Let’s get this straight — the economy is in the tank, bankruptcies and layoffs are growing and lawyers’ jobs and incomes are affected just like everyone else. And you want me to give away my legal services? You must be nuts!”
As counterintuitive as this seems, a raft of recent articles indicates that many national law firms are strengthening their pro bono programs with additional staff, new programs and externships, even as profits are down and cost-cutting measures abound. Since large firms, as a rule, are driven by metrics rather than altruism, why they are investing in an activity that might be viewedas a financial drain, rather than as a central element in their legal practice?
It turns out that during the past 25 years or so, as law firms have matured and begun to be managed as business entities, pro bono work at many firms has also evolved and is now studied and managed like other business functions. The result has been significant study and data on the economic benefits of pro bono work, with the seminal resource being a 2000 article from Esther Lardent, president of the Pro Bono Institute of Georgetown University Law Center, called “Making the Business Case for Pro Bono.”
One common misconception is that every hour of legal services performed pro bono subtracts revenue from a firm’s coffers. In fact, many of the country’s most profitable firms also undertake the most pro bono work per lawyer.
In 2002, a national law firm that had suffered economic losses as a result of the 2001 economic recession and Sept. 11 attacks commissioned an accounting study of the firm’s operations in order to improve its bottom line. The firm had an active pro bono program that was specifically targeted for examination and possible elimination as an unnecessary expense.
The firm found that pro bono work did not negatively impact firm finances, for several reasons: it did not displace fee-generating work; out-of-pocket costs for pro bono work were very modest; and pro bono work yielded substantial benefits, particularly for recruitment and retention, skill building, enhancing morale, marketing and client development.
Since numerous studies and data have demonstrated that investing in pro bono work has a positive impact on a firm’s bottom line, much of the current economic debate has turned to how get the best bang for the pro bono buck.
For example, in November, Deloitte Consulting issued a report titled, “Improving Firm ROI (Return on Investment) Through a Pro Bono Program That Efficiently Develops Law Firm Associates.” The report argues that law firms need to stop viewing pro bono as a nice public service, and “capitalize on its strategic possibilities and benefits.” It focuses on pro bono work as a means to provide “unmatched” professional development, mentoring opportunities and job satisfaction to counter associate attrition, when the cost to replace an associate is conservatively estimated at $100,000.
So what are big firms such as Morrison & Forester, Dechert, Akin Gump, Kirkland & Ellis and Weil Gotshal doing to leverage their pro bono efforts in the current economic climate?
They are encouraging lawyers whose practices are slow to use their time productively with pro bono engagements that hone and expand their skills and contacts. They are also developing new projects that enhance firm identity, both internally to promote the firm’s culture and morale, and externally to increase public visibility. With the rise of the corporate social responsibility (CSR) movement, pro bono work has become an important indicator that a law firm’s values are aligned with its client’s CRS objectives.
Some firms are loaning associates to legal services, nonprofit and governmental organizations (the legal needs of which are increasing and funding of which is often decreasing as the recession deepens) so that those associates can stay productive, continue to develop their skills and professional contacts, and remain with the firm until the firm’s need for their services picks up.
Most importantly, law firms are reaffirming their commitment to pro bono policies and, in some cases, mandating or increasing the number of hours of pro bono work they expect lawyers to complete. Thus, many firms that view pro bono work as an investment in the firm and its lawyers are reporting significant increases in their pro bono time as the economy slowed.
What these firms are not doing is cutting back on their pro bono efforts. According to Lardent, the president of the Pro Bono Institute at Georgetown University Law Center, the current emphasis on pro bono efforts is the result of lessons learned during the 2001 recession.
Then, many firms “acted quickly and not always wisely” by changing firm policies to discourage, rather than promote, pro bono work. Some firms stopped giving equal credit for pro bono time, and ratcheted up billable hour requirements.” She reports that the result was “associate grumbling and morale issues, and made people feel even shakier about the future was at the firm,” and many firms were persuaded to reverse those short-sighted efforts.
When dollars are tight, pro bono work provides a low-cost way for attorneys to build their skills, market their services, and enhance job satisfaction, whether they are in a large law firm or solo practitioners. For new lawyers — or those switching jobs by choice or necessity — pro bono work provides many opportunities. Many legal services providers offer free CLE credits and substantial mentoring and other assistance.
Pro bono opportunities are not limited to litigators, either, as transactional pro bono work has expanded exponentially over the past two decades. In fact, one of the greatest needs for pro bono representation at this moment is to assist homeowners caught in the fallout from the subprime lending crisis.
There is also transactional work for non-profits, including real estate, labor, employee benefits, contracts and any of the myriad legal issues that might confront a business. In additional to developing skills, pro bono work provides valuable community contacts and possibly future business development.
None of the foregoing is meant to undercut or ignore the fundamental professional obligation that all lawyers share to ensure access to justice. When times are tough, it is even more important that lawyers set aside the time to help others protect their most basic rights, to vindicate civil rights, and protect income security, personal safety, housing and family relations, and to help the organizations that serve our communities.
Instead, this discussion is meant to recognize that many members of the legal profession are facing their own economic challenges and making decisions about how to allocate their time and resources. In doing so, they should be aware that pro bono work can be an important investment in their practice, and not a financial drain.
Recently, an attorney suggested that pro bono work was like the icing on a cake: it’s nice, but one needs to have a cake first. At the risk of channeling Forrest Gump, I am happy to adopt the idea that the practice of law is like a cake. But I would suggest that the role of pro bono work is more fundamental and should be compared to another ingredient: the eggs. Sure, you can make a cake without eggs, but it will be flat, tasteless and crumble easily. Pro bono work is to the practice of law as eggs are to a cake: it’s an important ingredient in what we do. It helps hold our professional cake together. It gives the practice of law, and our legal system, lift and texture, and without it, they just wouldn’t taste the same.
Mary Gay Scanlon is executive director of Ballard Spahr Andrews & Ingersoll’s pro bono program. She also serves as the firm’s liaison to Constitution High School, a Philadelphia public school where the firm has developed a diversity pipeline program. Scanlon is a founding and current member of the board of Philadelphia Legal Assistance Corporation, and chairs the law firm pro bono committee of the Philadelphia Bar Association. She can be contacted at firstname.lastname@example.org.