Repaying Society : Pro Bono: Renaissance in Legal Aid
When insurers began routinely canceling liability policies for California’s 37,000 licensed day-care homes, volunteer lawyers Barrett S. Litt and Michael S. Magnuson sued. An appellate court enjoined the wholesale cancellations, and 250,000 children continued to have safe places to go after school.
When an “insurance” contract written in English covered the seller’s loss but failed to pay for the replacement of a Latino family’s stolen videocassette recorder, Los Angeles-based Frederick L. McKnight of Jones, Day, Reavis & Pogue, who normally represents Fortune 500 clients, went to court. The family got a new recorder.
When Boston developers decided to transform the decaying Columbia Point Housing Project on prime real estate near the John F. Kennedy Library into upscale rentals, the city’s Goulston & Storrs law firm stepped in to assure that 400 of the 1,500 units remain low-rental residences for 40 years.
‘For the Public Good’
None of the lawyers charged a cent.
The volunteer attorneys’ efforts are lumped under the label “pro bono,” a shortened form of the Latin phrase “pro bono publico” meaning “for the public good.”
A decade ago pro bono was popular among cause-conscious young lawyers, but working for free fell out of favor as law school graduates turned their attention toward making money. Propitiously, interest in pro bono appears to be resurging as federal spending for legal services for the poor has been slashed. Poverty lawyers and public service lawyers say, however, that volunteer efforts can never take up the slack left by budget cuts.
“It’s not even close,” said Mark Rosenbaum, general counsel to the American Civil Liberties Union of Southern California.
Donating Time, Money
To some attorneys, pro bono publico means anything from handling a church’s real estate problems for free, serving on the board of a public service law office such as the Legal Aid Society of Los Angeles, to just donating money to a poverty law firm.
To most, pro bono means providing legal services, without getting paid, for people who can’t afford to pay.
Volunteer lawyers work across the legal spectrum. They prevent foreclosures on homes by unscrupulous lenders or home repair contractors, appeal death sentences, secure residency status for political refugees, write wills for AIDS victims or the elderly, resolve rent or utility disputes with landlords, force correction of faulty automobile repairs, and defend people involved in car collisions who have no insurance.
Pro bono, most lawyers believe, is a debt owed to society by attorneys, akin to the old European notion of “noblesse oblige” under which the privileged or wealthy class owed economic care to peasants.
The American Bar Assn.’s Model Code of Professional Responsibility lends some clout to the principle in stating: “Every lawyer, regardless of professional prominence or professional workload, should find time to participate in serving the disadvantaged.”
The oath taken by California’s 101,000 lawyers in the state Business and Professions Code admonishes them “never to reject, for any consideration personal to himself or herself, the cause of the defenseless or the oppressed.”
“We have children to support, mortgages to pay, and yes, even BMWs to take care of, so I don’t want to sound like a goody two-shoes,” said Pierce O’Donnell, whose small, 17-lawyer firm, O’Donnell & Gordon in downtown Los Angeles, devotes more than 20% of its work to pro bono efforts, or at least 250 hours per lawyer per year. “But I believe we have to give back something of what society gives us, and society gives us a monopoly to practice law.”
His sentiment was echoed by Jon Davidson, the partner who recently marshalled 34 lawyers and 46 secretaries and paralegals at Century City’s Irell & Manella to join poverty law firms in aiding the homeless on Los Angeles’ Skid Row.
“Lawyers in private practice get to have a generally fortunate life. They are highly compensated, have a high status, get a fair amount of deference and respect. Because of all those things you really owe something,” Davidson said.
‘Very Satisfying’
“Part of it is, ‘Gee, this is something I really should be doing.’ But another thing is I find it very satisfying to think there are certain people I can help.”
A 1985 poll of 600 lawyers from around the country conducted for the American Bar Assn. Journal showed that 75% of attorneys believe they should do pro bono work.
But only about 10% of the nation’s more than 650,000 attorneys actually do donate their skills, according to Floy Blair, research and training developer for the Voluntary Legal Services of the State Bar of California.
