private lawyers and the public interest

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private lawyers and the public interest
the evolving role of pro bono in the legal profession

edited by robert granfield lynn mather

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contents
List of Tables and Figures vii Foreword ix Preface and Acknowledgments xi Contributors xiii Chapter 1. Pro Bono, the Public Good, and the Legal Profession: An Introduction 1
robert granfield and lynn mather

i. professional socialization through the bar and legal education Chapter 2. Shaped by Educational, Professional, and Social Crises: The History of Law Student Pro Bono Service 25
cynthia adcock

Chapter 3. Good Lawyering and Lawyering for the Good: Lawyers’ Reflections on Mandatory Pro Bono in Law School 53
robert granfield and philip veliz

Chapter 4. Priming for Pro Bono: The Impact of Law School on Pro Bono Participation in Practice 73
deborah a. schmedemann

ii. economic perspectives on pro bono in legal practice Chapter 5. Lawyers’ Pro Bono Service and Market-Reliant Legal Aid 95
rebecca l. sandefur

Chapter 6.Pro Bono as an Elite Strategy in Early Lawyer Careers 115
ronit dinovitzer and bryant g. garth

Chapter 7. The Institutionalization of Pro Bono in Large Law Firms: Trends and Variation across the AmLaw 200 135
steven a. boutcher

Chapter 8. Pro Bono and Low Bono in the Solo and Small Law Firm Context 155
leslie c. levin

iii. pro bono in the interest of public service Chapter 9. Between Profit and Principle: The Private Public Interest Firm 183
scott l. cummings and ann southworth

Issues Entrepreneurs: Charisma. The Role of Volunteer Lawyers in Challenging the Conditions of a Local Housing Crisis in Buffalo. rhode Chapter 13. and Self-Help as Legal Services Delivery Mechanisms 295 richard l. and the Shaping of Pro Bono Practice in Large Law Firms 211 cynthia fuchs epstein Chapter 11. the future of pro bono Chapter 12. NY 231 james clarke gocker iv. Philanthropy. Rethinking the Public in Lawyers’ Public Service: Strategic Philanthropy and the Bottom Line 251 deborah l. Conflating the Good with the Public Good: An Essay 279 john henry schlegel Chapter 15. Bar Politics and Pro Bono Definitions: The New York Experience 267 cynthia feathers Chapter 14. abel Index 309 . Market. State. Charisma-Producing Events.vi contents Chapter 10.

1 Effects of Selected Organizational Characteristics on Large-Firm Pro Bono Participation.1 Total Pro Bono Hours.list of tables and figures tables 2. USA.2 Average Hours of Pro Bono per Lawyer.5 Integration of Pro Bono Experiences in Law School—OLS Regression 4.2 Item and Means for Motivations among Lawyers 6. in Millions of Dollars: USA.3 Civil Legal Assistance–Eligible Population per Full-Time Equivalent Civil Legal Assistance Lawyer by Source. Engagement in Pro Bono during Law School. 1997 7. LSC-funded Programs.1 Law School Pro Bono and Public Service Programs 1990–1993 3.6 Four OLS Models of Job Satisfaction 7.1 Pro Bono Narrative Constructs 3. and Desire to Help Individuals 6. 1998–2005 7.2 Selected Sources of Subsidy for Civil Legal Assistance: Funding Received by LSC-Funded Organizations and Estimated Market Value of Pro Bono Service. 1998–2005 . and Legal Aid Societies Not Receiving LSC Funding: USA.1 Item and Means for Community Orientation among Lawyers 4.1 Comparison of Delivery Mechanisms figures 5.3 Benefited from Law School Pro Bono—Logistic Regression 3. and Gender 6.1 Estimated Shares of Full-Time Equivalent Civil Legal Assistance Lawyers Provided through Civil Pro Bono Programs. Race.2 Pro Bono Hours in Law School—OLS Regression 3.3 Pro Bono Hours by Importance of Pro Bono Hours to Job Choice.2 Pro Bono Hours by Law School Tier.1 Pro Bono Hours by Practice Setting 6.4 Tobit Model of Pro Bono Hours 6.5 OLS Regression—Predicting Importance of Pro Bono Opportunities in Job Choice 6. 1998–2005 15. 2005 5. 1996 5.4 Endorsement of Mandatory Pro Bono in Law School—Logistic Regression 3.

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before joining the federal bench. A great virtue of this volume is its range. who confront the pressures of everyday practice in large firms. Although ethical obligations are sufficient to justify pro bono activity. only 40 per cent of immigrants. Study after study shows that an immigrant who has an adequate lawyer has a far better chance of securing relief than one who does not. We argued that in fact pro bono work is in the firm’s enlightened self-interest.S. 1995) 2. winter 2008. facilitate firm recruitment.). katzmann Judge. Recognizing pro bono’s role and the unmet legal needs of the immigrant poor. Washington. In one area of the law.C. in presenting worthy arguments that aid us in resolving cases.foreword robert a. We concluded that the law firm and the public good are inextricably linked and that each draws strength from the other in ways that nourish both.” xx1 The Georgetown Journal of Legal Ethics. implementing. its combination of empirical study and thoughtful inquiry. have legal representation. 3–29. Robert Granfield and Lynn Mather bring together scholars concerned about the role of pro bono in the legal profession—its history. Katzmann (ed. They sought to provide a blueprint for firms concerned with creating. Effective pro bono lawyering can make the difference as to whether or not an immigrant is allowed to stay in this country. The Law Firm and the Public Good. D. its fostering of discussion among differing perspectives. . organization. Robert A. (Brookings/ Governance. “The Legal Profession and the Unmet Needs of the Immigrant Poor. The Law Firm and the Public Good. sought to explore the responsibilities of large firms to the wider community.. Anyone interested in pro bono lawyering will turn to Private Lawyers and the Public Interest as a valuable resource and guide.2 1. Robert A. developing. our group recognized that moral appeals are not always enough. strategies and structure. U. and enhance the humanistic traditions of law practice.1 in which lawyers. immigration. as well as their clients. Court of Appeals for the Second Circuit In this stellar collection. sharpen a lawyer’s skills. That is to say. Several years ago. Katzmann. My experience on the federal appellate court has only reinforced my view that pro bono lawyering can vitally support the fair administration of justice. I have been working in the Second Circuit to promote such lawyering. pro bono lawyers have aided the Court. and evaluating pro bono programs. I had the privilege of directing a project. pro bono lawyering can improve morale. In many cases.

. and researchers in the fields of legal education and legal practice who have contributed to this stimulating volume. “rhetorical pieties and breast-beating calls for lawyers to be more generous. social scientists.x foreword Professors Granfield and Mather and their colleagues further our understanding of pro bono lawyering by underscoring the importance of empirical investigation. as they write. not. “[i]f we want to encourage private lawyers to give of their time to increase access to justice and promote the public good—and surely we do—then we need to understand the conditions most likely to produce such behavior.” For giving us a better appreciation of the challenges of and opportunities for pro bono lawyering.” As they so aptly comment. we are indebted to the legal scholars.

this book now emerges in a vastly different context. With high hopes for the expansion of pro bono legal service by the private bar. which brought together the contributors to share their research and ideas before faculty and students at the University at Buffalo Law School and members of the local bar. increased unemployment. There are a number of individuals and organizations that have contributed greatly to this project. the need for civil legal assistance has increased with housing foreclosures. We are also grateful for the excellent conference help and research assistance from Nicholle Dragone. and Anne Gaulin. public relations. Major large law firms that had so generously supported pro bono legal service are now using public service work as a stop-gap measure to keep their new hires employed in 2009–2010 year. provided us with superb assistance in publicity to gain wider exposure . This is indeed a collaborative work. at the same time. Baldy grants coordinator and long-time staff assistant. We especially wish to thank Ellen Kausner.preface and acknowledgments Planning for this research project began in Spring 2007. vice dean for alumni. who provided valuable back-up and facilitated in numerous ways. but at a reduced salary and an uncertain job future. and communications at the University at Buffalo Law School. facing reduced work—other than in bankruptcy—find it financially more difficult to waive or lower fees for clients who cannot afford their services. the frazzled conference organizers. Others at the University at Buffalo also helped us plan the initial event and contributed to the production of the book. We also wish to thank the Baldy Center for its generous financial support of the 2008 conference and its hardworking staff members who helped make the event a success. Ilene Fleischmann. who expertly attended to every detail and always provided calm reassurance to us. we wish to thank all of the authors who wrote chapters for this book. As a result of the financial crisis of the past year. These conditions have sharply increased the salience of pro bono legal service for the legal profession and for American society. and associated family and social stress. First and foremost. Smaller law firms and solo practitioners. A national conference was held in April 2008 at the Baldy Center for Law and Social Policy located at the State University of New York at Buffalo. Yet. we believed that it was time for reexamination of how lawyers and law firms have been exercising their professional responsibility to help those in need of legal services and to promote the public good. Baldy events coordinator. Each of our authors worked diligently on successive drafts of their chapters and we are very appreciative of their efforts to keep to our demanding timeline. Baldy’s graduate assistant.

In addition to the research focus of the conference. Jonathan Nash. Eighth Judicial District for participating in the planning and in the conference itself. early reactions to our project. Peter Pitegoff. Funding from the Law School Admission Council supported Bob Granfield’s research on mandatory pro bono in law schools and the LSAC’s contribution to this project is gratefully acknowledged. Marian Granfield and Mike Mather. We wish to thank Robert Elardo. delivered a keynote address and also put us in touch with ABA staff who were completing the most recent survey of lawyers and pro bono. for their continuing love and support. Dann. Managing Attorney/CEO of the Erie Country Bar Association Volunteer Lawyers Project in Buffalo. past president of the American Bar Association. Their careful and insightful comments strengthened each contribution and we greatly appreciate their help. Lucie White. for her very constructive. the Honorable Rose Sconiers. and Bob Granfield wishes to thank Diane Holfelner. Eighth Judicial District Pro Bono Coordinator. Other participants at the conference included Susan Feathers. for his enthusiastic support of our conference. University of Michigan Press. Amanda Warner. who patiently provided answers to our myriad questions and who has been an enormous supporter of the book. Thanks as well go to Nils Olsen. our editor at Oxford University Press. and Chris Collins. we collaborated with the local bar. We also wish to thank Melody Herr. we wish to thank our spouses. Several conference participants were unable to contribute chapters to this volume but we are grateful for their participation in the conference and their contributions. Chester G. Professor and Co-director of Clinical Legal Education at the University at Buffalo. Finally. Kenneth Manning. Other Oxford staff— Jessica Picone. former dean of University at Buffalo Law School. For their expert secretarial help. and Debra Schleef—read the entire manuscript and offered critical reviews of the chapter drafts. Partner at Phillips Lytle LLP in Buffalo. Karen Mathis. . Jaimee Biggins. Three distinguished scholars of the legal profession—Michael Kelly. and Erica Woods Tucker—have also been very responsive and helpful. New York State Supreme Court.xii preface and acknowledgments for our conference. and George Zimmerman. and the Honorable Sharon Townsend. In particular. Lynn Mather wishes to thank Susan Martin. Anthony Szczygiel. Our conference was co-sponsored with the Eighth Judicial District Pro Bono Committee and the Erie County Bar Association Volunteer Lawyers Project. particularly those lawyers in western New York who coordinate and support pro bono services on a daily basis.

His other current research projects focus on the liberalization of international sodomy laws and the relationship between social movements and legal institutions.contributors richard l. His scholarship focuses on the organization and practice of public interest law. cynthia adcock Cynthia Adcock is an assistant professor and the director of experiential learning. She helped develop two online resources: the E-Guide to Public Service at American Law Schools (Equal Justice Works) and the Directory of Law School Public Interest and Pro Bono Programs (ABA Center for Pro Bono). abel Richard L. California Law Review. Abel is Connell Professor of Law Emeritus at UCLA Law School. Professor Abel’s most recent books are Lawyers in the Dock: Learning from Lawyer Disciplinary Proceedings (2008). Irvine. Respecting Speech (1998). and Politics by Other Means: Law in the Struggle against Apartheid. 1980–1994 (1995). boutcher Steven A. steven a. Charlotte School of Law. Boutcher is a PhD candidate in the Department of Sociology at the University of California. professional responsibility. English Lawyers between Market and State: The Politics of Professionalism (2003). ronit dinovitzer Ronit Dinovitzer is an assistant professor of sociology at the University of Toronto and a faculty fellow at the American Bar Foundation. where she was director of pro bono. where he teaches business associations. He is also faculty chair of the Epstein Program in Public Interest Law and Policy. Her research focuses . scott l. Cummings is a professor of law at UCLA Law School. Duke Law Journal. and community economic development. and UCLA Law Review. 1999–2001. and has coordinated and taught in the UCLA Public Interest Law Program. cummings Scott L. and his articles have appeared in the Stanford Law Review. She is the author of A Handbook on Law School Pro Bono Programs. His dissertation examines the institutionalization of pro bono in large law firms and the relationship between pro bono and contemporary political and social causes in the United States. published by the Association of American Law Schools. Speaking Respect. He has written extensively about the legal profession and cause lawyering.

His doctoral research examines the intersection of urban disinvestment processes. His recent books (with Yves Dezalay) include. Dean Garth’s research has focused on the legal profession. Formerly. New York. She is a member of the Executive Coordinating Committee for the After the JD project. and the rule of law. She has served at the Appeals and Opinions Bureau of the New York State Attorney General’s Office and at the Center for Appellate Litigation in Manhattan. and legal processes. and Fighting for Time (edited with Arne Kalleberg) (2004). the first national longitudinal study of law graduates in the United States. She also works on the sociology of crime and criminal justice. dispute resolution. cynthia feathers Cynthia Feathers is an appellate attorney in Saratoga Springs. Past president of the American Sociological Association. a nonprofit organization representing indigent criminal defendants. globalization. Economists. University at Buffalo. and institutional change within local legal and political fields. The Part-Time Paradox (with Carroll Seron. garth Bryant G. property discourses. Social Forces. she was the director of pro bono affairs at the New York State Bar Association in Albany. cynthia fuchs epstein Cynthia Fuchs Epstein is Distinguished Professor of Sociology at the Graduate Center of the City University of New York and adjunct professor at Columbia Law School. and the Contest to Transform Latin American States (2002). the independent research center established by the American Bar Association for the empirical study of law. and an adjunct professor of appellate practice at Albany Law School. and Robert Sauté) (1999). Women in Law (1981). james clarke gocker James Clarke Gocker is a PhD candidate in the Department of Sociology. bryant g. He was previously the director of the American Bar Foundation. Among her books are Woman’s Place (1970). . Dealing in Virtue: International Commercial Arbitration and the Constitution of a Transnational Legal Order and The Internationalization of Palace Wars: Lawyers. Garth is dean of Southwestern Law School in Los Angeles. and the British Journal of Criminology. Bonnie Oglensky. New York. Deceptive Distinctions (1988). legal institutions.xiv contributors on stratification in the legal profession and the social organization of lawyering. Her recent articles have appeared in Law and Society Review. State University of New York. she was honored in 2004 with the American Sociological Association’s Jessie Bernard award for her pioneering work exploring women’s exclusion from the professions.

and a former trustee of Yale University. Past president of the Law and Society Association. a former president of the Association of American Law Schools. She has written extensively about lawyer discipline in the United States and abroad. She has served on state bar and judicial committees relating to lawyers’ professional conduct. and Plea Bargaining or Trial? (1979). Empirical Theories about Courts (1983). McFarland Professor of Law and the director of the Center on the Legal Profession at Stanford University. lynn mather Lynn Mather is a professor of law and political science at the University at Buffalo Law School. exploring the . Sociological Quarterly. and about the ethical decisionmaking of solo and small-firm lawyers. Sociological Forum. He is the author of four books. rhode Deborah L. a former chair of the American Bar Association’s Commission on Women in the Profession. State University of New York. Mather has published numerous articles and three books: Divorce Lawyers at Work: Varieties of Professionalism in Practice (2001). and as secretary to the Committee on Professional and Judicial Ethics of the Association of the Bar of the City of New York. Rockefeller Chair in Government at Dartmouth College. leslie c. levin Leslie C. She is a former law clerk of Justice Thurgood Marshall. She is the author or coauthor of 20 books and over 200 articles. a founding director of Stanford’s Center on Ethics. deborah l. and over 50 scholarly articles and reviews in journals including Law and Society Review. State University of New York. and Buffalo Law Review. Rhode is the Ernest W. and is the nation’s most cited scholar on professional responsibility. Levin is a professor at University of Connecticut Law School. Her work lies at the intersection of the sociology of law and the sociology of inequality. rebecca sandefur Rebecca Sandefur is an assistant professor of sociology and (by courtesy) law at Stanford University. Her current research projects include a study of the impact of civil justice problems and civil justice institutions on socioeconomic inequality and a study of the sources of public interest lawyering. Social Problems. University at Buffalo. where she serves as the faculty pro bono coordinator. including Making Elite Lawyers: Visions of Law at Harvard and Beyond (1992).contributors xv robert granfield Robert Granfield is professor and chair in the Department of Sociology. She was director of the Baldy Center for Law and Social Policy at the University at Buffalo and also held the Nelson A.

Her scholarship focuses on the legal profession. Case Western Reserve. Her book on advocates for conservative and libertarian causes. john henry schlegel John Henry Schlegel is Roger and Karen Jones Faculty Scholar and Professor of Law at University at Buffalo Law School. Her pro bono work includes representing teenagers in foster care. and served as a volunteer legal services lawyer in eastern Kentucky. educational debt. philip veliz Philip Veliz is a PhD candidate in the Department of Sociology at the University at Buffalo. as well as contracts and employment law. His current research projects include alcohol use among young adults and youth sport in American society. and has coauthored ten editions of two texts in that field. . Lawyers of the Right: Professionalizing the Conservative Coalition.000 law students and lawyers. she is currently compiling an anthology of first-person pro bono stories (to be published by Carolina Academic Press in 2010). critical legal studies. social background. Irvine School of Law. His current research examines law and economy in the United States since World War I. and networks. professional identities. organizations. Her study of pro bono includes surveys of over 1. and especially for his book American Legal Realism and Empirical Social Science (1995). deborah a. State University of New York. and Harvard. He is well known for his writing on legal history. was published by University of Chicago Press in 2008. and legal labor-market conditions. in Buffalo and more generally in the national economy of the time and in the context of 80 years of economic change. She has also taught at UCLA. particularly lawyers who serve causes—their norms. and legal education. Schmedemann is a professor at William Mitchell College of Law.xvi contributors contributions of legal education. She teaches legal research and writing. schmedemann Deborah A. ann southworth Ann Southworth is a professor of law at the University of California. practices.

A team of 42 litigators and professional staff from Goodwin Procter participated in more than 30 separate depositions. Despite the wide diversity of legal cases reflected in this short list. pro bono. resulting in sweeping changes in the policy for educating homeless children in Suffolk County and the rest of New York State. immigration. lawyers at corporate law firms around the country collaborate with legal aid offices in providing legal assistance in routine individual cases on such matters as divorce. the legal help was performed pro bono publico—for the public good. Hunton & Williams. lawyers at Hughes. and prisoners’ rights. Private lawyers nationwide now contribute significantly to help 1. Working with a team of economists. While working at the law firm of Hogan & Hartson. there is a common feature that unites them all.2 billion settlement fund established to compensate heirs of Nazi victims whose assets were hidden by Swiss banks. This firm was just one of many that rushed to volunteer their legal services after 9/11. have served as counsel for asylum-seekers from Tibet and two African countries. lawyers from Goodwin Procter filed a lawsuit on behalf of a class of homeless children to overcome hurdles to uninterrupted educational access. housing. and the legal profession An Introduction robert granfield and lynn mather Lawyers at the New York law firm of Arnold & Porter in 2004 represented the State of Israel and the World Jewish Restitution Organization in federal court to allocate a $1. Hubbard & Reed represented seven families of uniformed victims of the 9/11 World Trade Center attacks. At the New York law firm of Wilmer Cutler Pickering Hale & Dorr.S. government at Guantanamo Bay. Roberts helped activists persuade the Supreme Court to issue a landmark 1996 ruling protecting people against discrimination because of their sexual orientation (Serrano 2005). guardianship. That is. these lawyers assisted families in completing Victims Compensation Fund applications and represented them in hearings resulting in the families securing over $10 million in awards. by the U. asylum.1 There has even been attention paid to the legal work that Supreme Court Justice John Roberts provided on behalf of gay rights activists before joining the bench. In addition to these high-profile cases. The attorneys who worked on these cases and the law firms that employed them received no financial compensation for the services they delivered. See Dean (2005) for full details on the examples above. without being charged with any crime.1. Attorneys at another law firm. . AIDS discrimination. the public good. lawyers have represented six detainees who were held for more than three years. In 2004. Elsewhere.

stratification of the profession. individual practitioners can. they may exert significant influence through leadership in bar organizations or law firms. organization. and political dimensions of pro bono legal work.2 private lawyers and the public interest the disadvantaged with their legal problems and to promote social reform. Nevertheless. or through their role with other lawyers in transforming the culture of legal practice. pro bono and the legal profession American lawyers have historically recognized a professional responsibility to provide legal representation to help the poor and to take on unpopular causes before courts. strategies. engage in pro bono work? What are the challenges that lawyers face in doing pro bono and how can these challenges be overcome? What explains the rise of the pro bono movement in law school? How and to what extent is pro bono work that is performed during law school integrated into the law curriculum? What has been the impact of law school pro bono programs? And finally. economic. the papers collected here examine the evolving role of pro bono in legal education and in legal practice in an attempt to investigate the pedagogical. what are the opportunities and limits of pro bono for increasing access to civil justice. the book examines the history. examines these and other questions. make a difference. Some of our authors are optimistic about the ability of the profession to realize the ideals of pro bono. the book shows how pro bono legal work is shaped by external forces that go beyond the individual practitioner. and critical inquiry. the history and politics of the bar. But that recognition has been far stronger in theory than in practice. But by 1997. but not others. We believe that the dialogue that emerges from these chapters can help to focus attention on crucial issues and thereby inform debate. It also combines empirical research. while others are deeply skeptical. Through a collection of essays written by leading and emerging scholars in the field. especially for those who cannot afford legal counsel? This book. What does pro bono mean for the legal profession? How are lawyers’ views of pro bono shaped by the context of their legal practice? Why and in what ways do some lawyers. and structure of pro bono lawyering. For example. pro bono by private lawyers in the United States accounted for roughly one-third of all the civil legal assistance for those of limited means (Sandefur in this volume). This book explores the recent developments in pro bono legal work within the American legal profession. at times. Specifically. the economics of law firms. For every example of zealous advocacy on behalf of those who could not afford representation. historical analysis. Specifically. Most importantly. Decades ago such legal assistance might have come from staff attorneys for specialized interest groups or from legal services attorneys. cultural. there were countless others demonstrating the legal profession’s . and communities of legal practice strongly affect the public service contributions of lawyers. developed from a 2008 conference on pro bono sponsored by the Baldy Center for Law and Social Policy at the University at Buffalo.

Although the ABA’s 1969 Code of Professional Responsibility stated that all lawyers “should find time to participate . commercialization. and that in some cities the proportion was only 2 or 3 percent (Rhode 2004:60). Conceptions of lawyers’ professional responsibility included such representation in the public interest. It was not until 1983—after the turbulent 1960s and the Watergate debacle of 1974—that the bar’s ethical rules explicitly used the term “pro bono” in terms of a lawyer’s professional responsibility (Cummings 2004:4). rather. from a belief that the “machinery of the law” was flawed because the poor could not afford legal representation and. In his study of legal services for the poor. regardless of clients’ ability to pay (Solomon 1992). Yet the Progressive period in American history also witnessed an increase in the number of lawyers who were eager to help the “deserving poor” and who organized and staffed local charities to provide legal assistance to those in need. discussed in greater detail in the next chapter. Perhaps the most significant development during this period was Reginald Heber Smith’s condemnation of the judicial system in his acclaimed book Justice and the Poor. According to Judith Maute. illustrate just how contested a concept pro bono historically has been. who has examined the history of pro bono legal representation. Smith—a Boston Brahmin lawyer—found that less than 10 percent of lawyers contributed support to legal aid. Fearful of federal intervention as a threat to the autonomy of the legal profession. and the legal profession 3 indifference (Abel 1989). For example. the phrase “pro bono publico” was used only in the general sense to refer to “the broad concept of what was within the public interest”. His definition of professionalism not only links it to a spirit of public service but also “relegates money-making to secondary status” (Erichson 2004:2112). the American Bar Association (ABA) denounced it as “a loss of professional independence. Smith’s indictment of the justice system did not stem from a belief that the substance of the law itself was unjust or discriminatory but. The conflicts over those rules. and homogenization of lawyers in ‘one indistinguishable crowd’—with a commensurate diminution in status for elite practitioners tainted by association with their ambulance-chasing brethren” (Auerbach 1976:46). published in 1919. the ABA worked to improve their public image by exhorting practitioners to extend legal representation to all. Only after bitter conflicts and vigorous opposition from nonelite lawyers did the ABA finally approve these fees (Auerbach 1976). as a result of their poverty. legal scholar Roscoe Pound famously defined a profession as a group “pursuing a learned art as a common calling in the spirit of a public service—no less a public service because it may incidentally be a means of livelihood” (Pound 1953:5). In 1953.pro bono. it was not until the 1950s that “pro bono” referred specifically to uncompensated legal representation (Maute 2002:113). when the concept of contingent fees was first introduced as a way of expanding access to civil justice for victims of industrial accidents in the early twentieth century. were denied access to justice. This eloquent statement about lawyers’ generosity with their services coincided with the bar’s opposition to federal funding of legal aid in the postwar period. the public good.

org/legalservices/probono/rule61. 2. Since a number of the chapters that follow examine the meaning.1 is on the ABA Standing Committee on Pro Bono & Public Service website: www. 3.org/legalservices/ probono/rule61. . religious. In fulfilling this responsibility. we provide it here3: ABA Model Rule 6. the legal system or the legal profession. civic.abanet.1. religious.html. A lawyer should aspire to render at least (50) hours of pro bono publico legal services per year. or charitable. See the “Model Code Comparison” on the ABA website: www. where the payment of standard legal fees would significantly deplete the organization’s economic resources or would be otherwise inappropriate. or impact of Model Rule 6. community. groups or organizations seeking to secure or protect civil rights. (2) delivery of legal services at a substantially reduced fee to persons of limited means. Model Rule 6.abanet.html. the lawyer should: (a) provide a substantial majority of the (50) hours of legal services without fee or expectation of fee to: (1) persons of limited means or (2) charitable. or (3) participation in activities for improving the law.4 private lawyers and the public interest in serving the disadvantaged” (EC 2–25)2.1. The ABA’s Model Rule 6.1 Voluntary Pro Bono Publico Service Every lawyer has a professional responsibility to provide legal services to those unable to pay. community. reiterating the voluntary nature of pro bono but adding a provision that lawyers should provide 50 hours of legal services annually without fee or expectation of fee. and (b) provide any additional services through: (1) delivery of legal services at no fee or substantially reduced fee to individuals. history. rejected the initial recommendation to make pro bono public service mandatory and also expanded the definition of public service beyond helping the poor to include aid to typically middle-class civic groups (Rhode 2005). civil liberties or public rights. the bar revised Model Rule 6.1. successive efforts to strengthen this into a professional bar requirement have met with mixed success. a lawyer should voluntarily contribute financial support to organizations that provide legal services to persons of limited means. In addition. governmental and educational organizations in matters which are designed primarily to address the needs of persons of limited means. governmental and educational organizations in matters in furtherance of their organizational purposes. civic. A decade later. adopted in 1983.

