Pro bono legal representation has long been the best way to demolish the barriers to courts for people who would otherwise be blocked from justice.
Unfortunately, the American Bar Association’s most recent survey of attorneys on their pro bono practices found that approximately 64 percent of respondents had not rendered the ABA’s recommended 50 hours per year to people of limited means.
A report published this month in Philanthropy magazine concluded that most attorneys doing pro bono work, the 36 percent of attorneys who perform more than ABA’s recommended 50 hours a year, didn’t do so for the sole benefit of the client. Those attorneys, according to the report, devoted their time to “[c]hanging America, rather than aiding the vulnerable.”
The way to motivate attorneys to provide more free legal representation to needy populations is to assure that attorneys have an interest in providing pro bono assistance and can’t afford not to do it. A good deed need not be totally selfless to be effective.
Since I was admitted to the bar in 2003, pro bono services have been a central part of my work, even when it caused me hardship. To me, it is less a matter of service than it is of duty; you don’t allow members of your community to be ravaged by the justice system simply because they have limited means.
I often defend individuals who find themselves up against by powerful corporations or government agencies like the Housing Authority. I represented 10 defendants when they were sued by the Recording Industry Association of America for sharing music on peer-to-peer platforms. The entertainment behemoth was trying to collect money damages from people who couldn’t afford to use iTunes.
When I was director of the Pro Bono Foreclosure Intervention Program of the Brooklyn Bar Association and recruited attorneys to defend homeowners facing homelessness or victimized by subprime lenders, it became clear to me why 20 percent of attorneys do no pro bono work at all and another 18 percent do less than 20 hours per year. In many ways, they can’t afford it.
Attorneys aren’t a traditionally sympathetic group when it comes to income, but the stereotype of the rich lawyer is becoming increasingly outdated. The National Association for Law Placement found that half of attorneys earn a starting salary of less than $62,000 per year, 13 percent less than the average starting salary in 2008. To compare, the median salary of high school teachers is about $56,000 and the fairness of the educational system doesn’t rest on their willingness to work for free.
Adding in the crippling debt from law school (an average of $122,000 for alums of private schools, $84,000 for graduates of public law schools, according to the ABA), along with family responsibilities, this creates a situation in which attorneys have little time to spare on activities that aren’t income-generating.
A program that would allow hours to be credited against student loan balances would motivate many attorneys to do free work. Right now, many loan assistance programs require that recent law school graduates work for non-profits or government agencies to be eligible; lawyers like me who are employed in private practice are usually ineligible for debt forgiveness regardless of how much public service we perform.
When their student loan debt is paid, lawyers could still be induced to pro bono work by amending the tax code to allow them to deduct the cost of the services they provided from their individual tax returns.
Another option is changing current caps on court-appointment programs—ones that usually assist vulnerable populations like my client who was elderly, mentally ill and being left to live in the streets—like Part 36 of the Fiduciary Guidelines here in New York. Once attorneys earn a certain amount from court appointments in guardianship cases, they cannot take any more paid appointments for the calendar year.
If those same attorneys could “pay down” that limit by performing pro bono services that could be credited against it, attorneys would be more invested and motivated to provide free representation—and still earn a living.
Some might argue that statutory changes that protect an attorney’s financial status only confirm the worst perceptions of the legal profession: money-mad and unmoved by the plight of clients who need them to access the court system or simply take care of themselves. We will do nothing unless the act is laced with self-interest.
The truth is that most pro bono work already being performed offers collateral benefits to the attorney, and not just a better world to live in. As the Philanthropy report showed, law students who do free work use it to build their resumes. Attorneys who contribute time to organizations or “impact litigation” do so because their political beliefs align with the mission of the project.
Consider the Court Square Law Project, a firm that provides “low bono” or reduced fee work for people of limited means. Court Square started with $100,000 from each of 19 firms and because it’s a non-profit organization, I am sure that each of those donating firms wisely reported those donations on their corporate tax returns. While some attorneys still donate time, the lawyers who work for Court Square are paid salaries. Are their services invalid or suddenly unneeded because they’re compensated? The point of pro bono service is to provide legal help to people who wouldn’t otherwise get it, not to penalize the attorney.
There’s a very real tension between pro bono work and earning a living in the new economy of legal services. The way to get more attorneys to provide free representation to vulnerable populations is to work with that tension rather than worsen it.