The national poll showed that 30% of attorneys who provide free legal services donate fewer than 25 hours a year, and another 22% give 26 to 50 hours. Locally, most volunteers work 40 to 50 hours a year, said Steven Nissen, attorney and executive director of Public Counsel, which matches indigents’ cases with volunteer lawyers in Los Angeles. That’s less than 3% of the 1,900 payable hours a year that major firms expect attorneys to work, or less than one work week, as most lawyers put in 50 to 60 hours a week.
The Salad Days
The early 1970s have been considered the salad days of pro bono, when law firms had to court law students who grew up in the tumultuous 1960s with promises of projects for the poor.
“There was a period of time when lawyers who had been in college in the ‘60s thought that pro bono was a way to make a contribution,” said Gary Blasi of the Legal Aid Society of Los Angeles. “It took awhile for them to get interested in their BMWs.”
Ironically, interest of students and the maturing lawyers shifted from donating their talents to making money about the same time President Reagan initiated a 25% budget cut in Legal Services Corp., the federal agency which funds poverty or public interest law firms throughout the country. The President urged private attorneys to take up the slack by donating their services to the poor.
“The ABA has said since 1981 that private attorneys could never replace the need for federally funded legal services for the poor,” said Margaret Carlson, pro bono coordinator for the American Bar Assn.’s Private Bar Involvement Project. “The private Bar’s pro bono work is a supplement, not a replacement.”
A Poor Band-Aid
Attorneys working in public service offices say the supplement is a poor Band-Aid.
“The private Bar treats pro bono cases as if they were third-class cases, and the private lawyers have just not made the commitment,” said ACLU general counsel Rosenbaum. “Even (television’s) ‘LA Law’ attorneys have a pro bono caseload greater than probably most of the corporate legal firms.”
Recruiters for major law firms agree that pro bono is no longer a drawing card for law students. And the recruits counter that the senior partners are not any more eager to discuss donating legal services than they are.
“There does seem to be a certain cultural shift in interest (of students) toward making money,” said McKnight of the 700-lawyer Jones, Day firm. “And there is probably a sense by the recruits that firms are being run on a much more cost-conscious basis than in years past.”
Their Money’s Worth
Paul Hoffman, a dedicated former pro bono volunteer who left his high pay at Loeb & Loeb to become ACLU legal director, said “one very crass reason” so few firms devote large resources to pro bono is that they want their money’s worth out of any new associate who has to be lured by a $55,000 or higher starting salary in today’s highly competitive legal market. In return for that salary, the firms demand that recruits perform 1,900 billable hours of work for paying clients, with no time off for pro bono cases.
However, attorneys in both the public service and the private Bar believe that the pendulum is swinging back toward more pro bono efforts.
The ABA’s Carlson said only 50 pro bono programs were listed in a directory compiled shortly after her Private Bar Involvement Project office was organized in 1980. The current directory lists 450, with 88,000 lawyers donating services.
In California, Blair said, her office listed 50 pro bono programs in 1981 but currently has 125.
L.A.’s Is the Oldest
The oldest and largest of those programs is Los Angeles’ Public Counsel, which was founded in 1970 by the Beverly Hills Bar Assn. with only two law firms guaranteeing volunteers.
Now jointly sponsored by the 4,000-member Beverly Hills group and the 19,000-member Los Angeles County Bar Assn., the organization has six staff attorneys other than Nissen and taps 75 major law firms and hundreds of small and one-lawyer offices. In 1986, Public Counsel handed cases to 1,500 volunteer lawyers--double the number listed only three years earlier.
“Pro bono was sexier about 10 years ago,” Blair said. “But it has kept its head up and done well.”
Two trends have emerged as pro bono breaks out of its lean years.
First, efforts are more organized within firms and through programs such as Public Counsel.
‘Impact’ Cases
Second, although individual lawyers are still encouraged to take on consumer fraud and other small cases, entire firms are taking on major “impact” cases, or cases benefitting large numbers of people.