Particular attention has been paid by the media to pro bono work done by large law firms. Created in 1993. the public good. The Challenge involves law firms of 50 or more attorneys making a specific institutional commitment of 3–5 percent of their billable hours to pro bono and reporting the results each year. when compared to attorneys practicing in law firms.pro bono. have included state ethical rules and infrastructural support. Social pressure and competition within the legal profession has also encouraged pro bono service. “Approximately three-fourths of the attorneys (73%) provided some amount of pro bono to persons of limited means or to organizations” for those persons in 2008. These measures. For example. Pro Bono in Practice Recent evidence suggests that pro bono service has indeed gained popularity within the profession. bar associations. and the legal profession 5 Although the ABA added “voluntary” to the title of 6. compared to 66 percent in 2004 (2009:1). only 27 percent of attorneys provided 50 or more hours to persons of limited means or to organizations helping them (ABA Standing Committee on Pro Bono and Public Service 2009:13). especially within large law firms. and other organizations have developed strategies to increase lawyers’ pro bono engagement. National legal periodicals like The American Lawyer and the National Law Journal publish rankings of law firms and profile outstanding pro bono initiatives and achievements. as do numerous individual law firms across the country.probonoinst. despite overall pro bono participation of 73 percent in the ABA survey. The latest national survey of lawyers conducted by the ABA Standing Committee on Pro Bono and Public Service (2009) shows an increase in hours and in overall participation. the “Law Firm Pro Bono Challenge” is an initiative launched by the ABA and now operates under the aegis of the Pro Bono Institute. This increase is consistent with recent reports from the Pro Bono Institute and The American Lawyer. and across geographic areas. solo legal practitioners— who constitute 48 percent of all private lawyers—report by far the highest incidence of pro bono on behalf of indigent individuals or organizations assisting those of limited means. technological tools to match needy clients with willing lawyers. both of which found an increase in pro bono hours and higher numbers of attorneys doing pro bono. many of the nation’s leading law firms are signatories to this challenge (www. State and local bar associations currently offer annual awards for exemplary pro bono work. A closer look at the data reveals that. numerous states.org).1 and stopped short of requiring lawyers to report their pro bono work. resources from foundations such as Ford and Open Society. and organizational help from the Pro Bono Institute as well as the ABA’s Center for Pro Bono. Differences in the number of hours provided as well as in rates of participation emerge across firms of different sizes and types. outlined by Scott Cummings (2004) and Deborah Rhode (2005). these trends are discussed in greater detail in part two of this volume. The fact that lawyers in solo practice or in very small . While there are no sanctions for not meeting their pro bono goals.

Pro bono requirements in law school. In a survey conducted by the American Association of Law Schools (AALS) Commission on Pro Bono and Public Service Opportunities. Mertz 2007). The workplace context is thus crucial for understanding lawyers’ willingness to provide legal services at no cost or at reduced fees (Granfield 2007). Numerous legal observers have bemoaned the erosion of the traditional ethical norms and professional obligations binding lawyers to the public good (Glendon 1994. Granfield 1992). Law school deans have generally supported the abstract goal of promoting greater commitment to pro bono and public service among law students. Geographic differences in lawyers’ public service contributions through pro bono are also seen across cities (Cummings 2004) and states (Sandefur 2007). Debate within schools has tended to involve .6 private lawyers and the public interest firms face significantly different economic and social pressures than those in large law firms is discussed by Leslie Levin in chapter 8. Some legal academics view pro bono requirements as a political strategy to counter the conservative trends of the 1980s. As a partial outgrowth of this debate over legal ethics. the majority of American law schools have indeed implemented some type of pro bono program. nor do these firms provide or encourage pro bono opportunities (Nelson 1988. As discussed in the next chapter. the ABA amended its accreditation standards to call on law schools to encourage students to participate in pro bono activities and to provide an organizational infrastructure to facilitate pro bono opportunities (Rhode 1999). the ABA strengthened this standard to make such law school efforts mandatory rather than aspirational. others welcome the opportunity to engage students with real-world questions of social justice to balance the conventional focus on black-letter legal doctrine. Law students typically abandon any pre–law school idealism and commitment to public service by redefining legal practice as a game that rewards cleverness and manipulation (Granfield & Koenig 1992. in 1996. would counter this trend and reinforce professional values oriented to the public good. Kronman 1993). Schleef 2006. and several have adopted mandatory requirements. Katzmann 1995). should assume the burden of ethics education by instilling public service ideals in their students because today’s large bureaucratic law firms do not provide the close working relationship with mentors and other colleagues that had formerly allowed young lawyers to observe ethical decision-making first-hand. This leads to intense cynicism among students and contributes to the decline of interest in public service and even in doing pro bono work (Stover 1989. 95 percent of the responding law school deans agreed that it is important for law schools to instill in students a sense of obligation to perform pro bono service (AALS 1998). and are explored further in chapter 7. it has been suggested. Pro Bono in Law Schools Law schools. proponents argue. Pro bono policies at most schools were introduced without significant controversy. In February 2005.

if law is a private profession. Equal access to justice is unquestionably in the public interest. the need for legal help has increased dramatically due to the financial crisis. Doing pro bono publico is integral to being a lawyer—it is not simply charity. Alternatively. Lawyers are different.pro bono. The state allows the legal profession the autonomy to regulate itself in exchange for the profession’s commitment to serve the public interest. it is argued. Now. druggists. because of their particular relation to the state (Katzmann 1995. taxi drivers—are not required to help the needy in order to continue to do their work. But even with increased pro bono from the bar. credit. through their independence from clients (Gordon 1988) and their public service (Kronman 1993). Providing pro bono service is one of the ways in which lawyers demonstrate that they are working for the public good.iolta. employment. in 2009. . a figure that underestimates the need since many indigent individuals do not even know where to go for help. many individuals with pressing civil law problems are unable to secure legal assistance. the public good. “lawyers are under a moral obligation to engage in pro bono work because it is parcel of what they have chosen to do” (2001:6). While anecdotal evidence supports the value of law school pro bono for graduates’ subsequent participation in pro bono work. and the legal profession 7 concerns regarding logistical implementation rather than challenges to the general principle of pro bono programs. Attorneys have other ways of showing this as well. pro bono. the state. only recently have empirical studies tested this assumption (cf. Rhode 2005 and Granfield 2007 with chapter 4 of this volume). Problems of housing. Rhode 2005). and family stress have all escalated at the same time that funding for legal aid has plummeted as a result of the reduced interest rate (Eckholm 2009). and the public interest Heated debates within the bar and the legal academy over whether pro bono service should be voluntary or mandatory highlight a key question for the legal profession: what is the relation between lawyers and the state? If law is a public profession and lawyers’ primary duty is to the system of justice. By this reasoning. even setting a minimum number of pro bono hours for lawyers and formalizing the commitment as something outside of ordinary legal work may undercut the moral obligation.org). as Stephen Parker argues. grocers. Pro bono contributions from private lawyers are unlikely to make up for these sizable losses of funding. Since many legal aid groups rely on income from state-run programs that draw on interest from trust accounts—Interest on Lawyers’ Trust Accounts (IOLTA)— the decline in interest income has led to substantial cutbacks in legal aid staff throughout the country (www. then why should its practitioners be compelled to work for free? Others in private business—accountants. then. The Legal Services Corporation (2007) reports that half of those seeking legal help are turned away for lack of resources.

cutting-edge practice” (Lusky 2005). has distracted us from another means. indigents have had the right to counsel in civil cases since 1495 (Robertson 2001:108). Although Australia had a government-funded legal aid program for all who could not afford representation. While government funding for legal aid programs has remained fairly consistent over the years (Statistics Canada 2007/2008). A comparative perspective about who should be responsible for legal assistance suggests that the United States is unusual among developed countries in its heavy reliance on the private bar. for instance. In Britain. emphasis added). then pro bono must be put in its context as one alternative to state funding. the world’s only national pro bono student organization. When we think more broadly about the various ways in which legal services might be delivered. while others applauded the move as a realistic response to rising legal aid costs (Weisbrot 2001. and “to foster a pro bono culture” (Thornton 2005:156). pro bono in Canadian law firms has “gathered steam as both a worthy undertaking and an essential part of a modern. In 1996. Like Australia. publicly subsidized legal services” (Atkinson 2001:170. Canada has witnessed a significant rise in American-style pro bono legal services. but rather a structured policy that advances the firm’s business and public service interests. Not only did bar leaders revisit the status of pro bono in the professional rules. the National Pro Bono Resource Centre was established in Australia to coordinate pro bono programs. Britain instituted caps on funding and introduced other changes to reduce the costs for the state. For a growing number of firms. In 2002. but a portion of the already reduced Legal Services Corporation budget was required by federal statute to be channeled through Private Attorney Involvement. pro bono publico representation. As legal aid funding was unable to keep up with the demand. to conduct research on pro bono. “For the Public Good: The First National Pro Bono Law Conference. Serious discussion began about the bar’s ethical responsibility at that time. “the currently most popular means of meeting the legal needs of the poor. as Richard Abel does in chapter 15. Australia provides an interesting counterpoint to the experience in both countries. it was the sharp cutbacks in public subsidies for legal services in the early 1980s that spurred the recent growth in pro bono policies and programs (Cummings 2004). and a large conference was held in 2000 entitled. the state takes primary responsibility for legal representation of those of limited means. Indeed. Arup 2001). Elsewhere. political conflicts over legal aid have arisen there just as they have in the United States.8 private lawyers and the public interest As noted by one critic of the pro bono movement. taking a pro bono case is no longer an act of individual effort and conscience. formed to . however. its rising costs were shifted from the federal to the state governments in the 1990s. Interestingly. Pro Bono Students of Canada (PBSC).” Some observers protested that the government was trying to pass along its obligation for legal representation to the private bar.

through public funding. he questioned whether all pro bono activities are really in the public interest and answered. the very concept of a legal “need” is contested. A similar issue arises over Americans’ aversion to civil litigation and the widespread belief. “sometimes yes.S. Who defines “need” other than the legal profession. to have private lawyers decide which claims are meritorious rather than having government. immigration. and successive constitutional litigation. 12.pro bono. If much civil litigation is “frivolous” then wouldn’t it be better.S. so to speak. and sometimes no” (Jacobs 2008). that people should take responsibility for their own problems. U. The ABA and other leaders have advocated a similar incremental approach in which recognition of “a right to counsel in crucial areas (for example. housing. which arguably has a selfinterested stake in expanding the category of “legal need”? This argument helped to defeat the commitment of unlimited funding for legal aid in Britain. housing. and debt. Pro bono solves that problem by having lawyers provide legal service to the poor out of their own pockets. The National Law Journal columns written in response to the speech by leaders in the academy (Chemerinsky 2008) and in legal practice (Walpin & Kuntz 2008) underscore how differing values shape definitions of the public good and understandings of legal professionalism. discrimination. History reminds us that at one time. Court of Appeals for the Second Circuit. A final challenge. the public good. evolving ideas of justice. Popular debate over the meaning of “publico” emerged recently in the press after a speech by Chief Judge Dennis Jacobs of the U. thus providing a check on self-interest. and 14 each address this complicated issue. public attitudes might also begin to shift to acknowledge the injustice—not to mention the social and economic costs—resulting from a lack of adequate representation in cases of divorce. fostered by tort reform groups. it is argued. . Through this approach. and the most difficult in any discussion of pro bono publico. make such decisions. As those in Australia and Canada are seeking to borrow ideas from the United States to develop a pro bono culture. rather than turning to law for solutions. indigents in criminal cases lacked legal representation. For one. In remarks to the Federalist Society. advocates are looking for strategies to increase government funding of legal services in civil cases. but that through changes in state and local practices. the right to counsel for criminal defendants was finally established by the Supreme Court. healthcare or child custody)” would be a first step toward a constitutional right to civil counsel (Pastore 2009). The task of transforming American attitudes toward legal assistance in civil cases faces a number of challenges. and the legal profession 9 enhance pro bono services within the Canadian legal profession and to ensure “that each new generation of lawyers enters the profession already schooled in and committed to pro bono philosophy and practice” (PBSC 2008).” Chapters 9. however—all of which have emerged in debates about pro bono. is determining what kinds of legal representation are in fact “in the public interest. custody.

the shared language and knowledge of one’s legal work. frequently experience high levels of stress and alienation. these lawyers indicate deriving skill-based benefits from doing pro bono that are tied to an emphasis on negotiation which is of particular relevance to lawyers who practice on the margins. While there may be some commonalities within the concept of legal professionalism. but there are differences in the attitudes. 2001:176). generally have little control over their work life and. Small firm attorneys and sole practitioners. Or.10 private lawyers and the public interest the social construction of legal professionalism The meaning of professionalism to lawyers does not cohere into an abstract set of normative principles and practices to which lawyers. 2001). and locales (Mather et al. Not surprisingly. concluding that legal scholars should live and work “with multiple ideas of profession” (2007:323). one-size-fits-all. unanimously subscribe. Because of these work conditions. motivations. shared clienteles. lawyers reported engaging in pro bono work both to enhance their skills . Small-firm lawyers are also more likely to include reduced-fee services as part of “low bono. its meaning and experience in the everyday lives of lawyers is multivalent. as Robert Nelson and David Trubek suggested. In addition. the particular meaning and experience of pro bono in the lives of lawyers are similarly contingent. In one study. and perceived benefits associated with performing pro bono service. Lawyers understand their professional roles and make decisions at work through their interactions with colleagues. as a result. Also. particularly those who are in the earlier stages of their careers. professionalism. The particular conditions and culture of the workplace. For example.” whereas large-firm lawyers do not. investigation into the everyday decisions of divorce lawyers showed variation in professional norms according to personal identities. Instead of a universal. Professionalism through collegial control is “vested most importantly in the communities of practice with which attorneys have their closest contact and greatest sense of identity” (Mather et al. they tend to be less supportive of mandatory pro bono requirement proposals than are large-firm attorneys. often view pro bono as a means for acquiring clients and as a way of enhancing their professional reputation (Granfield 2007). while many sole and small-firm attorneys perform pro bono. common work organizations. there are varieties of professionalism within legal practice. as an occupational group. Large law-firm attorneys. and personal values and identities of colleagues all help to shape professionalism in practice. richly textured. “there are multiple and competing visions of what it means to be a ‘professional’” (1992:182). and locally contingent. for example. Michael Kelly (2007) found similar variation in professional norms and values across the five law firms he studied. Not only are there variations in the amount of pro bono participation by lawyers across diverse workplace settings. large law-firm attorneys perform pro bono work for the opportunity to exert control over their work as well as to work directly with clients.

such as largescale impact litigation that might deplete valuable resources. The type of pro bono work undertaken within a law firm also reflects the social. as a way to better facilitate relationships with their clients by offering volunteer services that reflect very publicly and positively on the image of the company (Hackett 2002) or legal departments (Morsch 2003). Small law firms often do not have the capacity to accept certain pro bono cases. Sometimes pro bono work is directed away from controversial areas like abortion. In larger corporate law firms. Very often the most popular areas of pro bono work are those that pose the least potential for conflict. environmental law. The recent ABA national survey of lawyers asked about what activities might qualify as pro bono and found interesting variation in how attorneys defined pro bono. Increasingly. and the legal profession 11 and to benefit from workplace policies that count a portion of pro bono work toward billable hour expectations (Granfield 2007). The survey found that lawyers varied in their views of what kind of activities could qualify as pro bono work. according to most lawyers in the survey. as opposed to the expressed needs of potential clients (Scheingold & Sarat 2004). Rhode (2005) 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. and also to provide positive public visibility for the firm. the public good. Recipients of pro bono service should be persons of limited means or not-for-profit organizations. instead of pro bono. For example.” solo practitioners (36 percent) were significantly more likely than private lawyers working in the largest firms (26 percent) to believe that legal services for a reduced fee could qualify as pro bono (2009:8). The everyday meaning of pro bono within the lives of in-house counsel lawyers is distinctly different from the meaning of pro bono as socially constructed by lawyers in private practice. although most lawyers (64 percent) said that “legal services had to be free to be considered pro bono. Senior management at large firms see clear benefits from pro bono for its ability to attract and train young lawyers.pro bono. The norms. and even political context of the firm. pro bono activity is driven by the needs and limitations of the law firm. such as individual cases of family law or elderly or child services. expectations. labor rights. and motivations regarding the performance of pro bono for these lawyers are vastly different from those for lawyers in other workplace settings. but over one-quarter of the lawyers indicated that pro bono recipients could include government agencies or political candidates. For example. economic. In-house counsel lawyers typically define the role of pro bono in their lives in terms that diverge sharply from those of their counterparts in the private bar. consumer law. government attorneys were significantly more likely than other lawyers . lawyers are often restricted from taking certain pro bono cases for ideological reasons. or gay and lesbian issues that might “offend” paying clients (Margulies 1999) or pose “positional conflicts” with perceived interests of the firm’s clients (Cummings 2004). In-house counsel often use nonlegal volunteer opportunities. the death penalty.

economic. But we have grouped them in this way in order to call attention to the quite . personal interviews. Not all of the chapters fit neatly into one or another section. focusing on civil legal assistance in the United States. As Andrew Boon and Avis Whyte (1999:190) write. We chose to open the book with a discussion of pro bono in law schools because legal education precedes the life of practice. but one could easily examine pro bono in practice first and then reflect on how law schools might or might not alter pro bono commitments in the workplace. Indeed. cultural. participation observation. and the selfless articulation of the public good. political and organizational context within which it operates. and constitutes pro bono service. overview of contents The contributors to this volume include leading legal scholars and social scientists as well as new researchers in the fields of legal education and legal practice. and conceptions of the public good are all embedded within a wider social context that produces. . considerable research reveals a wide range of lawyers’ beliefs about the meaning and practice of pro bono and links those views in part to the institutional and cultural settings in which lawyers work. The book is premised on the assumption that an understanding of pro bono legal service requires empirical investigation. and historical contexts. law firm strategy. Their methods of inquiry range from sophisticated statistical analyses and largescale surveys to historical investigations. the articles in this volume demonstrate that pro bono must be understood beyond affective motivation. The first three sections of this book present empirical research on three general sets of influences that might explain lawyers’ participation in pro bono: professional rules and socialization in law schools. economic and market-based forces. shapes.” The current collection. thus explores the socially constructed nature of pro bono service. The meaning of pro bono for individual lawyers. and society as a whole is always contingent upon broad organizational. In sum.12 private lawyers and the public interest to believe that speaking on a legal issue for a legal or lay audience could be considered pro bono and corporate counsel were more likely to feel that sitting on a board of a not-for-profit legal services organization qualified as pro bono (2009:9). would be to misunderstand the social. not rhetorical pieties and breast-beating calls for lawyers to be more generous. the clients served. the profession itself. Individual values. “to individualize it [pro bono] . Readers may want to begin with any of these three sections depending on their primary interest. and case studies. . and principled commitment to public service. rational action. If we want to encourage private lawyers to give of their time to increase access to justice and promote the public good—and surely we do—then we need to understand the conditions most likely to produce such behavior. as some chapters explore more than one of these three general perspectives.

and the legal profession 13 different explanations for pro bono legal work that emerge from thinking about attorneys as members of a profession. the public good. and the 1980s and 1990s era of ethics-based public service. Granfield and Veliz distinguish between two groups of pro bono narratives: those that emphasize self-interested instrumental benefits (acquiring “good lawyering” skills). chapter 3 by Robert Granfield and Philip Veliz reports on an empirical study of mandatory pro bono at three separate law schools. as self-interested businesspeople. or as principled public servants. Drawing on her experience as the former director of pro bono for the American Association of Law Schools. Without curricular integration. rather than simply reflecting the interests of individual lawyers to serve the public good. Following the discussion and results of the empirical research on pro bono in the first three sections. Relying on responses to a comprehensive survey of lawyers who participated in mandatory pro bono during law school. But in light of the paucity of research on pro bono legal work and the pivotal role that pro bono now plays in providing access to civil justice. we readily acknowledge that this volume is hardly comprehensive and that it raises as many questions as it answers. the chapters in the last section of the volume interrogate the relationship between pro bono and access to justice. As editors. She segments the commitment of the profession and of legal education to pro bono into three general eras: the era of communitybased public service before World War II. we hope that this collection will encourage further study and help shape the debate among practitioners and legal scholars. In the opening chapter of part one. Adcock shows how the profession’s concern for pro bono and its enactment in law schools reflect a broader set of institutional and social forces facing the profession and legal education. Following Adcock’s historical overview of pro bono in legal education. providing challenge and critique to the current pro bono movement and offering strategies and alternatives for reform. Each of these historical eras represented uniquely different expressions of lawyers’ concern for the poor that emerged from social crises or from crises the legal profession experienced at the particular time. They find a significant relationship between lawyers’ identity narratives about pro bono and the extent to which their pro bono experiences had been integrated in their law school curricula. students found few opportunities to explore the role of pro bono in contributing to the greater good and focused . The authors here all raise explicitly normative perspectives. Cynthia Adcock provides a useful historical overview of the development of and changes within pro bono in the legal profession and in legal education. and those that emphasize the social benefits and contributions to others (“lawyering for the good”). Adcock also presents a detailed summary of the various pro bono programs that have been established by law schools beginning in the 1990s.pro bono. In this way. the authors examine the relationship between professional identity and pro bono work. the 1960s and 1970s era of causebased public service.

Rather than reflecting the noble intentions of individual practitioners. most likely as a result of the particular approach of the law school program studied and its incentive-based character.14 private lawyers and the public interest instead on the benefits they received for themselves. Another provocative finding in this chapter is the recognition that law students who identify with individuals in their community and who see themselves as similar to their clients report higher levels of pro bono legal work. Educating Lawyers: Preparation for the Profession of Law (Sullivan et al. . focusing especially on legal practice. Schmedemann’s research explores pro bono by new lawyers as a form of professional volunteerism. 2007). “effectively. In the opening chapter in this section. which found little or no increased pro bono work by lawyers as a result of their mandatory pro bono experiences in law school. Unlike earlier research by Rhode (2005) and Granfield (2007). the work of Granfield and Veliz suggests that “bottom-line” considerations seem to be the most powerful motivators of pro bono service.000 law students and lawyers. the chapter examines two aspects of law school pro bono programs: the impact of participation in law school pro bono and the development of pro-social attitudes. relying on data gathered from 1. chapter 5 suggests that pro bono work is deeply rooted in and largely dependent on the marketplace. American-style civil legal assistance—a phrase she uses to contrast the American system of legal assistance for the poor with that in other countries—is “market-reliant. Sandefur argues that. Informed by social science theories about volunteerism more generally. Noting this lack of integration of pro bono experiences within most law schools. but by the firm who pays that lawyer to do pro bono work” (101). most of those hours come from attorneys in large law firms. Deborah Schmedemann provides a case study in chapter 4 of the efforts at one law school to promote pro bono through the pedagogical method of community service learning—an approach that combines community service with academic work. which sees pro bono in terms of volunteerism. so much so that such work is potentially vulnerable to economic downturns such as the one we are now experiencing. in terms of the total number of hours contributed. as a matter of institutional design. sociologist Rebecca Sandefur undertakes a critical analysis of the extent and sources of legal services for America’s poor. and. this study reports a significant increase in pro bono participation. Sandefur’s conceptualization of pro bono in a market context thus stands in stark contrast to Schmedemann’s study in the previous chapter. Consistent with Deborah Rhode’s chapter later in the collection. Such a finding has important implications—especially in light of the Carnegie Foundation report. much pro bono labor is donated not by the lawyer who serves. Part two of this book explores the economic and market-based factors that affect pro bono legal work. As Sandefur reminds us. including the psychology of helping and the social context of volunteering.” A substantial amount of civil legal assistance emanates from the pro bono work of private lawyers. discussed by Adcock in chapter 2.

Steven Boutcher’s research. These lawyers have received much less attention with regard to pro bono work in comparison to the large-firm lawyers examined in the previous three chapters. they test their hypotheses about pro bono participation. Given the different “communities of practice” (Mather et al. and the legal profession 15 Like Sandefur. the public good. significant positive relationships between the level of pro bono work and firm size and profits per partner (see also Galanter & Palay 1995). job satisfaction. Pro bono legal work. including when it comes to participation in pro bono. The authors combine these two perspectives by drawing on Pierre Bourdieu’s (1998) theory of habitus and exploring how the social field of lawyering is structured so as to reward disinterested behavior. and stratification of the legal profession. to the fact that not all large firms act alike. it is essential to pay attention. Their powerful empirical results point to a complex set of relations that help to explain who does pro bono work within the broader context of the profession. is largely indicative of a type of cultural capital that elite lawyers use to enhance their status. But they also see the disinterested nature of lawyers’ commitment to helping others with their legal needs. for example. this chapter provides an important corrective to a field that tends to ignore the perspective of solo and . Referred to as “low bono. as opposed to being egotistical. Boutcher investigates the thesis that pro bono work has been increasingly institutionalized within large law-firm practice. unlike their large-firm counterparts. 2001) and “cultures” of law firms (Kelly 2007) within the legal profession. by Leslie Levin. While there is growing evidence of pro bono’s institutionalization. this trend is only partial. as Boutcher does. Ronit Dinovitzer and Bryant Garth in chapter 6 recognize lawyers’ self-interest in doing pro bono work. Dinovitzer and Garth suggest that it serves elite lawyers to be generous and altruistic. rather than merely reflecting a sense of individual altruism and selflessness on the part of a lawyer. Levin examines the history of the ABA Model Rule 6. firm size. he finds. The hours they contribute all come directly out of their billable time and profits.” such reduced-fee work allows lawyers in these firms to practice pro bono in a manner that is sensitive to the economic realities of their position within the legal marketplace. have no organization to pay the bill. according to Dinovitzer and Garth. Using data from a nationwide survey of new lawyers. Arguing that the rule “reflects the large-firm view of pro bono” (159). many lawyers define pro bono work as reduced-fee—or even free—work for regular clients who simply can no longer pay their bills. Yet solo practitioners in particular do a comparatively high amount of pro bono and. focuses on small-firm lawyers and solo practitioners. The final chapter in part two. Observing that pro bono is unevenly enacted within large law firms. Using a neoinstitutional framework and data from The American Lawyer’s list of the top 200 law firms.pro bono. In small-practice settings. reported in chapter 7.1 and the ways in which this rule is viewed by solo and small-firm practitioners. An expert in legal ethics. offers another account of the relationship between pro bono work and the economics of law firms.

on pro bono in service of the public interest. The chapters in part three address the roles of commitment and principle as influences on lawyers to contribute their time for the public good. Although Levin grounds her analysis in the economics of solo and small-firm law practice. Scott Cummings and Ann Southworth chart new territory in our understanding of the relation between private practice and the public good through their examination of what they refer to as the “private public interest firm. lawyers can be “doing well by doing good?” What does pro bono actually mean for lawyers engaged in helping the poor? How does the structure of volunteer lawyering shape lawyers’ professional roles? These are some of the questions that are addressed in this section. she also examines the moral and ideological commitments that encourage lawyers to engage in pro bono. Drawing on new work on cultural analysis that examines how organizational cultures are informed by their pasts. chapter 10 explores the link between . How does a culture of pro bono commitment emerge within a firm. as David Wilkins (2004:1) frames it. lawyers at these firms seek to move discussion about the bar’s commitment to public service by asking crucial questions “about whether the firm’s core function is consistent with the public interest” (204)—questions that invoke central issues of legal professionalism. Thus. Levin points out that the patterns of pro bono across firms are reflective of the distinct hemispheres within the bar (Heinz et al. these hybrid firms assert a distinct public vision of market-driven lawyering. At the same time. Cummings and Southworth think carefully about how private public interest firms both differ from and are similar to other types of legal practice. this chapter provides an excellent transition to the third section of the volume.” According to these authors. The next chapter in this section. Drawing on a wide range of studies as well as their own original research. In chapter 9. In light of these differences. Lawyers at many of the small firms the authors studied reject the conventional bar-defined notions of pro bono as being insensitive to the practical resource needs of solo and small-firm practice. Defined by the authors (186) as “for-profit legal practices structured around service to some vision of the public interest. and what impact do firm leaders have on fostering such a culture? How can law firms survive economically while giving away their services? Is it possible that.16 private lawyers and the public interest small-firm practitioners. Reinforcing the observations about professional hierarchy by Dinovitzer and Garth in chapter 6. by Cynthia Fuchs Epstein.” private public interest firms span the broad political spectrum and are not limited to pursuit of any particular notion of what constitutes the public interest. 2005). Levin considers how the definition of pro bono might be reformed to better recognize and appreciate the realities confronting these practices. returns to the large law-firm setting but with a focus on the role that charismatic figures have played in fostering a culture of pro bono commitment within selected large firms. thus “providing an alternative way for lawyers to pursue public ends through private means that challenges the conventional pro bono model” (184).

