Legal Education Digest
54 Buff L Rev, 2007, pp 1355–1383
More than simply the enactment of new rules and aspirational standards, pro bono has witnessed a profound shift in organisational resources and infrastructural support in recent years. While throughout the greater part of American legal history pro bono was dispensed informally and administered in atomistic fashion through charitable organisations, it has more recently become ‘centralised and streamlined, distributed through an elaborate organisational structure embedded in and cutting across professional associations, law firms, state-sponsored legal services programs, and nonprofit public interest groups.’
In many law firms, the institutionalisation of pro bono has been demonstrated by the creation of new professional roles such as pro bono partners or managers who coordinate the pro bono initiatives of the firm and the activities of lawyers. In addition to the formalisation of bureaucratic roles, some law firms now allow lawyers to credit some proportion of pro bono work to their billable hour requirements. Several large law firms have become signatories of the ‘Law Firm Pro Bono Challenge,’ an initiative launched by the ABA in 1993 and now operating under the aegis of the Pro Bono Institute located at Georgetown University Law Center. The Challenge requires law firms to demonstrate an institutional obligation to pro bono by ‘promulgating and maintaining a clearly articulated and understood firm policy’ and by ‘using their “best efforts” to ensure compliance’ with the goal of providing three to five per cent of resources to pro bono causes.
Added to these initiatives, virtually all bar associations currently offer annual awards that recognise pro bono work as do several law firms across the country. While the culture of legal practice and market forces may continue to limit pro bono initiatives in various locations, it seems unquestionable that pro bono has achieved a degree of formalised attention and, at least rhetorical — if not actual — vitality in the legal profession.
The pro bono movement taking shape in the legal profession is especially significant in light of the profession’s generalised disinterest over the years in increasing access to justice for the poor and disadvantaged. It is, however, important not to become too sanguine over the extent to which the bar has experienced an expansion of pro bono. Even in states such as New York with high pro bono participation rates, less than half of all attorneys reported engaging in some type of pro bono, and less than one-third of those attorneys reported contributing at least twenty hours of pro bono in the past year.
Also much of what now passes as pro bono is work done not necessarily for economically disadvantaged populations, but for civic organisations in an effort to obtain clients. As Scheingold and Sarat argue, ‘mixing with the civic elite is a time-tested way of making contacts that can generate clients while at the same time embellishing the reputation of the firm with those who count in the community.’ And while the ABA has revised its ethical rules to include the provision that lawyers should provide fifty hours of legal services without fee, or expectation of fee, to persons of limited means or to charitable, religious, civic, community, governmental and educational organisations thatdeal with the indigent, like the earlier changes drafted by the Kutak Commission in 1979, these revisions fall short of making pro bono mandatory. Ironically, the institutionalisation of pro bono may not lead to an expansion of legal services to clients who are unable to afford lawyers since the meaning of pro bono has increasingly become contested terrain. As Mather and her colleagues point out, the formalisation of pro bono potentially threatens to transform the ethic of professional obligation to serve the needy into a form of charitable public service for the purpose of career advancement or skill-building.
The obligation to participate in pro bono has also been a hotly contested issue within state bar associations. In New York for instance, members of the Association of the Bar of the City of New York (ABCNY) and the wider New York City legal community were sharply divided over this issue.
Of central concern was that the proposed pro bono ‘tax’ would not be equally distributed across the sectors of the New York bar. Because the proposed provision allowed lawyers to ‘buy out’ of mandatory service by making significant monetary contributions, the onus of providing actual pro bono service would fall on the shoulders of small-firm and solo practitioners.
