Many Solo, Small Firm Attorneys Lack Time, Resources for Pro Bono

Small firm and solo lawyers may agree on the need for pro bono civil legal services, but many say the twin demands of time and resources make it difficult, if not impossible, for them to contribute. While several large firms have adopted strong pro bono policies and have committed substantial resources to pro bono work, smaller firms with tight profit margins and fewer associates have far less time or income to donate. Paradoxically, attorneys with expertise in the areas of greatest need — landlord-tenant law and matrimonial law, for example — tend to practice in small firms. In January 2004, the New York Office of Court Administration issued a report finding the number of attorneys performing pro bono services in 2002 declined slightly since 1997 (from 47 percent to 46 percent). The report said an estimated 10 million additional hours of attorney assistance may be required each year “to provide New York’s poor with even a bare minimum amount of the legal help” they need. Most attorneys who handled pro bono work in 2002 put in more than twice the recommended 20 hours that year, the report said. Many of those who did not perform pro bono said they could not afford to. The four top reasons lawyers gave for not participating were the demand of time and resources; lack of expertise; lack of support staff; and lack of malpractice insurance for pro bono work. “We believe in it, and unfortunately don’t have a lot of resources for it,” admitted Steven Kobre, a partner in the seven-attorney securities firm of Kobre & Kim. Karen Hensley, a matrimonial law associate with the six-attorney Manhattan firm of Schwartz & Perry, said she does pro bono, but most of her friends in small firms do not. “The world of smaller firms is dog-eat-dog,” she said, adding that it is easier to do pro bono while receiving a guaranteed salary. To perform pro bono in a small firm, “you have to have a good partner,” said Philip Segal, of three attorney Segal & Greenberg. Barbara King, a partner in a 12-attorney capital region firm Gordon, Siegel, Mastro, Mullaney, Gordon & Galvin, agreed that pro bono should be a firm-wide commitment. BAR GROUPS For small firms or solos without resources or cooperating partners, bar groups can provide support. Bar association projects and legal services agencies are set up to make pro bono referrals on a regular basis. In addition, a Web site devoted to matching attorneys and projects makes pro bono more accessible. “It helps a lot to have a middleman,” said Steven Wiseman, a partner in the 20-attorney Buffalo firm of Siegel Kelleher & Kahn, who takes pro bono matrimonial cases through the Erie County Volunteer Lawyer’s Project. Wiseman said he takes two or three pro bono referrals per year and spends about eight to 10 hours on each. The referral services and agencies screen clients for financial need and connect them to attorneys with expertise in the relevant legal area. The lawyers’ groups commonly provide support, mentoring and malpractice insurance. Some even offer training and CLE credits for pro bono service. This year, the New York State Bar Association, with Pro Bono Net and the Association of the Bar of the City of New York’s Volunteers of Legal Service, created a Web site listing pro bono opportunities for lawyers statewide. The site has had 20,000 hits in six months, said Cynthia Feathers, director of the state bar’s department of pro bono affairs. The Law Journal has partnered with probono.net to promote the service, adding a pro bono page to its own Web site, www.law.com/jsp/nylj/probono.jsp. The bar’s site lists referral agencies by county, practice area and client group. The listings indicate which organizations provide malpractice insurance, training and CLE credits. “If you get embroiled in [a case] that takes 40 to 50 hours, they make sure the next case you get is going to be lighter lifting,” Wiseman said. “It’s a very cooperative system.” The Queens County Volunteer Lawyers Project tries not to assign contested divorces or other lengthy matters, said Mark Weliky, executive director. Matters assigned by his office range from two hours to 25 hours, he said. Richard Golden, a Queens solo practitioner, said he does two or three pro bono hours each month. “It’s not so overwhelming that it takes a toll on the practice,” he said. Ann Reynolds Copp, a solo practitioner in Albany, accepts pro bono referrals and walk-ins who “tug at your heartstrings.” Copp recalled one Legal Aid case for a woman with multiple sclerosis who needed a ramp. After helping her use a grant to get the ramp, Copp went on to help resolve legal issues that arose when the woman’s mother wanted to move back from a nursing home. “I’m not very good at saying no, so we end up doing more than we ought to,” Copp admitted. She cautioned that, “You never really know what’s going to be involved. You may take just a couple phone calls; you may litigate for a long time.” Sometimes, if an attorney finds she is in over her head, she can ask the referring office to replace her. Segal said some of his most interesting and