Complementing Boutcher in chapter 7. In chapter 11. she finds the impact of these historic figures in the narratives of service that emerge in personal interviews with practicing lawyers in these firms. such as criminal defense (Blumberg 1969). Relying on extensive court observations of pro bono attorneys and their clients as well as in-depth interviews with pro bono attorneys. the commitment of these iconic firm figures to public service has framed and given legitimacy to the new pro bono service identity that we see within these prestigious firms today. 2001). and of the solutions they devise to provide “reasonable outcomes” within a highly constrained sociolegal context. By giving readers a glimpse of the sometimes depressing everyday details of pro bono legal practice. Gocker examines the relationship between organized pro bono and legal professionalism. James Clarke Gocker provides a close ethnographic snapshot of the day-to-day challenges and limitations associated with some pro bono work through a case study of a legal services program for indigents needing help with urban housing problems. Should a “lawyering for the good” ethic serve as the foundation for . Thus. Indeed. Gocker’s work provides a fitting gateway to the final section of this book on the future of pro bono. where it is usually bathed in abstractions about the public good. chapter 11 reminds us that public interest work looks different when viewed up close rather than from afar. In this chapter. causing some to abandon their participation in pro bono work altogether.pro bono. as Epstein argues. Gocker’s analysis of the challenges to legal professionalism experienced by the housing court lawyers. and the legal profession 17 legendary narratives of charismatic partners and the pro bono cultures within the prestigious law firms Epstein studied. Gocker underscores the limitations of this form of pro bono service and illustrates how the private practice world within which these lawyers spend most of their time and energy shapes how they view their pro bono clients and cases. or divorce courts (Mather et al. the public good. for example. the private lawyers representing poor tenants on a pro bono basis frequently become disillusioned with the alternatives available and see their clients as unappreciative. is compromised within the program as private attorneys representing poor tenants over-identify with landlords and find it difficult to empathize with their pro bono clients. legal services (Hosticka 1979). The chapters in part four address important normative questions about the role of pro bono in the delivery of legal services to poor or otherwise marginalized populations. Like the attorneys working in these other areas. Focusing on “one-shot” pro bono cases in which an attorney sees and represents a client for a single court appearance. she explores the biographies of several prominent partners and founders from high-status law firms in San Francisco and New York City whose personal livelihoods and evolving legacies of public service helped “make history” (Flacks 1988:23) by cultivating the firm’s commitment to pro bono legal work. Epstein’s work has much to say about the processes of pro bono’s institutionalization within large law firms. The norm of client advocacy. Interestingly. echo the findings of other researchers who have studied attorneys representing one-shot clients in high-volume courts.

Rhode nevertheless believes that ethical concerns need to take precedence over the economic rationales for pro bono service. In chapter 13. what is the ethical footing of the pro bono work performed by members of the legal profession? Recognizing that intrinsic and extrinsic motivations for pro bono are not mutually exclusive. Building on her influential book (Rhode 2005). how can pro bono service be combined with other legal service delivery mechanisms in such a way that it enhances the goal of increasing access to justice? Part four opens with a chapter by Deborah Rhode that revisits a common theme of this collection: whether the bar’s commitment to pro bono emerges out of a sense of altruism and concern for social justice or out a perceived benefit to law firms and practitioners. how could such an ethic be created and maintained? What assumptions are embedded in the current configuration of the “public” benefit of pro bono service? How and in what ways has the organized bar wrestled with the challenge of defining pro bono service. to take the most high-profile cases while ignoring the more difficult and less glamorous pro bono cases. to identify pro bono priorities and select cases on that basis. the expansion of the meaning of pro bono led lawyers. During the time that Feathers directed the Department of Pro Bono Affairs. otherwise the public service initiatives of wellmeaning lawyers may end up falling far short of their targets. In other words. rarely do attorneys or the firms they work for assess what may be the most pressing legal needs of a community. Members of the NYSBA. and the profession in mind. and to evaluate the effectiveness of their pro bono initiatives. especially in large law firms. bottom-line ideology of legal practice? If so. Feathers details the political tension within the New York State Bar over proposed pro bono requirements and the changing definitions of pro bono service. to strive to maximize participation in (and the quality of) pro bono service delivery. . according to Feathers. despite producing new enthusiasm for pro bono among a broad constituency of lawyers across the state. but her reflections are based on her perspective as a practitioner who also served several years as the director of the Department of Pro Bono Affairs for the New York State Bar Association (NYSBA). were conflicted over which constituencies best represent the “public” that should be served through pro bono efforts. Rhode argues in this chapter that because the bottom-line motivations for pro bono are now so dominant. leaving little room to contemplate pro bono from the perspective of the individual or community served. Ironically. Rhode challenges law firms to move beyond bottom-line pro bono and engage instead in strategic philanthropy—that is. For the most part. she presided over an expansion of the meaning of pro bono within the NYSBA. the firm. and what has this definition meant for lawyers who participate in pro bono work? Finally.18 private lawyers and the public interest pro bono work instead of a pro bono commitment that is contingent on the marketdriven. Nor do they examine whether their pro bono work has had the desired impact or even ask whether recipients of pro bono services are satisfied. Cynthia Feathers also provides critique of the current system. pro bono is done with the interests of the lawyer.

national security. Schlegel’s close examination of “where the public interest might lie” in these cases leads him to the troubling conclusion that “the matter [of the public interest] is not as wholly obvious as these examples seem to imply” (282). —— (2003) English Lawyers between Market and State: The Politics of Professionalism. policing. and aid to the poor. He posits four different mechanisms of service delivery—state. education. as shown not only by the examples he discusses but also by the decades of conflict within the ABA over professional rules designed to encourage lawyers to engage in pro bono publico. more powerful interests on the “bad” side who have legal representation. Offering tentative hypotheses about the relative strengths and weaknesses of different types of delivery systems. and self-help—and suggests that the current rise in pro bono (philanthropy) is directly related to the decline in support from the state for civil legal services. one that is deeply rooted in comparative study of legal professions (see. together they provide a sobering balance to earnest pleas for greater altruism on the part of lawyers. and the legal profession 19 The final two chapters of this volume use a broad brush to offer powerful critiques of the pro bono movement and of the belief that private lawyers should in fact be devoting their energies to promote the public good. references Abel. Influenced by empirical work on the legal profession and especially by the insights of critical legal studies. philanthropy. Richard (1989) American Lawyers. In chapter 14. and observes that pro bono service is typically enlisted on the “good” side to fight larger. Abel concludes his essay by calling on the state to assume primary responsibility for legal services and suggesting that better knowledge of how these delivery systems can complement one another may also aid in promoting the cause of equal justice under the law. Oxford: Oxford University Press. Abel prompts us to consider how these services have been delivered over time within the United States and across different countries. Schlegel interrogates six examples of pro bono service cited by authors in earlier chapters of this collection. We include these two chapters not to end the book on a discouraging note.pro bono.g. . e. Indeed. Abel 1989 and 2003). Conceptualizing legal services as simply one of a larger set of social services that includes health care.. New York: Oxford University Press. by Richard Abel. The final chapter. market. presents a very different kind of critique. but to underscore the complexity of the issues involved in any consideration of pro bono as the primary source of civil legal assistance for the poor. He breaks down the six cases into ostensibly good versus bad sides. Although the critiques come from very different perspectives. he argues. the entire enterprise of identifying the public interest is fraught with difficulty. the public good. John Henry Schlegel puts the question of what constitutes the “public” in the phrase “pro bono publico” front and center in his inquiry.

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Rhode reminds us of the continued paucity of pro bono service on the part of the private bar. 2. led by Dean John Kramer. instituted a pro bono graduation requirement of 20 hours. another eight law schools require every student to participate in a clinic participation—most of which provide free legal services to the poor—prior to graduation. law school 1. . are located in a variety of administrative and curricular programs. and social crises The History of Law Student Pro Bono Service cynthia adcock introduction The first formal law school pro bono program1 was created in 1987 when the faculty of Tulane Law School.2. Despite their differences. A formal law school pro bono program is defined as an administratively supported program that provides opportunities for law students to engage in unpaid. which created a “legal aid dispensary” in 1893 (Reed 1928:217). This number is as of October 2007. Today. The University of the District of Columbia also requires clinic but is counted in the 152. professional.2 These programs take a variety of shapes and sizes. noncredit lawrelated assistance to underrepresented individuals or causes. see Adcock 2001. all of these programs enable law students to do pro bono work and emphasize the professional duty to ensure access to legal services for those unable to afford an attorney. Their common goal is for students to carry a commitment to pro bono into their individual practices. shaped by educational. there are a number of factors that contribute to the failure of the bar to provide pro bono service. “Modern” legal education was less than 20 years old. there are at least 152 law schools with a formal pro bono program. For an introduction to law school pro bono programs. But if. Given that law school pro bono programs have existed now for over 20 years (and clinical education for much longer). very often for no credit or pay. But law student pro bono service is much older. In addition. as it appears. But are these programs effective? In her chapter in this volume. and involve a varying percentage of the student body. The first recorded volunteer law student group dedicated to helping the poor was a law club at the University of Pennsylvania. why is the bar not better at meeting the legal needs of the poor? Sure. Law students have provided free legal assistance to the poor for over 100 years.

it offers great challenges but also great hope. can they? This chapter looks for the answer to this question by examining the role that law student pro bono service has played in legal education. Purpose and focus can be lost. The shape of such service was a different matter. The result has been a mixture of motives for supporting pro bono service: the desires to serve. This distrust stemmed primarily from two sources: (1) the role lawyers had played in the persecution suffered by the colonists back in England. and of public confidence in lawyers. or both. (2) cause-based service (1960s and ’70s). external. and (2) the fear that lawyers would stir up disputes and social disharmony in the struggling new world (Rhode 2004:48). Change required pressure—internal. The result is a history of law student pro bono service entangled with the development of the regulation of the legal profession and the development of clinical education. Law schools were not quick to respond in these times of crisis. and (3) ethics-based service (1980–2005). fatigue settles in. Could it be that law schools suffer from this condition when it comes to teaching their students the importance of pro bono service to the poor? The history of law student pro bono service can be divided into three distinct eras. prohibited lawyers from practicing for a fee (Kaufman 1992:4). The energy created by crises cannot be sustained. to teach. When there is a sustained crisis. Virginia. of pedagogical need. and to appease. Law student pro bono service was perceived as the solution to these crises. the era of community-based public service (pre–world war ii) Lawyers Seek Respect In the colonial days. the flow of expressed concern for the poor within the legal academy has been directly tied to the existence of real or perceived crises—crises of social unrest. this fourth era of pro bono service is yet to be written. That is. recent research offers insight for those law schools committed to increased pro bono service. such as that of the unmet legal needs of the poor. At least one colony. lawyers were greatly distrusted. one cannot help but ask. So far. and provides a direction that should prove fruitful toward an integrated pro bono curriculum. What forms has student pro bono taken? How integral has it been to legal education? Why are “pro bono programs” separate from the curriculum? What forces account for the uneven support for law student pro bono service? The history revealed is one shaped by crises. which form the structure of this essay: (1) community-based service (pre– World War II). As explored in the conclusion of this essay. As for 2005 forward.26 private lawyers and the public interest pro bono programs are not making significant headway in increasing lawyer pro bono service after all these years. several colonies prohibited lawyers from appearing in court .

and litigation. it was unclear whether a lawyer could offer to provide free or reduced-rate legal services to a stranger (Maute 2002:113).” Fees were not to be set too high—but neither were they to be set too low. except in the rare cases where ties of blood. Not until the 1930s did the ABA reassure lawyers that providing free legal services to the poor was “not ethically objectionable.” . a poor man or woman who knew no attorney would need to be bright enough to recognize a legal problem and bold enough to seek out legal help.” But explicit emphasis was placed on “special and kindly consideration” of the “[t]he reasonable requests [for assistance] of brother lawyers. to reinforce traditional professional ethos. it was almost impossible to make a living practicing law.” gathered in New York (New York Times 1908). except in the one area about which the public was most concerned—lawyers’ fees. In Canon 28.” Consequently. there was little regulation of lawyers. even evoking an image in its Preamble of the “future of the Republic” resting on the shoulders of lawyers. a group of 100 elite lawyers from 21 states.” Such behavior was deemed unprofessional and intolerable. it was recognized that “a client’s poverty” might require a reduced fee or “even none at all. underbidding the competition. seeking greater control over an unregulated profession full of “shysters. lawyers should take care of their own. well. Even as prominent lawyers emerged as great leaders. In 1908. and to deter behavior that bar leaders deemed unacceptable” (Maute 2002:107). the distrust of the commercial motives of all lawyers persisted. the number of lawyers rose. . and social crises 27 (Smith 1924:6). its legal needs expanded. In addition.” In short. solicitation. annoyance. To uphold professional standards. The provision of free or reduced-fee legal services was more the rule than the exception. Until the early 1900s. With their work tolerated and with minimal qualification requirements. The first professional standards were promulgated in 1887 by the state of Alabama. it was further deemed unprofessional for a lawyer to “volunteer advice to bring a lawsuit. . With these restrictions on underbidding. creating the first set of ABA model ethical standards—the ABA Canons of Ethics. The goals of the Alabama Code of Ethics were “to articulate clear standards of professional conduct. professional. . As this country grew. relationship or trust make it his duty to do so. . . In 1878. and lawyers became a necessary . Canon 27 prohibited solicitation of business—be it through advertisements or personal communications—“not warranted by personal relations. Accordingly. Canon 12 cautioned lawyers that “it should never be forgotten that the profession is a branch of the administration of justice and not merely a money-getting trade. and of their widows and orphans without ample means. The ABA Canons heavily promoted professionalism over commercialism.shaped by educational. With these types of constraints. they formed a trade association called the American Bar Association (ABA). With a nod to service to the poor. the ABA incorporated much of the Alabama Code into its own.

1939. saw legal aid as an opportunity for service and for learning. as Dean of Harvard Law School. with waves of immigrants arriving and settling in the urban centers. The fate of learning law by apprenticeship. to help members of the community who are too poor to hire a regular attorney in those cases where they need a lawyer’s services. Langdell’s teaching philosophy was that law was a science and that all one needed to know to be a lawyer was contained in printed books. such as children. A few private charities provided legal aid to some of the poor—mainly immigrants (like themselves) trying to eke out a living and other “deserving” individuals. (Rhode 2004:58–59). Law Students Respond to Community Crisis In 1875. introduced the case-dialogue method of training lawyers. and she was not ready. already falling out of favor. Opinion 148.” When the Canons were adopted. The most successful of these early pro bono student projects was the Harvard Legal Aid Bureau created by students in 1913 (Bradway 1930b:175). America for the first time was becoming more urban than rural. however. Law students. which included the duty to represent a poor criminal defendant when asked to do so by the court. was sealed. The concern reflected here. Its stated purposes were “first. was less about the defendant and more about the courts’ inherent power to require service without compensation. the population of this country was booming. Christopher Columbus Langdell. The plight of the poor was horrid. By the early 1900s. however. 1916 (Reed 1928:fn 3). However. Yale. and Tennessee. except within one’s own small community. Following the example of the students at the University of Pennsylvania in the nineteenth century. community life in America was about to radically change. lawyers were not generous with their support of legal aid . The Canons stressed a lawyer’s duties to the court. second. students on some law school campuses formed independent legal aid dispensaries. This new method of teaching law had no place for teaching skills.28 private lawyers and the public interest and that it served “a very worthwhile purpose and should be encouraged” (ABA Opinion 191. So the ABA answered with Canon 4: “[a] lawyer assigned as counsel for an indigent prisoner ought not to ask to be excused for any nontrivial reason. 1915. 1935). and. America was overwhelming rural. Progressive lawyers and philosophers feared social upheaval (Luban 1988:723–727). 1914. Though court appointments were rare (Rhode 2004:51–53). Members of the faculty did not supervise the students’ work but were “available for consultation. some lawyers scoffed. Criminal matters were treated differently. namely court opinions (Frank 1947:1304).” The Harvard legal aid model was replicated at George Washington University. to give students the practical education that comes from the experience of handling real cases” (Dudley 1931:692). Lawyers needed more persuasion. However generous they were in their own communities. and the legal needs of the poor went largely unnoticed.

Its Foreword issued a call to lawyers: [T]he highest obligation of government is to secure justice for those who. the bar was shamed for ignoring the legal needs of the poor. find it hard to maintain their own rights. This book shows that we have not been performing that duty very satisfactorily. . and began to experiment. (Smith 1924:xv) The ABA got the message. . professional.000 or more” (National Bar Association). These “legal realists” believed that “students must learn about law as a means to an end rather than as an end itself”. accordingly. 2005:9). because they are poor and weak and friendless. a professor at the University of Southern California Law School. 36 bar associations had taken action in furtherance of legal aid work (Smith 1924:xii). the NBA was a leader in pro bono service. The National Bar Association (NBA) also emphasized legal aid. and the next year it added the Special Committee on Legal Aid Work. . The Dispensary had a full-time director. 2008. . Howard Rosenberg. striving to establish “free legal clinics in all cities with a colored population of 5. They seized the curricular opportunities offered by the legal aid and legal dispensary models. who was a trial lawyer and not a full faculty member. Justice and the Poor. the Association held a symposium on legal aid work. But we cannot confine ourselves to that criticism much longer.000 nationwide. . Clinical Education Fills Legal Education Void and Builds on Student Pro Bono Some faculty and deans vocally opposed the Langdellian model of legal education. was to create a six-week experimental clinical program (Bradway 1929:173). email message to author. The earliest experimentation occurred in 1904. was intrigued by the idea of bringing the legal aid office into the law school. and social crises 29 (Rhode 2004:59–60). In 1919. when the University of Denver College of Law created a legal aid dispensary. they promoted the teaching of lawyering skills and professional values (Barry et al. through which students received credit for providing legal aid. . Sturm College of Law. a lengthy study that revealed a pervasive denial of justice for the poor. June 17. it is time to set our own house in order. in 1928. . In 1940.3 The experiment was abandoned six years later because of its expense (Reed 1928:217). By 1924. Funded by the Carnegie Foundation. John Bradway. when the number of African-American lawyers barely exceeded 1. His first effort.shaped by educational. Professor. Bradway then moved to Duke University School of 3. Reginald Heber Smith published the landmark book. I think the true criticism which we should make upon our own conduct is that we have been so busy about our individual affairs that we have been slow to appreciate the changes of conditions which to so great an extent have put justice beyond the reach of the poor. At its annual meeting in 1920. and that we ought to bestir ourselves to do better.

However. . The idea of bringing these legal dispensaries into the law school was a reaction to the “crisis” that some professors witnessed as legal education moved from the law office to the university.30 private lawyers and the public interest Law. In fact. where. It took public shaming before the bar would take any responsibility for ensuring justice for the poor. whether or not this was based in reality. a significant reason for choosing the poor as clients was to avoid unwelcomed competition with the bar (Bradway 1932:908). Unencumbered by prohibitions on the practice of law. the University of Minnesota (externship model) and Southern California (in-house model) also had mandatory clinic (Bradway 1930b:173). and these clients were generally from the immediate communities of the lawyers. he created the first full-fledged in-house clinical program. law students literally practiced law. students at approximately 17 law schools were engaged in legal aid. Their focus was on the educational need of students to learn by doing. the regulations did much more to limit access to lawyers than to expand access for those in need. the facts were discouraging. some were closing because of financial expense. By the end of this first era. there was hope that as the bar and law schools gained strength by securing a monopoly on the provision of legal services. Adopting a model from the medical field. Law students preceded the bar in responding to the obvious legal needs of the time. And while these professors were certainly concerned for the poor. a studentoperated legal aid dispensary (no credit). on the poor. without pay or credit. and not whether clients should be charged. Also. Lawyers were deemed untrustworthy. or a law school legal aid clinic (for credit) (Bradway 1939:181). with objectives in the field of practical training and public service” (Blaze 1997:945). in 1931. they would increase their responsiveness to the legal needs of the poor. whether through a legal aid society (for credit or for no credit). these eager and creative students set up legal dispensaries for the poor. even as in-house clinics were being established. How to charge clients for services ethically was a primary concern. Northwestern University School of Law (using an externship model) was the earliest to do so in 1919 (Wigmore 1926:130). Only a small percentage of the poor were being served. This early clinical movement was interrupted by World War II and lost momentum (Grossman 1974:169). By 1939. His goal was “to improve legal education in the United States. Summary of the Era of Community-Based Public Service The greatest concern of lawyers with influence during this first era of pro bono service was the reputation of the profession—and for good reason. Some schools made clinic (either in-house or external) mandatory. By 1929. Perhaps this personal concern accounts for why the ABA’s first code of ethics showed little concern about those who could not afford legal services.

the Association of American Law Schools (AALS) Committee on Legal Aid Clinics identified 35 law schools “maintaining legal aid clinics and related facilities. federal funding could be obtained to establish clinical experiences in which law students would serve “persons who have difficulty gaining access to legal representation” (Joy 2003:41). this project had provided $800. legal aid clinics were broadly defined as “the bringing together of a law student (under supervision) and a real client with a real problem to be solved” (AALS 1957:213). By this time. William Pincus. a new federal agency established as part of the “War on Poverty” that for the first time would provide federal funds for legal services to the poor (Charn & Selbin 2007:1). at least in part. the Ford Foundation made significant funding available for clinical legal education through the National Council on Legal Clinics. professional. the executive director of the National Legal Aid Association. Additional funding became available to law schools in 1965: through Title IX of the Higher Education Act. a program officer at the Ford Foundation.”4 Only 15 of these clinics gave academic credit. and social crises 31 the era of cause-based public service (1960s and 70s) External Money Takes Clinical Education to the Next Level In 1959. CLEPR’s emphasis was on professional responsibility education. . by the OEO (Klein 1969:27–29). The remaining 20 were what today we would call pro bono projects. In the late 1950s. In a survey conducted in 1968 and 1969. developed a vision of involving law schools in the fight. this state of affairs within legal education would soon change thanks to outside funding. One-half of these programs (43) provided no academic credit. A stated purpose in creating CLEPR was to align the “resources and prestige of law schools and the energy and commitment of 1960s law students” with the Office of Economic Opportunity (OEO). In a 1957 survey on legal aid clinics sent to all AALS law schools.shaped by educational. In 1958. and Emery Brownell. The goal was framed as an educational one “‘designed to discover and lay out new and better methods of educating law students about their future role as members of a profession. As the name suggests.000 to 19 law schools for poverty law clinics (Davis 2007:1396). its tool was support for clinical programs. 86 law schools reported having a legal aid program. To accomplish the vision. Twenty-nine of these were funded. With this data. 4.’” By 1965. the Committee concluded that “the work of the legal aid clinics in member schools is very little integrated into the law school curriculum” (AALS 1959:121–122). the Ford Foundation was deeply involved in addressing the problems of juvenile delinquency and urban poverty. created in 1959. However. the National Council on Legal Clinics had evolved into the Council on Legal Education for Professional Responsibility (CLEPR) (Ogilvy & Seibel 2007:7–8).

poverty law was embraced by law schools not only in the clinic but also in the classroom. Implicit in the very notion of poverty law was the social and political agenda of ending poverty. During this period. And as the focus of legal aid lawyers changed.32 private lawyers and the public interest These programs were categorized as law school “funnel” programs. there were 300 federally funded legal aid programs. stating in Ethical Consideration 2–25: Historically. the need for legal services of those unable to pay reasonable fees has been met in part by lawyers who donated their services or accepted court appointments on behalf of such individuals. From 1978 to 1997. Now specialists. Legal aid lawyers brought over 200 cases before the Supreme Court and won most of the decisions that reached the merits—including landmark cases establishing the right to due process for recipients of federal benefits (Rhode 2004:63). in 1971. which included prohibitions on advertising and group legal services—both of which were helpful to affordable access to justice. the ABA engaged in a complete overhaul of the Canons of Ethics. which resulted in the 1969 Model Code of Professional Responsibility. these lawyers not only represented individuals but also began representing causes (such as advocacy for farmworkers). the Ford Foundation provided nearly $13 million to more than 100 law schools for clinical education (Davis 2007:1396–1397). Accordingly. when its Canons of Ethics were written. there were 934 (Eldred & Schoenherr 1993–1994:370). for the first time. which became the focus of these courses: [T]he new courses on poverty law were never intended to stop at teaching about the laws affecting poor people. (Davis 2007:1391. through which student volunteers were sent to existing legal aid organizations (Klein 1969:4–10). The practice of law looked little like it did in 1908. It suggested an affirmative professional responsibility of service. To help counter the unfortunate effect of these prohibitions. directly expressed concern for the poor and strongly urged every lawyer to help in serving the poor. Civil rights efforts shifted to efforts for economic justice. Title IX provided grants of over $87 million to law schools (Joy 2003:41). As an expanding area of practice. the ABA. the Bar realized that lawyer passivity was no longer appropriate (Maute 2002:126). In 1967. With the call in the 1960s for social relevance and responsibility (Barry et al. This infusion of money dramatically increased the number of attorneys assisting the poor. so did that of poverty law professors. and local legislation for the poor. the nature of the work of poverty lawyers changed. and played key roles in shaping federal. state. 1399) The ABA Construes Pro Bono Service as Professional Responsibility The legal profession was also undergoing big changes in the 1960s and ’70s. The Model Code introduced mandatory disciplinary rules. 2005:11) and a new era of federal legislation defined by the civil rights movement and the War on Poverty. From 1959 to 1978. The basic responsibility for .

the Public and Professional Responsibility” by F. all but three states had adopted the Code. professional. .5 The study asserted that public interest or pro bono work should be a duty for all lawyers. charitable organization representation. Despite this significant national activity.” By 1972. In 1972. it was clear that there would be no repercussions for failure to live up to this “basic responsibility. a study on the public interest activities of private lawyers concluded that “‘We have seen too little evidence of professional as opposed to trade performance by the individual lawyer and no evidence of serious professional self-regulation toward diverting the profession to the pursuit of common good—the public interest’” (Kaufman 1992:15). though not necessarily in its entirety (Maute 2002:126). . In 1975. issued a report on implementation. with such service cast as an Ethical Consideration (which extolled the aspirational role of the lawyer in society). regardless of professional prominence or professional workload. Every lawyer. and linked this duty to the monopoly lawyers hold on legal services. The ABA and the American Association of Law Schools (AALS) had debated the effectiveness and necessity of ethics programs in law schools since at least 1929 (Rhode 1992:35–36). lawyers on the local level still were engaged in little or no pro bono (Lardent 1990:89).shaped by educational. However. Watergate ended the debate. public rights law. The study was “The Lawyer. Even so. In 1977. recommending “that state and local bar associations adopt guidelines quantifying the pro bono responsibility and assist lawyers in deciding such issues as monetary contribution in lieu of services and the appropriate role of bar association in assisting lawyers to fulfill their responsibility” (Kaufman 1992:15). through co-curricular activities such as lecture series by distinguished judges and lawyers. and social crises 33 providing legal services for those unable to pay ultimately rests upon the individual lawyer. . if at all. it resolved that “it is the basic professional responsibility of each lawyer engaged in the practice of law to provide public interest legal services. not much had changed in the bar’s response to the poor. . the ABA passed a resolution that for the first time defined a lawyer’s pro bono responsibility. (Footnotes omitted) Lengthy footnotes reinforced the need for public service by lawyers and emphasized its rewards. the committee that sponsored the Montreal Resolution. Known as the Montreal Resolution. 5. and personal involvement in the problems of the disadvantaged can be one of the most rewarding experiences in the life of a lawyer. ethics instruction took place in law schools primarily. civil rights law.” These services were identified as poverty law. The ABA Turns to Law Schools to Teach Ethics and Professionalism Prior to the 1970s. the Special Committee on Public Interest Practice. should find time to participate in serving the disadvantaged. and administration of justice. Raymond Marks.

When word of this proposed language leaked out. but “tended to look at nothing but the rules” (ABA Commission on Professionalism 1986:7). For the bar. goals. and by financial support for organizations that provide legal services to persons of limited means. chaired by Robert Kutak. “shall” had been changed to “should” and the reporting requirement had been dropped (Kaufman 1992:16): A lawyer should render public interest legal service. by service in activities for improving the law. including the history. Watergate also made it unavoidably obvious that the Model Code had made little difference in the behavior of lawyers.34 private lawyers and the public interest The Watergate scandal involved many lawyers. The primary question presented to the Commission was “what. Kutak supported mandatory pro bono. the legal system or the legal profession. Pro bono service was a hot-button issue within the Kutak Commission. one recommendation . In 1984. The debate centered on whether such service should be mandatory and. a Duke Law graduate. included in the Model Rules of Professional Conduct enacted in 1983. In the final version of Rule 6. there was significant resistance from the bar. to review the Code and to make recommendations addressing “all facets of legal ethics” (Maute 2002:129). Lawyers were taking the rules more seriously. Many schools did little (Rhode 1992:39). whether it should be quantified. if anything.” Law schools were now required to provide ethics instruction. if so. there was a growing concern that lawyer professionalism was on the decline. In response to this latest crisis of image. the ABA responded by creating a Commission on Professionalism. Some considered it a time of crisis. or make an equivalent financial contribution (Kaufman 1992:16). and responsibility of the bar and its Code of Professional Responsibility in Law schools. An early draft of the new rule stated that “[a] lawyer shall give forty hours per year” of legal services to persons of limited means. can be done to improve both the reality and the perception of lawyer professionalism” (ABA Commission 1986:3). the ABA created the Special Commission on Professional Standards. the ABA amended its standards for law school accreditation in 1974 to require “instruction in the duties and responsibilities of the legal profession. In 1977. generically identified means by which it could be satisfied. with some members of the bar threatening “to abandon the Model Rules project rather than accept the notion of a public service obligation” (Eldred & Schoenherr 1993–1994:385). and called for an annual service report” (Maute 2002:133). The mandatory debate intensified. A lawyer may discharge this responsibility by providing professional services at no fee or a reduced fee to persons of limited means or to public service or charitable groups or organizations. Even as the new Model Rules were promulgated. Reminiscent of prior responses.1. The next draft “required an unspecified amount of unpaid pro bono legal service. including President Richard Nixon. though any amount would do. it was the proverbial straw that broke the camel’s back.