Divisions within the New York State Bar Association over a pro bono requirement have flared recently leading to a 2005 revision of its policy. Prior to this revision, only pro bono services delivered to individuals of limited means or organisations whose clients are poor and indigent ‘qualified’ as pro bono. In the wake of the 9/11 terrorist attack, many large law firm lawyers in New York City began offering free legal services to the families of the victims. Irritated by the state bar’s unwillingness to recognise their efforts as ‘pro bono,’ these lawyers led the charge to transform the definition of pro bono. Predominantly through the efforts of large law firm practitioners, New York’s expansive pro bono policy eventually allowed lawyers to declare pro bono credit for legal services provided ‘at no fee or substantially reduced fees to individuals, organisations seeking to secure or protect civil rights, civil liberties or public rights or to not-for-profit, governmental or public service organisations.’
Despite generally favourable reaction to this policy change, support was not unanimous. Sole and small firm practitioners still feared that the encouragement to do pro bono would eventually turn into mandatory requirements, risking an unfair burden on lawyers with limited resources. Members of the legal aid community, too, generally opposed the revision for fear of further marginalising the legal needs of the poor. They feared that broadening the definition of pro bono would erode the private bar’s willingness to engage in pro bono work for the poor, significantly reducing opportunities to achieve access to justice for individuals with limited means.
Reforming legal education through increased attention to ethics as well as through the promotion of public service has often been suggested as a way of enhancing the commitment to professionalism within the bar. Indeed, the legal profession’s commitment to pro bono and public service stems from the rhetorical aspirations ‘to equal justice as well as from the desire to “make the practice of law a higher calling and a profession, not merely a business.”’
At various times throughout the history of legal education, an ideology of public service was advocated. According to Auerbach, the nexus between the legal profession, legal education, and public service came into sharp relief during the early twentieth century. Prior to this, by the mid- nineteenth century, the legal profession had experienced a serious decline in its cultural authority and status as it became increasingly associated with elite interests. The rise of the modern law school premised upon the ideology of teaching the science of law substantially increased the professional powers of the bar.
Legal education also became the seedbed of a renewed conception of, and commitment to, lawyering as a public profession. The rise of the New Deal, along with legal theories such as sociological jurisprudence and legal realism, contributed to the promotion of the image of the lawyer as a servant of the people and the profession as dedicated to a spirit of public service. The period of the New Deal and the corresponding public image of lawyers led to remarkable growth within the legal profession and created a path for the further enhancement of professional status.
During the period of the 1960s and 1970s, the legal profession experienced another injection of public spiritedness and practice dedicated to public service. These lawyers used a variety of legal strategies including litigation, lobbying and advocacy, community mobilisation, and law reform work in an effort ‘to achieve greater social justice — both for particular individuals ... and for disadvantaged groups.’
The impact of this development on legal education was profound. Students increasingly went to law school to pursue public service and social justice, and while this erstwhile idealism was generally eroded during the three years of legal education, an indelible impression had been left on legal education in the areas of public service, political causes, and social justice for marginalised groups.
Beginning in the early 1990s, law schools around the country began institutionalising pro bono programs and mandatory requirements in the hope that the professional obligation to render pro bono would ‘trickle up to ... practitioners.’
Nearly all law schools throughout the country currently have some type of organised pro bono program. Where pro bono is required for graduation, student obligations range from twenty to seventy hours of uncompensated, not for credit, supervised legal work. In theory, these requirements most often emphasise the delivery of services to the poor or indigent. In practice, law schools seem relatively flexible in what constitutes pro bono work, accepting assignments that are more closely related to public service such as teaching or legal work for non-profit civic organisations not specifically associated with poor or indigent populations.
At other law schools, pro bono requirements are satisfied by participation in specific courses or internships that offer academic credit. The remaining majority of law schools have enhanced their institutional support for voluntary pro bono opportunities through the establishment of referral protocols that link students with pro bono opportunities. Finally, some schools integrate their pro bono commitment with student organisations that work under faculty supervision and/or in collaboration with outside organisation.
