Pro Bono Behind Bars

Alexis de Tocqueville visited the United States in 1831, at the age of 25, to study the prison system. His book, “Democracy in America,” was so influential that many people still say that much about a country can be discerned from its prison system. Analyzing pro bono work might bring similar insights into the legal profession. Many of the inefficient aspects of modern practice are reflected in pro bono, and it might be time to re-evaluate them, with an eye toward change and reform. Pro bono work, then, is the prison system of the legal profession. 1. It is driven by the billable hour. Many lawyers are addicted to measuring a work’s value by how many hours it takes to complete. By that measurement, drawn-out litigation is more valuable than a quick settlement. This, of course, is backwards — the client might benefit more from a quick, negotiated settlement than from protracted litigation. The American Bar Association, in its pro bono award system, uses onlybillable hours to measure a large law firm’s commitment to pro bono work, and it rewards those who bill the most hours. There is, to my knowledge, no formal recognition of those who have, say, wired up a legal services agency, which might be starving for technology to serve greater numbers of clients. There is no recognition of innovative pro bono programs. Even if we are slaves to the billable hour with our paying clients, shouldn’t we be open to other systems to measure effective pro bono work? Is the goal to clock a lot of hours, or to serve clients so well that their situation improves and they don’t need pro bono lawyers any more? Is there any metric to measure the impact or worth of the work? Is there even an attempt to ask clients how the lawyers did? Some states are considering imposing “mandatory minimums” on lawyers to require them to devote a certain number of hours to pro bono. Note the similarity, in terminology, to prison sentences, and the lack of interest in whether more hours provide better value to society. Eventually, mandatory minimums in both actual prisons and the prison of pro bono work may provoke backlash and resentment. To take an extreme case, lawyers who dedicate thousands of hours to the unsuccessful appeal of a death penalty case are seen as doing more “valuable” pro bono work than the journalism students who interview witnesses, discover that the prisoner was innocent in the first place and secure his freedom. “Those outside the justice system have accounted for the vast majority of the 85 death row inmates exonerated nationally since 1974, with students increasingly involved in those actions,” according to Rob Warden, executive director of the Center on Wrongful Convictions, in an interview with online magazine Salon. Of course, there are many fine lawyers, in private practice and in academia, who work tirelessly on all aspects of pro bono. But young associates, who provide most of the cannon fodder on death penalty appeals, run up high hours in large part because they are inexperienced. The more experienced attorney would require less time, but would hurt the firm’s pro bono report card. Even if well supervised, young litigators will live in the library, since their hours are the only things recognized and rewarded. Starved for recognition, the young lawyer is eager to bill many hours and help the firm do well on pro bono surveys. The journalism students, on the other hand, don’t clock their hours — they get results. The ABA emphasis on pro bono hours rewards the firms that put the most inexperienced lawyers on these matters. Billable hours fit the prison metaphor perfectly: The heavier the sentence, the more billable hours the lawyer is supposed to serve. And the more billable hours a lawyer clocks on a matter, the more serious that lawyer must be about pro bono. The emphasis on hours has sadly reached the small firms and solos that might not track their hours. A lawyer in a two-person firm who assists elderly veterans on a regular basis says that his work is not important because “it doesn’t take much time,” especially as he has grown very experienced in dealing with veterans’ benefits problems. Now that some of the forms are online, the work is even quicker. The lawyer says that what veterans really appreciate is the time he spends chatting with them, which is not legal work, and thus is not billable, so it doesn’t count as pro bono. Is it really that difficult to measure pro bono work in certain areas, such as benefits cases, consumer bankruptcies, domestic violence or uncontested divorces and other family law matters, by the number of cases successfully resolved, rather than the hours spent on the work? For certain areas of pro bono, a different metric than hours should be used, with perhaps a client satisfaction survey included. 2. Small firms and solos lead the way, but no one thinks they do. This is true in every area of law, and it is true in pro bono. Most lawyers in this country practice in firms with fewer than 10 attorneys. The number of pro bono cases they handle is enormous, but no survey even attempts to capture it. Just as most of the ABA’s pro bono projects, and much of the legal media, focus on big firms, so do many bar associations’ pro bono programs. “Each month, the D.C. Bar runs a pro bono intake clinic, which is staffed by a large law firm,” says Carolyn Elefant, a solo practitioner in Washington, D.C. “People can come and ask legal questions and are provided with advice or referrals. I and many other solos would certainly be willing to participate in such a clinic.” But, she says, “the Bar only asks large firms to staff the intake and does not ask smaller firm lawyers or solos to participate.” Big-firm attitudes toward pro bono permeate the profession. One lawyer at a small firm told me that if he enjoys the work — he teaches free classes for immigrants that focus on their legal rights — he does not consider it pro bono. Pro bono work requires many tedious hours, he said. This lawyer actually equates pro bono with a prison term! If it’s not painful and unpleasant, it’s not pro bono. It’s as if a prison says, “We’re not a real prison, because we don’t torture our inmates, but instead focus on education and rehabilitation.” 