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With new bonuses and higher salaries having increased pressure on lawyers to produce more billable hours, pro bono work supposedly took a back seat to profits in 2000, especially at big firms. Or so say some critics. A new National Law Journal survey of big firms does show that such work, on average, declined from 2.68 percent of billable hours in 1999 to 2.5 percent this year. In percentage terms, that may seem a tiny decline. But based on a 2,000-billable-hour year and a billable rate of $175, the drop represents 1,000 pro bono hours at a firm of 300 lawyers, the median number of attorneys at the 250 largest U.S. firms. At the 77 firms that provided such data for the NLJ‘s annual census of the 250 largest firms for both 1999 and 2000, that small drop would represent some 83,000 hours of pro bono work. The NLJ‘s numbers, however, are only the latest in a battery of pro bono surveys that don’t agree. In the fall, The American Lawyer magazine found a sharp decrease. Volunteers of Legal Service (VOLS), a group of 28 large New York firms, found an increase. The Pro Bono Institute, which — together with the American Bar Association — confidentially tracks pro bono work at firms with 50 or more lawyers, found a drop in 1996 and 1997, but figures for 1998 and 1999 indicate a rise in hours. Law firms and pro bono providers also seem split over whether pro bono is on the decline or slightly rising. But there is no argument that more is needed. Most surveys show that only about 20 percent or less of the legal needs of the poor are being met in this country. Many of the country’s nearly 1 million lawyers are still not meeting the American Bar Association’s aspirational goal of 50 hours a year. And a majority of law firms in the NLJ survey fell short of meeting the ABA’s challenge of contributing a minimum of 3 percent of billable hours to pro bono. The good news is that U.S. lawyers have contributed more than 2 million hours of volunteer legal services annually in the past couple of years. And a number of them have acted courageously, and even heroically. PRO BONO TRENDS Among the pro bono projects, there were a significant number of cases involving controversial gay and lesbian rights. In addition to the landmark Vermont decision on civil unions, there was a pro bono project by Century City, Calif.’s Irell & Manella, representing high school students who had started a Gay-Straight Alliance Club in support of gay students. The case produced a significant decision under the federal Equal Access Act in February and a settlement in September, guaranteeing equal treatment for the club and its members. Irell & Manella recognized the commitment and leadership of senior associates Laura Brill and David Codell, who spent more than 800 hours each on the case in a 10-month period. Another case nominated for consideration by the NLJ was the representation by Washington, D.C., Proskauer Rose partner Christopher Wolf of Arizona state Representative and Army Reserve Lt. Stephen May. The U.S. Army discharged May after he revealed that he was gay in a Arizona state Legislature debate over domestic partner benefits. Ruth Harlow, legal director of the Lambda Legal Defense and Education Fund, says that the private bar’s pro bono contributions to lesbian and gay legal issues have gone up exponentially during the past 10 years. There have been a number of successes in gay and lesbian rights cases this year, but she singles out the work of New York’s Cleary, Gottlieb, Steen & Hamilton on behalf of New Jersey Boy Scout leader James Dale. The case, which challenged the constitutionality of the Scouts’ termination of a gay leader, failed at the U.S. Supreme Court in June. Nevertheless, Harlow gives the firm credit for taking on the case nine years ago, when gay civil rights litigation was not popular: “They devoted a tremendous amount of resources consistently over the years.” Another area of admirable pro bono work involved death penalty cases, among the most demanding time commitments for a firm. An outstanding commitment was made by Nevada sole practitioner JoNell Thomas. According to the ACLU’s Nevada office, Thomas spent more than 700 hours this year on behalf of John Mazzan, who served 21 years on death row. After three years of pro bono representation, Thomas obtained a reversal of his judgment and conviction in January of this year. Following the reversal, the district attorney reprosecuted and sought the death penalty again. In May, her client was released on bail and was freed for the first time since 1978. Elisabeth Semel, director of the American Bar Association’s Death Penalty Representation Project, nominated Kathleen Behan, a partner at the Washington, D.C. firm of Arnold & Porter for her amicus brief on behalf of Virginia death row inmate Michael Williams. The Supreme Court reversed Williams’ death sentence in April. The case was only a small portion of Behan’s pro bono work for the year. Several other groups nominated her for her ongoing litigation over