While there has been anecdotal evidence supporting the value of law school pro bono, no institution has undertaken an empirical examination of the impact of pro bono participation on law school graduates. This seems to suggest that many proponents of law school pro bono view such policies as an unqualified public good that is consistent with the service ideals of the legal profession. However, while anecdotal evidence indicates that law students generally believe that their law school pro bono experiences have increased the likelihood of continued contributions, recent follow-up data would suggest otherwise. In her recent study of pro bono activity of law school graduates across a range of schools where pro bono was mandatory, strongly encouraged, or institutionally less developed, Rhode has concluded that there is no significant empirical relationship between law school pro bono policies and subsequent pro bono work.
This study represents the first phase of a broader effort to understand the role of mandatory pro bono on the professional lives and identities of lawyers and the impact that educational and workplace experiences have on the multiple meanings that pro bono has for lawyers.
A survey administered in the spring/summer of 2004 gathered data to assess the impact of mandatory pro bono on the careers of lawyers. Three law schools with varying pro bono requirements instituted in the 1990s were used to generate a sample. In this study, these schools are referred to as Northeast Law School, Western Law School, and Southern Law School.
Each of the law schools selected to participate in this study have a well-established commitment to public service.
Each school was visited for the purpose of gaining support for the study as well as for identifying an appropriate strategy for generating a sample. While it had been hoped that each law school would provide a list of graduates from which a random sample could be drawn, all of the schools had administrative policies barring access to individual graduates. As an alternative, three graduation classes from each school were selected for comparison purposes. The three classes consisted of the last graduating class without a mandatory requirement, the first graduating class with a mandatory requirement, and a more recent graduating class of lawyers who had participated in mandatory pro bono. In addition to developing a protocol to draw a sample, input on the survey was solicited from coordinators of the pro bono program at each school.
Each pro bono coordinator was interviewed about the history of the program and its current operation. As part of the field visits at each location, coordinators made arrangements to interview a number of faculty associated with the development of the program, site supervisors whose agencies participate in the program, as well as advisory board members and administrative support staff. Upon the recommendations of the coordinators at each site, as well as the suggestions from attorneys during the pre-test focus group, the questionnaire was finalised and placed into production.
Unfortunately, the law schools only agreed to participate in the study on the stipulation that respondents would remain anonymous and that entire classes would be sampled as opposed to random selection within each graduating class. All mailings to each respondent were handled through local commercial mailing companies who were provided with a list of the school’s alumni. A number of pre- survey letters were returned without delivery and the respondent names were subsequently deleted from the mailing list used by the commercial mailing companies. This reduced the pool of potential respondents to approximately 1600 of which 474 respondents completed and returned surveys, yielding a response rate of approximately thirty per cent.
Nearly thirty-five per cent of the respondents indicate they presently work in a large law firm. Of the remaining respondents, twelve per cent are sole practitioners, sixteen per cent are employed in small firms, thirteen per cent are located in medium-sized firms, and twelve per cent practice as in- house counsel. The remainder of the sample is employed in public interest settings as well as in government and judicial locations. The sample also contained slightly more women than men. Most respondents were white, with a significantly smaller proportion of minority participants. The average age of the respondents is thirty-five. Since two of the three classes selected at each school graduated after the school’s implementation of pro bono requirements, a greater proportion of attorneys report participating in mandatory pro bono, seventy-two per cent compared to twenty-eight per cent.
A broad definition of pro bono was used in this study which was defined as activities undertaken without expectation of fees consisting of the delivery of legal services to persons of limited means or to charitable, religious, civic, community, governmental, and educational organisations.
For this Article three sets of analyses are included. First, descriptive statistics are utilised to provide a profile of the experiences attorneys had with mandatory pro bono. Next, T-tests are presented in order to determine the impact that participation in mandatory pro bono has on attorneys compared to those who graduated from the same law schools just prior to the institutionalisation of the requirement. Finally, regression coefficients are presented for the purpose of identifying the determinants of pro bono participation across these different groups.