What was the impact of this era on the development of law school pro bono? In the positive column. The term was used to refer to in-house clinics. or—as Rhode discusses in her chapter for this volume—about the business case for pro bono. The second era of law student pro bono service began with CLEPR emphasizing professional responsibility education through clinical education. In addition. When funding began to recede. the injection of money for clinical education transformed the Langdellian landscape forever. the Commission recommended that law schools serve as pro bono clearinghouses that would “service their local communities by matching up attorneys expert in certain areas to pro bono clients with various needs” (47–49). In the negative column. the era of ethics-based public service (1980s–2005) By the 1970s. Noting that law professors sometimes sent the wrong signals to students regarding the value of pro bono. but also increased law school–supported pro bono efforts. It not only increased for-credit clinical opportunities. Poverty law and clinical education gained new respect within the academy. the changes in the ABA’s ethical code and accreditation standards set the stage for meaningful discussion of the role of pro bono in the legal profession and of the role of law schools in teaching this ethic. and social crises 35 was to “[i]ncrease the participation of lawyers in pro bono activities and help lawyers recognize their obligation to participate. Clinical education had emerged rapidly and was dependent on this government and foundation support. At least the bar had become more transparent about its self-interest in pro bono service. externships. The continuum of costs for these various types did not favor in-house clinics. many law schools did not pick up the tab. Summary of the Era of Cause-Based Public Service In the 1960s and ’70s.shaped by educational. The vision of the role of clinics in law schools was blurry. In July 1986. the immense resources that were brought to bear for clinical education were external to law schools. The era ended with the bar calling upon law schools to serve as pro bono clearinghouses—a far cry from direct involvement of law schools in the work of poverty law.” The focus this time would include law schools. even as the number of lawyers helping the poor increased. the new cadre of federally-funded poverty lawyers had made great strides in effecting change to help poor people. Law schools grew comfortable with this model of external funding for clinics. and pro bono projects. the ABA House of Delegates endorsed the Commission’s report. the legal profession was experiencing as much upheaval as the general American populace. setting up a battlefield for a shrinking share of institutional funding. But this success came at a . “rededicating itself to the pursuit of ‘principle’ over ‘profit’ and ‘professionalism’ over ‘commercialism’” (Moore 1987:774). professional. The negative reputation of lawyers grew. as discussed above.

the status of poverty law as a discipline was in steep decline. suspicious of the “instrumental value in producing social change. the first confirmed LSC Board of Directors of the Reagan administration took up the mission to further restrict advocacy and to eliminate funding (Eldred & Schoenherr 1993–1994:370–371). Several governors were outspoken critics of federally funded legal services for the poor. Response by the bar and law schools to this crisis of the growing unmet legal needs of the poor has come in waves. In the academic realm. but their representation work continued to expand (National Legal Aid & Defender Association). most notably then-Governor of California Ronald Reagan. Openly hostile to federally funded legal services. . were a distant memory. organizing. The shrinking government support of legal services for the poor created a crisis for which the legal community was not prepared—a crisis that continues to today. In 1974. or engaging in other political activities. Poverty law professors were feeling beleaguered (Erlanger & Lessard 1993:200). Critical legal theory. he was successful at crippling the Corporation: in 1982. The heady days of the 1960s. as described by the Washington Council of Lawyers. And the campaign against LSC was not over. President Nixon signed into law a bill that created the Legal Services Corporation (LSC). In 1985. The number of pro bono programs increased from approximately 80 in 1980 to over 500 in 1989 (Lardent 1989:2). 61 LSC-funded programs reported a loss of 30 percent of their staff attorneys. LSC reported a 25 percent decline in the number of legal services offices operating nationwide. Law students responded as well. Just one year later. both Congress and President Nixon conceived of a separate corporation to receive funds from Congress that would be distributed to local legal services programs. the budget of LSC was slashed from $321 million to $241 million. .36 private lawyers and the public interest price—a backlash from governmental entities who wondered why the government was paying lawyers to sue it. This expansion ended with the election of Ronald Reagan as President in 1980. At many schools. The law prohibited LSC grantees from lobbying. A new movement was born. With involvement came real-world education on the unmet legal needs of the poor. among them many of the most experienced attorneys. with the development of poverty law treatises and law journals. Reagan immediately sought the elimination of LSC. Though he was not successful in this campaign. Moreover. The ABA created the Private Attorney Involvement Project (now the Center for Pro Bono) to assist these attorneys. In search of greater political insulation for legal aid to the poor.” had taken hold. they “launched on-campus funding campaigns to provide grants . one of private attorneys dedicated to pro bono service. The First Wave Response The new federal regulations required LSC grantees to directly involve private attorneys with the delivery of legal services to the poor. to underwrite costs to participate in .

increase and improve the commitment of law school resources to the critical task of attacking the root causes and tragic effects of poverty and disadvantage in America. the required course was designed with four goals: “to develop student awareness about poor populations and their legal needs .equaljusticeworks. the University of California–Los Angeles. NAPIL is now Equal Justice Works (www. to give students personal experience with poverty in their community. faculty members at Harvard Law expressed frustration with the legal academy’s growing resistance to the subject of poverty law and expressed a need for support.7 NAPIL’s mission was “to expand legal services to under-represented people and increase opportunities for law students and graduates to work in the field of public interest” (Huizinga 1989:2). The first student pro bono project was formed in 1982 by a group of University of Minnesota law students. the faculty at Loyola University in New Orleans adopted the first poverty law course graduation requirement. Reminiscent of the Harvard Legal Aid Bureau of the early 1900s. as described by Deborah Schmedemann in this volume. An early NAPIL platform was mandatory pro bono for law students. these students created a nonprofit called the Minnesota Justice Foundation to oversee volunteer placements of law students (Minnesota Justice Foundation). During the same period. but quickly expanded to include ten other law schools (Davis 2007:1403).org).” The Consortium first included Harvard.6 As the number of public interest and pro bono student groups increased. with chapters at all four Minnesota law schools— including William Mitchell. In 1986. Two of these projects were at Loyola University.” In 1986. With funding from the Ford Foundation. Some of these studentrun groups—typically called public interest law organizations or student-funded fellowships—formed projects dedicated to student pro bono service. The Project Group brought together faculty who had “innovative projects” that connected scholarship. and Wisconsin. either providing direct assistance to clients or serving as a pro bono clearinghouse. members from 15 student-run public interest organizations convened at Harvard Law School and created the National Association for Public Interest Law (NAPIL). . MJF is still going strong today. and social crises 37 summer internships in legal services programs and to provide fellowships for post-graduate research projects” (Caudell-Feagan 1992:11). to educate students about current social policies and programs affecting the 6. New Orleans. . 7.shaped by educational. . and advocacy for the poor (Erlanger & Lessard 1993:199–200). and the University of Maryland. . Its purpose was “to mobilize. An idea for a consortium on poverty law was floated. the Interuniversity Consortium on Poverty Law was formed in 1988. Rooted in the school’s Jesuit mission (Erlanger & Lessard 1993:fn 18). The Consortium pursued two efforts: the Information Exchange and the Project Group. so did interest in a coordinated “national effort to centralize resources and provide national support for existing programs. teaching. professional.

a former antipoverty lawyer. The faculty at the University of Maryland considered a variety of approaches. mandatory pro bono programs were under consideration in North Dakota. Kramer expressed a desire to require students to engage in “community service” (Johnson 2006:5–6). Tulane University Law School inducted a new dean. In Maryland. They settled on a more integrated approach—a required Legal Theory and Practice course linking theory in first-year courses to practical experiences with actual clients. and to teach the students about ways that they. It combined class work with direct contact with the poor through site visits (Erlanger & Lessard 1993:206). Maryland. No state bar. Arizona. This action made Tulane not only the first American law school to impose a pro bono graduation requirement.38 private lawyers and the public interest poor. . adopting a curriculum-based mandatory service program. including required clinic or pro bono (Bezdek 1992:129–130). however. John Kramer. Some followed the model of Loyola and Maryland. and Hawaii (Lardent 1989:7). but also the first to have a formal. such courses are one way in which students can meet what is called the Cardin requirement. Professional responsibility was required. adopted mandatory pro bono. was studying the plight of the poor.8 The program was “a model for a bold new beginning for the discipline of poverty law” in law schools (Failinger 2007:1173). Students can also meet it by completing a public interest clinic or other faculty-taught experiential course. a pro bono graduation requirement of 20 hours of law-related public service (Kramer 1990). chaired by Representative Benjamin Cardin. as lawyers. when he proposed. two of which were directed to law schools: (1) require a clinical experience providing legal services to the poor for graduation from law school. the Advisory Council to Maryland Legal Services Corporation. and the faculty passed. Today. it released a report with recommendations for addressing the legal needs of the poor.” The State General Assembly designated funds for law schools to implement the recommendation. 8. Others developed a voluntary pro bono program.9 The Second Wave Response: Birth of the Law School Pro Bono Movement (1986–1993) In 1989. New York. Tulane’s action turned up the heat on the law school pro bono debate. This desire was fulfilled in 1987. In his first interview as Dean.” could address the problem of poverty. The debate moved to law schools. In 1987. Some schools followed Tulane. and (2) develop “educational approaches which inculcate the professional value of responsibility to serve the poor and underrepresented of the state. so why not pro bono service? In 1986. adopting a mandatory pro bono program. 9. The requirement was later expanded to include other options for meeting the requirement—including pro bono service. institution-wide pro bono program.

LSPB advocated pro bono graduation requirements and organized a national campaign calling for every law student to contribute 50 hours of pro bono a year before graduation.shaped by educational. The central purpose was curricular—an augmentation of the professional responsibility requirement. the Washington Post in October 1990 wrote: A move by law students to make courses in pro-bono law mandatory for a law degree is the best thing to come off the campuses in almost 20 years. It may be even better than it looks.10 Indeed. With students from 100 of the 175 existing law schools. In 1990. Called Pro Bono Students New York (PBS NY). the program was voluntary. The requirement was cast as a tool for teaching professional responsibility (Huizinga 1989:14). professional. Memorandum from Howard Lesnick. PBS NY expanded to a statewide network of 15 law school offices (Chaifetz 1993:1703–1704). This result marked the first successful student movement for mandatory pro bono. the mandatory programs were heralded as an innovative curricular integration of actual pro bono work (Caudell-Feagan 1990:2). and social crises 39 In April 1989. Florida State University School of Law became the first school to follow in Tulane’s footsteps when the faculty voted to require pro bono of all students. the faculty did. the faculty at the University of Pennsylvania Law School. adopted a pro bono requirement of 70 hours. the law school pursued and obtained an Interest on Lawyers’ Trust Accounts (IOLTA) grant from the SC Bar Foundation in 1989. want to foster the service ethic of the profession. . resulting in the frequent joke about there being no Trust in New York. Penn Law. . To this end. the students stated in their petition “that our future profession is not solely a commercial one” and called for “the adoption of a reasonable yet meaningful pro bono requirement” (NAPIL 1989:3). Similarly. Student support for mandatory pro bono was gaining momentum nationally. The University of South Carolina School of Law (USC) was one such school. But at some schools. Just two years later. however. a new national student organization emerged—Law Students for Pro Bono (LSPB). Sounding a familiar theme. Just one month later. a participant in the Interuniversity Consortium on Poverty Law. Opining on the movement. Professor. . in that it could mean that students have 10. 11. . better funded than the USC program and more ambitious. New York University School of Law received a New York State IOLA11 grant to start a pro bono program. the faculty was clearly not going to embrace mandatory pro bono. 1989) (on file with author). becoming the first law school to institute a formal voluntary pro bono program (Robinson 1991:960–962). The New York State Bar has an Interest on Lawyer Account Fund instead of the typical Interest on Lawyers’ Trust Accounts Fund. 1 (May 22. it became a national network called Pro Bono Students America (PBSA). Within a year.

Public Interest Task Force Committee at Northeastern University School of Law to all faculty. including the deans at Tulane and Pennsylvania. Thirty-seven deans reported that their schools had pro bono programs. The deans were overwhelmingly opposed to the resolution.40 private lawyers and the public interest come out of their long snooze and are taking the first tentative steps back to the idealism that seized them in the early’60s. There are two models of voluntary pro bono programs: (1) those characterized primarily by a referral system with a coordinator.:7). Georgetown created an administratively supported formal pro bono program in 1995. From 1990 to 1993. (2) mandatory pro bono programs. 1992) (on file with author). and was later moved into the career services office. Similarly. 3. however. In 1991. and (3) voluntary pro bono programs. administered through the schools’ career services offices. The first category differs from the second in that it allows the requirement to be met through public interest work for which students get credit or pay. 12. about half of these programs were externships or clinics. Memorandum from Jeff Smith. March 27. 14. Students formed Georgetown Outreach at Georgetown University Law Center (ABA 1991a:1). The Whittier program was administered through the student organization Public Interest Law Foundation (PILF) with the support of the Los Angeles County Bar Association (ABA 1991a:46). the Pro Bono Recognition Program at Santa Clara (Santa Clara Law School). and (2) those characterized primarily by administrative support for student group projects (Adcock 2001:13). 1 (Sept. The programs at Santa Clara and Chicago-Kent were. 2008. 30 of which were elective.1). The later emphasizes the importance of student organizing (“which requires student initiation. email to author. Michelle Vodnik.13 The ABA Section of Legal Education and Admissions to the Bar subsequently surveyed law school deans about their pro bono programs and about the Law Student Division’s resolution. student implementation and group self-perpetuation”) without sacrificing law school administrative support (Schoenherr et al. the ABA Law Student Division passed a resolution supporting pro bono graduation requirements. The former often includes some student groups. joining the PBSA national network of offices established in 1993. Saving Our Society at Chicago-Kent School of Law. Law school pro bono programs are categorized as (1) mandatory public service (with a pro bono option). Common reasons given in opposition were the expense involved in requiring pro bono and the belief that each school should develop its own program as appropriate (ABA 1991b). . Other programs listed seemed to be student groups doing pro bono. the ABA Young Lawyers’ Division passed a resolution calling upon the ABA to encourage law schools to establish pro bono graduation requirements. According to the data provided.12 and Seek Justice at Whittier College of Law (ABA 1991a:46). and still are. Chair. students at four law schools acted ahead of their faculties and created their own school-wide pro bono programs. 15 law schools created formal pro bono or public service programs.14 a pro bono program boom not seen since (see Table 2. 13. In 1990 and 1991.

Following the riots after the verdicts in the Rodney King case. Duke made the coordinator position a part-time contract faculty position. a group of concerned students and faculty sought a way for the law school to help their community. becoming Pro Bono Students America. NYU created Pro Bono Students (PBS). Fordham Law created the Public Interest Resource Center. or doing 40 hours of pro bono service (Touro Law Center). Instead. but were concerned about the availability of quality experiences. With a different vision of a voluntary program.1 An ad hoc faculty/student committee proposed and the faculty adopted a pro bono requirement of 30 hours. The dean proposed and the faculty adopted a 30-hour pro bono requirement. The program was run through the school’s Root-Tilden-Snow Scholarship Program (SCLPSR & NAPIL 1991:10–12). Faculty adopted a 40-hour pro bono requirement. The dean proposed and the faculty adopted a 20-hour pro bono requirement (SCLPSR & NAPIL 1991. taking a qualifying course (Rights of the Poor. or Disability Law) and doing 20 hours pro bono. Wanting to emphasize that the new pro bono program was an academic one.1 law school pro bono and public service programs 1990–1993 Law School Year Started 1990 Type Origin and Related Information New York University Fordham Voluntary (referral system model) Voluntary (student group model) Mandatory Public Service 1990 Touro 1990 Valparaiso Louisville Duke Columbia Southern Methodist University Loyola. Students can meet the requirement by taking a clinic. Continued . 36).table 2. The faculty adopted a mandatory program. It expanded statewide and then nationally. they adopted a “Public Interest Law Perspective” requirement (SCLPSR & NAPIL 1991:28). the result of a process begun by a student proposal. Los Angeles 1990 1991 1991 1992 1992 Mandatory Pro Bono Mandatory Pro Bono Voluntary (referral model) Mandatory Pro Bono Mandatory Pro Bono 1992 Mandatory Public Service With funding from the state IOLA. replacing an existing voluntary program run by the Student Bar Association’s Pro Bono Committee. which can be met with two public interest externship credits or 40 hours of pro bono (Loyola Law School). PIRC began with 3 group projects and in 2008 had 21. Racism and American Law. It became the first pro bono program to be designed primarily as a clearinghouse for student-initiated pro bono and community service programs. The faculty considered implementing a pro bono graduation requirement.

email to author. the program sought pledges from students to complete 35 hours of pro bono. with ample opportunity for student feedback.2 After debating for almost two years a task force proposal for a mandatory program. 3 the faculty adopted the Public Interest Requirement. 1993 Chicago Rutgers.1 law school pro bono and public service programs 1990–1993 (cont’d) Law School Year Started 1992 1992 Type Origin and Related Information Hawaii Southern California Mandatory Pro Bono Voluntary (Referral Model) Northeastern 1993 Mandatory Public Service Indiana 1993 University. 2008. 2 . 1993 Newark 1 Voluntary (referral model) Voluntary (referral model) Voluntary (referral model) A student group called Advocates for Public Interest Law proposed a pro bono requirement of 60 hours. It also adopted the practice of recognizing students who completed a requisite number of hours of pro bono service with a notation on their transcript. Indianapolis Loyola. Though voluntary. Karen Lash. email to author. 1991) (on file with author). and its first regional office was here. 2008. 5 Eve Klothen. becoming Pro Bono Students America. The program was housed in the associate dean’s office and run with the assistance of a newly created position of pro bono coordinator on the student PILF board—a new staffing model. 3 Jeff Smith.table 2.5 Memorandum from The Public Interest Activities Committee to the Faculty. 1 (September 17. email to author. Coop Director of External Relations/Co-Director of Public Interest Advising. March 4. March 31. consistent with the Los Angeles County Bar Association’s pro bono policy. Rutgers–Camden School of Law. It can be met by completing a full-time public interest co-op (11 weeks at 35 hours per week). June 13. or doing a public interest independent study (Equal Justice Works). 4 Jonna MacDougall. performing 30 hours of pro bono work. which the faculty adopted (University of Hawaii). 2008.4 Pro Bono Students went national in 1993. The Law School hired a pro bono coordinator and placed her in the Office of Career Services. taking a law school clinic. 2008. July 24. With the objective as much on training as on service. Rutgers joined pro bono with clinical programs and externships as part of its Lawyering Program. assistant dean for Pro Bono and Public Interest Programs.

which includes a “Public Service Project” (Engler 2001:137). professional.’” Finally. 15. A Task Force on Co-Curricular Opportunities was formed. 2008. Its report “recommended that the school ‘not adopt a mandatory pro bono/public interest requirement at this time. Kimberly Emery. the Student Bar Association (SBA) Public Service Committee presented the Dean with “A Proposal for a Public Service Program. there was a stalemate. in 1992. the SBA at the New England School of Law called for the creation of a compulsory or aspirational pro bono standard. the problems for the Legal Services Corporation had not slowed. in 2000. a PBSA regional office at Nova Southeastern University. his influence was greatly diminished with the 1994 congressional elections and the resultant historic shift from a long-time Democratic Congress to a Republican one. The proposal was not passed by the faculty. At some schools. the need for pro bono lawyers only increased in the 1990s. judges. Once again.shaped by educational. and social crises 43 The Third Wave Response: Law Schools Are Pushed to Do More By 1994. lawyers. the faculty created a Center for Law and Social Responsibility. and The Lost Lawyer: Failing Ideals of the Legal Profession by Anthony Kronman. The Betrayed Profession by Sol Linowitz. In 1995. These authors all painted “a picture of cherished ideals ground to dust by the millstones of modernization” (Luban & Millemann 1995:33). One need only look at the titles of books on the legal profession published in 1993 and 1994 to get a sense of the panic: A Nation Under Lawyers: How the Crisis in the Legal Profession is Transforming American Society by Mary Ann Glendon. The new leadership of Congress was committed to the elimination of LSC. They failed. A formal. the development of new law school pro bono programs had slowed dramatically. June 5.15 In 1993. The Law School did not create a formal pro bono program until after 2001. and law professors were ringing the alarm. As a result. but the cost of survival for LSC was the imposition of sweeping restrictions on the kind of legal work that could be done by LSC-funded offices (National Legal Aid & Defender Association). Unlike the development of law school pro bono programs. Though President Clinton was supportive of a well-funded legal services program. At the University of Virginia. voluntary pro bono program was not adopted by the faculty until 1999. . five Brooklyn Law School students published a note in support of mandatory pro bono service.” recommending a graduation requirement of 20 hours of law-related public service. Only one voluntary program came on-line in 1994. Assistant Dean for Pro Bono and Public Interest. recommending a “multi-option” approach to provide maximum flexibility (Calderon 1993). University of Virginia School of Law. Another crisis faced the profession that would add fuel to the law school pro bono engine—the reemergence of the crisis of professionalism.

the ABA’s Center for Pro Bono increased the time and resources it dedicated to assisting law schools in starting or improving pro bono programs. PBSA reported having 75 law schools as members (PBSA 1997:1). to teach students the value of public interest work and encourage a pro bono ethic.16 16. The stated goals of PBSA were “to offer students the opportunity to do volunteer legal work.” Also in 1993. the benefit identified by the profession was that engaging law students in some form of experiential pro bono activity would increase the number of attorneys willing and able to perform pro bono work. Pressure and assistance were provided by three organizations: Pro Bono Students America. The American Bar Association. PBSA created regional centers at seven law schools. letter to author. Pro Bono Students America. Gregory McConnell. setting for the first time an enumerated aspirational goal of pro bono service for every lawyer of “at least (50) hours of pro bono publico legal services per year. 2000. (Baillie and Bernstein-Baker 1994:74–75) In 1996. As noted above. Its primary product was its web-based national database of both paid and unpaid public service opportunities. then-Director. the ABA and the AALS. and to help underserved communities and organizations” (Chaifetz 1993:1704). In this case. 18. each with a director charged with supporting pro bono efforts at law schools in their region. . Feb. The network was the first through which law school pro bono coordinators could organize.44 private lawyers and the public interest The pressure mounted on law schools to do more to meet these crises. Pro Bono Students New York went national and became Pro Bono Students America (PBSA). By 1997.” The service is to be “substantially” devoted to “persons of limited means” or to organizations that “address the needs of persons of limited means. it amended Rule 6. Representatives from the profession thought that they had a responsibility to direct the law schools in a manner beneficial to the profession and the public.1 of the Professional Rules of Professional Conduct. the ABA passed a resolution that “strongly” encouraged law schools to develop pro bono programs. ABA Center for Pro Bono. It amended Accreditation Standard 302(e) to provide that “A law school should encourage its students to participate in pro bono activities and provide opportunities for them to do so. In 1993. in 1993. the ABA took two significant steps to increase pro bono service by lawyers. First.” About this same time. This resolution was a compromise between legal educators and bar leaders: Legal educators were fearful that the imposition of a curricular or co-curricular requirement on law schools would cause the reallocation of resources in ways that might not be consistent with long standing curricular notions. the ABA institutionalized this resolution. to provide a means of assisting students in their career choices.

and one had a community service requirement. Learning to Serve. Rhode connected the then-current “professionalism crusade” with the “pervasive discontent with legal practice—both within and outside the Bar. professional responsibility. 100 law schools were identified as having a formal. Another 73 schools had formal voluntary programs (Adcock 2001:13). As to pro bono. administratively supported pro bono program offering a variety of volunteer opportunities: 14 had a pro bono requirement. By the end of the project. the director visited 90 law schools. On the eve of the death knell of apprenticeships. They secured funding for a two-year Pro Bono Project and hired a director to assist law schools in implementing its recommendations. Professor at Stanford Law School. In 1998. Summary of the Era of Ethics-Based Public Service In the hundred years from 1883 to 1983. encouraging faculty and administrators to create or expand pro bono programs and gathering best practices. she argued that legal educators must do more to “foster a culture of commitment to public service among future practitioners” (AALS 1998:166–168). Its primary recommendation to law schools was to: Make available to all students at least once during their law school careers a well-supervised law-related pro bono opportunity and either require the students’ participation or find ways to attract the great majority of students to volunteer. 1999–2001. The theme for her year was the professional responsibility of professional schools. the Commission noted disappointingly low participation of law students in pro bono. and pro bono in the curriculum. became the President of the AALS. In her speech to the AALS House of Representatives. . (AALS Commission 2007:7) The Commission members also created a Section of AALS dedicated to Pro Bono and Public Service Opportunities.” She chastised the legal academy for ignoring the problem and for marginalizing instruction on professionalism.shaped by educational.” In its report. Deborah Rhode. there was a major shift in the perceived role of law student pro bono. The author served as Director of the AALS Pro Bono Project for the duration of the grant. pro bono service began as the sole way for university students to gain real-world lawyering experience—first for no credit and then for credit through clinical courses. As her presidential initiative. Rhode appointed a Commission on Pro Bono and Public Service Opportunities “to collect information about how law schools can promote pro bono and public service initiatives among both faculty and students. professional. 12 had a public service requirement.17 During the term of the project. Clinical education sought to meld the teaching of skills with teaching 17. and social crises 45 The Association of American Law Schools.

Far from viewing pro bono as a curricular component. Poverty lawyers within law schools were preoccupied with their battles to secure faculty status and an institutional home for clinical education. did not have to be done by faculty. stressing that these pro bono programs should “supplement. These critics—ignoring the role of curriculum requirements—were often heard to proclaim that “‘mandatory pro bono is an oxymoron. the teaching of the pro bono ethic was not required. volunteering was a value that could not. Indeed. however. Its start is marked in 2005 by the ABA’s adoption of Accreditation Standard . their distance from the curriculum only grew. it promulgated no accreditation standards regarding such programs. be taught. the public interest students. A common perception by many law students and faculty was that pro bono was for the do-gooders.46 private lawyers and the public interest about the unmet legal needs of the poor in their communities and the profession’s ethical responsibility to meet those needs. Thus. many faculty members viewed pro bono service as purely voluntary charity. often with the latter swallowing the former. and did not have to have dedicated resources. Pro bono programs could serve many of the same clients as clinics and were much cheaper because they could be run by nonfaculty. there was a loss of distinction between pro bono service and public interest careers. Faculties with this perspective either integrated pro bono into the required curriculum or developed a separate mandatory program. This tension is evidenced in a public statement by NAPIL in its push for mandatory pro bono programs. With the call in the 1980s and ’90s for law schools to do more to “instill” the value of pro bono within law students. By the 1980s. at more than a few law schools. or should not. Most faculties gave little thought to the relationship of pro bono programs and clinical courses. As the number of pro bono programs increased. The placement of pro bono in career services offices only added to this confusion. conclusion: the era of curriculum-based pro bono service We are now at the beginning of the fourth era of public service in legal education. thought quite differently. Under this perspective. external funding for poverty law projects had dried up. Faculty at other schools. the clinical programs” (Legal Times 1990).’ and that such requirements impose ideological conformity with the ‘politically correct’” (Kelleher 1993:966). Clinicians feared that pro bono programs would be used to provide clinical education “on the cheap” and no doubt in some cases this fear was justified. It did not help that while the ABA pressured law schools to create pro bono programs. not diminish. the faculty at some schools responded in the way that seemed logical—the teaching of the ethic of pro bono would be part of the teaching of professional responsibility and of teaching about the justice system. What thought was given to the relationship of pro bono programs and clinical courses was often negative.

published by the Carnegie Foundation. Deborah Rhode surveyed graduates of several schools with voluntary and mandatory pro bono programs. Both reports conclude that the typical law school curriculum teaches students how to think like a lawyer but not how to be a lawyer. The recommended responses to these crises hold promise for improving the success of law school pro bono efforts.” The move of pro bono opportunities from the “should encourage” section of Standard 302 to the required curriculum section is an extraordinary step. Law schools have been operating on the reasonable assumption that law students who do pro bono in law school will do pro bono upon graduation. for credit or not for credit. Experiences mattered. Positive experiences can occur in programs that are voluntary or mandatory. and Best Practices for Legal Education: a Vision and a Road Map. every law school must consider whether they meet the standard. in its first interpretation of the standard. This era is already being shaped by crises: the high cost of a legal education and the growing criticism of how law schools are educating—or not educating— law students to be lawyers. Mandatory programs have an advantage not only because more students have pro bono experiences. Now. but the direction of their impact depended on whether law school influences were positive or negative. Credit-bearing . But. requiring law schools to “offer substantial opportunities for student participation in pro bono activities. She discovered that there was no correlation between whether pro bono was voluntary or mandatory at a graduate’s law school and whether that graduate actually engaged in pro bono service. Faculties have held on to this assumption without assessing what students in their pro bono programs are learning about service to the poor and without confronting the strong counterforces—both inside and outside the academy— that devalue pro bono service. but also because they convey a message that the institution views pro bono service as important. long in coming. The crisis of legal education instruction is described in two recent reports that assess the current outcomes of legal education—Educating Lawyers: Preparation for the Profession of Law. the ABA resisted efforts to allow clinical opportunities alone to meet the standard: “Standard 302(b)(2) does not preclude the inclusion of credit-granting activities within a law school’s overall program of pro bono opportunities so long as lawrelated non–credit bearing initiatives are also part of that program” (ABA Standing Committee on Pro Bono and Public Service). professional. Ethical skills include the understanding of why and how to engage in pro bono service. and social crises 47 302(b)(2).” and “fail to complement the focus on skill in legal analyses with effective support” for developing ethical and social skills (Sullivan 2007:188). The application and enforcement of the standard is yet to be determined. law schools are giving only casual attention to teaching students “how to use legal thinking in the complexity of actual law practice. Recent research provides helpful information for evaluating this assumption.shaped by educational. published by the Clinical Legal Educators’ Association (CLEA). Specifically.

