For Whose Good?
Pro bono programs too often stress quantity over quality and easy wins over social impact. Sometimes nonprofits should think twice about accepting the help.
The American Lawyer
By Deborah Rhode
July 01, 2009
"Spray and pray." This is a term that strategic philanthropists use to criticize donors who simply spread assistance broadly and hope that something good will come of it. Something usually does, but rarely is it a cost-effective use of resources.
Yet this approach is all too common in law firm pro bono programs. Despite commendable increases in concern and participation rates, many support an unfocused range of projects and make little if any systematic effort at assessment. That tendency is encouraged by the growing influence of ranking systems that direct attention only to the quantity, not quality or social impact, of pro bono work. And the tendency may get worse in the current economic crisis, as firms scramble to find more pro bono opportunities for attorneys who lack sufficient paying work.
With so much in flux and so much at stake, this is a timely moment to ask deeper questions about the structure of pro bono programs and how they might better serve the public as well as the profession.
By definition, work that is pro bono publico is about promoting the public good. But in practice, pro bono has never been only about societal interests. It has also been about law firms' interests: reputation, recruitment, retention, training, networks, and workplace satisfaction. As one Chicago law firm partner told American Bar Foundation researchers even before the latest economic downturn, "Law firms . . . do not support pro bono unless there is a business reason to do so. The bottom line on this question is the bottom line."
But getting the calculation right has always been a tricky business, and recent events have added further complications. Although pro bono work can bring significant payoffs, those rewards are hard to quantify with precision. Now firms are struggling with additional complexities in assessing whether subsidizing furloughs or deferred start dates makes economic sense. One danger is that financial pressures will exacerbate tendencies to focus on lawyers' interests at the expense of the public's.
Those tendencies were clearly apparent in a survey I recently conducted of the nation's leading public interest organizations. In a study published in the 2008 Stanford Law Review, I found that almost half of the directors of these organizations reported problems with the quality of pro bono work from outside firms; only a quarter felt that they could effectively use more volunteer assistance. In some instances, the problem was a lack of oversight by the firm's supervising attorney. In others, it was a lack of relevant skills. Although many organizations are willing to provide outside counsel with the necessary background in substantive law, they generally lack staff to train a junior associate in matters such as how to take a deposition.
A related problem involves volunteers who, as one poverty lawyer put it, "want to do pro bono work in theory, but in practice don't want to make the commitment." Although many firms go to considerable lengths to ensure that public service clients are not treated as second-class citizens, others let bottom-line considerations prevail when paying matters arise.
The problems are exacerbated in pro bono programs that do not provide sufficient choice of projects or billable-hour credit. In my 2005 national study of pro bono work, almost half the lawyers expressed dissatisfaction with the options that their firms made available. Favors for clients, other lawyers (and their relatives), or partners' pet organizations struck many associates as not truly pro bono. An illustration involved an associate who repeatedly received routine assignments involving the church that the supervising partner attended. These projects absorbed time that could have gone to matters that the associate herself supported.
Other problems arise when relatively inexperienced pro bono attorneys want to call the shots, claim disproportionate credit, or make the arguments in important cases. About a fifth of the public interest organizations I surveyed experienced difficulties around these issues. Some firms took the position that "if it's our money, we should have control over spending it." But giving non-experts that degree of authority can compromise long-term policy objectives. Although many public interest organizations are willing to let cooperating attorneys argue cases and monopolize the associated publicity, that result may not always serve the client or the cause. Often the organization has more experienced counsel and is in greater need of the public visibility, which is essential for ongoing donor support.
A further limitation in lawyers' pro bono work involves criteria for selection. Karen Lash of Equal Justice Works asked law firm pro bono coordinators to explain how public interest organizations could best pitch their cases. Their suggestions included:
• "No difficult clients, [and only] cases that are likely to be winnable or to achieve some sort of feel-good result."
• "Save the sob stories/sell the skills."
• Emphasize how the case "will benefit the volunteer" through opportunities for court appearances, development of negotiating skills, or collaboration with "an expert mentor."
• "Perfect for the busy partner" is a "must-use phrase" for certain projects.
Such criteria make sense in selling cases, but they often screen out the clients most in need.
A related problem involves the lack of strategic focus in formulating selection standards. Despite all the discussion about the "business case" for pro bono, many firms are strikingly unbusinesslike in structuring their programs. Research on strategic philanthropy makes clear that the most effective approach is systematic identification of goals and measurement of progress in achieving them.