Attorneys who participated in mandatory pro bono requirements during law school generally report that their experiences were worthwhile in some areas, while in other areas the effect seems less apparent. For instance, nearly seventy per cent of these attorneys endorse the view that their law school pro bono experiences taught them something about people who were different from themselves, while a similar percentage believe that they acquired more awareness of the legal needs of the poor as a result of their law school involvement in pro bono. Additionally, while the majority of graduates endorse the view that pro bono had a positive effect on their overall law school experience, attorneys with the greatest number of hours of mandatory pro bono report the greatest amount of enjoyment during law school.
Overall, lawyers believe that they benefited directly from the opportunity to further develop their legal skills through mandatory pro bono. Many attorneys, forty per cent, report that they were actually enthusiastic about the pro bono requirement and felt that they benefited from having to participate in the program, while several others, thirty-three per cent, accepted mandatory pro bono as just another law school requirement from which they consider to have benefited. Only twenty per cent of the respondents indicate that their pro bono experiences interfered with or took valuable time away from the legal education.
Despite the value that mandatory pro bono had for many of these lawyers, most did not believe that their experiences had a significant effect on their legal careers. Only thirty-four per cent of the respondents believe that their pro bono experience affected their initial job choice and twenty-eight per cent report that their law school pro bono helped them acquire their initial job after graduation. Few respondents, less than thirty-five per cent, report that their pro bono experiences helped them to develop useful professional contacts that might assist them with their careers. It appears that despite their pro bono experiences in law school, graduates were not necessarily compelled to seek out opportunities for pro bono upon graduation. Somewhat surprisingly, and contrary to anecdotal evidence, half of the respondents did not believe that their law school pro bono experiences made them any more committed to doing pro bono as a practicing attorney. It is thus somewhat questionable whether the pro bono experiences in law school enhanced a respondent’s commitment to perform pro bono work as an attorney.
In terms of their assessment of their law school pro bono, lawyers tended, for the most part, to be satisfied with the various facets of the programs. While these respondents report being generally satisfied with the mandatory pro bono experience itself, they express dismay with the lack of attention this experience was accorded in their regular law school classes. It appears that for many respondents, while they believe their pro bono experiences were beneficial in many areas and were considered an important part of their legal socialisation, the value of this experience did not seem to translate into the classroom.
While the responding lawyers generally report favourable experiences associated with their mandatory pro bono in law school, its impact on their legal career is less certain. It is important to determine the effect, if any, that participating in mandatory pro bono during law school has on the pro bono activities of practicing attorneys.
(1) Pro bono in current job. Do more lawyers who participated in mandatory pro bono during law school engage in pro bono activity in their current legal positions, compared to those respondents who did not participate?
(2) Shifting Patterns of Pro Bono Participation. In other words, does the experience of mandatory pro bono in law school obviate a possible ‘aging out’ process by which lawyers simply discontinue pro bono work due to assorted professional and/or personal demands?
Lawyers who did not participate in mandatory pro bono during law school do not abandon pro bono work at a significantly higher rate than respondents with mandatory law school pro bono experiences. In fact, a larger percentage (although statistically non-significant) of lawyers who were not required to perform pro bono during law school report increasing their amount of pro bono contribution compared to previous years.
(3) Amount of annual pro bono participation.
The total number of pro bono hours for lawyers who participated in mandatory pro bono during law school did not significantly vary from the number of hours devoted to pro bono reported by those who were not required to participate in such a program.
Thus, despite the fact that each of these schools have well-established mandatory pro bono programs that aspire to increase the commitment to performing pro bono within legal practice settings, the current data reveal no such positive outcome. Attorneys who participated in mandatory pro bono in law school are not significantly different from those attorneys who were not required to perform pro bono during their law school years.
(4) Non-legal volunteerism. If part of the mission of mandatory programs is to build a commitment to public service among lawyers, then the degree to which lawyers become involved in their communities as private citizens, as opposed to their professional role as a lawyer, may be amplified.
As is the case with pro bono legal work, there is no significant difference in the amount of non- legal volunteer service that graduates engage in from law schools with mandatory pro bono programs compared to those who graduated from the same law schools but before the implementation of pro bono requirements.
