Commentary by Frank P. Cervone
As lawyers, courts and businesses adjust to the new realities of hybrid work, many are asking the companion question: will volunteer lawyers come back to pro bono work? Right now, it’s not looking so good. Despite some deceivingly big numbers in national data reports on pro bono service, the big unspoken secret is that we are not meeting the need, and many who can serve, simply are not.
In pre-COVID days, the Support Center for Child Advocates had more than 330 volunteer lawyers serving each year in the representation of 1,100-plus children who had experienced abuse and severe neglect. While the story of service is impressive, it also comes up short. In the decade preceding COVID, even with heavy recruitment and training efforts, we regularly needed 50 or more additional volunteers. Since COVID, the deficit in our pro bono workforce is even greater, as we are chronically 70 volunteer lawyers down.
One wonders: if our recruitment is hurting, with its engaging mission, high level of staff support for volunteers, and 45-year tradition of excellence, what are other pro bono programs experiencing?
Most programs are hurting for volunteers. With demands for service as high as ever, with the impact of poverty and structural racism now fueled by myriad pandemic effects, poverty law programs are being asked to respond. Pro bono models are built to share the load, tapping the wealth of talent and resources in law firms and corporations. But in most communities, much of the load is left uncarried.
Working to meet an unmet need has always been the siren call of both charitable giving and volunteer service, so gaps are not new. Post-COVID work life is bringing new challenges to pro bono. Everyone seems to be struggling with big workloads, less help and the emotional challenges from the pandemic. Work-at-home may mean less opportunity for direct in-the-field service. We will see fewer lawyers in office to be recruited in person. Some simply don’t want to be exposed to the virus.
The paradigm shift to embrace pro bono service as a goal of the profession has come over many decades. Here in Philadelphia, from the visionary starts of Child Advocates and Philadelphia Volunteer Lawyers for the Arts in 1977, to the creation of Philadelphia VIP as the first pro bono referral agency of its type in the nation in 1987, dozens of impressive organizations and initiatives and thousands of lawyers and paralegals have represented those in need. In 2001, the Chancellor’s Pro Bono Task Force of the Philadelphia Bar Association exhorted that “pro bono service must become a part of the culture and fabric of what it means to be a Philadelphia lawyer.” In so many ways, we are there.
Likewise, pro bono has become part of the culture of lawyer practice nationwide. In its most recent data on large firms, the Law Firm Pro Bono Project said that 123 firms reported performing 5,410,723 hours of pro bono work in 2020, a substantial increase from 2019. Pro bono hours represented 4.17% of total client billable hours in 2020.
According to the Pro Bono Institute, the combined participation rate of partners and associates in its survey of big firms was 77.7% in 2020. Even for midsize firms who have taken “The Pro Bono Challenge” to give 3% of billable hours as pro bono, firms report 61 hours average pro bono hours per attorney.
The focus of most pro bono work is right where it belongs, in service to the poor. In the Pro Bono Institute cohort, 71% of all pro bono time of reporting firms was devoted to persons of limited means.
Racial justice has risen as a priority. A vast majority (94%) of those who responded to the PBI survey indicated that their pro bono programs had adopted a new or renewed focus on racial justice in 2020, with heightened service in criminal justice, policing and prison reform, voting rights, free speech, and housing.
So why the shortfall? What needs to happen?
Expand the Base
As we all come back to the office, or not, we must find ways to dramatically increase participation among lawyers who are not now doing, and perhaps never have done, a pro bono case. While so many datasets are impressive, a more sober appraisal would likely find thousands of lawyers from all types of firms who are simply not serving. We need more participation from large firms, who by most measures have the capacity and the inclination. But even more, we need to reach deeper into the marketplace of small firms and even solo practices.
We have so many impressive examples of service, from all types of law practices and for all sorts of pro bono work. Recruitment continues to engage new, eager volunteers. Yet candidly, for much of the work, we are all relying on the enthusiastic participation of the same people, over and over.
