Pro bono has come a long way in the last decade or two. More and more law firms have effective, structured pro bono programs, and many corporate legal departments either have pro bono programs or are working on developing them. It's a particular thrill for me to learn about the pro bono interests of a client, especially when I have the opportunity to help the client advance those interests.
Still, some business clients may wonder whether they are really footing the bill for work that is given away by their outside counsel. While it is certainly true that we would not be in a position to do pro bono work if not for our paying clients (for whom we are exceedingly grateful), I would argue that the work we do without charge for low income people and non-profit organizations does not come at the expense or detriment of the clients who pay our bills. In fact, I would argue that it benefits those clients.
About 25 years ago, I began my career as a litigator at a law firm that represented mainly business and corporate clients (a predecessor of Baker Donelson). Back then, corporate clients routinely paid legal fees for new associates to tag along to depositions and trials, carrying the briefcase and observing the proceedings as training. I also was fortunate in my first couple of years of practice to be able to try a number of very small cases – the stakes weren’t high but it was great experience for me. This was common then too.
Times have changed a great deal. Corporate clients generally are not willing to pay attorney’s fees for an inexperienced lawyer to tag along, and they do not want a lawyer who doesn’t add obvious value on the team for a billable matter. Most companies also are not sending a lot of minor cases to the courthouse to be tried (or if they do they are not using big law firms to handle them.) All this is understandable, of course. Law firm clients are working in the same economy, and with the same economic challenges, as the law firms they employ. They too must find ways to cut expenses, and they have to be more mindful than in years past of the value of every dollar spent. This does, however, leave law firms without some traditional methods for developing young attorney’s skills.
Pro bono allows young lawyers to handle real cases and get the kind of hands-on experience that our clients expect of them. For example, one of our associates, Kavita Shelat, successfully handled two immigration asylum matters. As a second and third year lawyer, she prepared and tried two cases, including handling expert witnesses. There is not much question that Kavita can bring real skills to the table when she's asked to work for a business client. Many others have also been able to work directly with clients to prepare their cases, interview witnesses, negotiate contracts or settlements, and generally become better and more experienced lawyers. This greatly benefits the clients for whom they’ll be assigned to do paid work, both immediately and in the long term. After all, companies will continue to need legal services for years to come, and none of us old codgers who cut our teeth 25 years ago are going to be around forever. The next generations of lawyers who will run the law firms in the future must develop abilities, skills and instincts that hands on experience provides.
Having a vibrant pro bono program also helps us to continue to recruit the best and the brightest of new lawyers. Many law students inquire about pro bono opportunities during the interview process, and surveys show it can be an important factor in choosing a law firm – both for its own sake and as a barometer of the overall culture of the firm. In fact, quite a few law schools now publish guides for their students about how to assess a firm’s pro bono commitment when deciding where to go to work.
Court dockets are increasingly clogged with people who cannot afford to pay for a lawyer trying to represent themselves. They cost the public a great deal of money, and they slow down the pace at which the courts can resolve cases. The more often those people are represented, the better for those who are paying their lawyers.
At most big firms around the country, the attorneys who do the most pro bono work also tend to be among the most productive attorneys in terms of billable work. They are not putting aside paying client work to do pro bono, nor are law firms paying them more to do it. They do it for the professional development, to support a cause in which they believe, and for many other reasons.
So sure, a law firm exists because its paying clients pay its bills. Ergo, in the words of that great New Yorker cartoon - "we can only afford to do all this pro bono because of how much anti-bono pays." That's also how we keep the lights on. But pro bono benefits everyone concerned - the pro bono client, the pro bono lawyer, the law firm, and even the clients who pay the law firms' bills!