Rhode’s research reveals that positive pro bono experiences require resources—monetary resources but also institutional resources. which is the fieldwork. 6 had a public service requirement (with a pro bono option). such as externship and inhouse clinical experiences. . They also require that “the value of pro bono service . but there was no significant increase in pro bono involvement by these attorneys than by those coming from voluntary programs (Granfield 2007:1411). legal doctrine and analysis. pro bono experiences (Rhode 2005:156–160). 4 had a community service requirement (with a pro bono option). In 2007.48 private lawyers and the public interest clinical experiences can be as effective as. Of these schools. they cannot let this moment of change in legal education go . Such “hard thinking” is characteristic of curriculum-based service to the poor. 194. Granfield surveyed graduates from three law schools with mandatory pro bono programs. . This conclusion is supported by the recommendations of the Carnegie and CLEA reports: law schools should integrate. Ultimately. such as visible support and promotion by faculty. . throughout the three years of education. particularly their classes. 19 had a pro bono requirement. .” (1405). if not more effective than. Graduates generally found their law school pro bono experiences to be valuable. Thus. The lawyers were “critical of the lack of integration of their pro bono experiences into other law school activities. 152 law schools had formal pro bono programs. pro bono service must be a part of the curriculum. Stuckey 2007:8–9). the pro bono experiences of law students must be better integrated into the general law school curriculum” (1412). His findings were consistent with those of Rhode. and 123 had a voluntary program.” A possible conclusion. practical skills training. and the exploration and assumption of the identity and values of the profession (Sullivan 2007:191. . Granfield concludes that “[f]or the law school pro bono movement to have an impact. The features of the program that correlated with increased pro bono participation after graduation proved to include “discussion of broad social issues. Schmedemann suggests. but few of these programs had any ties to the curriculum. These numbers represent an overwhelming majority of law schools. is that serious “discussion” and “reflections” may encourage the impulse to help those in need. If law schools are serious about producing graduates who will take on the crisis of access to justice. What is the “take-away” from this research for schools serious about producing graduates who engage in pro bono? Pro bono service alone cannot be relied upon to achieve the desired result. and reflections on one’s reactions (82). Students must engage the text. Schmedemann’s research (presented in this volume) into the outcomes of her school’s voluntary pro bono program sheds light on why curriculum-based experiences can have a more profound and lasting effect on law students than poorly integrated experiences. Law schools must teach the value of pro bono service and its complexities as they teach other skills and values. be reflected and reinforced throughout the law school experience in both curricular coverage and resource priorities” (165).

——(1908) Canons of Professional Ethics. American Bar Association Section of Legal Education and Admissions to the Bar (1991b) Memorandum D9091-25 to the Deans of ABA Approved Law Schools (December 11).cornell. pro bono service must be taught as part of the professional responsibility and identity curriculum. Pro bono programs must no longer be set apart from the curriculum: they must not exist as something to be checked off on a survey. Commission on Professionalism (1986).pdf (accessed September 16.HTM (accessed September 17. and co-curricular components. http://www.” unpublished collection of case studies. the range of benefits pro bono service brings.” American Bar Association Standing Committee on Lawyers’ Public Service Responsibility. ——(1935) Opinion 148. and social crises 49 by without significant adjustment in pro bono education. references Adcock.org/legalservices/probono/lawschools/ introduction. 2008). This curriculum should (1) engage students throughout all three years of law school.org/ probono/report.html (accessed 15 December 2008).html (accessed 15 December 2008). or to appease those who would engage in public service in any case.abanet. ——(1969) Model Code of Professional Responsibility. and the steps each student can take to find their best pro bono fit. Substantively. (2) include classroom components. “. .aals. (2001) “Handbook on American Law School Pro Bono Programs. experiential learning components.” http:// www.HTM (accessed April 19.” Association of American Law Schools. .abanet.org/probono/probono. but it is ripe: integrate! A law school’s pro bono program should be a pro bono curriculum. professional. Standing Committee on Pro Bono & Pro Service and the Center for Pro Bono (no date) “Directory of Law School Public Interest and Pro Bono Programs: Introduction.shaped by educational. the lawyer’s responsibility to address these obstacles. In the Spirit of Service”: A Blueprint for the Rekindling of Lawyer Professionalism.law. . http://www. ——(1998) House of Representatives Proceedings. ——(1939) Opinion 191.org/about/history.cornell.edu/ethics/ aba/2001/ABA_CODE.edu/ ethics/aba/mcpr/MCPR. 2008). ——(1983) Model Rules of Professional Conduct. Cynthia F.html. American Bar Association and AALS Commission on Pro Bono and Public Service Opportunities in Law Schools (1999) Learning to Serve: The Findings and Proposals of the AALS Commission on Pro Bono and Public Service Opportunities. 2008). http://www.law. Rather. The concept is not new. http://www. and (3) progressively build as the students obtain a clearer understanding of their identity and purpose as lawyers. American Bar Association. the curriculum should teach students about the obstacles that prevent justice for all. American Bar Association. American Bar Association (no date) “History of the American Bar Association.aals. and National Association of Public Interest Law (1991a) “Pro Bono in Law Schools.” http://www.

——(1930a) “Legal Aid Clinic as Law School Course.” 24 Washington University Law Quarterly 173–192. (1931) “The Harvard Legal Aid Bureau.” 64 Tennessee Law Review 939–962. Calderon. Marie A.pdf (accessed June 18. Jon C.” 34 Fordham Urban Law Journal 1391–1415. 2009).” 17 ABA Journal 692–694. .ny.” MIE Journal Winter 2007. Michael (1990) “About This Issue . ——(1930b) “The Nature of a Legal Aid Clinic.newsweek. Jerome (1947) “A Plea for Lawyer Schools.” http://www.50 private lawyers and the public interest Association of American Law Schools (1959) 99 and 1957) 121. Howard and Gabrielle Lessard (1993) “Mobilizing Law Schools in Response to Poverty: A Report on Experiments in Progress. Tilford E. Barry. 2008). May 9. New York Times (1908) “Ethics Code Drawn For American Bar. Eldred. Failinger.” 8 Clinical Law Review 109–170.” 43 Journal of Legal Education 199–226. Erlanger. Russell (2001) “The MacCrate Report Turns 10: Assessing Its Impact and Identifying Gaps We Should Seek to Narrow. Frank. National Association Prepares Canons to Govern Lawyers in Their Practice. Bradway. Lewis S. http://www.us/ip/ partnersinjustice/Clinical-Legal-Education. (1929) “The Beginning of the Legal Clinic at the University of Southern California” 2 Southern California Law Review 252–276. 11.” 45 Stanford Law Review 1695–1712. Equal Justice Works (2007) “The E-Guide to Public Service at American Law Schools: 2007–2008 Edition. Douglas (1997) “Déjà Vu All Over Again: Reflections on Fifty Years of Clinical Education. Blaze. Engler.” PBI Exchange Summer 1992. ——(1957) Proceedings 213. 1. Bezdek.” presented at Partners in Justice: A Colloquium on Developing Collaborations Among Courts.” May 29. (2007) “A Home of Its Own: The Role of Poverty Law in Furthering Law Schools’ Missions.” 3 Southern California Law Review 173–180. Martha (2007) “The Pendulum Swings Back: Poverty Law in the Old and New Curriculum. Dubin. (1993) “Mandatory Pro Bono for Law Students: Another Dimension in Legal Education” 1 Journal of Law and Policy 95–112. Margaret Martin. . Joy (2005) “Introduction to Clinical Legal Education. James and Judith Bernstein-Baker (1994) “In the Spirit of Public Service: Model Rule 6.1.” 34 Fordham Urban Law Journal 1173–1217.state. and Peter A. Tigran W. Caudell-Feagan. New York State Judicial Institute. Jeanne and Jeff Selbin (2007) “Legal Aid.” 56 Yale Law Journal 1303–1344.” 13 Law and Inequality 51–76. ——(1992) “Students Work toward Granting Public Service Needs. Chaifetz. John S. Davis.” 42 Washington University Journal of Urban and Contemporary Law 127–145.” NAPIL Connection (Supplement). Jill (1993) “The Value of Public Service: A Model for Instilling a Pro Bono Ethic in Law School. Charn.” 3 Southern California Law Review 320–332. and Thomas Schoenherr (1993–1994) “The Lawyer’s Duty of Public Service: More than Charity?” 96 West Virginia Law Review 367–404. in Pro Bono at Law Schools: New Solutions to Old Problems. ——(1939) “The Objectives of Legal Aid Clinic Work. the Profession and Legal Education. Dudley. Barbara (1992) “‘Legal Theory and Practice’ Development at the University of Maryland: One Teacher’s Experience in Programmatic Context.” 30 Michigan Law Review 905–921.com (accessed December 15. Baillie. To Drive Out Shysters.ejw. .courts. Law School Clinical Programs and the Practicing Bar. ——(1932) “Legal Aid Clinics in Less Thickly Populated Communities. Law School Clinics and the Opportunity for Joint Gain.

Legal Times (1990) “Mandatory Pro Bono Sought for Law Schools.” 49 Maryland Law Review 78–102. Kaufman. 2008). Jewel (1969) Law School Legal Aid Programs: A Survey. Kramer. (1992) “Pro Bono: The Evolution of a Professional Ethos. Nancy (1987) “Professionalism Reconsidered.” 54 Buffalo Law Review 1355–1412.shaped by educational.asp?Type=B_BASIC&SEC={AD8CBEA-F981-42C4-A752685C8CDA0D92} (accessed December 15. 2008). 1 (Spring).html (accessed December 15. Los Angeles (no date) “Pro Bono Student Handbook. Lardent.” 42 Journal of Legal Education 31–56. Luban. 2007-13. ——(1990) “Mandatory Pro Bono in Civil Cases: The Wrong Answer to the Right Question. Ogilvy. Dennis A.” 26 Journal of Legal Education 162–193.” PBI Exchange Summer 1989.” 77 Tulane Law Review 91–162.” 4 PBSA Network News no. Pro Bono Students America (1997) “PBSA Focuses on Future Growth. Jane (2006) “A Beautiful Mind: Remembrance of John Kramer. David (1988) “The Noblesse Oblige Tradition in the Practice of Law. Oxford: Oxford University Press. Loyola Law School. Alfred Z. Johnson.” 30 William Mitchell Law Review 35–50. 2008). (1993) “The Availability Crisis in Legal Services: A Turning Point for the Profession. National Association of Public Interest Law (1989) NAPIL Connection (July). Grossman. Robert (2007) “Institutionalizing Public Service in Law School: Results on the Impact of Mandatory Pro Bono Programs. professional. Reed.mnjusticefoundation. Rhode. Huizinga. Peter (2003) “The Law School Clinic as a Model Ethical Law Office.” October 29. David and Michael Millemann (1995) “Good Judgment: Ethics Teaching in Dark Times. and Robert Seibel (2007) “Externship Demographics Redux. National Bar Association (no date) “The NBA Perspective. Esther (1989) “Conference on Access to Justice in the 1990s: Pro Bono in the 1990s.” http://www. Maute.” PBI Exchange Summer 1992. Joy. Klein.edu/publicinterestlaw/probono/handbook.” http:// www. Karen E. http://ssrn. Anne (1989) “Law Students Learn from Hands-On Pro Bono Experiences. National Legal Aid & Defender Association (no date) “History of Civil Legal Aid.” 774 American Bar Foundation Research Journal 773–790. Kelleher.” http://intranet. nonprofitoffice.nlada.nationalbar. P.com/index.” 6 Georgetown Journal of Legal Ethics 953–976.” CUA Columbus School of Law Legal Studies Research Paper No. George S.” unpublished paper. J.” 9 Georgetown Journal of Legal Ethics 31–88.” 81 Tulane Law Review 1–16. 2008). (1928) Present-Day Law Schools in the United States and Canada. Judith (2002) “Changing Conceptions of Lawyers’ Pro Bono Responsibilities: From Chance Noblesse Oblige to Stated Expectations. .shtml (accessed December 15.org/ about/index. ——(2004) Access to Justice. lls. Minnesota Justice Foundation (no date) “History. and social crises 51 Granfield.” The NAPIL Connection (Supplement).” http://www. Deborah (1992) “Ethics by the Pervasive Method.” 41 Vanderbilt Law Review 717–740. John (1990) “Mandatory Pro Bono at Tulane Law School in Pro Bono at Law Schools: New Solutions to Old Problems.com/ abstract=1077551. Moore. Luban. (1974) “Clinical Legal Education: History and Diagnosis.org/About/About_HistoryCivil#lsc (accessed December 15.

.scu.” October 28.. Thomas M. Smith. University of Hawaii. Thomas J.html (accessed December 15. Pamela D. San Francisco: Jossey-Bass. New York: Carnegie Foundation. Reginald Heber (1924) Justice and the Poor.hawaii. Stuckey. William et al.52 private lawyers and the public interest ——(2005) Pro Bono in Principle and in Practice. 2008). Touro Law Center (no date) “Public Interest Requirement.” http://tourolaw. Washington Post (1990) “Law Students’ Pro Bono Backlash. (1991) “Insurmountable Opportunities or Innovative Choices: The Pro Bono Experience at the University of South Carolina School of Law. edu/law/careers/pro-bono-recognition-program. SC: Clinical Legal Education Association. 2008). asp?pg=/tlc_net/student_services/registrar/degree_requirements/pop/Public_ Interest_Requirement. (2007) Educating Lawyers: Preparation for the Practice of Law. . Richardson School of Law (no date) “Law Student Public Service Program. Santa Clara Law School (no date) “Pro Bono Recognition Program. Sullivan.” 42 South Carolina Law Review 959–972.” http://www.cfm (accessed December 15.” unpublished manuscript. 3rd ed.asp (accessed December 15. 2008). Columbia.” 124 Annals of the American Academy 130. and Roslyn Myers (no date) “The Fordham Model: Student Initiated Projects for the Public Interest. Roy (2007) Best Practices for Legal Education.” http://www.edu/law/site-content/special-programscommunity-service/uhelp/overview/pro-bono/index. Quinn. Stanford: Stanford University Press. Wigmore (1926) “The Legal Clinic: What It Does for the Law Student. William S. Robinson.edu/PopUp. Schoenherr.

there has been little attention to the meanings that pro bono has for individuals and the implications of such meanings for the formation of professional identity. The institutionalization of law school public service represents one of the most significant recent changes to have occurred in American legal education (Dolovich 2002. . Funding for this research was provided by the Law School Admission Council. Furthermore. good lawyering and lawyering for the good Lawyers’ Reflections on Mandatory Pro Bono in Law School robert granfield and philip veliz introduction 1 In the previous chapter.3. Adcock in this volume). at least in principle (Rhode 2005). Adcock states that since the early 1990s several law schools have taken up the call to public service by expanding pro bono and public service opportunities for their students. personal transformations in perspectives on justice. In his study of law school socialization. and even political ideology (Davis 2004). Mike Farrell. Bryant Garth. Clarke Gocker. engagement in pro bono work. Stover (1989) found that students’ conceptions of justice 1. The authors wish to thank Scott Cummings. Although there is some variation in the organizational structure and logistics of law school public service initiatives. Granfield 1992). While there has been much speculation of the impact of pro bono experiences on law students and lawyers with regard to skill-building. Stover 1989. and how it is particularly relevant given the corrosive influences that legal education can have on conceptions of justice and public service ideals (Abel 2002. and Lynn Mather for their comments on earlier versions of this chapter. Yet despite these institutional developments. it is hard to find anyone who opposes these programs. there has been limited consideration of how individuals experience their pro bono work and what participants of such programs believe they derive from such experiences. This chapter explores how pro bono work in law school is experienced by law students. The latent curriculum at law schools works against the development of ethical reflection and against a sense of professional responsibility to engage in pro bono and public service work. Tom Koenig. there has been little systematic study of how participants of mandatory pro bono programs assess the value of their experience.

while diverse. as well as the value of pro bono service to individual lawyers and their workplaces (Rhode 2005). who uses it as a generic term to describe lawyers who seek to “do good” and are concerned about broader social justice issues. From this perspective. Stover 1989). and make little or no connection between justice and other substantive issues such as gender. Pro bono programs in law schools. pro bono and professional identity Rationales for pro bono service rest largely on claims of professionalism: the value of pro bono service in meeting unmet legal needs. it is perhaps not surprising that the desire to engage in pro bono work after law school evaporates as law students near graduation (Schleef 1999. social class. Much of the rhetoric associated with law school pro bono involves normative claims associated with lawyering for the good. seek to build a commitment to pro bono and public service 2.2 Such programs are believed to cultivate a commitment to pro bono as a professional ideal so as to enhance an attorney’s propensity to engage in public service. has served an important legitimizing function within the legal profession (Scheingold & Sarat 2004). or poverty (Treuthart 2002).54 private lawyers and the public interest move from a broad.” which purportedly inspires lawyers to make contributions to the public good. This term is derived from Menkel-Meadow (1998). This has been especially true for elite professionals who are in a better position than nonelite professionals to translate pro bono service into professional success and distinction (Dinovitzer & Garth in this volume. Pro bono legal work rose out of claims that lawyers have an ethical obligation to engage in public service (Atkinson 2001). pro bono legal work represents a narrative of ethical and civic-minded professionalism through its public service aspirations of placing the value of justice ahead of private gain. Such allusions to the public good help to secure the status of any profession by imputing the motivational purity of the professional group (Abbott 1983).” in which the practice of law becomes a “prophetic” end in itself as opposed to simply a hyper-rational and profit-motivated livelihood (Spaulding 1998). . The commitment to an ideology of “civic professionalism. The underlying normativity associated with the former adheres to the bar’s historical legitimation of its professional status by formalizing lawyers’ special responsibility to serve as servants of the public good (Atkinson 2001). Garth 2004). 2006. Given the nature of legal education. especially to marginalized social groups. Law students often enter law school with broad conceptions of justice but eventually learn to define justice procedurally. race. substantive view to one based primarily upon procedural rules and regulations. Such a perspective is consistent with Weber’s notion of the professional “calling. equality.

however. and the incorporation into the self of the meanings associated with that role and its performance (Stets & Burke 2000). Narratives of the self are used within daily life as a means of creating or sustaining identity (Gergen 1998). Thus. the narratives of roles are organized in varying ways. Law students’ emerging public service ideologies may amount to little more than rhetoric. and increase one’s understanding of the legal system. how pro bono is defined and enacted depends on the broader social context (Granfield 2007a. including such things as the capacities to communicate with diverse audiences. Through pro bono work. for instance. Research on identity formation. that these two narratives of pro bono—good lawyering and lawyering for the good—coexist with equal intensity among lawyers. Recent research on law school socialization points to how the meaning of pro bono work takes shape in law school. It is unlikely. Identities exist in a hierarchy of salience. allowing one identity to prevail over another (Stryker 1968). do not express themselves uniformly. and exposure to valuable career information and the development of professional networks and contacts (Epstein 2002). and provides valuable real-life. reputation.good lawyering and lawyering for the good 55 by sensitizing “professionals to worlds that they usually ignore” (Kramer 1991:1). suggests that one narrative of pro bono most likely takes precedence over the other. Rather. while pro bono may be part of the professional identity narrative for many lawyers. however. law students and lawyers can develop the proficiencies of a good lawyer. exposes students to fundamental issues of justice in society. The core of an identity is the categorization of the self as an occupant of a role. as opposed to viewing such work as an end in itself (Schleef 2006). helps law graduates sustain a commitment to pro bono throughout their legal careers. Pro bono work is often seen as providing a range of practical benefits such as applied training. The very categories by which individuals construct identities are largely a by-product of discursive elaboration. depending on how individuals and the groups with whom they associate define these roles and on the extent to which these narratives are validated by others. because there is scant attention given to discussions of public service or . On the other hand. Granfield 2007b) as well as on the salience and meaning that pro bono has to individual lawyers. an emphasis on professionalism is evident through the opportunities that pro bono provides for building “good lawyering” traits of greater expertise. and human capital for individual lawyers and the firms that employ them. hands-on experience with clients. Students effectively learn to compartmentalize their private and public roles by separating their “normal” work from their pro bono commitments. Law students develop narratives of public service and pro bono that include taking on such cases only when time and resources permit. “law in action” experiences that will alert law students and young lawyers to the ethical conflicts that are endemic in legal practice. Supporters of such programs believe that pro bono work in law school helps foster a greater appreciation for the value of public service among law students. The narratives associated with any role. build skills.

data were also collected for demographics such as firm size.56 private lawyers and the public interest of pro bono obligations during law school. ethnicity. Thus narratives of pro bono learned during law school may have real-world consequences in that they effectively restrict the amount and type of pro bono work that practitioners perform in practice. that is.” such as the development of legal skills and of a greater understanding of the legal system? Or do they define these experiences primarily in moral terms of social justice and community benefit. A survey was administered to graduates from three law schools that implemented mandatory pro bono requirements during the 1990s. Specifically. ranking. This chapter examines what recent law graduates believe they derived from their law school pro bono experiences and the implications of these perceptions for the formation of professional identity. It examines the activities that students engaged in to fulfill their mandatory pro bono requirement as well as the perceived benefits they attribute to that experience in law school. studying mandatory pro bono in law school Data for this research were collected as part of a larger study designed to assess the impact of mandatory law school pro bono on lawyers’ careers (Granfield 2006). . and Western Law School. Southern Law School. Additionally. In this article. and marital status. the first graduating class with a mandatory requirement. and their attitudes regarding their required law school service. their attitudes about the performance of pro bono. The schools selected for this study vary by location. current income. especially in relation to the integration of these experiences into the general law school curriculum. gender. and the number of pro bono hours each law student is required to complete. The third school is located in one of the southern states and has a tier three ranking. and a more recent graduating class of lawyers who had participated in mandatory pro bono. the chapter explores the professional identity narratives of pro bono work during law school. One school is located in the northeastern part of the United States and is considered a top-ten law school. these law schools will be designated as Northern Law School. Three graduation classes from each school were selected for comparison purposes: the last graduating class at the law school without a mandatory requirement. including the number of hours of pro bono service in law school and in their current practice. the types of pro bono activities undertaken. A second law school is located in the western part of the United States and is ranked in the first quartile of law schools. do new lawyers define their law school pro bono experiences primarily in terms of instrumental benefits associated with “good lawyering. Data were collected on a number of variables pertaining to graduates’ law school pro bono participation. “lawyering for the good”? This chapter concludes with a discussion of some challenges associated with law school pro bono programs.

4. “pro bono service allows our students an opportunity not only to try out their legal skills. Our goal is quite clear: to create a law student experience that will become the catalyst for a life-long commitment to pro bono and public service legal work—as part of our graduates’ careers. According to the Northern Law School’s website. and an average age of 35. the development of “high ethical standards” is considered an important part of a lawyer’s education.good lawyering and lawyering for the good 57 All of the law schools selected to participate in this study have well-established public service programs. the pro bono requirement emphasizes serving poor and marginalized communities. 13 percent medium firms. and “commitment to service” is part of the school’s mission. 10 percent mediumsized firm.600. study (2005). this school is “absolutely committed to public service.3 Participants in this study were contacted through local commercial mailing companies contracted by the alumni office at each school. many respondents were allowed to participate in a wide variety of pro bono activities including conducting research for faculty members or nonprofit organizations. in actuality. data collected from a representative sample of lawyers in Chicago provided the following breakdown: 14 percent solo. a significantly higher number of white lawyers than nonwhites.4 The sample contained slightly more females than males. and this reminds students of their obligation to give back to the community. mailings were sent to approximately 2.000 lawyers nationwide. . produced the following distribution: 5 percent solo. not all pro bono was directed at serving marginalized populations. in whatever field they pursue. 10 percent in-house counsel. 14 percent small firm. but also to help those who need it the most. Only those respondents who participated in mandatory pro bono during law school are included in the analysis. Consequently. . 17 percent are employed in small firms. the After the JD study (Dinovitzer et al. This sample compares favorably to other large surveys of lawyers. of which 474 completed and returned surveys. According to the dean of this school. In the Heinz et al. a random sample of nearly 4. . and 29 percent large firms.” Public service at the Western Law School is similarly designed “to enhance the legal profession and the law school curriculum by exposing lawyers-to-be to the importance of and the need for a life-long commitment to public service through a mandatory public service requirement. Forty percent of the sample indicated they presently work in large private large law firms.” In all three cases. 5. . 25 percent small firms. 28 percent large firms. Similarly.000 potential respondents. Using this strategy. Although all schools emphasize servicing poor and marginalized communities. 13 percent are sole practitioners.” At the Southern Law School. Being a lawyer is a privilege. yielding a response rate of about 30 percent. and the respondent names were subsequently deleted from the sample. not a right. Of the remaining respondents. A number of mailings were returned without delivery. 18 percent are located in medium-sized firms. 2004). This reduced the pool of potential participants to approximately 1. and 12 percent practice as in-house counsel.5 3.

The alpha coefficient is a standardized measurement assessing the reliability of a constructed scale. . race. criminal law. Several other respondents. In most cases this entailed conducting intakes and interviews at legal service centers. nearly 20 percent. family. Respondents were also asked a series of openended questions regarding mandatory pro bono to explore the types of pro bono experiences they had during law school and their perception of the impact of these experiences on their development as lawyers. alphas above .” a series of items were analyzed through principal component factor analysis.58 private lawyers and the public interest In order to develop the constructs of “good lawyering” and “lawyering for the good. opportunities to learn about legal practice. primarily in association with faculty who were working on pro bono issues and cases. General demographic information including gender. Another 22 percent report having completed their law school pro bono obligation through legal writing and research activities. report having engaged in case work with supervising lawyers in the areas of labor. and corresponding Cronbach alpha coefficients. marital status.6 The questionnaire also included items that sought to ascertain respondent satisfaction with various components of the requirement—supervision. worked in the general area of poverty law. mandatory pro bono: promoting good lawyering and lawyering for the good What are the most common activities that law students engage in as part of their mandatory pro bono requirement? One-quarter of the lawyers in this study report that their mandatory pro bono activity involved conducting intakes and interviews with clients. and income was also collected. and civil rights law. Approximately 10 percent of the respondents indicate handling their own pro bono cases in the areas of tax and general litigation. less 6.1 for a listing of the survey items used to create the constructs. In fact. level of responsibility. and integration of pro bono learning into other law school classes. and family law. By convention. religious affiliation. Many of the legal practice settings in which respondents were placed during their mandatory pro bono service focused on providing legal services for the poor and indigent. but others did not. See Table 3. These lawyers report engaging in pro bono activities across a wide array of substantive areas. education. Principal component factor analysis is a method of combining two or more correlated variables into one factor or construct. age. according to the respondents. political orientation.60 are indicative of reliable measurement scales. The largest group of respondents. nearly 15 percent. Respondents also indicate that their pro bono work occurred in the areas of housing. description of constructs.

