks who need the help most, and then require, for example, that a percentage of lawyer pro bono work benefit those folks.  This does not mean always taking a domestic violence case (although they should!).  It could mean facilitating a property or tax transaction for a nonprofit.  I’d even think about requiring that some percentage of the pro bono clients served are in the firm’s city/town/locale.
  • Let’s talk semantics!  Yes, semantics matter.  How we frame an idea is vital to how it is understood by those whom it impacts.  It helps clarify our motivations and intentions.  In my experience lawyers, like other humans, hate “mandatory” anything.  Lawyers, in particular, are tasked with navigating often complicated waters in services of their clients’ interests.  “Mandatory” restricts navigability.  So lawyers don’t like the word or the idea it represents.  If I’m instituting a law-firm pro bono requirement, I’d launch it as a “service (or pro bono) commitment.”  This conveys the idea that to have the privilege of practicing at Blank Rome (or wherever), lawyers must be demonstrate that they value giving back.  It is part of the law firm’s identity, and the lawyers are the firm’s chief ambassadors.

Lastly, a high-five to Heller and Palmer (and Blank Rome) for their work on the firm’s new policy.  Many moons ago I worked at Philadelphia’s legal aid pro bono clearinghouse.  Blank Rome, with and through the firm’s pro bono head Kathy Ochroch, was a key supporter, placing a premium on pro bono.  And a high-five to Akin Gump for joining the conversation.  Akin also displays a strong, firm-wide commitment to pro bono service.  And Steve Schulman, one of the response-letter authors, is a righteous dude.

* No lawyer must do pro bono, but New York became the first (and at present, but likely not for long, only) state to require pro bono as a condition for admission to the bar.  California looks to be going in that directions, as well.

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