A year ago, we found ourselves concerned about the definition of pro bono work. We had discovered a few examples of overreaching and a few examples of confusion in the marketplace. This was more than a matter of technicalities. As readers of this magazine know, we rank firms on their pro bono hours; the rankings are based on self-reporting. To be fair to all concerned, we needed a common understanding of what counts and what does not. We would, after a decent interval, declare one, we said.
Easier promised, it turns out, than drafted.
For the past year, we've met with interested pro bono parties from around the nation. They offered us considerable help and advice in understanding the issues and dilemmas buried within their community. And to a person, they asked that we adopt one of the existing definitions and modify it on the margins, as needed, in order to avoid giving law firm statisticians heart failure. That's a reasonable request. When we began measuring pro bono activity in the '90s, we relied on a version of what's come to be known as The Pro Bono Institute's definition, also known as the Law Firm Pro Bono Challenge. With the exceptions and modifications below, we once again adopt it as our own. Here's the pertinent text:
The term "pro bono" refers to activities of the firm undertaken normally without expectation of fee and not in the course of ordinary commercial practice and consisting of (i) the delivery of legal services 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; (ii) the provision of legal assistance to individuals, groups, or organizations seeking to secure or protect civil rights, civil liberties, or public rights; and (iii) the provision of legal assistance to charitable, religious, civic, community, governmental, or educational organizations in matters in furtherance of their organizational purposes, where the payment of standard legal fees would significantly deplete the organization's economic resources or would be otherwise inappropriate.
The PBI definition comes with a body of commentary, some of which can be found at probonoinst.org. We ask firms that report their pro bono numbers to The American Lawyer to follow the PBI rules with the following exceptions:
We have tried to keep this simple and have kept our exceptions to a minimum. Undoubtedly there will be further modifications in the coming years as PBI and The American Lawyer gain wisdom. There are several definitional issues that PBI is confronting, and we await the results of its work, reserving the right to disagree. For one thing, at some point we expect that the PBI drafters will do better than the phrase "persons of limited means." On its face, who doesn't meet that test? We'd prefer something more objective, such as "income pegged to 200 percent of federal poverty guidelines."
Because we want to promote understanding -- and compliance -- next year we will ask the leaders of the Am Law 200 firms to sign off on the pro bono numbers that their firms report. And, as always, we will encourage them to do a bit more pro bono work. The need is great, and the benefits -- to the clients, the firms and the profession -- are enormous.