Unmet Needs
The American Lawyer
By Ben Hallman and Ross Todd
July 01, 2009
By any measure, 2008 was a banner year for pro bono. Am Law 200 lawyers donated more time (5.6 million hours) at a greater clip (61 hours per lawyer) than at any time since we started keeping tally nearly 20 years ago. They made huge contributions in areas of the law where the stakes are the greatest: death penalty, asylum, criminal defense, disability rights, and representing detainees held at Guantánamo Bay.
Despite all this effort, there are still broad areas of the law--and broad swaths of the country--that rarely see the attention of a big-firm lawyer. Eighty percent of the poor in the United States are unable to afford a lawyer or find pro bono help for their civil legal problems, according to the American Bar Association. Indeed, just when the need for help seems to be peaking, legal aid organizations that connect big firms with pro bono opportunities are seeing funding sources dry up.
In order to get a handle on what, exactly, isn't getting done on the pro bono front, and what big-firm lawyers can do to plug the gaps, we spoke with legal aid providers and pro bono practitioners across the country. We sorted what they told us into five needs-baskets, areas where the pro bono safety net is weak, and where large law firms, for reasons of geography, interest, and conflict (both real and imagined) rarely venture. In some instances we've found people or programs that offer possible solutions. Other problems are more daunting. We've ordered the needs-areas below in terms of difficulty to remediate, from clearly solvable (assistance to enlisted military personnel who are constantly on the move) to seemingly intractable (helping the millions of rural poor who live in counties, in some instances, with one or no practicing lawyer).
Click through, share your thoughts, and let us know what we might have missed.
• Segment 1: Representing military personnel.
American troops have legal needs common to many underserved populations, but finding assistance often poses a unique challenge. The problem is mobility. Troops often have legal problems in their home states, but are based in another state, or abroad. Meanwhile, the lawyers they are most likely to turn to in a time of need-officers in the Judge Advocates General corps-are also usually stationed outside of the jurisdiction in which they are licensed to practice.
Consider the case of an Army sergeant from Colorado. When he returned from Iraq last year, he paid $3,000 for a warranty on a new car. He was told by the Colorado dealer that the warranty would be valid overseas. When he took the car with him to Germany, he discovered that wasn't the case. Neither the sergeant nor the judge advocate general attorney on his base had any luck convincing the dealer to refund the money long-distance.
Enter William Berger, a labor and employment lawyer at Stettner Miller, a small Denver firm. Last fall, Berger signed up as a volunteer to help with the Military Pro Bono project, a new initiative of the American Bar Association. Through a secure, interactive Web site, he downloaded the case history from a JAG lawyer in Germany. "I was able to hit the ground running," says Berger who was able to help the soldier get a refund of the cost of the warranty.
Jason Vail administers the project for the ABA. For $7,000, he was able to adapt an existing case management system to fit the needs of the military lawyers who were partnering on the project. The result: a simple online interface that allows Vail, who works part-time on the project, to match cases with would-be volunteers who previously logged on to set up an online profile. As of May 1, the project had connected 161 cases to local lawyers across the country.
• Segment 2: Helping the unemployed.
During this recession, handling appeals for those denied unemployment benefits has become a growth practice. Between January and March 2008, the Boston Bar Association's Volunteer Lawyers Project (VLP) referred 70 unemployment appeals to local firms. Over the same period this year, the number of new cases tripled to 210. VLP put out an urgent appeal this spring asking firms in Boston to help with the mounting caseload. "Right now it's not just clients in need, it's the legal system that's in need," says Albert Wallis, the executive director of the public interest center at Brown Rudnick.
Clearly, this is not just a Boston problem. With unemployment edging toward 10 percent, legal aid centers across the country are swamped with new cases. Unfortunately, most cities don't have a dedicated project devoted to helping the unemployed get benefits. "With a modest amount of representation, the difference we can make in somebody's life can be extraordinary," Wallis says. Indeed, cases typically take about 30 hours split between two lawyers, and firms have won about 95 percent of the cases VLP has referred to them.
As a summer associate in 2007, Brown Rudnick's Adriana Schick worked pro bono for a woman who had been denied unemployment benefits. Over a couple of months, Schick and a colleague met with the client, put together a statement of facts, and represented her at a hearing with state unemployment officials, which they won. Schick, now a first-year in the firm's corporate and securities practice, continues to handle unemployment appeals pro bono. But she says the tenor of the practice has changed recently. "It definitely is more of a desperate situation for the clients. There is no work for them outside the job they just lost," Schick says.
• Segment 3: Easing the load in family court.
Across the country, family courts are over-extended. This is one area where legal aid lawyers say the infrastructure to provide services pro bono has yet to be put to full use. Indeed, the fear of getting stuck in the middle of contentious, personal legal matters scares away many lawyers who are unfamiliar with the family courts.