Mississippi’s lack of state funding for indigent defense. And her work for the American Council of the Blind to force the Washington Metropolitan Area Transit Authority to install safety provisions for the blind or visually impaired was commendable. More than 30 visually impaired passengers have fallen off the subway platforms in the Washington, D.C. area; some were crushed to death by trains. Behan’s litigation was unpopularly perceived by the media, but she prevailed in protecting her clients, the council says. Another area of increased pro bono work is in the transactional arena. “There’s a growing awareness of the fact that by bringing the skills of transactional lawyers to bear, we can really create long-term solutions for people in ways that are profound,” says Esther Lardent, president of the Pro Bono Institute, which is housed at Georgetown University Law Center. She works with firms with 50 or more lawyers, through the Law Firm Pro Bono Challenge. While some of this work is being organized at a firm level, G. Eric Brunstad Jr. from Bingham Dana’s Financial Restructuring Group distinguished himself by performing over 1,000 hours of combined transactional pro bono work and community service in 2000. His pro bono effort included representing indigent individuals seeking bankruptcy relief. The expansion of transactional pro bono activities by the firms is paralleled by an increased focus on the pro bono work corporate counsel can provide. In October, the American Corporate Counsel Association, in partnership with the Pro Bono Institute, created http://www.corporateprobono.org/ a Web site designed to help link up corporate counsel with pro bono opportunities. Another organization, the Pro Bono Partnership, brings corporate lawyers and nonprofit organizations for the poor together to do pro bono work. It was a winner of ACCA’s pro bono awards this year. For the NLJ‘s awards, Pro Bono Partnership’s director, Richard S. Hobish, nominated Robert E. Healing, corporate counsel of General Electric Co., for his role in helping to create and establish the group. INVISIBLE MIDDLE The statistics and measurements available about lawyers’ pro bono work is largely based on data from the country’s largest firms. But what about smaller and midsize firms? Anecdotally, pro bono providers give sole practitioners high marks for taking on pro bono work. Solos may not have the flexibility of having someone to pay their overhead costs, but they also don’t have the profits accountability that associates and sometimes partners face at a firm. Nominations to the NLJ were rich in solos, and our winners reflect the important contributions of lawyers working on their own. The pro bono work of midsize and smaller firms, though, is less scrutinized, and there is no mechanism or organization in place to track its ups and downs. Again, anecdotally, the smaller and midsize firms get few high marks in pro bono participation. However, by one measure, their contributions, such as they are, are holding steady. Mauricio Vivero, vice president of public affairs of the Legal Services Corp., says that its numbers of pro bono volunteers has remained relatively flat, at about 50,000 volunteers handling 85,000 cases a year for the past few years. Most of Legal Services’ volunteers are solos or come from small or midsize firms, because the majority of legal services office locations are far from the big cities that house the country’s largest firms. PLAINTIFFS’ BAR PRO BONO Another population that has largely been left out of pro bono calculations is the plaintiffs’ bar. Because plaintiffs’ lawyers do not track cases according to billable hours — and consequently don’t track pro bono work by billable hours — their contributions are not as easy to celebrate or determine. It can be said that plaintiffs’ lawyers sometimes feel that they are taking pro bono cases by working on contingency cases, thus representing people who wouldn’t have a lawyer otherwise. While these cases can sometimes contribute to important public policy cases, the fees generated can also be so astronomical as to put the notion of pro bono to bed. In any case, plaintiffs’ lawyers say, they regularly take on pro bono work — work for which they have no expectation of recovering a fee. “The plaintiffs’ bar historically has always done that work,” says Frederick Baron of Dallas’ Baron & Budd, the president of the Association of Trial Lawyers of America. “When I started practicing law 30 years ago, the corporate law firms weren’t doing it at all. Now that they’re doing it, they’ve institutionalized methods of recording it, so naturally they pat themselves on the back.” The high-ticket fees of a number of plaintiff’s lawyers, particularly in relation to the tobacco money, has sparked newsworthy donations to law schools, but few high-profile pro bono contributions. An exception to this is in Washington, D.C.’s Cohen, Milstein, Hausfeld & Toll’s representation of Holocaust victims in their Swiss bank claims; the firm worked pro bono. NOT EXACTLY PRO BONO Working behind