Encouraging attorneys to do pro bono work is a perennial subject at law firms and among the bar. I know firsthand because for the last dozen years before my retirement five years ago from a large international law firm, I chaired its pro bono committee and had the opportunity to work on a number of pro bono cases myself.
We constantly asked ourselves what we could do to get more attorneys in the firm to volunteer their time. Some of the things we found most effective involved giving credit within the firm for time spent on pro bono work comparable to that for work on billable matters up to a (high) cap on total pro bono time creditable in this way. We also sought to encourage attorneys to volunteer by other means including moral suasion and strong support for them in their pro bono work once undertaken. In fact, we often found that the first project, if carefully selected and well-guided by more senior attorneys in the firm, would hook younger attorneys on the satisfaction of doing pro bono work. Many times also, positive client interaction itself inspired our attorneys to continue doing pro bono work.
However, what we repeatedly saw was that there is no stronger motivator for doing pro bono work than acknowledgement of that work by judges in individual cases. Especially for newer attorneys, but really true for all of us whatever our years of experience, recognition by a judge of, and appreciation for, pro bono work makes a huge difference and is perhaps the best way the judiciary can inspire attorneys to undertake this work. While certainly not all pro bono work involves litigation, much of it does. Therefore, the opportunity exists for significant judicial encouragement of it in this simple way.
Who would have thought that a straightforward “thank you for your work” on a case—or, where appropriate, something even stronger and more specific about that work—could mean so much or be so empowering? Yet when that happened for our attorneys, it transcended anything that their supervising partner for the project, or I as the firm’s pro bono committee chair, could say. (Incidentally, it still has that same effect for me even after many years of practice.)
Whether the position being advocated is one that the court decides to follow or not, the fact is that briefing and advocacy of a position by legal professionals where none would be available to the court otherwise, serves an important purpose on multiple levels. Not the least of those benefits is the assistance provided to the court and the court’s law secretaries or clerks in accessing the body of relevant statutory and case law and analyzing its application to the facts of the case.
I’m not proposing pandering to pro bono attorneys, nor am I suggesting, of course, that the “thank you” should have anything to do with outcome. What I’m saying instead is that the judicial acknowledgement of the work involved means an enormous amount, more than some judges who would like to encourage pro bono work seem to realize. The simple truth is that judges have it within their power to offer an encouragement for pro bono work that is truly unmatched.
Certainly in some cases, the fact of pro bono representation is unknown to the court for a variety of reasons. However, where it is known and the work is good, a judicial “thank you” can have enormous power for the long-range good of society and the bar whatever the outcome of the case may be.
The U.S. Court of Appeals for the Second Circuit, and their colleagues in the First and Third circuits as well, have been models of consistency of encouragement in this regard for decades on, for example, those appeals where young lawyers are given the opportunity to brief and argue cases with seasoned supervision within their firms. It has also sometimes been the case in my experience in the state court system from the Appellate Division to Supreme Court and Family Court, but unfortunately with far less consistency.
If you as a judge could see attorneys’ faces when they describe what the court said about its appreciation of their work, you would know without a doubt that your expression of that appreciation counts. I hope that our judiciary system-wide will take advantage of this opportunity to use its power of encouragement to great effect.
Stephen M. Hudspeth, is clinical lecturer at Yale Law School and a lecturer and Becton Fellow at Yale Graduate School of Management.