Does the experience of mandatory pro bono in law school affect the shape of pro bono that is performed in legal practice? On this question, the data again reveals no significant differences.
Upon examining the amount of time lawyers spend performing pro bono work with the poor and indigent populations, it was found that lawyers who were required to do pro bono during law school are no more likely to perform pro bono for these populations than are attorneys with no mandatory pro bono experiences.
In addition to the finding that there is no difference between these two groups with respect to the provision of pro bono services to indigent populations, neither does there appear to be a significant difference in the general types of pro bono work that is performed.
When all the areas of pro bono work are compared together, it is clear that the areas of family and business are, by far, the most active areas of pro bono work.
Very few lawyers from either group performed pro bono work in the areas of death penalty, poverty law, economic development, environmental law, or labour law.
The fact that there are few differences in the type of pro bono work between these two groups suggests that the workplace may be a stronger predictor of pro bono than law school socialisation. Rhode found that nearly half of the lawyers in her study indicated that they were dissatisfied with the types of pro bono cases that were permitted in their workplace. In many cases, pro bono work is directed away from controversial areas like abortion, consumer law, death penalty, labour rights, environmental law, or gay and lesbian issues that might ‘offend’ paying clients. Large law firms often carefully vet pro bono cases to ensure that they are ‘politically safe and non-threatening to client interests.’ Pro bono work that poses ‘positional conflicts’ are frequently avoided since the pro bono client may be ‘pursuing an objective that runs counter to the perceived interests of one or more of the firm’s clients.’
Respondents were asked to indicate the most common means through which they acquire pro bono work. Overall, the most common method of obtaining pro bono work (twenty-six per cent of cases) occurred through an employer’s pro bono committee or coordinator. The next most common channels for acquiring pro bono work occurred through one’s friends and acquaintances as well as through public interest organisations. Respondents also commonly report using community groups (twenty-three per cent) and bar associations (twenty per cent) to acquire their pro bono work.
The existing law school hierarchy also seems to explain other variations in the pattern of obtaining pro bono work. While graduates of more elite schools may have greater opportunities to use formal employee-based programs, graduates of lower ranked schools seem to rely more on informal networks.
The venue from which a lawyer acquires pro bono cases has significant implications for the type of work performed and especially the population for whom the services are provided. For instance, while many large law firm attorneys use pro bono committees and/or coordinators available through the workplace, much of the work is not directed at poor and indigent populations. Of those lawyers who use employee pro bono committees and coordinators, only twenty-eight per cent indicate that a substantial portion of their pro bono work is directed toward addressing the legal needs of poor and marginalised populations. By contrast, of those who report using bar association programs to acquire pro bono work, nearly forty per cent of the respondents indicate that a substantial percentage of their pro bono work is directed at serving these populations.
In order to understand the motivations for pursuing pro bono work and for investigating differences in motivations between lawyers who were required to perform pro bono during law school and those lawyers who were not, the survey asked respondents to rank a set of factors that influenced their decision to engage in volunteer legal services.
The most significant motivating factors in the lives of these respondents were intrinsic satisfaction from doing pro bono work (3.79) and a normative obligation that comes from being a member of a profession (3.12). These findings closely resemble those recently identified by Rhode who similarly found that ‘the most commonly emphasised forces driving pro bono participation were the intrinsic satisfaction that came from the work ... and a sense of obligation to pursue it ...’
While the intrinsic personal satisfaction associated with doing pro bono work is virtually the same across these groups, lawyers who were not required to perform pro bono in law school report a slightly higher sense of professional obligation to do pro bono.
By contrast, respondents who were required to perform pro bono during law school registered slightly greater motivational intensity with regard to enhancing their legal skills and working directly with clients. The last finding suggests that the immersion in pro bono during law school may increase a lawyer’s level of motivation to pursue pro bono opportunities in practice.