the scenes on many of the large firms’ pro bono cases are public-interest organizations. Often the lawyers there get low salaries to do the same work their firm counterparts are doing with healthy subsidies from their firms. These public-interest organizations do a lot of the training and administrative work that enables lawyers at bigger firms to do their pro bono work. Another trend in pro bono has been an increase in the cooperation of nonprofits and the private bar through externships or fellowships. These programs can take the form of the National Association for Public Interest Law fellows, who are paid for by law firms but work with nonprofits, or through firms lending an associate to a nonprofit for several months. Both approaches have been expanding. While Washington, D.C.’s Covington & Burling has had an externship to a local organization for 31 years, Lardent says there are about 55 firms now with some kind of externship program, most implemented in the past three years. Despite this growth spurt in externship services, some nonprofit organizations say they’ve experienced a drop in pro bono volunteers. Lawrence Fox, a partner at Drinker Biddle & Reath in Philadelphia and the chair of the ABA Death Penalty Project, says that a number of firms have been turning down capital cases for which his organization has been trying to find partners. And they are expressly stating they can’t take them on because of the increase in associate salaries. A number of firms have changed their pro bono policies, no longer permitting associates to count pro bono work toward required billable hours. For example, earlier this year Pillsbury Madison & Sutro instituted such a policy as a result of the associate salary hikes. The move prompted an outcry from its associates. The firm, which is merging with Winthrop Stimson Putnam & Roberts, has recently announced plans for a new policy. The first 20 hours of an associate’s pro bono work will not count against his or her 1,950 billable hours, but thereafter the firm will recognize pro bono work toward the count. MANDATORY PRO BONO? Pro bono advocates note there is one solution that might make firms recognize associate pro bono work without forcing them to compromise: mandatory pro bono requirements. Fox, also a member of the ABA’s Ethics 2000 committee, says the group, which released its recommendations last month, seriously considered whether the ABA needed to toughen up the aspirational language of the 50-hour pro bono obligation. The idea failed, but only by a 7-to-6 vote. Fox says that the ethics committee debate and firms’ refusal to take death penalty cases turned him into a believer in mandatory pro bono. “If we’re going to talk about the core values, we ought to fulfill them, and I think one of those is pro bono,” he says. But others, such as Lardent, say mandatory is the wrong way to go. Although some find it unpalatable to force lawyers to do pro bono, others say that it just won’t work. Lardent points to New Jersey, the only state in the country that now has mandatory pro bono, to make her case. The number of assignments that lawyers receive there depends on the county in which lawyers practice. In less-populous counties, lawyers complain that they get multiple assignments, but Barry Epstein, New Jersey’s State Bar president, says that he hasn’t gotten an assignment for the past two years. Epstein says the program is not popular among the Garden State’s bar because the cases can be onerous once assigned. He plans to propose that the system be abolished and replaced with a voluntary commitment by the state bar. Fox says his committee heard testimony that a mandatory system in Dauphin County, Pa., whose seat is Harrisburg, works well. And he points to the Florida system, which has a mandatory reporting requirement and has been widely praised for its pro bono achievements. The idea of mandatory pro bono work is not a foreign one to a growing number of law schools, such as the University of Pennsylvania and Columbia, which require students to perform pro bono as part of graduation requirements. Some suggest that the obligation could spill over easily from school to firm life. One firm that already has a mandatory requirement is Wolf Block Schorr and Solis-Cohen in Philadelphia. Litigation chair and former ABA president Jerome Shestack has implemented mandatory pro bono for the litigation section. “The minimum is 50 hours a year, but we expect a lot more,” he says. And he anticipates that the firm, which is about one-third litigators, will move toward a mandatory requirement for the business lawyers as well. Recently, the firm hired someone not only to oversee the intake and distribution of pro bono, but also to help train associates taking on the cases. Fox says he believes that the idea of mandatory pro bono is one whose time will come. Once implemented, he thinks lawyers would get used to it: “It’s just like mandatory CLE. You don’t say, ‘I can’t do mandatory CLE because I’m too busy.’ “

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