Cronbach’s Alpha = . . Items used to construct ‘Good Lawyering’.722 Possible values are between 0 (Strongly disagree that pro bono service during law school helped respondents to become good lawyers) and 9 (Strongly agree that pro bono service during law school helped respondents become good lawyers). Cronbach’s Alpha = .table 3. Doing pro bono in law school made me more committed to doing pro bono/public service as a practicing attorney. My pro bono/public service experiences in law school made me more concerned with social justice. Agree 37% good lawyering and lawyering for the good 59 63% Items used to construct ‘Lawyering for the Good’.871 Possible values are between 0 (Strongly disagree that pro bono service during law school helped respondents to view pro bono as a social good) and 12 (Strongly agree that pro bono service during law school helped respondents view pro bono as a social good). 67% 33% Good Lawyering Disagree My pro bono/public service was helpful in gaining an understanding of how the legal system works. 36% 64% 51% 49% I acquired valuable legal skills doing pro bono/public service during law school.1 pro bono narrative constructs Lawyering for the Good Disagree My pro bono/public service in law school taught me more about people who are different from me. My law school pro bono/public service experiences made me more aware of the legal needs of the poor. 43% 57% Agree 33% 67% 50% 50% I developed useful professional contacts through my law school pro bono/public service experiences.

It was a very positive experience for me. “I was not excited about the requirement when I found out about it but once I was actually working.1 demonstrates. It was a good way to learn about how non-profit legal entities work. 70 percent of the respondents endorse the view that their law school pro bono experiences provided them insight about people who were different from themselves. nearly twothirds of respondents report that their mandatory pro bono was helpful in gaining a practical understanding of how the legal system works. Most of the respondents perceived benefits from their mandatory pro bono experiences that are aligned with narratives associated both with good lawyering and lawyering for the good. As one lawyer commented. This is often lost in the sterile environment of the classroom. or their goals. and nearly 60 percent indicate that they acquired valuable legal skills through their pro bono obligation. I really enjoyed it. one respondent noted. the pro bono experience “gave me an opportunity to get into court.” Despite the large number of comments about the value of mandatory pro bono to promote good lawyering skills. Although each narrative is represented in the quantitative data. respondents tended to emphasize the good lawyering narrative of pro bono in the open-ended comments. Nearly. One lawyer wrote that her pro bono work was “much more helpful than the typical classroom experience.” Another found an even more immediate benefit from participating in law school pro bono: “The work I performed proved very helpful to me with regard to an essay question on the state bar exam.60 private lawyers and the public interest than half of their pro bono work was provided for individuals who they considered poor and indigent.” Some specifically identified the benefit of the pro bono experience as lying in learning skills that they eventually found useful in practice. while 64 percent report that they developed a greater awareness of the legal needs of the poor as a result of their law school pro bono experiences. so this is good training for bar purposes. For instance. several respondents did express values . As one respondent explained.” Another attorney commented. their problems. as Table 3.” Another commented on how useful his law school pro bono was in a specific area of legal practice: “My law school pro bono provided good hands-on training. “the skills and knowledge I received have been transferable to my pro bono work as an attorney. Law is essentially about people.” Some respondents emphasized that their pro bono experiences provided better legal training than their classroom instruction. Several of these respondents commented at length on the value of their law school pro bono experiences. For example.” Even respondents who were not initially enthusiastic about their law school’s pro bono requirement nevertheless gained important lessons from the experience. “I acquired a lot of skills from doing pro bono in law school that have made me a better lawyer in my private sector work. Most states strongly recommend participation in pro bono work. file pleadings and develop skills of interviewing people and investigation of facts underlying litigation.

good lawyering and lawyering for the good 61

associated with lawyering for the good. As one respondent commented, “I think all lawyers should give back to their community or society in exchange for the privilege of practicing law. Giving back is a fundamental part of being a professional. I think it is good to instill that value as early as possible. I’d like to see mandatory pro bono for all lawyers too.” Another described how participation in mandatory pro bono during law school sent a message about the importance of public service in professional practice: “It [mandatory pro bono] signaled a strong institutional commitment that public service is legitimate and necessary. It validated why I enrolled in law school.” Commenting on the value of mandatory pro bono in bringing law students into contact with poor and indigent populations, one respondent reported that mandatory pro bono “exposes law students to a side of society they have probably never seen and demonstrates just how valuable our services are to the under-served.” Not all opinions were so favorable. Despite the value that mandatory pro bono had for many of these young lawyers, others believed it was of little relevance to their legal education or professional development. One respondent indicated that he enjoyed the experience but that it had little professional value: “Pro bono work was personally satisfying, but did not necessarily contribute to my development as a lawyer.” Another complained more bitterly that “I did research and writing in my last year of law school. It was not in my current field of law, and didn’t add anything to the skills I had already developed. It was totally unrelated and a waste of time.” Several other respondents were vehement in their criticism of mandatory pro bono in law school because of the perceived political nature of such requirements. As one respondent reports: “I’m concerned that such requirements are simply used to reinforce certain left-wing political interests. The decision to participate ideally should be a matter of individual choice.” Another attorney similarly found the perceived politics of pro bono objectionable: “This entire pro bono movement is nothing but a bunch of liberal do-gooders trying to force their liberal ‘social justice’ views upon others.” Reflecting on the definition of pro bono, one respondent commented, “the school’s definition of pro bono is too narrow in many cases. Often one person’s ‘pro bono’ is not a public service to others (e.g., free legal representation to delay rightful evictions, denying rights of association).” Another respondent made a similar point about the perceived liberal orientation of the definition of pro bono: “There isn’t a wide enough range of placements to become involved in programs of your own choosing and therefore it mandates involvement in liberal programs that I philosophically objected to.” There is a significant minority of respondents, approximately 20 percent, who considered their mandatory pro bono experience to be inappropriately coercive. Many of these respondents were adamant in their opposition to such requirements. As one attorney who participated in mandatory pro bono caustically commented, “Slavery was abolished, except in certain areas of the legal profession.” Another participant in mandatory pro bono expressed similar hostility: “law school is too long as it is without adding more requirements.

62 private lawyers and the public interest

Pro bono isn’t for everyone. Compelling free work from students is abhorrent. See the 13th Amendment.” Male respondents made up more than two-thirds of those who felt that mandatory pro bono was coercive. Despite this opposition, the substantial majority of respondents report receiving benefits from their mandatory pro bono experience. A large percentage of respondents, 38 percent, not only benefited from participation in pro bono but also report being enthusiastic about the opportunity to do so. Another group of respondents, 34 percent, accepted mandatory pro bono as just another law school requirement from which they consider themselves to have profited. Indeed, over three-quarters of the sample report that they derived some benefit from participating in law school pro bono. Moreover, a substantial majority of the respondents, 73 percent, endorse the concept of mandatory pro bono and support law school efforts to include pro bono work as part of the curriculum. Although all students were required to do some pro bono during law school, the extent of their participation varied. Interestingly, the amount of pro bono participation in law school as well as perceptions of the value of mandatory pro bono depends largely on the salience of one or another pro bono narrative. As suggested by Table 3.2, respondents who adhere to a good lawyering narrative performed significantly more pro bono during law school than did respondents with a lawyering for the good narrative (β =.314; p <.001). This difference remains significant even when variability in the required hours at each school is controlled. Thus, respondents who believed they were deriving increased skills and understanding of the legal system as well as developing useful professional contacts through their pro bono activities report significantly greater levels of pro bono participation in law school than their lawyering for the good counterparts. The value of pro bono in developing skills, however, is much more pronounced for respondents from non-top-ten schools than for those from the top-ten school. As the interaction effect demonstrates (β = –.407; p <.05), graduates of nonelite schools who possess a good lawyering narrative indicate performing significantly more hours of pro bono work during law school than other respondents. This suggests that students from nonelite schools tend to favor pro bono more when they associate it with increasing their legal skills and assisting them with their career. By contrast, elite law school graduates from Northern Law School see less of a need to focus on skill-building, and consequently do not approach pro bono in law school from this perspective. Moreover, respondents with a salient good lawyering narrative of pro bono are somewhat more likely to believe that they benefited from their mandatory law school pro bono experiences. A majority of respondents perceive themselves to have benefited from their mandatory pro bono work during law school, but as Table 3.3 demonstrates, the greatest benefits appear to be in the instrumental aspects of legal practice—that is, gaining an understanding of the legal system, acquiring useful legal skills, and developing professional contacts, as opposed to the more substantive traits

good lawyering and lawyering for the good 63

table 3.2 pro bono hours in law school—ols regression Model 1 β Intercept Nonwhitea Femaleb Agec Makes $100,000 or More per Yeard Liberal (political affiliation)e Moderate (political affiliation) Mandatory Pro Bono Hours in Law School Good Lawyering Lawyering for the Good Elite Law Schoolf interaction terms Good Lawyering* Elite L.S. Lawyering for the Good* Elite L.S. R-Square n = 202 ∼ −.014 .017 .024 -.096 .008 .036 .359 .314 .051 .180 — — .445 SE .175 .126 .095 .008 .097 .143 .126 .003 .025 .017 .302 — — Sig. *** β ∼ −.003 −.002 .017 −.091 .028 .053 .365 .504 −.110 .254 −.407 .294 .460 Model 2 SE .186 .129 .096 .007 .097 .144 .126 .003 .038 .028 .248 .050 .036 Sig.

*** *** *

*** ***

*

* p <.05, ** p <.01, *** p <.001 a Nonwhite respondents are coded 1, white respondents are coded 0. b Female respondents are coded 1, male respondents are coded 0. c Age is centered at the youngest respondent in the sample (i.e., 0 = 25, 1 = 26, 2 = 27, . . .). d Respondents who make 100,000 or more a year are coded 1, respondents who make less are coded 0. e Respondents who are conservative are coded 0, respondents who are either moderate or liberal are coded 1. f Respondents who attended elite law schools are coded 1, respondents who attended a nonelite law school are coded 0.

of promoting social justice, increasing one’s awareness of the legal needs of the poor, and developing a greater commitment to pro bono in legal practice (exp(b) = 1.60, p <.001; exp(b) = 1.52, P<.001). Regardless of the law school from which respondents graduated, those who feel they acquired a career boost through pro bono tend to report having benefited from the experience. Also, respondents with a “lawyering for the good” orientation who graduated from the elite Northern Law School described the experience as beneficial (exp(b) = 1.65; p <.05). Interestingly, as Table 3.4 suggests, although there is a greater tendency of the good lawyering narrative to be

64 private lawyers and the public interest table 3.3 benefited from law school pro bono—logistic regression Model 1 exp(b) Constant Nonwhite Female Age Makes $100,000 or More per Year Liberal (political affiliation) Moderate (political affiliation) Mandatory Pro Bono Hours in Law School Good Lawyering Lawyering for the Good Elite Law School interaction terms Good Lawyering* Elite Law School Lawyering for the Good* Elite Law School Cox & Snell R-Square n = 202
*p <.05, **p <.01, *** p <.001 See Table 3.2 for variable coding

Model 2 Sig. * exp(b) .403 2.27 .566 .966 .698 .886 1.61 .983 1.65 1.23 .109 1.09 1.65 SE .869 .771 .471 .039 .533 .662 .575 .012 .178 .122 1.43 .289 .210 ** Sig.

SE .843 .667 .451 .038 .534 .651 .577 .012 .127 .092 .682

.186 1.38 .608 .965 .586 1.054 1.26 .986 1.60 1.52 1.58

*** ***

*

.369

.368

associated with doing more pro bono and benefiting from pro bono during law school, those with a stronger normative orientation toward pro bono are significantly more likely to endorse the value of mandatory law school pro bono (exp(b) = 1.47, p <.001). Thus, those who view pro bono as promoting the greater good tend to be more amenable to the mandate of having to perform such work than are respondents who see pro bono primarily in instrumental terms. In addition, nonwhite respondents, compared to white respondents, report being significantly more in favor of such requirements (exp(b) = 3.72; p <.01).

the integration of pro bono in law school
Another way to assess the salience of one narrative over the other is through respondent perceptions of the integration of their pro bono experiences into the general law school curriculum. The survey asked respondents to rate their satisfaction in a

good lawyering and lawyering for the good 65

table 3.4 endorsement of mandatory pro bono in law school—logistic regression Model 1 exp(b) Constant Nonwhite Female Age Makes $100,000 or More per Year Liberal (political affiliation) Moderate (political affiliation) Mandatory Pro Bono Hours in Law School Good Lawyering Lawyering for the Good Elite Law School interaction terms Good Lawyering* Elite Law School Lawyering for the Good* Elite Law School Cox & Snell R-Square n = 202
* p <.05, ** p <.01, *** p < . . . 001 See Table 3.2 for variable coding

Model 2 Sig. *** ** exp(b) SE .010 4.28 1.26 1.05 1.14 2.26 1.38 1.01 .948 1.46 .311 1.33 1.06 1.01 .537 .388 .031 Sig. *** **

SE 0.931 0.495 0.372 0.031 0.396 0.556 0.513 0.01 0.098 0.076 0.535

.005 3.72 1.16 1.05 1.13 2.65 1.45 1.01 1.10 1.47 1.75

***

.161 1.33 1.21 .173 .168

**

.377

.387

variety of areas associated with their pro bono experience in law school, such as the quality of supervision received, the range of pro bono opportunities, the integration of the pro bono experience into the classroom, and the opportunities for client contact. Overall, the majority of graduates report moderate to high levels of satisfaction with the various features of the pro bono program at their law school. Respondents were most satisfied with the range of placement opportunities, the institutional process of selecting a pro bono site, and the level of responsibility and types of work assignments available in their pro bono placements. However, respondents indicate significantly lower levels of satisfaction with the integration of their pro bono experiences into general law school coursework. Nearly 70 percent were dissatisfied with the integration of pro bono learning into other law classes. It appears that for many respondents, although they believe that their pro bono experiences were beneficial and were a valuable part of their legal socialization, this experience did not translate into the classroom. As one lawyer commented, “law school offers limited opportunity for practical

66 private lawyers and the public interest

work; all students benefit from pro bono opportunities, but the school must take its obligation to pro bono seriously. There was very little opportunity to explore the relevance of the experience in my regular classes.” Another lawyer raised similar concerns about the disconnect between his pro bono experience and his law school classes: “Law school is an isolated process and most of its emphasis is to train for work in large firms. The reality of law practice is just the opposite. Pro bono opportunities expose one to how individuals present real life problems— not artificially created fact patterns. Unfortunately, pro bono experiences rarely made their way into classroom discussion.” Correspondingly, another commented that “my pro bono experience during law school was a fairly isolated, discrete experience and not integrated into my overall law school experience.” Another was disturbed that her pro bono experience was removed from her entire legal education: “The program was not rooted in the law school mission and appeared shallow, like a girl scout trying to earn a merit badge.” One strong supporter of mandatory law school pro bono expressed disappointment in noting that he “would have liked more structure, support, longer experiences and discussions about it in class. I felt it was short and limited, as well as an extra activity instead of a necessary or useful class.” Although many respondents were disappointed with the lack of attention their pro bono experience received in law school classes, this objection is not uniformly shared across all respondents. As Table 3.5 indicates, respondents who espouse a “good lawyering” narrative of pro bono are significantly more likely than are their “lawyering for the good” counterparts to be satisfied with the integration of their pro bono experiences in the general law curriculum (β =.313; p <.001). This difference may have more to do with the interpretation of pro bono work than with the actual difference in the incorporation of pro bono experiences in the law school curriculum. Perhaps those respondents who are oriented toward a skills-based, good lawyering narrative of pro bono implicitly made more connections to the practical aspects of doctrine and to practice-based instruction within the broader curriculum than did respondents who subscribe to a more normative view of pro bono as enhancing the public good. This seems to be the case especially for graduates of nonelite schools. Indeed, the interaction effect suggests that graduates of nonelite schools who possess a skills-based, “good lawyering” perspective report being significantly more satisfied with the integration of pro bono into the curriculum than other respondents (β =−.646; p <.01). Thus, not only did respondents with a public service orientation toward pro bono find little in the general law school curriculum that emphasized the values of social justice, concern for the legal needs of the poor, or encouragement to perform pro bono in practice; only respondents from nonelite schools with an orientation toward doing pro bono for skill-based and career reasons thought that their mandatory pro bono experiences had any bearing on their other law school classes.

and useful professional contacts.149 . Lawyering for the Good* Elite L. R-Square n = 202 * p < .S. ** p< .163 .646 .154 .028 . they do not exist with the same intensity.004 . For others.2 for variable coding Model 2 Sig.038 .089 .05.167 SE .000 or More per Year Liberal (political affiliation) Moderate (political affiliation) Mandatory Pro Bono Hours in Law School Good Lawyering Lawyering for the Good Elite Law School interaction terms Good Lawyering* Elite L.012 . As these data demonstrate.5 integration of pro bono experiences in law school—ols regression Model 1 β Intercept Nonwhite Female Age Makes $100. the narrative of good lawyering appears to have greater salience among respondents. a better understanding of how the legal system operates. pro bono work is primarily meaningful for the instrumental opportunities to develop skills. *** β ∼ . including the quality of supervision at pro bono locations. For some respondents.213 — — ∼ −.145 −.044 .078 .196 .099 −.068 — — .012 .good lawyering and lawyering for the good 67 table 3.004 .003 −.027 .213 . While both narratives are in evidence in a respondent’s emerging professional identity. *** p < . most respondents indicate being generally satisfied with the various components of their pro bono programs. In addition.193 .331 .197 .005 −. *** SE . pro bono work is intrinsically beneficial for the normative purposes of advancing social justice and acquiring an understanding of the needs of the less fortunate.179 .056 Sig.611 −.129 *** * *** *** ** discussion The findings of this research suggest that participants in mandatory law school pro bono programs develop distinct narratives of the meaning of pro bono: good lawyering and lawyering for the good.154 .004 −.313 −. the types of pro bono .147 . the range of pro bono opportunities.124 −.01.277 .290 .109 .069 −.223 .073 .S.199 .004 −.014 −.060 .385 .026 .222 .001 See Table 3.

appreciated the opportunity to employ their newly acquired legal talents. law students may come away from a pro bono experience with the notion that it was designed merely to promote increased skills and greater understanding of the legal system. The perceived lack of integration of pro bono experiences in the classroom was significantly greater for those who endorsed a lawyering for the good narrative as compared to those with a good lawyering narrative of pro bono. what is meant by pro bono and does it (and should it) relate exclusively to efforts that are designed to increase access to justice among the poor and marginalized? These are just a few of the inquiries for achieving a more comprehensive understanding the social role of pro bono in legal practice that are ignored by failing to integrate student pro bono experiences into the law school classroom. .68 private lawyers and the public interest assignments. by failing to engage students in classroom reflection about their pro bono experiences. opportunities to learn about legal practice. and the ease of the process. programs deny students opportunities to participate in critical discussions of the value of pro bono service for promoting the public good. potentially. Most respondents identified some limitations associated with requiring pro bono work. what is the value of traditional legal aid or other client litigation strategies of pro bono compared to broader notions of legal mobilization that include community empowerment. the level of responsibility. beyond. these do not appear to result from a general lack of interest in performing a public service in law school. an exclusive focus on this outcome misses the capacity for understanding how service and civic engagement can be useful ways to better comprehend the complexities of legal practice and broader questions about access to justice. and derived a sense of satisfaction that comes from helping people in need. Without greater integration into the classroom experience. opportunities for client contact. the number of required hours. affect the opportunities and strategies for pro bono? How can private lawyers doing pro bono develop relationships with public interest lawyers or social movement organizations to better advance the public good? Finally. or class-action approaches? Is pro bono work done by private attorneys an effective way to increase access to justice for poor and marginalized populations? What are the ethical complexities associated with lawyering for a pro bono case or cause? How does the social context of legal practice. Also. especially for those who are oriented toward broader conceptions of justice (Adcock in this volume). For instance. respondents were significantly more dissatisfied with the lack of integration of their pro bono experiences into the classroom. However. including the bureaucracy of firm practice as well as the demographics of the client base. The lack of integration of a respondent’s pro bono experience into the classroom may represent one of the greatest challenges of these programs. The respondents who participated in mandatory pro bono programs valued the opportunity for direct contact with clients. Although this might be one of the goals of mandatory pro bono. These data suggest that it is the good lawyering narrative that is most validated during law school and. economic development.

thereby introducing them to the techniques of client interviewing. Much of this report and its call for reforms in legal education focused on teaching students “how to learn systematically from experience and simultaneously [on educating] them in a broader range of legal analysis and skills than have traditionally been taught” (Pearce 2003:575). Many spoke directly about the impact of this experience on developing skills in working with people.good lawyering and lawyering for the good 69 Only a minority reacted negatively to their pro bono experiences. This message is consistent with the view that pro bono serves as a way to enhance legal skills in practice. although there are certain pedagogical benefits to gaining skills through pro bono. pro bono is seen as capable of helping young lawyers to “mature more rapidly through having responsibility in performing community legal services than they would in the structured setting of most law firms” (Katzmann 1995:11). This point was made a number of years ago in the 1992 MacCrate Report. in part. Does pro bono in law school produce good lawyering as well as an appreciation for lawyering for the good? Data from this study suggest that the good lawyering narrative has significantly greater salience and receives greater validation than does a lawyering for the good narrative. especially if such potential outcomes are given less purchase in law school. The mandatory pro bono experiences reported by the attorneys in this study would seem to reflect. and in drafting documents. the emphasis of the MacCrate Report. instead. The value of pro bono becomes not one associated with a commitment to the greater good but. Acquiring the mastery of lawyering skills cannot take place solely in the classroom. Respondents did believe they derived experiential skill-based benefits from engaging in pro bono legal services during law school. Such an emphasis on skills training associated with pro bono may potentially usurp the professional commitment to serve underrepresented populations. . the report attended more to the issue of narrowing the skill-based gap between law school and legal practice. and advocacy in a real-world setting. . Pro bono graduation requirements take note of this by giving students opportunities to assist organizations in representing clients. However. Most law schools market their pro bono requirements not solely on the basis of providing for the legal needs of indigent persons but also on the presumed benefits pro bono experiences have for enhancing skills and helping students to gain insight into the operation of the legal system. Since its publication. This emphasis on promoting skills through pro bono programs has not been lost on the law schools. opportunities to develop good lawyering skills are extremely important to legal education. work on fundamental skills” (Pearce 2003:583). in interviewing. counseling. Although it is certainly . in litigation experience. In this regard. “work on fundamental values has generated far less attention than . a technically rational one that emphasizes the value of pro bono for the individual lawyer or for his or her workplace. Despite its call to take up the “values” question in legal education. In terms of the socialization of law students. the obvious concern is that this emphasis might trump the normative question regarding the purpose of pro bono to advance justice and provide greater access to legal representation.

presenting public service purely in terms of skill or individual reputation may lead to an erosion of the normative impulses of pro bono and. as opposed to pursuing partnerships with groups of constituencies or communities in need of legal assistance that require different skill-sets and greater time commitments (White 2000). not necessarily to learn that there is a large segment of society that has limited access to health care and that physicians might have an ethical responsibility to redistribute medical services downward. The value of law school pro bono experiences and the potential for pro bono to contribute to greater social justice remained underexamined during respondents’ law school careers and undoubtedly remain unproblematized in legal practice. the finding that respondents with a lawyering for the good narrative of pro bono were especially critical of the lack of integration of their pro bono experiences into other law school activities suggests a similar dynamic. graduates . Indeed. such an outcome may need to be channeled. If pro bono comes to be defined primarily in ways that benefit individual lawyers or their workplaces. Distinct “communities of practice” produce variations in lawyers’ identities and consciousnesses (Mather et al. many have argued that being exposed to poor and marginalized populations during law school is critical to “humanize” the law as well as to articulate the inherent inequality within society and in the legal system. especially graduates of the elite law school.70 private lawyers and the public interest the case that many of the lawyers. As Rhode (in this volume) argues. had a lawyering for the good perspective on pro bono and believed that it was beneficial to be exposed to the problems of the poor and other marginalized populations. 2005). potentially compromises its broader societal objectives. and neither was it addressed when these respondents were in law school. then it is not surprising that lawyers will accept pro bono principally on their terms. how this experience benefited them personally or professionally was not immediately apparent. in most of these cases. one-shot pro bono strategies that help build skills that are translatable to their regular cases. and supported more broadly in order to facilitate a more expansive view of justice (Davis 2004). nurtured. In fact. these findings are consistent with general conclusions regarding the social structure of the legal profession (Heinz et al. However. However. Perhaps this is why law students develop “reasonable” narratives of pro bono (Schleef 2006). Such an emphasis may also encourage lawyers to pursue more conventional. Lawyers’ visions of pro bono ideals and practice are not uniformly distributed across the profession (Granfield 2007a). In this study. the poor are simply “medical cases” for the young physician to learn medical procedures. 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 of and commitment to pro bono. Finally. For example. The purpose is to build skills. perhaps signifying to the respondents as law students and now as lawyers that these issues are not important in the long run. medical students often do internships and residencies in inner-city hospitals where they provide services to the poor. 2001). Ironically.

John. Richard (2002) “What Does It Mean to Practice Law in the Interests of Justice? Choosing. Training. Edward Laumann. Heinz. as Dinovitzer and Garth (in this volume) demonstrate. DC: Brookings Institute. By contrast. American Bar Foundation and NALP. New York: Routledge. mostly as a means to acquire useful skills and enhance their careers. Dolovich. Dinovitzer. ——(2007a) “The Meaning of Pro Bono: Institutional Variations in Professional Obligations among Lawyers. Robert Nelson.” report prepared for the Law School Admission Council. elite lawyers are able to derive benefits from the symbolic value of pro bono lawyering for the good in ways that nonelite lawyers are not.” 88 American Journal of Sociology 855–885. Davis. (2002) “Stricture and Structure: The Social and Cultural Context of Pro Bono in Wall Street Firms. Newtown. Nurturing. Chicago: University of Chicago Press. Washington. Perhaps then. ——(2007b) “Institutionalizing Public Service in Law School: Results on the Impact of Mandatory Pro Bono. Scott (2004) “The Politics of Pro Bono. Gergen. (2004) After the JD: First Results of a National Study of Legal Careers.” 70 Fordham Law Review 1689–1698. Kenneth (1998) “Narrative. Susan (2002) “What Does It Mean to Practice Law ‘In the Interests of Justice’? Ethical Lawyering and the Possibility of Integrity. references Abbott.” 70 Fordham Law Review 1629–1687. Cummings. and Rebecca Sandefur (2005) Urban Lawyers: The New Social Structure of the Bar.” 41 Law and Society Review 113–146. Elite law school graduates were motivated primarily by a noblesse oblige ethic of contributing to the greater good (Garth 2004). Abel. Chicago: American Bar Foundation.” 73 Fordham Law Review 903–925. Moral Identity and Historical Consciousness: a Social Constructionist Account. PA.” 52 UCLA Law Review 1–149. nonelite lawyers viewed pro bono in more instrumental ways.” unpublished manuscript. Cynthia F. Robert (1992) Making Elite Lawyers: Visions of Law at Harvard and Beyond. Epstein.” 41 Houston Law Review 93–111. and Placing Public Interest Law Students.” 54 Buffalo Law Review 1355–1412.” 9 American University Journal of Gender. Andrew (1983) “Professional Ethics.” 70 Fordham Law Review 1563–1571. Bryant (2004) “Noblesse Oblige as an Alternative Career Strategy. Martha (2004) “Access and Justice: The Transformative Potential of Pro Bono Work. ——(2006) “The Pedagogy of Public Service: Assessing the Impact of Mandatory Law School Pro Bono on Young Lawyers. Katzmann. Social Policy and the Law 129–170. Rob (2001) “Historical Perspectives on Pro Bono Lawyering: A SocialDemocratic Critique of Pro Bono Publico Representation of the Poor: The Good as the Enemy of the Best. Garth. Ronit et al. Atkinson. Granfield.good lawyering and lawyering for the good 71 held significantly different attitudes about pro bono in law school and in practice according to the law school they attended. . Robert (1995) The Law Firm and the Public Good.