As a way of further disentangling the impact of motivations on pro bono obligations, a regression analysis was conducted. For this analysis, lawyers were asked whether they thought ‘all lawyers should be required to perform pro bono each year.’ This variable was regressed on the above list of motivations as well as other variables including pre-law school volunteer experiences, importance of religion and political orientation in the respondent’s life, and the amount of involvement with other attorneys who do pro bono. An additional factor was included that measured the value of ‘giving something back’ as a motivation for participating in pro bono. Finally, general demographics including gender, marital status, race (white/non-white), and income were entered into the regression equation.
Those who graduated from a law school with a mandatory pro bono requirement tend to be more supportive of pro bono requirements in the legal profession than are respondents who graduated without such a requirement. Respondents who subscribe to strong normative beliefs that pro bono work is a professional obligation tend to support the opinion that lawyers should be required to perform some annual amount of pro bono work. Respondents who feel that volunteer legal work offers them a way to ‘give something back’ to their community similarly support making pro bono a requirement of all lawyers. Previous volunteer experiences also had a significant impact on the belief that lawyers should perform pro bono.
Respondents who were more active in volunteering prior to law school generally support a pro bono requirement for lawyers. Also the greater the importance of religion to a respondent, the less likely she is to support making pro bono a requirement for all lawyers. This is due to the fact that the majority of respondents who claimed that religion is very important in their lives also identified themselves as politically conservative. By contrast, those who believe that religion is not particularly important in their life tend to view themselves as being liberal. Supporters of mandatory pro bono lean more to the liberal side of the political spectrum. Finally, minority respondents were more likely to support the view that pro bono should be a requirement of all lawyers.
Does it matter that law school pro bono experiences may not enhance the amount of involvement in pro bono services once a person moves into legal practice? The answer to this question is of course in the negative. In terms of the socialisation of law students, opportunities to develop actual practice skills are extremely important to legal education.
While opportunities to enhance skills are a worthwhile endeavour, it’s not clear that such an outcome would necessitate mandatory pro bono. Schools that offer strong clinical programs undoubtedly have similar outcomes without requiring law students to do pro bono work.
While there are certain educational benefits to the ‘gaining skills through pro bono’ argument, the obvious concern is that this emphasis trumps the value-based question regarding the purpose of pro bono to advance justice and provide greater access to legal representation. It would seem that the skill promoting rhetoric of mandatory pro bono may have more staying power or at least is more consistent with law firm needs than arguments promoting professional service ideals.
One potential drawback of mandatory pro bono programs and their tendency to focus on skill- based benefits might be that they unintentionally dilute the meaning and purpose of pro bono. The lesson is to build skills, not necessarily to learn that there is a large segment of society that has
limited access to health care and that physicians have a responsibility to redistribute medical services downward.
The fact that law schools are hierarchical has posed intense market pressures for many law schools that fall at the lower end of the prestige hierarchy. Law schools have had to compete in order to establish a niche for their graduates.
It’s interesting to note that many of the law schools that have instituted mandatory pro bono programs are those that fall in the lower echelon of the law school hierarchy. For graduates of these schools, doing pro bono for the poor or for government-based agencies can provide a viable path to employment.
Mandatory pro bono represents a way for the legal profession to re-moralise itself in the face of challenges to their collective ethical integrity. Requiring law students to perform pro bono and public service with the intention of encouraging such behaviour in legal practice sends a message to potential challengers that the profession is doing something about this perceived problem.
Forcing professionals to engage in pro bono is frequently seen as undermining their autonomy and stature as a professional. However, requiring law students to perform pro bono, purportedly for their own good, is consistent with other requirements associated with professional training. It is in this sense that mandatory pro bono requirements in law school are isomorphic with the institution of profession and the associated process of professionalisation.
For the law school pro bono movement to have an impact, the pro bono experiences of law students must be better integrated into the general law school curriculum. Perhaps if the educational and normative potential of these pro bono experiences became more pervasive throughout the law school curriculum, then the impact of the experience and its lasting effects might be more substantial.