Estimates vary that 50% to 75% of all attorneys do not do any pro bono legal service. If ever there was opportunity for growth, it is in the number of lawyers who take on a pro bono case.
Count the Numbers
All lawyers should be required to report their pro bono service as part of licensure. Philadelphia’s 2002 Pro Bono Task encouraged an aspirational and measurable 50-hour annual standard of pro bono participation. Lawyers in many states now have to report annually on their client-related bank accounts. Why not require listing of pro bono matters as well?
Law firms should give billable credit for pro bono work, in an honest and meaningful way. In some firms this literally means a carve-out from expected billable thresholds, leveling the field between those who choose to serve and those who simply choose to bill. In other firms, it just means that ”so-many-pro bono-hours” is encouraged rather than criticized in annual reviews and partnership votes. In many shops, large and small, the firm makes clear that pro bono is not part of their business model. Then the individual lawyer is left to bear the burden, on their own.
The “Law Firm Pro Bono Challenge” was a game-changer 30 years ago in “big law.” Challenge signatories from among the nation’s largest and most prestigious firms commit to contribute 3 or 5% of their annual total client billable hours to pro bono activities. Likewise AmLaw 200 charts the average number of pro bono hours per lawyer and the percentage of lawyers with more than 20 hours of pro bono work. The data shows lots of hours, gets reported widely, and the firms work hard to keep up their end.
Impressive, and yet hiding another big secret: large numbers of lawyers in many big firms aren’t doing any pro bono work at all. Many others sign on to “supervise” a case, for little more than a no-show job. We need more lawyers to take a case, and care about it.
Beyond the very big firms, pro bono often doesn’t quite count. The 2017 Philadelphia Bar Association Pro Bono Task Force Report observed that “the concept that an attorney’s pro bono activities are done ‘on his/her own time’ and is not part of the attorney’s required time commitment to his/her private practice and other firm responsibilities, [and] appears to remain prevalent at some firms, either explicitly or implicitly.”
What’s pro bono look like in your firm? Can you count it at all?
Leaders Lead
The unmet need for pro bono simply will never be met without strong and public commitment from the top.
In law firms, the approval of the people in charge matters, both in substance, style and finance. We find both time and the permission to use it, when a firm leader says it is OK, or better, is working a pro bono case themself. When those who assign the work are known to be involved, everyone sees the leadership’s priorities.
Then there is the money. As law firm economics get tighter, the call to “bill more” seems everywhere. Ironically as profits-per-partner rise each year, and firms are rightfully excited about profit margins that have come from trimming expenses, someone has to do the work that pays. Willing-and-able pro bono candidates can’t find the time, and the pressure to bill squeezes the inclination to serve.
Leaders teach by example. New lawyers, like most young professionals, need the affirmation and example of senior practitioners to help learn their craft. That’s true for pro bono as well.
Relationships Matter
The widespread isolation created by COVID revealed the importance of our social connections, to both traditional communities like families and firms, and to marginalized communities who so often were left alone and unserved.
With social science just beginning to understand the long-term effects of so much social distance, we have to fear that connectedness has taken a beating. This does not portend well for pro bono. Remote pro bono work will likely have a place. We will have to work hard to recreate the sense of relationship on which we build the call to serve.
Well before the pandemic, many were concerned about attorney retention and satisfaction. We know that many job candidates want to do work for justice. They choose firms because of it. Then too often they get there, and may be pushed to other commitments with no room for pro bono.
The lawyer’s relationship to the firm, and to the profession itself, is part of the community culture that we should care for and care about. Public service through pro bono practice has always been a way there. Whether you are coming back to pro bono, or coming for the first time, pro bono matters are fantastic pathways for skill-building, happiness and community.
Frank P. Cervone (fcervone@SCCALaw.org) is executive director of the Support Center for Child Advocates. To learn about pro bono opportunities in child advocacy, visit: www.sccalaw.org/training. Contact him at fcervone@SCCALaw.org.
Source: Published April 18, 2022, in The Legal Intelligencer.