In New York City, there's a program that gets big-firm help to the family courts. It started shortly after Greenberg Traurig partner William Silverman asked the chief administrative judge for the New York City Family Court, Joseph Lauria, to make a cameo at a pro bono training for a separate family law project at a local legal services agency, the judge accepted-with a condition. Silverman would have to help Lauria recruit firms for a separate pro bono venture. Nearly 90 percent of litigants in paternity, support, and guardianship cases are not represented by counsel. Lauria wanted help setting up clinics in the family courts to give those pro se litigants basic legal advice.
What started in November 2006 with lawyers from five firms and in-house counsel at Citigroup Inc. has expanded to include 200 lawyers at 16 law firms and four companies. Firms and in-house lawyers take turns staffing clinics housed in the family courts in Manhattan and Brooklyn. A third outpost is set to open this summer in the Bronx. Lawyers meet with clients one-on-one for up to an hour without taking on individual clients or cases long term. Silverman compares it to triage. "You can see three to six people in the course of a morning," Silverman says. "But then when you go back to the office you don't bring any work back with you." Silverman has taken the model on the road, presenting it in May to family courts across the country. Although he thinks the clinic's model can help meet urgent needs, he hopes exposing corporate lawyers to the family courts will help them understand how underfunded those courts are. In spite of the caseload, the number of judges has remained the same for 16 years. "This is a true crisis that requires more than pro bono help. This really requires legislation," Silverman says.
• Segment 4: The cracking pro bono infrastructure.
Time may be money. But in the current funding environment many legal aid providers say they need money just as much as they need pro bono time. Just as the demand for pro bono services is at an all-time high, the infrastructure to provide legal help to low-income people is under tremendous stress. "Pro bono doesn't function well if there isn't some staff expertise to guide the volunteers," says Tiela Chalmers, the executive director of the San Francisco City Bar's Volunteer Legal Services Program.
Chalmers is in an all-too-common predicament for legal aid providers. She has seen the number of lawyers stepping up to volunteer at the city's largest provider of pro bono services double in the past year. But at the same time, her organization has experienced an eight percent reduction in funding from private foundations and federal and state grants. Chalmers was forced to make $160,000 in budget cuts in the first four months of the year and ask full-time staff members to take three-week unpaid furloughs.
The problem is national. In Chicago, Cabrini Green Legal Aid executive director Robert Acton says his organization faces a possible $200,000 budget shortfall as the organization approaches the end of its fiscal year. The funding gap is due largely to a loss of $136,000 in grants from foundations whose endowments are dwindling. Acton says donations from individual lawyers are up by 24 percent over last year, and that law firm giving has held steady, but staff layoffs and furloughs at Cabrini Green are both possibilities if the gap isn't closed. "While we're heavily reliant on pro bono attorneys and the work of our volunteers, ultimately we have to have a solid financial structure in place to keep at capacity," Acton says.
• Segment 5: Serving the rural poor.
Here's how Catherine Tucker, the pro bono coordinator for Western Tennessee Legal Services, spent a recent Monday morning. Two women called seeking help. One was the victim of physical domestic violence. The second was a victim of verbal abuse. Tucker knew she simply didn't have the resources to help both women. Finding a lawyer willing to take any case in her region of the state-where Jackson, a city of about 60,000, qualifies as a big city-has become increasingly difficult. Domestic violence cases are particularly hard to place. So Tucker told the woman who had been verbally abused that she couldn't do anything for her. "We can't help everyone," she says. "If it's a choice between a burning house and a burning car, we save the house."
Tucker's office serves the area between Memphis and Nashville. Some counties have as few as one practicing lawyer. Convincing these rural lawyers to donate their time to pro bono is a continuous challenge, Tucker says. "They get a lot of criminal appointments and some feel that is their pro bono contribution." Others simply can't afford to take the time off from paying work. Meanwhile, new cases are flooding in.
Steve Xanthopoulos, the executive director, says foreclosure calls alone are up to five or six a day. And with a staff of ten lawyers and 20 paralegals, there is only so much they can do. "It's overwhelming," he says.Tennessee isn't the only state having trouble meeting the legal needs of its rural poor. In a recent national survey, rural legal aid providers' complaints included cuts in state funding, a shortage of bilingual outreach workers, and conflicts of interest in counties with just a handful of lawyers. One respondent to the survey wished for a national Web site for rural pro bono practitioners, which would give a sense of recognition as well as provide an easy one-step portal to link to state and local resources. Patricia Fain, who is the pro bono coordinator for the Supreme Court of Montana, says that would be a great start, but it wouldn't solve the fundamental problem that there are not enough lawyers in the rural areas of her big state. She is working on a project that will allow lawyers in Montana's cities to run legal clinics by video conference with rural areas. But that, too, has limits. Advice is not the same as direct legal representation.