Some attorneys still locate pro bono cases through word of mouth from charitable organizations, public interest lawyers or acquaintances. But the ABA, State Bar and coordinating programs encourage attorneys to volunteer through organizations to avoid duplicating efforts and provide the greatest range of legal services to the poor.
One major reason that large firms like to organize their pro bono efforts, often appointing a partner or committee to oversee the voluntary work, is to avoid conflicts of interest with paying clients or among pro bono clients.
Paul Stanford and Richard Keller, who approve pro bono projects for the 256-lawyer firm of Paul, Hastings, Janofsky & Walker, said firms also need to take an organized approach to assure that firm resources--about 3,500 hours a year or roughly two full-time lawyers in their case--are actually spent on needy people.
Working as Teams
Although individual attorneys from major firms continue to handle individual cases, they are increasingly working as teams on pro bono cases in the same way they work for paying clients--and often at the request of beleaguered public service lawyers.
Examples of firm-wide cases include:
- In Washington, the 230-lawyer firm of Hogan & Hartson, which keeps five attorneys working pro bono full-time, recently won a federal Appeals Court ruling compelling the Occupational Safety and Health Administration to set field sanitation standards for migrant workers throughout the nation. The firm also represented 12 parents who joined a battle against fundamentalists over textbooks used in Alabama schools.
- Another Washington firm, the 150-attorney office of Wilmer, Cutler & Pickering, writes model federal, state and city legislation for lobbyists of nonprofit organizations. The firm recently successfully defended the NAACP against charges that blacks were boycotting white merchants in suburban Washington and has won a ruling for the Maine Audubon Society preventing construction of a hydro-power project that would have disrupted fishing in the Penobscot River.
- In New York City, the 200-lawyer firm of Finley, Kumble, Wagner, Heine, Underbers, Manley, Myerson & Casey has been helping low-income residents set up cooperative housing projects. The firm’s attorneys also assist Afghans and others in obtaining political asylum and resident alien status.
- In Los Angeles, Public Counsel has enlisted several private firms to crack down on sellers of homes in South-Central Los Angeles who convince buyers to invest their life savings only to lose the home when a surprise balloon payment equal to the original cost comes due.
One of the best known Los Angeles examples of a firm taking on a case designed to accomplish major change benefiting a large number of poor people has been Irell & Manella’s work on the homeless case. When a former ACLU intern who had gone to work for the private firm mentioned that her new bosses might like to help as a group, Rosenbaum and Blasi virtually ran to Century City to present their homeless problems.
“Their cookie budget is higher than our Xerox budget,” said Blasi, still marveling at the resources available from the private firm. “It’s fantastic, a different world from Legal Aid. They put hundreds of pages of legal memoranda, thousands of pages of documents into a computer data base. We do some of that, but not as well.”
‘Instant Respectability’
In addition to the resources and the high-caliber attorneys, Rosenbaum said, bringing a major firm into a poverty case gives the litigation “sort of instant respectability” and makes a statement that influential people consider the issue worthy of the public’s attention.
The private attorneys are as enthusiastic about working on impact cases as the poverty lawyers they assist.
Irell & Manella partner Jon Davidson, who has handled scores of individual pro bono cases in his eight years as an attorney, said he was most satisfied by the homeless litigation that prompted Los Angeles County to develop shelters instead of handing out vouchers for substandard Skid Row hotels.
“The small cases are frustrating. I always had the sense that I wasn’t solving the person’s real problem, which was that he was poor. The landlord-tenant case came up because they couldn’t afford to pay rent. The uninsured motorist case arose because they couldn’t afford to buy insurance,” he said. “So although you ended up helping them, I always had the sense that next week they were going to have a very similar problem.”
Energizing Effects
But working together on a case affecting thousands, he said, produced synergistic and energizing effects on him and the firm’s other lawyers--perhaps contributing to one of the firm’s most profitable years on paying cases despite the outlay for the pro bono litigation.