fulfilling cases have been pro bono. A former family court judge now in matrimonial practice, Segal handled the jury trial of a protester who “got in front of a horse.” He is also engaged on a Texas death penalty case. “My theory is, everybody’s motivated by something — just find out what it is,” said King, who introduced a mandatory pro bono policy at Gordon Siegel. Young lawyers get training and mentoring opportunities through pro bono, and can cut their teeth on challenging cases, she pointed out. Finally, there are “great PR opportunities” for new and experienced lawyers, and clients sometimes come back with paying cases. “There’s always spin-off work that comes from doing good,” King concluded. “That’s the bottom line.” ‘STEALTH’ PRO BONO Several small firm attorneys said they put substantial resources into “low bono” or “stealth pro bono” or “pro bono in disguise”: the client who cannot pay. Some consider it a form of community service. Wiseman described one case in which a client paid him $10 a month toward a $4,000 bill until he forgave the remainder. “I do consider that, frankly, a form of pro bono,” he said. “My personal definition [of pro bono] is people who can’t afford our regular rate,” said Copp. King, who chairs the Schenectady Bar Association’s pro bono committee, distinguishes pro bono from sliding-scale fees. She said her bar committee would discuss a “modest means” status for clients who do not qualify for legal aid but cannot afford a lawyer. A reduced-rate system also provides a motive to settle litigation, said Adam Levy, of Levy, Santoro & Santoro, a four-attorney Putnam County firm. “If you’re paying your lawyer, you want it to be short and sweet,” he argued. Reduced-rate legal services do not qualify as pro bono under the current statewide definition, but some bar groups are working to change that. The OCA defines pro bono as free legal assistance to individuals who cannot otherwise afford a lawyer, or organizations that help those individuals. The New York County Lawyers’ Association recently adopted a definition that would include reduced-rate services for the poor. The state bar is expected soon to distribute a similar draft definition to replace the relatively narrow one it accepted in 1989, and which the state court system has since adopted. The bar groups contend that a change in definition could dramatically increase the amount of qualifying pro bono service. Deputy Chief Administrative Judge Juanita Bing Newton said OCA would consider a new pro bono definition if adopted by the state bar. She added that there are no plans for mandatory pro bono or involuntary reporting. The OCA will continue to focus on encouraging pro bono civil legal services, she said. EXPANDED ACTIVITIES In April, the state bar House of Delegates voted to expand its definition of pro bono to include: activities to improve the law, the legal system or the profession; financial assistance to legal services organizations and services to organizations that protect civil rights, liberties or public rights; or when standard legal fees would “deplete the organization’s economic resources.” “Pro bono represents a variety of legal services, as well as helping the poor,” said former bar president A. Thomas Levin. “NYCLA’s definition celebrates the wide range of pro bono service provided by New York attorneys” while prioritizing direct services, said Norman Reimer, president of New York County Lawyers and a partner in the seven-lawyer Manhattan firm of Gould, Fishbein, Reimer & Gottfried. Under the county bar’s new standard, pro bono includes activities like sitting on an attorney disciplinary committee, as well as incorporating a Little League team. “In a free society, people should be able to choose what they think is a worthwhile cause,” Reimer said. “I don’t think we want any governmental organization telling us what is a worthwhile cause.” Robert Starr, a solo practitioner in Manhattan and director emeritus of the New York State Trial Lawyers Association, suggested that the association provides a public service because it opposes tort reform and thereby protects consumers from insurance companies. Not everyone supports a broader definition of pro bono. Last summer, two New York Legal Assistance Group leaders wrote an open letter to the Law Journal, arguing that an expanded definition would result “in the dilution of available representation to those who cannot afford it.” In response, State Bar Association President Kenneth G. Standard wrote that “meeting the legal needs of the indigent is a societal responsibility,” and that “volunteer lawyers alone cannot ensure equal access to our system of justice.” Levy and other practitioners said in interviews that community service is not pro bono. “I think it should be counted as doing what you have to do to live in your community,” Levy in Putnam County, said. Raymond Dowd, of the four-attorney Manhattan firm Dowd & Marotta, supports both mandatory pro bono and the narrower definition. “Working for the yacht club. Running for public office — give me a break. They call it public service, but it’s not pro bono,” Dowd said.