We face many challenges in running a law firm pro bono practice. Bearing in mind that a central — if not the central — objective of law firm pro bono programs is the delivery of legal services to individuals and organizations that cannot afford counsel, one of the biggest challenges is ensuring that we are using the resources of the firm wisely in meeting that goal — and providing pro bono services in the most efficient and effective manner possible.
In fact, however, there are many forces working against that goal. This article briefly looks at some of these forces, which are both internal and external to the firm, and then looks at the development of pro bono practice groups as a way of overcoming them.
Many of the challenges of running a law firm pro bono practice efficiently and effectively — and developing true economies of scale — are fairly self-evident.
One challenge comes from the “big tent” model of pro bono that most firms follow. What we mean by “big tent” is that there are very few limitations firms impose (absent actual or positional conflicts and client relations issues) with respect to the types of matters they are willing to permit their lawyers to undertake. Indeed, firms often market their pro bono programs as trying to match the preferences of their lawyers (that is, their interests and skills sets and their thirst for diverse opportunities) with the needs of the community. The result is that individual lawyers often dabble in many areas.
Paying clients expect and receive the services of highly experienced lawyers. There is therefore an incentive to specialize and to remain within that specialty. With pro bono work, there isn’t the same disincentive to trying out different areas of practice –- even if each area has a steep learning curve.
We are not able (nor do we try) to limit our lawyers’ pro bono experience to one area of the law. A lawyer may spend 75 hours handling her first Social Security disability benefits case. However, instead of using her new-found expertise and handling a second or a third SSI case, she may never return to the area again. Those of us running these programs spend much of our time identifying, and then enticing our lawyers to participate in ‘new and improved’ pro bono opportunities. In fact, part of our sales pitch is the opportunity to do something they’ve never done before.
A related challenge to running a pro bono program is providing training and ensuring quality control. Often, the areas in which we are urged to provide pro bono services are outside of the traditional practice areas of large firms. While there is a significant overlap in the skills set needed for efficient and effective representation, law firms often do not have substantive knowledge in areas in which there is the greatest need for pro bono assistance, such as residential landlord-tenant law, domestic violence, family law, public benefits, asylum and special education law. With the right support — offered in the form of training, mentoring and supervision — those challenges can be overcome, but we too often have to rely on already overtaxed legal aid attorneys to provide us with that support.
Another challenge comes from the institutional motivation to do pro bono work. Altruism and the professional responsibility articulated under Rule 6.1 are often the driving force for the law firm as an institution, as well as for the individual lawyers, to take on pro bono work. However, the institutional motivation often also includes such factors as law firm rankings in surveys, client development, the recruitment and retention of attorneys, and community reputation.
Rankings, in particular, raise issues not always consistent with creating economies of scale — as many of the rankings are based on pro bono hours, percentage of lawyer participation in pro bono, or a combination of both. So, the incentives can become largely quantity-driven — billing lots of hours — rather than focused on factors like quality, impact, efficiency and effectiveness. In addition, the pressures that paying clients reasonably impose, such as the requirement that only a reasonable amount of time be spent (and thus only a reasonable fee charged), are absent.
Pro Bono Practice Groups
In a sense, the development of pro bono practice groups in law firms mirrored the development of practice groups for our paying client work. Several decades ago, firms began to realize that they could provide better client service in their billable matters by shifting their governance from the four traditional departments — typically litigation, corporate, tax and trusts and estates — to a series of narrower-scope practice groups. They did this in recognition of the fact that in this way the firms could better manage their attorneys to meet their clients’ expectations for high quality, focused legal services in a particular niche practice area.
This structure created a framework for recruiting and training lawyers to meet these expectations. It also provided a mechanism for placing greater responsibility on these smaller practice groups for management of their attorneys and for measurement of their successes and failures.
Eventually, those of us running pro bono programs realized that many of the same principles that drove firms to practice groups applied with equal force in the pro bono arena, and in fact could be helpful in addressing the challenges we faced. We were aided in that realization by several legal services organizations that also were beginning to develop pro bono practice groups.
In retrospect, it all seems obvious now. We could provide better client service by creating pro bono practice groups. Specifically, pro bono practice groups have been useful in:
• Training: Practice groups coordinate with legal services attorneys and other experts to provide substantive training sessions to pro bono attorneys in particular areas of representation. In many instances, the pro bono work itself is viewed as an important element of skills training for our newer lawyers. In fact, some paying clients encourage such pro bono work as a way for young lawyers to develop certain skills while not on those clients’ meter.
• Resources: Rather than reinventing the wheel for each client engagement, practice groups often establish a set of resource materials, sometimes posted on an internal Web site. They also provide a network of experienced lawyers within the firm who can answer questions. Several legal services organizations also maintain such sites and make their own staff attorneys or private volunteer mentors available to provide guidance. The practice group leaders coordinate and facilitate the interaction of their lawyers with the legal services organization.
• Quality control: Practice group leaders (often a partner working with an associate) are able to serve as a resource and also track the progress of pro bono matters. Legal services lawyers also use these groups as their ready-made framework through which to communicate with their volunteers at the law firm.
• Camaraderie and teamwork: Practice groups can serve as a social network for sharing experiences and knowledge. They also facilitate the creation of client teams to jointly represent a client. In larger matters, this could take the form of the traditional multi-lawyer, multi-discipline client team. In smaller matters, two associates might take on the representation simply to share the experience and provide a safety net if one of the lawyers develops a scheduling conflict. Partners are always involved as supervisors, but the pro bono setting often provides an opportunity for a partner and associate to share a client representation experience with greater interaction than in the typical paying matter.
• Recruitment: Practice group leaders, often working with legal services attorneys, work to retain their existing volunteers for repeat project while also attracting new members to the group. The mere existence of the practice group, coupled with the training, support and teamwork it provides, serve as a focal point for these recruitment efforts.
Some of us view the creation and use of pro bono practice groups as an integral step in the “mainstreaming” of pro bono legal services. As with the mirroring of the practice group model, many of us have been exploring other aspects in which it may make sense to treat our paying and pro bono work in comparable ways. Law firms are at various stages of considering this concept in relation to staffing of matters and in the review process. Increasingly, we are striving to take advantage of the same concepts and tools that have improved the practice of law generally, by applying them to the provision of high quality effective pro bono services.
While the “big tent” approach will continue to remain a critical and positive element of law firm pro bono programs, the use of pro bono practice groups provides a useful and important alternative to address many of the challenges we face.
Ethan D. Fogel chairs the pro bono committee in Dechert’s Philadelphia office and, in that capacity, coordinates that office’s pro bono activities. A partner in the firm’s business restructuring and reorganization group, he represents a variety of creditors, debtors, and purchasers in bankruptcy proceedings.
Suzanne E. Turner is a partner and the chair of the firmwide pro bono practice, which provides legal representation to individuals and organizations that otherwise could not afford it. Her practice involves a wide range of human and civil rights litigation. She is the former chair of the Philadelphia Bar Association’s Public Interest Section.