Scheingold. Stover. Wilkins. Stuart and Austin Sarat (2004) Something to Believe In: Politics. ——(2004) Access to Justice. Menkel-Meadow. Sheldon (1968) “Identity Salience and Role Performance. New York: Oxford University Press.” 4 Journal of Marriage and the Family 558–564. Lucie (2000) “Pro Bono or Partnership: Rethinking Lawyers’ Public Service Obligations for a New Millennium.” 38 Gonzaga Law Review 215–235. Mather. New York: Oxford University Press. ——(2006) Managing Elites: Professional Socialization in Law and Business Schools.” 41 Houston Law Review 1–191. White. Cause Lawyering: Political Commitment and Professional Responsibility. John (1991) “Mandatory Pro Bono at Tulane Law School. Norman (1998) “The Prophet and the Bureaucrat: Positional Conflicts in Service of Pro Bono Publico. Stanford: Stanford University Press.” 23 Pace Law Review 575–597.” 50 Stanford Law Review 1395–1434. Stets. Jan and Peter Burke (2000) “Identity Theory and Social Identity Theory.” National Association for Public Interest Law Connection Close-up. Deborah (1992) “Ethics by the Pervasive Method. Pearce.” in Austin Sarat and Stuart Scheingold. Debra (1999) “Empty Ethics and Reasonable Responsibility: Vocabularies of Motive among Law and Business Students. Robert (1989) Making It and Breaking It: The Fate of Public Interest Commitment during Law School. Urbana.72 private lawyers and the public interest Kramer.” 22 Law and Social Inquiry 619–650. Southworth. ——(2000) “The Pro Bono Responsibilities of Lawyers and Law Students. Treuthart. New York: Oxford University Press.” 63 Social Psychology Quarterly 224–237. ——(2005) Pro Bono in Principle and in Practice: Public Service and the Professions.. Lynn et al.” 42 Journal of Legal Education 31–56. Ann (2005) “Conservative Lawyers and the Contest over the Meaning of Public Interest Law. Schleef. Professionalism.” 52 UCLA Law Review 1223–1278. Spaulding. 1–2. Mary Pat (2002) “Weaving a Tapestry: Providing Context Through ServiceLearning. September 30. Stanford: Stanford University Press. Lantham: Rowman and Littlefield Publishers. Russell (2003) “MacCrate’s Missed Opportunity: The MacCrate Report’s Failure to Advance Professional Values. . David (2004) “Doing Well by Doing Good? The Role of Public Service in the Careers of Black Corporate Lawyers. (2001) Divorce Lawyers at Work: Varieties of Professionalism in Practice.” 50 Journal of Legal Education 134–146. IL: University of Illinois Press. Carrie (1998) “The Causes of Cause Lawyering: Toward an Understanding of the Commitment of Social Justice Lawyers. Stryker. eds. Rhode.” 27 William Mitchell Law Review 1201–1215. and Cause Lawyering.

the practice of pro bono publico Legal pro bono publico has been described as “a professional duty discharged outside the normal course of billable practice to provide free services to persons 1.4. schmedemann introduction 1 Three social psychologists who have spent decades studying volunteerism depict volunteering this way: “[P]eople participate in volunteer work in the face of substantial obstacles—it is effortful. The chapter concludes with recommendations for law schools seeking to prime their students to perform pro bono. unpaid. . . More specifically. the Minnesota Center for Survey Research. it is time consuming. the Minnesota Justice Foundation. and Professor Ronald Anderson of the University of Minnesota. This chapter discusses the influence that one major element of the legal profession—law school—may have on new lawyers’ decisions to engage in pro bono. These observations fit legal pro bono publico well. time-consuming. . priming for pro bono The Impact of Law School on Pro Bono Participation in Practice deborah a. Many thanks to the following. whose lives and values have driven my interest in figuring out why people help each other. if not often. empathy and compassion. for example. my deepest thanks go to my family. The findings reveal that both affect a lawyer’s decision to pursue pro bono work in practice. my colleagues (deans included) at William Mitchell College of Law. trying (Gocker in this volume). The chapter draws on the social science literature on volunteerism and community service learning and presents findings from surveys of over 1. it is work and work performed on an unpaid basis. “Pro-social” in this paper means an orientation toward assisting people in one’s community. the Minnesota Office of Higher Education. effortful. indeed. each of whom made this chapter possible: the participants in the Baldy Center conference that gave rise to this book—in particular Robert Granfield and Lynn Mather. pro bono work is. and it involves interactions with strangers. which funded the research. 1996:485–486). . [S]ome volunteers engage in work that is clearly trying” (Clary et al. and sometimes. and such attitudes include. the chapter examines two facets of legal education as it relates to pro bono work: (1) participation in a law school pro bono program and (2) the development of pro-social attitudes during law school.000 lawyers and law students. On a personal level.

and 50 percent disagreed (188). Pro Bono in Principle and in Practice. To date. The American Bar Association (ABA) has considered. As of the ABA’s April 2007 survey. providing free services to people of limited means is the more important of the two. but each revision has inched a bit closer to a mandate (ABA 2008. and estimated by Rhode to be three times that of the bar as a whole. . 15 percent were undecided.681 lowincome people for every legal aid attorney.16). 35 percent of the Chicago lawyers agreed with the idea. a quarter were neutral. its model rules have not gone so far as to require pro bono. Low-income households experience two to three important legal needs per year.74 private lawyers and the public interest of limited means or to clients seeking to advance the public interest” (Cummings 2004:4). depending on their practice settings. The average number of pro bono hours per year for the respondents was 70—heavily skewed by the 230-plus hours of award winners. obtained data regarding pro bono participation in 2000 from 844 lawyers who had graduated from one of six elite law schools. how frequently do lawyers engage in pro bono service? Six major recent studies of the incidence of pro bono reveal wide variation in both participation and attitudes over time and across sectors. Pro bono increasingly plays a critical role in the provision of civil legal assistance to America’s poor (Sandefur 2007 and in this volume). In view of the ABA and state standards. there are 6. fewer than ten called for a financial contribution. 43 states had rules or policies based on Model Rule 6. Twenty states had adopted the 50-hour standard. from none for corporate counsel and government lawyers to 3. or received a major pro bono award or worked for a firm that received that award. see Granfield and Mather in this volume for text of Model Rule 6. When asked whether lawyers should be required to perform or fund pro bono. Urban Lawyers: The New Social Structure of the Bar reports the results of a 1994–1995 wide-ranging study of Chicago lawyers in various types of practice (Heinz et al.5 hours per month for solo practitioners (131). Deborah Rhode’s study. Rhode concluded that “the average for the bar as a whole is less than half an hour a week” (1). Respondents spent varying amounts of time per month on pro bono work. Two-fifths of the respondents were satisfied with the amount of time they spent performing pro bono. At the same time. and understandably so. or worked at one of the country’s largest firms (Rhode 2005). a lawyer’s involvement in law reform activities may effectuate systemic change more effectively and efficiently than individual representation. reported in her 2005 book. 2005).1). a third were dissatisfied (143). indeed fiercely debated. Six states required or provided for voluntary reporting. For many lawyers. pro bono several times during the past 40 years (Maute 2002:91). based on media and bar reports (128).1. compared to 525 people per attorney for the general population (Legal Services Corporation 2005:11. and seven afforded Continuing Legal Education (CLE) credit for pro bono work (ABA 2008).

The survey revealed that 66 percent of the respondents performed tier one pro bono. and 14 percent did no pro bono work in the past year. 69 in Granfield’s study and 77 in the ABA report—many lawyers do no pro bono work at all.1. 39 hours of tier one and 38 hours of tier two work (11–13). an additional 18 percent performed tier two pro bono. 1382) with an average total of 69 hours per year (1384). 37). such as free services to other entities and reduced-rate services. these studies document a gap between the Model Rule’s 50-hour aspiration and actual practice.priming for pro bono 75 Similarly. an additional 2 percent did other work meeting the lawyer’s personal definition of pro bono. The average number of tier one hours performed during the preceding year was 41 (55 when looking only at attorneys performing tier one work) (12–13). based on a 2004 survey of 1. Respondents in private practice participated at twice the rate (73 percent) of corporate counsel (35 percent) and government lawyers (33 percent) (12). Ninety-three percent of the respondents believed that pro bono is something lawyers should do (20). The respondents were asked about their satisfaction with various facets of their jobs. at the other end. Lawyers in private practice participated at a higher rate (81 percent) than lawyers in corporate (43 percent) and government (30 percent) settings (10). In August 2005. Approximately 70 percent of the respondents performed at least some pro bono in their current job (1381. with opportunities for pro bono ranking 15th out of 16 facets (49). Less than one-fifth wanted more opportunities for pro bono work (35). The ABA followed up with a survey conducted in 2008 (ABA 2009). Although the average number of hours may be encouraging—for example. Tracking the ABA Model Rule 6. That survey found that 73 percent of the lawyers provided some type of tier one pro bono. Hence the question in this study: can law school foster participation in pro bono among new lawyers? . Taken together. on average. One-third of the respondents reported performing non–tier one pro bono. Respondents performed. a joint effort of the National Association for Law Placement (NALP) and the American Bar Foundation (ABF) revealed wide variation in pro bono participation rates: at one end. the survey differentiated tier one pro bono—free legal services to people of limited means or organizations serving the poor—from tier two pro bono. The After the JD study. Robert Granfield’s 2004 survey focused on several graduating classes from three law schools around the country (Granfield 2007a). corporate counsel. the 81 percent of lawyers in very large firms who engaged in some pro bono performed a median of 45 hours per year. the 18 percent of government lawyers who engaged in some pro bono performed a median of 10 hours per year (NALP & ABF 2004:35. and academic settings in the United States (ABA 2005). and one-fifth reported doing no pro bono in the preceding year (vii). government.100 lawyers selected to form a representative sample of lawyers in private practice. the American Bar Association (ABA) Standing Committee on Pro Bono and Public Service released Supporting Justice: A Report on the Pro Bono Work of America’s Lawyers.

motivations. which. For many researchers. expectations. and expends considerable time and effort doing so (Omoto & Snyder 2002:847). Wilson (2003) recently identified three theories of volunteering behavior. identity concerns. how to encourage lawyers to perform pro bono. this study was built on the premise that pro bono is the legal profession’s version of volunteering. According to the socialization theory. neighborhood. resources and skills. volunteerism is a learned social norm. education. and performed for the benefit of a complete stranger. socializing agents include parents. In addition. remuneration (from none to low pay). and motives. seeks out an opportunity to do so. First. multifaceted phenomenon (Smith 1994). and as one in a cluster of helpgiving activities (Wilson 2000:215). provided within the structure of the legal system.76 private lawyers and the public interest insights from research into volunteering and community-service learning The purpose of this study was to understand legal pro bono through the lenses of research from two closely related areas of scholarship: volunteering and community service learning. that is. The human resources theory focuses on time. The social context theory focuses on social contacts within one’s family. Over the past four decades. and psychological communities. and education. volunteering is a complex. structure (from formal to informal). For example. to help others. One model of the antecedents to volunteering includes dispositional variables. which support as well as teach the value of volunteering (1466). and religious organizations. Cappellari and Turati (2004) recently documented that volunteers may be intrinsically . without prior obligation or commitment. one’s willingness to volunteer is affected by age. people to whom one feels a sense of attachment (1467–1468). income. and intended beneficiaries (from strangers to oneself along with others) (Cnaan et al. schools. that is. religiosity and other belief systems. and attributes of the volunteer organization. group. volunteering covers a wide range of activities understood along four dimensions: choice (from free will to obligation). serves over an extended period of time. economists’ attention has focused on the benefits volunteers and donors consider as they seek to maximize their utility. situational factors and social pressure. The interesting issue as to legal pro bono is the matter of choice. To social scientists. personality differences. 1996). and income (Wilson 2003:1466–1467). Recently. or organization. such as its reputation (Penner 2002. Sociologists see volunteering as an activity in which time is freely given to benefit another person. research on volunteering has been multidisciplinary. such as pro-social personality (a combination of other-oriented empathy and helpfulness). when activated. leads to assuming the role of a volunteer.” in which the volunteer chooses. Legal pro bono is free. Social psychologists see volunteering as “a distinctive form of prosocial action. Penner & Finkelstein 1998). prior experiences. and existing social support affect participation rates (Omoto & Snyder 2002). Other researchers have similarly found that demographics.

and adult experiences of active membership in religious and community organizations. 1999. identified four clusters of positive outcomes associated with community service learning: personal values. In brief. Eyler and colleagues. Freeman (1997). taking a rather different approach. the key to why people volunteer is that they are asked and feel social pressure to participate. Littlepage and colleagues. actually. Furco 2003). Sax & Astin 1997). Astin. such as participating in a youth group. Hodgkinson (1995) identified the impact of childhood experiences. citizenship skills. Along the same lines. A second premise of this study is that law school pro bono is legal education’s version of community service learning. “other-oriented” people volunteer (Hodgkinson 1995:36–40). comparing students who did and did not participate in service learning. Researchers have identified a wide range of personal. surveys. Relying on the data from Independent Sector surveys. voluntariness. She also found that people who agree with the following statements volunteer at high rates: one has a moral duty to help those who suffer. voluntary behavior. and extended interviews. social. 1997. objectivity . and experienced lawyers participated in the study. as well as their development of a sense of empowerment—that is. That is. in part to foster students’ positive attitudes toward community service and ongoing involvement in their communities (Eyler & Giles 1999. new lawyers. seeking no reward but the activity itself. it is in one’s power to improve the welfare of others. Sax. or both. seeking other compensation. the view that individuals can change society (Astin et al. and perceptions of social justice (Eyler et al. Most of the findings reported here derive from surveys. Law students. This research involved both qualitative and quantitative methods. Eyler et al. and social problems can be overcome with volunteer time and effort. with features aimed at obtaining reliable and meaningful data: anonymity. Research into community service learning provides insights into civic engagement. extrinsically motivated. Rather. research design The data used in this chapter were wide-ranging. 2005).priming for pro bono 77 motivated. community service learning combines community service with academic study of a related field. and colleagues have studied participants in student learning over time and documented growth in their commitment to helping others and participating in community activism. and career outcomes for students participating in community service learning (Eyler et al. citizenship confidence. including focus groups. a general concept that encompasses public service in various disciplines and professions (Battistoni 2002). academic. 2003). 1997). determined that volunteering is not. studying award-winning volunteers. identified public service motivation as a correlate of volunteering (Littlepage et al.

and many lawyers carefully plan their future commitments such as pro bono. As for political ideology. The 2006 data captured more than the lawyers’ intentions: roughly half of 2006 had passed when the respondents filled out the questionnaire. The pool of respondents consisted of just over 1. and 8 percent in other settings. and selection of respondent pools so as to avoid bias.1 and the ABA’s study.100 graduates.g. public defender. and other government law offices. 20 percent in a government setting. the remainder were born between 1965 and 1980. including judicial clerkship.. or perform legal research for advocacy groups in areas such as disability and environmental law. respondents were asked to categorize their hours based on the categories reflected in Model Rule 6. These graduates could receive recognition for performing 50 or more hours of public service during law school. Through the college’s Law School Public Service Program (LSPSP). students had many volunteer placements from which to choose. Respondents were asked to report the number of hours of pro bono they performed in 2005 and the pro bono hours they projected for 2006. Sixty percent of the respondents were female. Respondents were asked to report their pro bono participation in hours per year. all under the tutelage of a supervising lawyer. 13 percent in a law-related position (e. The statistical analysis presented in the findings section identifies factors that correlate with the performance of pro bono legal work. the work had to be done for no fee or a substantially reduced fee. 6 percent in a solo firm. To qualify. legal services. Roughly one in five were born before 1965. 420 individuals returned surveys for a response rate of 39 percent. One of the study’s major purposes was to assess the impact of the LSPSP on new lawyers’ participation in pro bono. tax accountant). and all 420 surveys were returned by July of that year. Category A encompassed legal services to people of limited means and legal services to organizations that 2. The Main Survey of New Lawyers The main survey involved William Mitchell College of Law graduates from the years 2001 to 2004. 16 percent in large firms (over 25 lawyers). help low-income people fill out their tax forms. . The survey was distributed in May of 2006. the respondents depicted themselves as follows: 25 percent conservative. They could. reasonable time spans to be recalled. and 47 percent liberal.78 private lawyers and the public interest in phrasing of questions. 40 percent male. 27 percent middle-ofthe-road. use of well-developed questions from previous research. The respondents were employed in a wide variety of practice settings: 27 percent in small firms (up to 25 lawyers). interview women seeking protection from abusive spouses. work for which the respondent intended to but did not collect a fee did not qualify as pro bono. including not working. 6 percent in corporate legal staff. for example.2 Moreover. The survey encompassed two years because pro bono participation may vary from year to year.

civil liberties. and 7 percent had 30 to 37 years of experience. . in the spring. This pool was roughly 40 percent female. 42 percent male. 60 percent male. civic. governmental. 45 percent had 10 to 19 years. In the following discussion.priming for pro bono 79 address the needs of the poor. Students in this class had not yet discussed pro bono in class.3 Three additional surveys were used for this research. If there is no designation for access or civic. Musick. Their years of legal experience varied: 20 percent had 5 to 9 years. the remainder between 1966 and 1981. participation in a pro bono program 3. general results Sociologists Janoski. legal services to other charitable. about discussion of pro bono in their first-year courses. This pool was 55 percent female. community. Experienced Lawyers Seventy-five lawyers teaching as adjunct professors in the college’s extensive skills program completed a questionnaire covering their experience with pro bono. or the legal profession. the correlation is for combined pro bono.4 This pool was 58 percent female. This chapter refers to the results of these surveys for comparative data—for example. As described above. and activities to improve the law. The main survey revealed that. Category B encompassed legal services to organizations seeking to secure or protect civil rights. religious. or public rights. this study explores two separate dimensions of a lawyer’s decision to engage in pro bono work: the effect of pro bono participation during law school and the development of pro-social attitudes pertinent to pro bono during law school. “access” is used when referring to Category A pro bono activities. Professional Responsibility (PR) Students Two hundred and twenty-four law students in a required professional responsibility course completed a questionnaire focusing on their pro bono intentions. law students’ versus new lawyers’ attributions regarding the cause of poverty. Sixty percent were born before 1965. or educational organizations. First-Year (IL) Students Three hundred and twenty-five first-year students filled out a questionnaire. the legal system. “civic” for Category B activities. and Wilson (1998) have demonstrated that both participation in service and socialization into pro-social attitudes during high school contribute to volunteering in middle age. for William Mitchell alumni. and “combined” for the total of the respondent’s access and civic pro bono hours. 4. 45 percent male. 28 percent had 20 to 29 years.

The question of which model of pro bono participation during law school best “primes” law students for pro bono in practice is of critical importance. An alternative to requiring service is providing an incentive to serve. and 55 percent of third-year students engaged in pro bono or volunteer work (Center for Postsecondary Research 2007). A key factor associated with volunteering is that most people want to control their own decisions and actions. Participation in law school pro bono programs is far from universal. . it does explore how individuals responded to a particular type of pro bono program. significantly influence. for volunteers who are intrinsically motivated. gently encourage. Rhode surveyed graduates at two schools with mandatory pro . reporting data from a survey of 27. college students who deemed it unlikely that they would volunteer without a course requirement had lower intentions to continue if their initial volunteering was required rather than a matter of choice. may draw some people to volunteer (the price effect). student participation in pro bono activities” (ABA 2007–2008). Although this study cannot answer that question. 1999). Rhode’s and Granfield’s research examined the impact of mandatory pro bono programs. An incentive. Participation in a Pro Bono Program Law schools are in an interesting position: they can require. especially if it is substantial enough.In general. Each of these findings is discussed in greater detail below.000 law students. Additionally. or merely permit students to engage in some type of law-related service (Adcock in this volume). For example. This effect is worrisome because intrinsically motivated people volunteer more than extrinsically motivated people. about 17 percent of first-year students. if a person who volunteers because she believes that she is a helpful person is provided extrinsic rewards for volunteering. attitudinal dispositions related to prosocial values correlated with pro bono involvement in practice. Law school pro bono programs are quite varied (Association of American Law Schools Pro Bono Project 2001. the intentions of students who would have volunteered anyway were little affected by a requirement to serve (Stukas et al. she may volunteer less in the future because her self-image as an altruistic person has been undermined (Wilson & Musick 1999). a person who does a task because of external constraints and mandates is unlikely to continue doing so when the external constraints and mandates drop away (Clary & Snyder 1999). .80 private lawyers and the public interest during law school was significantly correlated with pro bono participation in a lawyer’s current practice. According to the 2007 Law School Survey of Student Engagement. Adcock in this volume). receiving the extrinsic incentive may dilute their intrinsic motivation and prompt them to volunteer less (the crowding-out effect) (Frey & Goette 1999). Stated another way. 37 percent of second-year students. The American Bar Association’s accreditation standard now requires a law school to “offer substantial opportunities for . however.

Additionally. In recent years. one out of five reported that law school dampened their interest in pro bono (156). with some students performing many more hours than required. In general. First. half of the respondents indicated that their law school pro bono affected their commitment to pro bono in practice (1378–1379). Nonmandatory pro bono programs can be designed in several ways (Loder 2001). Some features of their . In exploring the impact of William Mitchell’s public service program. and improved their legal skills. including a transcript designation. Of the new lawyers who participated in the main survey. which coordinates volunteer placements for all four Minnesota law schools. 35 percent earned the 50-hour recognition. Alternatively. and 40 percent took a clinic course. Rather. the main survey adds to Rhode’s and Granfield’s work in several ways. the lawyers who participated in the survey practiced in many different settings. 86 percent of the new lawyers who participated in MJF placements indicated that their goals were met somewhat (34 percent) or to a great extent (52 percent). MJF has contacts with over one hundred organizations. Participation in William Mitchell’s optional pro bono program as students correlated with pro bono participation by the new lawyers. However. the focus can be narrowly drawn.priming for pro bono 81 bono programs. Additionally. Furthermore. the program is incentive-based rather than mandatory. Many respondents indicated that the pro bono program opened their eyes to poverty. and students may develop their own placements with the assistance of MJF. 39 percent did some volunteer work through MJF. about half of each graduating class has earned the 50-hour recognition. found limited effects of these programs (Granfield 2007a). a law school could provide incentives to participate. Service may be through a clinic or through a volunteer placement offered through the Minnesota Justice Foundation (MJF). two with well-supported voluntary programs. all respondents attended the same law school during the same several-year period. and two without pro bono programs (Rhode 2005). students viewed their experiences positively. the comparison is between students who did and did not participate in the public service program. Clinic courses have long been well regarded by students. there was no statistically significant correlation between a law school’s program type and pro bono hours in a lawyer’s early practice years (Rhode 2005:159–160). For example. lawyers who were required to perform pro bono in law school did not perform more pro bono in practice than lawyers who graduated before the requirements were established (1381–1386). a law school could simply afford students options for lawrelated volunteering. so differences from one school to another are not present. One out of five graduates indicated that law school had raised their interest in pro bono. Finally. Granfield. heightened their understanding of the legal system. in his study of graduates from three law schools with mandatory programs. Similarly. William Mitchell College of Law has chosen to offer options and an incentive: students who perform 50 hours of law-related public service are recognized in various ways.

Combined: 2005 F = 5. 2006 F = 5.095.05.11 These findings suggest that the nature of students’ experiences in law school pro bono is a significant predictor of pro bono participation in practice. 2006 F = 3. “civic” pro bono refers to work performed for organizations dedicated to social reform.01.01. These organizations can make their members aware of others’ needs. Civic: 2006 F = 4.5 Fifty-hour participation correlated with combined. p <. concrete ways to address those needs. that is.01. p <.827.103.012. lead members to construct situation-specific norms by internalizing justice and compassion. 2006 F = 9. and some with civic pro bono activities.624. p <. thus developing the sense of “we-ness” that is a central determinant of helping (72–73).7 Those who volunteered through MJF had higher rates of pro bono participation in practice.03. Moreover. p <. 9. 7. p <. apart from a pro bono program. As discussed earlier.10 Finally. the needy person may not be deemed worthy 5. p <. pro bono in practice. p <.252.8 participation in a discussion of broad social issues.671. p <.01. These effects of associational ties can be seen as deflecting the tendency to denigrate those who need help.654.02. p <.469. in particular civic. may significantly influence a lawyer’s pro bono participation (Hoffmann 2007).02.881.363.808.01.958. 8.03. A team of sociologists looking at volunteering through religious and voluntary associations found that “religious and associational ties move people through the helping decision process with appraisals that are weighted toward providing help” (Jackson et al. 11. an attitude that greatly dampens the impulse to help. Civic: 2005 F = 9.02.951. 2006 F = 8. and reveal that those in need depend on others. several factors of an MJF placement were associated with a lawyer’s current pro bono participation: courtroom representation. some with access pro bono.03. suggest realistic. p <. p <. . 1995:72).9 and reflection on one’s reactions. 2006 F = 6. p <. taking a clinic course correlated with access pro bono. Access: 2005 F = 2. Civic: 2005 F = 3. Combined: 2006 F = 5. 10. Research has suggested that when a person in need is viewed negatively or held to be responsible for his problems.6 Those lawyers who received recognition for having completed 50 hours of pro bono work in law school were significantly more likely to engage in pro bono in their current practice. Interestingly. 6. These associations may increase members’ circles of people with whom they psychologically identify. p <.04.02. 2006 F = 2. “access” pro bono refers to work representing poor and otherwise disadvantaged clients.01. p <.597.04. 2006 F = 9. Civic: 2005 F = 4. and “combined” pro bono is the sum of access and civic pro bono. Combined: 2005 F = 11.401. Pro-social Attitudes Law school in general.82 private lawyers and the public interest law school experiences correlated with combined pro bono. p <. p <. 2005 F = 9. any amount of volunteering through MJF was significantly related to combined and civic pro bono.

968. to understand and appreciate the perspective of the person in need (Batson 1998:290). p <. as not having caused his problem—than when the person in need is seen as causing his own problem. Rhode 2005:58–59. p <. Attributions Regarding Social Problems.12 Lawyers who attribute poverty to social causes had higher rates of participation in access pro bono. One way to minimize this derogation is to prompt the helper. Granfield found a statistically significant correlation between intensity of political beliefs and pro bono hours. This “just-world” perspective can be very powerful in influencing pro bono work. This suggests that attributing the cause of poverty or social problems to social factors. such as laziness.13 than those with individual-based explanations of poverty. should follow positively valued behavior. Similarly. with liberals performing more pro bono than conservatives (Granfield 2007b).04. Research on pro bono confirms these general findings on the attribution of blame regarding social problems. the present study examined the effects of various pro-social attitudes on pro bono practice. such as wealth.418. New lawyers who believe that social problems are best solved through institutional change reported higher levels of pro bono participation. mixing positive behavior with a negative outcome or vice versa produces inequity (Feather 1992). the political stance of new lawyers correlated with combined and access pro bono. To explore the impact of such views. Combined: 2005 F = 2. p <. one is much more likely to help when the person in need is understood to be innocent—that is. rather than individuals. liberals participated more than conservatives. as well as a correlation between political stance and pro bono hours.priming for pro bono 83 of assistance (Feather 1992. change would produce higher rates of pro bono participation in practice. Delaney & Russell 2005:24). should follow negatively valued behavior. p <. Access: 2006 F = 4. liberals see poverty as stemming from structural factors for which the poor are not responsible and therefore do choose to help and to support welfare (Weiner 1993). such that when a client continues to engage in behavior that the lawyer does not understand or evaluates negatively. In the main study for this chapter. 13.154.488. Andrew & Velasquez). 12. Access: 2005 F = 3. and favoring social. .01. such as hard work. a negatively valued outcome. rather than individual.01. willingness to engage in pro bono will likely decline (Gocker in this volume. Thus. Benard Weiner has identified two stances toward the poor: conservatives see poverty as controllable by individuals and choose not to help.05. the potential pro bono lawyer. 2006 F = 4. Implicit in this causation principle is equity: a positively valued outcome. Rhode found that “political commitment” correlated with the number of pro bono hours the respondents in her study performed (Rhode 2005:130). such as poverty.

