Let the good times roll. That’s the counterintuitive conclusion we draw from our research for The National Law Journal’s annual Pro Bono Awards.
The towers of finance and industry are toppling, knocking over law firms on their way down. Yet the firms left standing still recognize that their futures depend in large measure on keeping young associates productive, happy and committed, and that pro bono might be a way to do that.
Managers with memories have learned the lessons of the dot-com crash, when firms jettisoned associates and made first-year and summer associates delay their starting dates. Firms cut back on pro bono credit, sometimes entirely. The clear message was that associates overly focused on pro bono had too little real work to do, said Esther Lardent, president of the Pro Bono Institute at Georgetown University Law Center.
“That caused associate grumbling and morale issues, and made people feel even shakier about what the future was at the firm. People lost associates who were feeling at loose ends and invisible,” Lardent said in an interview.
“I think most of the firms have learned their lesson,” she continued. “What they now understand is that in tough times — when the issue is permanence and commitment to the firm and thinking long term — that pro bono is a very important indicator that the firm is on solid ground, that the firm cares for and respects individual lawyers, is about more than just short-term thinking.”
Keith C. Wetmore, chairman of Morrison & Foerster, confirmed Lardent’s analysis.
Even in this economic climate, “I think you’ll see stepped-up pro bono,” he said. “When you have pockets of slowness” in a law firm, “you want to encourage lawyers to use their time productively, and pro bono is a good place to do that.”
Wetmore expects Morrison & Foerster to perform “significantly higher pro bono hours this year than last.”
Hours up significantly
Fresh surveys of pro bono trends won’t be available until later in the year, but data from 2007 confirm the anecdotal evidence. The Pro Bono Institute reported that 135 of the country’s largest firms provided nearly 4.3 million hours to pro bono projects in 2007, representing a 170 percent increase since 1995.
In a separate survey, The American Lawyer magazine, an affiliate of the NLJ, reported in July that the pro bono commitment among its list of the 200 highest-grossing U.S. firms exceeded 4.8 million hours in 2007, an increase of 590,000 hours from 2006. Per capita hours were up to 53.6, an annual increase of nearly 8 percent. The firms surveyed reported that 42.3 percent of their lawyers performed at least 20 hours of pro bono work, a 12 percent increase and a record for the survey.
Applying a blended rate of $300 per hour, the big firms on the magazine’s list contributed approximately $1.45 billion in billable hours.
The argument about whether pro bono makes business sense for large firms is over, said Robert Dicks, a senior manager at Deloitte Consulting in New York. With large firms at rough parity in terms of compensation, firms understand that an effective pro bono program can cement their reputation as a good place to launch a legal career.
In a report published in November 2008, Deloitte cites the National Association for Law Placement’s (NALP) “conservative” estimate that the cost of replacing a defecting associate can exceed a “staggering” $100,000.
At the same time, “two of the top three reasons for associate attrition related to the ability of law firms to connect lawyers to matters and partners focused on their development,” the Deloitte report said, again citing NALP figures.
Against this background, managers at large firms clearly see pro bono not as a cost, but as an investment. Dicks noted that during a recent professional development conference, he addressed a room packed with law firm staff whose sole duty was to manage pro bono programs.
“Firms are starting to do this well — it’s a managed part of their business,” he said. “The return comes from doing pro bono efficiently and thoughtfully — putting the right associates on the right matters to give them the development opportunity they need in their careers.”
About the NLJ survey: We asked our readers to nominate attorneys and law firms that did the most to uphold the principle that justice shouldn’t be contingent on the client’s ability to pay.
We looked for firms that had devoted substantial time and money to the cause, and gave bonus points if the nominee risked particular opprobrium by standing up for the despised and rejected.
It was a completely subjective process, and unfortunately we lack the space to recognize all of the firms we admire — or every firm that participated in a successful collaboration. Morrison & Foerster, for example, has donated 24,000 pro bono hours seeking government recognition of veterans’ post-traumatic stress disorder injuries. (The case is before the 9th U.S. Circuit Court of Appeals.)
Meanwhile, Wilmer Cutler Pickering Hale & Dorr argued the habeas corpus rights of “war on terror” detainees all the way to the U.S. Supreme Court. In November, a federal judge ordered five Wilmer Hale clients released “forthwith.”
We settled on firms engaged in struggles that took on particular resonance in 2008: voting rights, same-sex marriage, refuge for Iraqis who endangered their lives by working with U.S. forces, and reparations for the remaining victims of the Nazis’ “ghetto work” program.
That last project required creation of a national, even international, network to organize and train volunteers in assisting reparations seekers.
“If that works for Holocaust survivors, why couldn’t it work for homeless men?” Lardent noted. “You see this thinking bigger, and thinking strategically.”
Lardent gives some credit for this turn to corporate law departments; as they have assumed more pro bono responsibilities, they’ve brought a business mindset to the game.
Law firms used to differentiate between service to individual clients and impact litigation, but “that’s old thinking,” Lardent said.
“You need to provide representation to individuals but you want to do it in a way that lowers the transactional costs of how you do it, and you serve more people.”
Following Hurricane Katrina, individual attorneys hightailed it down to the Gulf Coast to help storm victims only to find that they were constantly reinventing the wheel. “What they realized was that their best role was to provide training and materials and contacts into the survivor community,” Lardent said.
The future is in pro bono “that focuses on what outcome is there going to be — pro bono that looks at the obstacles and that tries to solve systemic problems and that is strategic rather than simply tactical,” she said. “To help people, but to look at the underlying problem.”
This article originally appeared in the National Law Journal, a Legal affiliate. •