By this standard, much pro bono work falls short. Too few firms engage in systematic assessment of community needs or of the most cost-effective use of resources. Seldom do they even survey their own membership about setting priorities or attempt to monitor the satisfaction of clients or the social impact of particular initiatives. When asked about how effectiveness is measured, one Wall Street partner expressed a common view with uncommon candor: "We are not able to answer this question as it is posed . . . we cannot opine as to which of our pro bono programs effectively contribute to the community."
One obvious reason for the lack of attention to program effectiveness is the lack of accountability for the consequences. As in other philanthropic contexts where the need for help vastly exceeds the supply, those who contribute assistance often feel little pressure to worry about recipients' satisfaction or social impact. This is not to suggest that quality concerns are entirely missing. Many lawyers have internalized an ethic of client service, a growing number of firms have pro bono counsel who monitor performance, and many public interest organizations channel desirable work only to firms that have demonstrated a commitment to effective representation. But even the best-intentioned attorneys may operate with unduly flattering self-evaluations when more disinterested forms of oversight are absent.
Paul Brest, former dean of Stanford Law School and now president of the William and Flora Hewlett Foundation, likes to remind nonprofit organizations that "if you don't know where you are going, any road will take you there." Pro bono programs need strategic direction and a process for selecting and overseeing matters that takes into account both participant and public interests.
Often the most cost-effective approach is to target compelling unmet needs that tap firm lawyers' particular concerns and capacities. Ongoing partnerships with groups working in the field can help identify appropriate projects and leverage assistance. A model of such collaboration is a joint effort between Los Angeles law firms, city attorneys, and legal aid organizations to address housing issues in the city's skid row. Each member of the coalition brings distinctive strengths: Law firms offer resources and litigation expertise, nonprofits have knowledge of substantive law and community needs, and city prosecutors have special investigative capacities and the leverage of criminal and civil penalties. Such approaches tend to be particularly effective because the investment in training and contacts pays off in multiple cases.
But whatever priorities firms identify, a key to success is evaluation. It is, of course, true—as Albert Einstein reportedly observed—that "not everything that can be counted counts, and not everything that counts can be counted." In many pro bono contexts, the "social return on investment" is hard to quantify. But firms that want to make a difference cannot afford to assume that good intentions inevitably lead to good results. Some performance metrics are essential. A growing number of firms recognize as much. A survey of pro bono counsel that University of California, Los Angeles, professor Scott Cummings and I are undertaking suggests that monitoring and evaluating pro bono activity is a major challenge for large firms.
Models for assessment are readily available. For example, the ABA Standards for Programs Providing Civil Legal Services to Persons of Limited Means (Standard 2.12) identifies strategies such as collecting data on individuals served, results obtained, and evaluations from participants, clients, and referring or collaborating organizations. In assessing cost-effectiveness, questions to consider include: Can the work help to raise public understanding or empower clients? Is the assistance filling gaps in coverage or bringing some special expertise to the table? Would other uses of lawyers' time better address the sources rather than symptoms of the problems?
All of these questions demand a focus that includes, but also extends beyond, the bottom line. It would, of course, be unrealistic to abandon firms' self-interest entirely in the design of pro bono programs. Convincing lawyers that they can do well by doing good is often essential to sustaining charitable commitments. But to present public service purely in those terms is to compromise what makes it public. When attorneys talk about pro bono, they generally speak in shorthand. "Publico" has dropped out of the discourse. We can afford to lose the Latin, but not the concept.
Measuring the Commitment
The American Lawyer asked Am Law 200 firms which pro bono matters they spent the most time on in 2008 and which of their cases they consider the most significant. We received 123 responses. The tables below categorize those responses.
MOST SIGNIFICANT CAUSE
Asylum 45
Death penalty 36
Criminal defense 29
Immigrant rights 25
Election/voting rights 25
Housing 23
Civil rights 20
Veterans 19
Child custody 18
Disability 17
Prisoners rights 14
Nonprofit law 12
Guantánamo 12
Education 11
Environment 11
MOST HOURS
Asylum 106,608
Death penalty 75,739
Immigrant rights 51,774
Veterans 41,414
Election/voting rights 39,274
Guantánamo 38,712
Civil rights 38,705
Criminal defense 32,275
Housing 25,423
Prisoners rights 22,232
Health care 21,117
Poverty 20,738
International human rights 19,993
Nonprofit law 15,131
Environment 13,092