3. The work is not client-centered. Some nonprofit organizations that participate in pro bono programs don’t need the hours of attorneys, especially inexperienced ones, as much as they need money. “Frankly, we could use a big, fat check,” said the head of a housing agency in a large city on the eastern seaboard. The agency regularly must absorb low-level associates eager to get training at the nonprofit’s expense. The head of this agency concedes that she accepts the inexperienced associates because she wants the connection to the large firms they provide — in the hope that the firms will write her a check. She considers training the big firm associates a marketing expense. “The pro bono case probably gives back more to the volunteer lawyer than it delivers to the client,” says Ron Staudt, a professor at Chicago-Kent College of Law who has studied pro bono work extensively. “It is also probably true that lots more money to hire more full-time specialists would be hugely more efficient than getting M&A experts in Manhattan to do a default divorce each.” The American Bar Association does not count any financial contribution to any organization as pro bono work. The rationale is that they can’t distinguish between the check written to the opera as opposed to a check written to a legal services agency. But at least financial contributions, unlike billable hours, can be verified. 4. Put clients in charge. Attitudes toward what work benefits the poor are changing, and so should the tools used to measure them. Take agricultural workers, whose pay and working conditions have not improved much since the 19th century. For years, the standard legal approach has been retroactive litigation, with lawyers suing for back pay after employers had already cheated the workers out of the wages they were due. Such cases take years to litigate, and most of the workers who are owed money can’t be found by the time a judgment is rendered. But a well-run media campaign recently succeeded in getting a group of tomato pickers in Florida their first raise in 20 years. Steve Hitov, now the managing attorney in the Washington, D.C., office of National Health Law Program Inc., advised the Coalition of Immokalee Workers in a client-driven campaign, which featured everything from street-theater performances to a 230-mile March for Dignity. A general strike, followed by a hunger strike, succeeded where years of litigation had failed. It was the clients who took charge, says Hitov. “I was not perceived in any way as the voice of the client,” he says. He believes that the concept of the attorney as the client’s voice — the bedrock of traditional pro bono — is condescending. Even when the agricultural workers testified before Congress, they spoke for themselves, using Spanish-language interpreters, not lawyers, he noted. Hitov, who has spent his life in legal services, regards his work with the coalition as the most rewarding he has ever done. Little of it, if done by a lawyer in private practice, would count as pro bono. 5. There is little reliable data on pro bono, so any data that does exist is pounced on, without questioning the underlying methodology. When it comes to accurate information about almost any aspect of the legal profession, good data is scarce. That goes double for pro bono, and that statistic is as accurate as any “survey” you will stumble across that purports to deal with pro bono. A proper survey starts with a representative sample. Since no legal “surveys” do so, they are really no more than informal polls, like the online polls at news Web sites: “Should we declare war on Iraq? Vote here!” The most prominent “survey” of pro bono is published by The American Lawyer magazine, a Recorderaffiliate. It focuses solely on large firms’ self-reported billable hours. The pro bono “survey” reflects the hours reported by 50,000 of the approximately 1 million lawyers in the U.S.– as represented by the firms’ own tabulations and definitions of pro bono work. (The magazine states that it uses the ABA’s definition of pro bono, but accepts virtually any data supplied by the firms.) Even that data is flawed, as the magazine acknowledges: “Many firms do not track pro bono hours, or do not report them.” Olympic figure skating judging is more reliable than this. The Am Law survey is simply an extremely complicated way of exalting billable hours over the needs of pro bono clients. But data of any kind is so scarce that some experts welcome The American Lawyer’s pro bono polls. “The time-keeping tools of large law firms may be soft and sloppy, but they probably represent the same level of accuracy as the bills to their important clients,” says Chicago-Kent’s Staudt. “The surveys do not pretend to gather data from the small and mid-sized firms,” says Staudt. “As far as [the surveys] go, they may be the best data it is possible to acquire about large firm direct [legal] service donations.” He supports the survey. “It is probably good for the profession and those who need pro bono services to have some kind of competition among the big firms for high positions on the pro bono survey lists. It is more professional and more inspiring to have these firms competing to help out than to see the huge profits per partner competition that is the center of the usual American Lawyer large firm survey.” It’s better to have firms compete to do good rather than to do well. But the worst aspect of these surveys is that they do not teach anyone about what a well-managed pro bono program is, or reward innovation and efficiency in pro bono (which might cut down on the billable hour total), or recognize anything but hours billed. Think of it as pro bono behind bars. I applaud every attorney who manages to lift his or her head from billable work to do any pro bono. But the purpose of pro bono is supposed to be helping the poor with their legal problems. De Tocqueville’s “The U.S. Penitentiary System and its Application in France” influenced penal thinking throughout Europe and led to change. Is our current method of delivering and recognizing pro bono efforts the best way to help needy clients and nonprofits? If not, let’s break out of this prison. Wendy R. Leibowitz, a former Legal Aid lawyer, is an attorney and writer in Washington, D.C. Her Web site is www.wendytech.com.