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The Value of Pro Bono Work

By David A. Lash

You may not know who they are, or be familiar with all of their responsibilities.

They have responsibility for as much of the work at their major law firms as do many multi-million dollar rainmakers. They impact the training and professional development of young associates perhaps as much as the department leaders at most national law firms.

Their work often leads to headlines and awards. They influence their firm’s closely-watched American Lawyer rankings as much as even the most closely-watched revenue figures. They come from the finest law schools in the country and they profoundly impact the lives of thousands of people each year.

Pro bono counsel are lawyers who oversee their firm’s pro bono programs. A relatively new creation, they are generally experienced litigators, former legal services attorneys, or simply well-regarded firm attorneys whose pro bono leadership has demonstrated the value they can bring to the firm’s culture, reputation and bottom line. And to be competitive on all those fronts, law firm leaders are taking note and stepping up.

While there are only a handful of these pro bono professionals on the west coast, on the east coast and in the mid-west the positions seem to be proliferating. The recently-formed Association of Pro Bono Counsel (APBCo) already sports more than 100 member attorneys across the country, coming in all law firm shapes and sizes, including more than 75 from the American Lawyer 200.

Many occupy the position of “counsel” in their firms, a few have risen to be partners or shareholders. Most devote their full-time practices to managing their firm’s pro bono program as well as overseeing the cases themselves. All devote at least the majority of their time to doing so. They bring skills, expertise and value to the firms in ways that no one else does.

More than 100 of the largest law firms in the country are signatories to the Pro Bono Institute’s Pro Bono Challenge. Those firms have pledged to devote not less than 3% of billable hours, and hopefully as much as 5%, to pro bono matters affecting the poor, non-profits working in the public interest, and matters of great social importance.

In the largest firms that can mean 100,000 hours of high level legal services, valued at tens of millions of dollars, focused on keeping otherwise voiceless clients from becoming homeless, ensuring health care for the sick, and protecting the civil rights of the down-trodden.

Having realized the double bottom line inherent in crafting a vibrant pro bono program, these firms have recognized the sophistication and effort required to turn this work into a valuable part of their culture. Consequently, they have turned to professionals to ensure that their pro bono programs both enhance their community standing and promote a lawyer’s highest calling, while also creating a return on dollars invested in associates that enhances the institution’s financial bottom line.

Consider the team of young associates working under the watchful eye of the pro bono counsel, and supervised by a litigation partner, who conduct a week-long trial on behalf of several low-income families living in egregious slum housing conditions.

The associates have taken the depositions of the well-heeled property owner, his business manager, his property manager, and the city building inspector. The team has defended the depositions of their clients and the other tenants at the property. The landlord has hired a seasoned attorney who requires great study and learning to compete successfully against. The supervising partner critiques the associates’ deposition outlines and later the transcripts of the proceedings.

The associates prepare for trial, file oppositions to motions in limine intended to keep from being introduced into evidence documents and testimony of past health and safety code violations at other buildings owned by the same defendant landlord. They then conduct direct and cross-examinations, joust with the judge on issues of pre-emption, make closing arguments and ultimately win injunctive relief, damages, punitive damages and attorney fees.

Not one of those associates had ever before taken a deposition, conducted direct examination or participated in a trial. But with this pro bono opportunity, and the proper supervision, the value to the firm was incalculable. The attorneys grew towards being seasoned professionals, earning skills and confidence in themselves, earning the respect of the partners, making the most of the chance to show the firm what they can do and giving the firm a tangible return on the investment made in these young practitioners.

With confidence, the partners can now use these lawyers at the next level, graduating from researchers and brief-writers to more well-rounded practitioners who can be sent justifiably to depositions at demanding hourly rates. It proved to be just the training needed to enhance the firm’s bottom line and not a single economy-strapped commercial client had to pay to support this learning.

Consider also that the City Attorney publicly lauded the firm’s effort to improve the lives of the poor and clean-up the region’s low-income housing stock. The referring legal aid agency gave the firm an award at the group’s annual fund-raising gala in front of 1200 colleagues, clients and government officials.

Local newspapers carried stories of the case, focusing on the horrific living conditions and abuse these tenants endured until the firm, free-of-charge, rode to the rescue. The day the clients came to the firm and, with the secretaries, staff, partners and associates looking on, were given life-altering checks amid tears and shouts of joy.

When these things are considered, and the value to the firm is assessed, it is the pro bono counsel who smiles in the background. He built the relationship with and earned the trust of the legal aid organization, ultimately leading to the referral of the case. He was the only attorney in the firm who had previous experience with slum housing cases and could provide the trial team with in-house substantive oversight.

He handled the conflict report and sheparded the matter through the firm approval process, a procedure she helped professionalize, found a partner to supervise the case and fashioned an effective co-counsel agreement with the legal aid group.

He sat in on the depositions and worked with the supervising partner to make sure the associates were maximizing their opportunity to learn trial skills, case management skills and the ability to deal directly with sophisticated opposing counsel, as well as clients who need attention and assistance.

At the same time, firm pro bono counsel are busy every day with a myriad of responsibilities. They meet with attorneys to talk about the kinds of issues and cases that ignite the passions of those lawyers and then creatively search for ways to match those passions with appropriate engagements. They evaluate every matter proposed for handling.

They analyze conflict issues, both direct and business conflicts, define and refine the scope of proposed engagements, work with the firm’s general counsel to address ethical issues, ensure the proper transfer and termination of cases, and take over case-handling when required by risk management concerns.

They are out in the community establishing relationships that will lead to referrals. When commercial clients want to be involved in pro bono pursuits, or want their lawyers to join them in their company’s own community pursuits, the pro bono counsel answers that call.

They budget the firm’s pro bono program, oversee adherence to that budget, work with legal aid organizations to establish new programs, work on individual cases where their expertise is required, promote the firm’s good work in the media, help recruit the brightest students on law school campuses, help retain valued associates, track hours and performance, professionalize and institutionalize the firm’s policies and procedures so that the firm program resembles a well-run department instead of an ad hoc grouping of cases and lawyers, and report to watch-dog agencies.

All told, pro bono counsel have significant oversight responsibilities for as much as 5% (or more) of their firm’s work product. When the American Lawyer rates law firms for its coveted “A” List, the two most significant ratings components, equally weighted, are revenue and pro bono performance.

Closely tied to firm diversity programs (nothing shows a commitment to diversity like rolling up the firm’s collective sleeves and actually doing hands-on, visible legal work in diverse communities), firm culture, and the emotional satisfaction a lawyer gets by making democracy work for the voiceless, pro bono counsel are impacting the legal profession as it has never been impacted before.

As economics dominate the day, the vision that firms display by creating and sustaining these positions may be transformative. To date, none of the country’s major law firms have reduced their commitment, none have ended this grand pro bono counsel experiment, none have cut back on their involvement in APBCo, and none have done anything to diminish the involvement of their attorneys.

In fact, most have expressly recognized the need during these difficult times to keep their commitment strong as the community of low-income clients is both growing and suffering in unprecedented ways. Major law firms recognize that through their commitment to this work, often in the person of their pro bono counsel, their business bottom line is enhanced, their community standing is exalted, and thousands of people are saved from being homeless, without medical care, and without hope.

About the author: David A. Lash serves as the Managing Counsel for Pro Bono and Public Interest Services at O’Melveny & Myers LLP. The opinions expressed are his alone.

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