“You had this feeling,” Davidson said, “of this army out there proceeding on a definite front.”
The benefits of pro bono have become evident to firms like Davidson’s, which encourage the volunteer work, and serve as incentives for them to take on new individual and firm-wide cases.
Even though pro bono is expensive, Stanford said, it is good business for Paul, Hastings and all increasingly business-oriented law firms because it enhances the firm’s standing among lawyers and judges, and helps train young lawyers in court procedures and dealing with clients. Occasionally a firm also benefits from favorable publicity, although Stanford noted that few of the pro bono cases even “get noticed” and the clients the publicity may attract aren’t the paying kind.
‘The Debate Is Over’
“In the ‘70s there was debate within firms about whether we should be doing it, how we should go about it, whether our activities would embarrass any client,” said Keller. “In the old days, there was concern, for instance, that a landlord-tenant case would upset our real estate clients. But today our pro bono program is an accepted part of life. The debate is over.”
O’Donnell added that pro bono is essential for lawyers’ and their firms’ self-preservation. “Peer regulation could change abruptly,” he said, alluding to threats by the California Legislature to strip the State Bar of its power to discipline attorneys, “unless the Bar changes its image as a smug, self-centered, overpaid, under-deserving profession. You don’t do that through a public relations campaign, but through your dealings with people.”
Public service lawyers need more help than firms may be willing or able to donate. So, as a special incentive, they encourage pro bono lawyers to invoke a California statute requiring defendants to pay lawyers who, in effect, act as private attorneys general to win a broad public benefit.
When the 500-lawyer firm of Gibson, Dunn & Crutcher won a slumlord case for tenants of former San Diego City Councilman Michael Schaefer, it raised a few eyebrows by asking the court to make Schaefer pay its $700,000 cost. The request, rejected by the trial court, is now on appeal.
Establish a Precedent
“Most private lawyers could not have afforded to do what we did,” said James P. Clark, the firm’s Los Angeles pro bono partner who handled the case. “So Legal Aid and Public Counsel wanted us to establish the fee precedent in court, so that smaller firms will be willing to take on these slumlord cases. Had we been awarded fees--or if we are on appeal--my view is that the money should go to Public Counsel or an alternate public interest law firm.”
Despite the satisfaction and even business advantages touted for pro bono work, most attorneys still avoid it. Lack of time is the most frequent excuse, but pro bono advocates call that a cop-out.
“People make time for what they are interested in,” Stanford said. “Saying you don’t have time for pro bono is like saying you can’t afford to give money to charity.”
There are plenty of other excuses from the nearly 90% of attorneys who decline pro bono opportunities.
“I’ve heard everything,” said the State Bar’s Blair. “I had one attorney tell me San Diego has no poverty; others say doctors don’t do pro bono, so why should we; it’s the government’s duty; or they don’t have experience in the areas needed, or that the clients are flakes and poor people, are dirty and don’t look good in their waiting rooms.”
‘Should Have 100%’
“We have 10% doing pro bono, “ said Blair, who provides printed materials and counsels local Bar associations on how to set up programs like Public Counsel. “We should have 100%.”
Few pro bono advocates, however, are willing to endorse forcing attorneys to take pro bono cases.
El Paso has one of the few successful mandatory pro bono programs in the country. A judge there ordered local attorneys to handle two family law cases for indigents each year, but only after the order was requested by the El Paso Bar Assn.
In California, the U.S. 9th Circuit Court of Appeals has said mandatory programs in federal courts are unconstitutional, and in state courts the Supreme Court has let stand a Court of Appeal opinion similarly banning a mandatory scheme originated in Ventura County. An effort to pass legislation requiring mandatory performance of free legal services failed in the Legislature 10 years ago.
Rosenbaum of the ACLU said not only does forcing lawyers to represent clients for free produce poor work, but that mandatory programs could be an excuse for further cuts in Legal Services Corp. budgets.
