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Many observers of the legal profession have wondered aloud about the impact of the profession’s current obsession with profits on its commitment to public service. These concerns were addressed in a lecture in March at the Jewish Theological Seminary by U.S. District Judge Jed S. Rakoff. The problem, the judge observed, is “mostly about money.” As their financial results increasingly become a matter of public record in various trade publications, firms have become more preoccupied with their bottom lines, and accordingly more single-minded in serving private clients. The result, he believes, has been a decline in lawyers’ morality that shows up in client overbilling, obstructionist discovery tactics and the willingness of lawyers to acquiesce in, if not actively promote, accounting and financial disclosure schemes such as those of Enron and Tyco. There is strong statistical support for the premise that lawyers’ commitment to public service has eroded. The May issue of The American Lawyer reported changes in large-firm practice over the past 25 years, including a 25% reduction in average pro bono hours per lawyer over the past decade. In 1993, firms in the Am Law 100 averaged 52 pro bono hours per lawyer per year; the number for 2002 was 39. While Rakoff did not suggest any sweeping solutions, he did propose that we call upon the many able practitioners between the ages of 60 and 65 who are retiring (or being compelled to do so by their firm’s internal rules), to take up the burden of public service work that a large percentage of the profession has discarded in pursuit of fees. This proposal does not go far enough. At most law firms today, the great bulk of the pro bono work is done by associates. While having the retired and semi-retired partners shoulder more of this burden would be an improvement over the present situation, it would still send the wrong message to the legal community and to the young lawyers who represent its future: That is, pro bono work is best left to the elderly and powerless; once their capacity to generate large fees has diminished, only then can their time be devoted to good causes. (I do not mean to deprecate the contribution of lawyers older than 65. Rather, it is the firms themselves that have devalued this contribution by mandating retirement at that age.) The only way to reverse the profession’s diminishing commitment to public service work is to make it the province not of the young and the old, but of the mature and powerful. If a firm’s leaders, those partners with the most clients, the most billings and the most responsibility, demonstrate a commitment to pro bono work-by which I mean representing the indigent and the powerless-others will follow. Trade news can be catalyst The same trade publications that have ratcheted up firm competition can help by reporting on pro bono commitment in a more sophisticated way. The American Lawyer‘s way of measuring pro bono commitment is surprisingly crude. The magazine records only raw hours, no matter who bills them. Those statistics do not disclose what percentage of those hours are generated by the most junior lawyers in the firm, although one strongly suspects that it is the great majority. If the senior partners are doing little or nothing, outsiders would never know. We can do better than this. Legal trade publications should be able to devise a measurement that differentiates between the pro bono commitments of juniors and seniors, and that weights most heavily the pro bono work of the most highly compensated. Partner hours should be weighted more heavily than associate hours, and within the partner ranks, hours should be weighted according to compensation bracket. This would disclose which firms relegate pro bono work to the marginalized and which firms promote pro bono work by having partners take the lead. Certain initiatives are already under way to place the public-service burden where it belongs. For several years, the Access to Justice Committee of the American College of Trial Lawyers has attempted to enlist fellows of the college, all of whom are experienced trial lawyers, to undertake large, complex pro bono cases. The fellows who volunteer are told quite explicitly that they are expected to try the cases themselves and not simply contribute the battalions of younger associates that can often be mustered from large law firms. The program is working well and it is a useful model. The line of demarcation between a business and a profession is not as stark as those bemoaning the change would have it. If we pause to consider what differentiates the legal profession from the many other occupations just as arduous and intellectually demanding, pro bono service is a key differential. A professional’s obligations transcend a duty to those who pay his bills. When called upon, he is willing to serve the needs of the poor and the defenseless. Although economic pressures have made that ideal increasingly difficult to attain, the maintenance of professional standards is ultimately the responsibility of the most senior and powerful among us, because it is those lawyers who must also confront these economic pressures most directly. Jeremy G. Epstein is a partner at New York’s Shearman & Sterling.

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