Littlepage and colleagues (2005) found that volunteers possess public service and other pro-social attitudes (Perry 1996). Combined: 2005 F = 4. Attraction to policy-making: The give-and-take of public policy making doesn’t appeal to me. than those who believe that problems are solved by changing individuals.01.63 especially access pro bono.906. Scholars researching the impact of community service learning have focused on various dimensions of citizenship confidence and social justice (Eyler at al.500. Mean 4.27 2.440. The questions and the means from the main survey. 1997. especially civic pro bono.02. Only the community awareness measure correlated with pro bono participation.03. Access: 2005 F = 4. Compassion: I seldom think about the welfare of those I don’t know personally.15 Motivations. Self-sacrifice: Doing well financially is definitely more important to me than doing good deeds.03 3.01.81 2. are reported in Table 4. Community awareness: I have a good understanding of the issues faced by my community. Hodgkinson (1995) identified several viewpoints within a broader construct of other-orientation that characterized volunteers.809.01.36 3. p <. I am able to view events from different people’s perspectives. 2006 F = 4. p <. . Those lawyers who believed they had a good understanding of their community’s problems reported higher levels of participation in pro bono. 2006 F = 3.036.1. 2002). the survey questions measuring community orientation drew on measures developed in the field of community service learning and public service. Civic: 2005 F = 4. p <.98 3. Social scientists from various disciplines have examined how a potential volunteer values a volunteer opportunity.14 Community Orientation.04. 2006 F = 3. Combined: 2005 F = 5.340. Research indicates that an orientation toward other people is a trait shared by volunteers and involved citizens.955.84 private lawyers and the public interest table 4. 15.05. p <.01. p <. Moeley et al. p <. p <. Several of the major studies of 14. p <. Self-efficacy: I feel that I can have a positive impact on society. In the current study.360.1 item and means for community orientation among lawyers Survey Item Empathy: Most of the time. Six questions in the survey assessed a lawyer’s connection to other people. 2006 F = 11. on a scale of 1 to 5 (the last three questions were reverse-coded).

commitment to the community also mattered (Granfield 2007b:131–135). upholding a moral principle. followed by a “recognition and understanding of the needs of the poor” (ABA 2005:17). The questions and the means from the main survey on a scale of 1 to 5 are presented in Table 4.738. 2006 F = 3.priming for pro bono 85 legal pro bono have explored this topic. Clary & Snyder 1999). 1996. that is.19 16. p <. Access: 2006 F = 5. The current study explored pro bono motivations from the perspective of the social psychology literature on volunteering.2. Granfield found that lawyers engaged in pro bono largely for instrumental reasons. The questions used in the main survey were based on six Clary questions. 1996:501). and understanding (Clary et al. Two motivations pertinent to a pro-social orientation correlated with pro bono participation.915. 2006 F = 2. personal satisfaction derived from providing the service” as their major motivators of pro bono. social. seeking a career advantage (career) was associated with combined pro bono. . 1996:492). p <. enhancement. social. Four of the six motivations predict volunteering: values. which taps into six major motivations: values. 17. 19.585. career.991. social.01. 2006 F = 3. p <. and protective (Clary et al. p <. Rhode found that the most powerful influences were “a sense of satisfaction and obligation. then career and protective (Clary et al.270. principle. or group (values) correlated with combined pro bono. and understanding.18 and following the lead of people close to the lawyer (social) was associated with access pro bono. 2005 F = 5.02.01. together with the professional benefits or costs associated with pro bono work” (Rhode 2005:136). p <.17 In addition. Clary and colleagues developed the Volunteer Functions Inventory. especially access pro bono. Combined: 2006 F = 2. Working from a major wide-ranging survey about volunteering.03.02. understanding. 18. p <. and collectivism. Among the general population.16 Seeing pro bono as a way to gain a new perspective (understanding) correlated with access pro bono. then enhancement. Depending on the lawyer’s practice setting.” A leading researcher in the altruism–egoism debate about the essential nature of helping has suggested exploration of two additional pro-social motives: principlism. such as enhancing skills (large firms) and career advancement (solo practitioners). . Supporting a cause. 1998). the most powerful motivation is values. career.01. . Lawyers participating in the ABA study identified “a combined sense of professional responsibility and . benefiting a group (Batson 1998:302– 303). that is. The functional approach to explaining volunteerism posits that different people may perform the same task for different reasons (Clary et al.573. amended to refer to pro bono. The values question was changed in a second way: to add references to “principles” and “groups of people.

042. The new lawyers were asked to what extent they grew. One question in the main survey explored the perceived relationship between lawyer and client by asking how similar the lawyer was to his or her pro bono clients. This understanding may be aided or impeded by the lawyer’s sense of similarity or dissimilarity to the client. lawyers who saw little similarity were more likely to engage in civic pro bono. during law school. principle.02.01.824.21 Evolution in Attitudes.63 2. Mean 3.02. On the other hand. or group of people that matters to me. 2006 F=4. Civic: 2005 F=3. Social: Others with whom I am close place a high value on pro bono or volunteer work. Civic: 2005 F = 3. A larger percentage of law students than new lawyers adhered to the social-causes attribution and the social-solution attributions. p <.445. The law students enrolled in the professional responsibility class answered the two attribution questions.505.01. Access: 2006 F=4. The answers correlated with all forms of pro bono participation. p <.448.63 Similarity to Pro Bono Clients.20 Lawyers who saw themselves as similar to their clients were more likely to engage in access pro bono.042.464. Protective: Pro bono work helps me deal with my personal problems. with growth leading to participation in pro bono. It is a fair question whether the attitudes discussed here can or do change during law school. that is.01. Legal pro bono. The degree of similarity perceived by the lawyer correlated with access pro bono. Combined: 2005 F=4. In the largest 20.62 3.” and two-thirds chose “somewhat” or “to a great extent. Thus.” one-quarter chose “a little bit. p <.87 3. p <. Understanding: Pro bono work allows me to gain a new perspective on things.22 Comparisons of the responses to some of the questions across the various respondent groups suggest that these attitudes may evolve during law school. Roughly 7 percent chose “not at all.01. entails a relationship of trust between the lawyer and the client.02. p <.37 1. Career: Pro bono work will help me succeed in my career.02. I can do something for a cause.641. this relationship requires the lawyer to deeply understand the client and the client’s situation. p <. in their capacity to contribute to the welfare of their community. p <.” . the attributions that correlated with participation in pro bono.53 2. 21. 2006 F=3. Enhancement: Pro bono work helps me feel better about myself. as well as in practice. especially service to people of limited means. a lawyer’s sense of similarity to her clients should correlate with pro bono participation. p <.86 private lawyers and the public interest table 4. Access: 2006 F = 3. 22.2 item and means for motivations among lawyers Survey Item Values: Through pro bono work. 2005 F = 3.

the respondents identified the group. the only community orientation factor that correlated with pro bono participation. First. they may well continue to participate. like all research. the two pro-social motivations. Thus. has certain limitations. and experienced lawyers. Furthermore. The findings reveal the impact of both participation in service and socialization into pro-social attitudes. as well as participation in a pro bono program. or principle they valued. values ranked first. discussion and implications This study. but their impulse to help is the same. The surveys were all snapshots. commonly chosen principles were equality and fairness. for all groups. to one law school. If the lawyers’ experiences are within their control. While the number of respondents was high. New lawyers rated themselves higher than did the students on awareness of needs in one’s community. For all three respondent groups. roughly 20 percent of the responses were categorized as causes. commonly chosen causes were civil liberties and environmental protection. The responses covered many social concerns: commonly chosen groups were battered women. and 54 percent of experienced lawyers listed groups. The first-year law students answered the community orientation questions. they were all connected. children. the results offer insight into key questions about how law school may “prime” new lawyers to perform pro bono. the results reported here suggest that pro-social attitude development. and 29 percent of experienced lawyers listed principles. and the poor. motivations grounded in values and a desire to gain new perspectives. To explore the values motivation more. They are likely to participate in pro bono if they hold the same other-oriented worldviews that inspire nonlawyers to volunteer: social attributions regarding the causes of and solutions to poverty. Taken together. For all three groups. immigrants. ranked in the top three motivations for pro bono. Three groups answered the motivations questions: first-year students. lawyers’ training and profession provide tools for helping not available to nonlawyers. two-thirds of students held the social-solutions attribution. and awareness of community needs. the most striking insight gleaned from the results is that lawyers are much like nonlawyers when it comes to volunteering and service to community. this was not a longitudinal study. values and understanding. can an incentive-based law school pro bono program influence participation in pro bono in practice? . directly or indirectly. But the relative proportions of groups and principles varied: 73 percent of law students. new lawyers. can contribute to the new lawyer’s participation in pro bono in early practice. 65 percent of new lawyers. From a theoretical perspective. 9 percent of law students. compared to half of the new lawyers.priming for pro bono 87 gap. 13 percent of new lawyers. cause.

This instruction. Therefore. Unfortunately.88 private lawyers and the public interest Participation in William Mitchell’s program did increase the rate of pro bono involvement in practice. clinic participation correlated with pro bono. This is in part because of the opportunity offered by clinic participation for students to process and reflect on their clinical experiences. Two features of MJF placements that correlated with pro bono in practice were reflection on one’s reactions and discussion of broad social issues. the following attitudes correlated positively with pro bono participation: a liberal political stance. From the standpoint of preparing law students for pro bono in practice. Community service learning is built on integration of the service into a course to assure this processing. and indeed all elements of a pro bono program. respondents were asked to identify several types of training or other support they would like from a pro bono program. practical implication of this study is to teach law students about the situations of people in need in the students’ community. . especially when participation is optional. visiting the neighborhoods where pro bono clients live and work. engaging in a simulation of poverty or physical disability or language barriers. yet it still increased pro bono participation in practice. Second. The lesson of this study is that pro bono programs that place control in the hands of the student can contribute to future participation in pro bono. within but also outside a pro bono program. Third. students may not desire this education. only one out of ten chose education or information about the lives of pro bono clients. and so on. This suggests that new lawyers are unlikely to seek out such information for themselves. and the perception of one’s own similarity to pro bono clients. are there themes that law school should emphasize to “prime” new lawyers to perform pro bono? Based on the data from this study. should avoid downplaying civic pro bono. which features of a pro bono program make for successful outcomes in practice? The results of this study document the importance of students’ reflecting on their pro bono experiences during law school. there are differences between access and civic pro bono. Not surprisingly. motivation to engage in pro bono to have a positive impact on a social cause and to achieve new perspectives. making the need to provide this education in law school all the more critical. In both the main survey and the PR survey. These results confirm the value of participation in a pro bono program. volunteering through a nonlegal program. Note that the processing included both the personal (reflection on one’s reactions) and the political (discussion of social issues). This may be because at least some placements involved opportunities for law students to process their experiences. the views that poverty results from social causes and that a change in social institutions is the solution to social problems. The MJF program was extracurricular and optional. as did participation in a clinic. Any amount of law-related volunteering during law school increased pro bono participation in practice. reading nonlegal studies of the pro bono clients’ concerns. an awareness of the needs of one’s community. Options abound: reading or hearing stories. one clear.

org.html. working on a committee seeking change in the foster care system is of broader impact.org. “The Just World Theory” http://www. Gilbert. RI: Campus Compact. Sax. Andrew. (2002) Civic Engagement across the Curriculum: A Resource Book for Service-Learning Faculty in All Disciplines.” http://www. his answer to that question would approximate that of a classmate: “Principle: that all people deserve a voice in the legal system.” http://abanet. Batson.1: Historical Timeline. American Bar Association Standing Committee on Pro Bono and Public Service (2009) “Supporting Justice II: A Report on the Pro Bono Work of America’s Lawyers. wrote: “I don’t have one. Most intriguing. and Juan Avalos (1999) “Long-Term Effects of Volunteerism during the Undergraduate Years. principle. and Gardner Lindzey. Lorenzo and Gilberto Turati (2004) “Volunteer Labour Supply: The Role of Workers’ Motivations. or perhaps they saw the value of work on a policy level or through an organization. Linda J. both should be considered in devising an academic program that includes pro bono elements. One such first-year student. Providence. Alexander W. eds. American Bar Association Standing Committee on Pro Bono and Public Service (2005) “Supporting Justice: A Report on the Pro Bono Work of America’s Lawyers. Astin. Both types of pro bono matter.edu/ ethics/publications/iee/v3n2/justworld. both can contribute to the welfare of one’s community. Richard M. New York: McGraw-Hill Companies. Group: all underprivileged people. Perhaps the latter sought some distance from pro bono clients for personal reasons. Claire and Manuel Velasquez.org. Fiske.”22 Review of Higher Education 187–202.abaprobono. Representing one child in foster care is critical to that child.” references American Bar Association (2007–2008) Standards for Approval of Law Schools. Some students may come to law school not only novices in the law but also inexperienced in the challenges some in our society face. whereas taking a clinic correlated with access pro bono. whereas new lawyers who saw themselves as dissimilar to pro bono clients performed civic pro bono. C. II Handbook of Social Psychology 4th ed.abaprobono. Susan T. Battistoni. when asked to identify a cause.. Attributing poverty to social causes and favoring social solutions correlated with access pro bono. Development of ABA Model Rule 6. Cause: equality. Daniel (1998) “Altruism and Prosocial Behavior.” 75 Annals of Public and Cooperative Economics 619–643. new lawyers who saw themselves as similar to their clients performed access pro bono. Association of American Law Schools Pro Bono Project (2001) A Handbook on Law School Pro Bono Programs. American Bar Association Standing Committee on Pro Bono and Public Service and Center for Pro Bono (2008) “State-by-State Pro Bono Service Rules. Cappellari.” http:// www. community awareness with civic pro bono. .priming for pro bono 89 Volunteering through MJF correlated with civic pro bono.” One hopes that by the end of law school.scu.” in Daniel T. but if I did I might volunteer. or group of value.

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92 private lawyers and the public interest Weiner. John (2000) “Volunteering. CA: Sage Publications.” 62 Law and Contemporary Problems 141–168. John and Marc Musick (1999) “The Effects of Volunteering on the Volunteer. ——(2003) “Volunteerism. Wilson. Thousand Oaks.” 48 American Psychologist 957–965. Wilson. .” in Encyclopedia of Community: From the Village to the Virtual World 1465–1470. Bernard (1993) “On Sin versus Sickness: A Theory of Perceived Responsibility and Social Motivation.” 26 Annual Review of Sociology 215–240.

part ii economic perspectives on pro bono in legal practice .

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Montreal. Other countries extend subsidy for civil legal services much farther up the income distribution. 2001.1. I am grateful to Steve Boutcher. Regan 1999. see generally Abel 1985). Among many other services provided in this way are subsidized civil legal services. April 2008. Scott Cummings. resting on the work of three distinct groups of lawyers: those funded by the federal Legal Services Corporation (LSC). Bob Granfield. or civil legal assistance. sandefur introduction 1 In the United States. . I thank Jane K.” For example. and those who volunteer in organized 1. for those who cannot afford market rates. U. and participants at both conferences for helpful comments and thoughtprovoking conversations. One aspect that contrasts with many other Western welfare states is the United States’s limitation of legal aid to those designated as poor. American-style civil legal assistance has two distinctive qualities that are clearly apparent when it is compared with the legal aid systems of other countries. A second aspect is U. legal aid’s typically American structure. NY. those working in legal aid societies that do not receive LSC funding. transitional housing for people moving out of homelessness and into stable housing is provided in this way (Barrow & Zimmer 1999). civil legal assistance is like that of a threelegged stool. Marwell 2004). revealed in Figure 5. Buffalo. Katz 1996:283–334. see generally Abel in this volume. Research was supported in part by Stanford University.S.S. many services that facilitate people’s participation in our common life are provided through markets or. May 2008. as is the distribution of surplus food to hungry people (Barrett 2002). Ohgami and Patricia Seo for research assistance. as is temporary accommodation and counseling for women seeking safety from battering partners (Roberts & White 2007. Earlier versions of this paper were presented at the Baldy Center Conference on Private Lawyering in the Public Interest. lawyers’ pro bono service and market-reliant legal aid rebecca l . Zemans 1996). Jeanne Charn. Regan 1999.5. The structure of U. Lynn Mather.S. and the Annual Meetings of the Law and Society Association. Bureau of the Census 2007. Quebec. through a combination of public and private sources of labor and of public and charitable funding—so many that this model of provision might be termed “American-style. currently a bit less than 17 percent of the population (Houseman & Perle 2003. well into the middle classes in some cases (Paterson 1991.

in whole or in part. the LSC distributed around $331 million to its grantees. It does not provide services itself. When measured in money rather than person-hours. although the LSC funds many legal aid organizations. What data do exist suggest that in 1997—the only year for which national data on organized civil pro bono programs are available—lawyers donating their time in these programs provided somewhere between a quarter and a third of the total full-time equivalent attorneys available to staff the legal aid system (Sandefur 2007:85). around half of them face at least one problem that raises civil legal issues (Consortium on Legal Services and the Public 1994:Table 4-1).96 private lawyers and the public interest Civil pro bono programs Legal aid society staff LSC staff figure 5. little information is available about the American legal aid system that exists to meet that need or demand. but rather is a granting agency funded by Congress that responds to locally initiated proposals for providing civil legal services to the indigent (see Houseman & Perle 2003. Kilwein 1999). In 2005. private contributions to American-style civil legal assistance are also revealed as substantial. and surveys suggest that. the majority of the money received by those organizations does not come from the LSC. by the federal Legal Services Corporation. Instead. . Figure 5. 1996 Source: Computed from Sandefur (2007:83–85) pro bono programs that exist expressly to provide poor people free or reduced-fee assistance with their civil legal problems (Sandefur 2007). As the left two bars of the figure reveal. and legal aid societies not receiving lsc funding: usa.2 presents one perspective. The two left bars of the graph report the monies received in 2005 by legal aid organizations that were funded. that money represents a mix of state and local government and private sources of funding. The LSC is the centerpiece of Americanstyle civil legal assistance. an amount on the order of $58 million less than the funds LSC grantees received from other sources (Legal Services Corporation 2006). Roughly 50 million Americans are eligible to receive civil legal aid services. Yet despite this evidence of considerable need or demand. in any given year.1 estimated shares of full-time equivalent civil legal assistance lawyers provided through civil pro bono programs. lsc-funded programs. Johnson 1999.

2007) The two right bars of the graph report estimates of the monetary contribution to civil legal aid that is represented in lawyers’ pro bono service. 0. because some lawyers who were listed as program volunteers may never have actually provided any clients with services . U. in millions of dollars: usa. Here. services are valued by an estimate of what lawyers would have collected if they had been selling their usual services to their usual clients rather than donating services in pro bono programs. The second estimate is closer to what pro bono clients would have had to pay if they had bought the services on a private market instead of receiving them for free. this estimate of pro bono’s value reflects the market value of the lawyer who is donating his or her time. 2008). For 1997. 2005 Source: Compiled by the author from American Bar Association (2004. The estimates of pro bono’s value are computed by calculating average receipts to the legal services industry per lawyer. a number about 0.) Value of pro bono services (est. In a sense. Bureau of the Census (2004.S. In 2005. and multiplying that quantity by the estimated number of full-time equivalent (FTE) lawyers participating in organized civil pro bono programs. 2008).) figure 5. Both measures of pro bono’s value may overestimate the monetary contribution of lawyers working in organized civil pro bono programs.900 FTE civil legal aid lawyers. and individuals.2 Estimating pro bono’s 2. this measure estimates the market value of the services pro bono clients receive. Sandefur (2007:97 and n. The measure of the value of services donated is computed by calculating average receipts from individuals per lawyer. and then multiplying that quantity by the estimated number of FTE pro bono lawyers.3 percent of the lawyer population would have been around 3.2 selected sources of subsidy for civil legal assistance: funding received by lsc-funded organizations and estimated market value of pro bono service. The first estimate evaluates lawyers’ pro bono as hypothetical lost revenue. The first measure of lost receipts averages across private-practice lawyers providing services to all kinds of clients—businesses.3 percent the size of the total lawyer population that year.lawyers’ pro bono service and market-reliant legal aid 97 700 600 500 400 300 200 100 0 LSC grants Non-LSC funds received by LSCfunded organizations Value of pro bono lawyers’ time (est. government. 17) estimates that lawyers’ pro bono service provided about 2. Legal Services Corporation (2006).312 attorneys (computed from ABA 2004.

2005:159–164). 1986).S. Maute & Hill 2003). In 1996.1).3 civil legal assistance–eligible population per full-time equivalent civil legal assistance lawyer by source. 1997 (a) Provided by LSC funding. despite its imprecision. usa. as revealed in Figure 5. other legal aid societies and pro bono figure 5. Bureau of the Census 2007: Table 6. close to twice the amount of money appropriated by Congress for civil legal aid. having been developed in the early days of the Office of Economic Opportunity Legal Services Program. .g. The measure is inexact for a number of reasons. see generally Economides et al.98 private lawyers and the public interest 16000 14000 12000 10000 8000 6000 4000 2000 0 LSC LSC and other legal aid societies LSC.. (b) provided by LSC-funded and other legal aid societies. the need measure has the advantage of a long history.S. so estimating pro bono’s value as donated services places its contribution at a substantially lower level. The legal services purchased by individuals are usually much less expensive than those purchased by organizations (Heinz et al. However. However. (c) provided by LSC and non-LSC legal aid societies and lawyers’ participation in organized civil pro bono programs: 1997 Sources: Computed from Sandefur (2007) value as foregone revenues places its contribution to American-style civil legal assistance at around $624 million.3. even this more conservative estimate of the monetary value of pro bono services places it at around three-quarters (74 percent) of the total Congressional appropriation to the LSC. Bureau of the Census 2004:Table 3). around $246 million. e. among the most basic being that neither the population of eligible potential clients nor that of serving lawyers is distributed evenly throughout the country (Sandefur 2007. The measure used here indexes need by the size of the population eligible for subsidized service. the forerunner of the contemporary LSC (Johnson 1999). the LSC funded roughly one (see. Lawyers’ donated labor makes a notable difference in the amount of legal aid available relative to need. Data for revenues from the private practice of law come from the Service Annual Survey (U. Information about the share of total revenues collected from clients who are individuals comes from the 2002 Economic Census (U.

000 people in the country eligible for that lawyer’s services (Sandefur 2007:83). by extension. Conflicts of interest can emerge when a pro bono client has a problem that involves one of the volunteer lawyer’s actual paying clients. and the local LSC-funded legal aid office (Maute and Hill 2003:395. Once an estimate of the number of lawyers working in these organizations is incorporated. For example. Pro bono clients. factors that affect the supply of pro bono labor can thus.lawyers’ pro bono service and market-reliant legal aid 99 full-time equivalent (FTE) attorney for every 14. n.g. volunteer lawyer labor and markets for lawyers and their services The organized pro bono programs in which lawyers may participate take a dizzying variety of forms. One could produce alternative estimates of the relative value and contribution of different sources of funding and labor for civil legal assistance.. A whole parallel world of legal aid exists among organizations that do not receive any funding from the Legal Services Corporation. or when a pro bono client’s problem pits him or her against the same kinds of clients that a lawyer serves for pay (see below. Given the extent of reliance on pro bono. with individual programs themselves often partnerships between public and private entities (for a description of some of these models. The thesis of this chapter is that the importance of volunteer labor renders American-style civil legal assistance market-reliant in ways that are predictable and can be demonstrated empirically. . affect the supply of civil legal assistance.000 or so eligible people nationally (Sandefur 2007:85). 113). Gocker in this volume). A third supply of civil legal assistance comes from organized civil pro bono programs that exist expressly to bring the labor of volunteer lawyers together to serve the civil legal problems of poor people (see. the now-defunct Oklahoma City Volunteer Lawyer Center (VLCenter) was a partnership of an ecumenical church group. and societies that could not get or did not want LSC funding. the VLCenter ran six Saturday clinics during the 2001–2002 school year. a local law school.3 could come in for appointments that included 3. e. but the point illustrated would be consistent across them: lawyers’ pro bono work in organized civil pro bono programs contributes substantially to the legal services available to indigent people facing civil legal problems in the United States. legal aid societies that provide services that the LSC is not permitted to fund. At a downtown church. see Cummings 2004). pp. including many law school clinics. Taking account of lawyers’ service in these kinds of organized civil pro bono programs further reduces the ratio to 1 FTE legal aid lawyer for about every 5.000 eligible people (Sandefur 2007:84). 103–104). the ratio of FTE legal aid lawyers to eligible clients drops to 1 such attorney for about every 7. a handful of individual churches. prescreened for conflicts of interest with individual volunteer lawyers. a few local business and civic groups.

Twenty-five years ago. No contemporary national survey exists that reports on pro bono work for the whole American legal profession. but lawyers were asked about what fields of law they worked in.967 lawyers. an estimated two-fifths (41 percent) of the total pro bono hours served in organized pro bono programs that delivered civil legal services to poor people came from lawyers who worked in large firms. Estimates are weighted to correct for differential sampling probabilities (Hirsch 1993:Table 5). in fact. much of the pro bono that came out of the private-practice bar was produced by lawyers in larger firms. I restrict the analysis to respondents who reported little or no work in criminal law (see Sandefur 2007:97). Twenty-five years ago. . The pro bono work that contributes to organized civil legal assistance is not. Information about lawyers’ pro bono service in 1984 comes from the National Survey of Lawyers’ Career Satisfaction. The questions about pro bono did not distinguish criminal from civil pro bono.100 private lawyers and the public interest advice and might lead to representation (Maute & Hill 2003:401–404).” The shift in the content of services to be provided occurred not in response to an assessment of local legal need. but this is not the case. 119). The recent flurry of attention to law firm pro bono might encourage the belief that these organizations have only recently come to play an important role. The estimates I present are for the 1.073 respondents who answered the survey questions about their pro bono work and reported little or no practice in criminal law (5 percent of their time or less). but because founders realized “that different religious values” among churches supporting the VLCenter “made pro se divorce a more controversial topic” (Maute & Hill 2003:397. In order to get an estimate of specifically civil pro bono work. Cummings 2004). It collected surveys from 2. Originally. in 1984.” One of the most important groups of organizations controlling the supply of volunteer labor is multilawyer private-practice law firms. Findings from a 1984 survey of American lawyers reveal that about 18 percent of lawyers participated in organized pro bono programs that delivered civil legal services to poor people (Sandefur 2007:97). a nationally representative survey of American attorneys in that year (Hirsch 1993). as today.9 percent in a stratified random sample (Hirsch 1993: Table 4). achieving a response rate of 76. but an excellent source of information about young American lawyers’ activities is the After the JD study (AJD). but by the law firms in which they worked. n. which at that time were firms with more than 20 lawyers. The AJD is a 4. and much was donated not by individual lawyers.4 Available evidence suggests that large law firms continue to supply a great deal of labor for organized civil pro bono programs (see Boutcher in this volume). This change in focus illustrates a central point made by Daniels and Martin (2009:3) in their study of large-firm pro bono in Chicago: the access of people of limited means to legal assistance “may depend heavily on the interests of those who control [its] supply. but the founders changed this focus to “consumer counseling. the focus of the clinic’s work was to be pro se divorce. primarily an activity of individual lawyers: it is also substantially an activity of lawyer-employing organizations (Boutcher in this volume.

Among respondents to the AJD. 2004:Table 4. 36 percent of young attorneys who did pro bono work reported that all of that work was done on billable time. . The After the JD survey is the first longitudinal survey of American lawyers. That is. that is [her] firm . but by the firm that pays that lawyer to do pro bono work. about 17 percent of attorneys who did pro bono work reported that all of that work was on the clock (see Feathers and Levin.” but did not ask for any information about where those hours were served. and these big firms provide a lot of volunteer labor. almost threequarters (72 percent) came from lawyers working in firms of more than 20 lawyers. The organizations in which lawyers work were 25 years ago and are today playing an important role in subsidizing their lawyers’ donated time. Among lawyers in firms of more than 100 attorneys. was not compensated but these hours were considered by [her] employer as a legitimate part of [her] total hours worked.” The firm did not get paid. A majority of young lawyers in private practice reported doing some kind of pro bono service (Dinovitzer et al. given other research (Boutcher in this volume.) The AJD survey does not provide information about where lawyers served their pro bono time. conducted in 2003. estimates are weighted to correct for differential sampling probabilities. Large firms today are much larger than they were a quarter century ago. 2004:90). 2004. Respondents to the After the JD survey were asked whether their total pro bono hours were “billable time” (fully compensated). for illuminating discussions of how attorneys in smaller firms bear the costs of their own public service work. Effectively. Cummings 2004). Among lawyers in smaller firms.lawyers’ pro bono service and market-reliant legal aid 101 nationally representative sample of lawyers who became eligible to practice law around the year 2000 (Dinovitzer et al. both in this volume.905 individuals in the main national survey represent a response rate of 71 percent (Dinovitzer et al.5 The AJD asked these young lawyers to report the total “hours of pro bono work they performed during the last twelve months. a substantial amount of this service came from lawyers in the largest firms. . In 1984. However. as was the case in the 1980s. and. but the lawyer did—by the firm. fully 85 percent of the total hours that private-practice lawyers served in pro bono programs that provided civil legal aid were on the clock. so that the lawyer was paid by his or her firm for all of the “volunteer” labor produced. The 3. “non-billable time” (uncompensated) or “a combination of billable and non-billable time” (partly compensated). the lawyer reported that these hours were worked as “part of [her] job. much pro bono labor is donated not by the lawyer who serves. Of the total pro bono hours contributed by young private-practice lawyers in 2002.3). 49 percent of total pro bono hours served by private practice lawyers came from lawyers in firms with more than 250 attorneys. The data I use in this chapter come from the first wave of the survey. . One sees a similar pattern among contemporary young lawyers. see also Dinovitzer & Garth in this volume). one can surmise that many of the hours currently donated to the organized pro bono 5.

professionals put their clients’ needs and the public interest ahead of their own bottom line (Parsons 1968. Identifying the ways that market interests can shape public service behavior provides a deeper understanding of how public service values are expressed in real-life situations. In this classical vision of professionalism. An important perspective on professional occupations such as law understands them as being crucially different from other lines of work. One interest is a wish on the part of the organizations that employ lawyers—for example. offices of internal counsel. individual lawyers’ reasons for doing pro bono work reflect many different values. and Schmedemann in this volume). Law Firm Interests and Lawyers’ Service Since organizations are substantially subsidizing lawyers’ volunteer behavior. law firms. Three kinds of market interests shape the context in which lawyers do pro bono work. The market-linked interests I outline below are not the only ones that shape lawyers’ decisions about how much public service work to do and which causes to do it for. including the values that bring people into the profession and the values that law schools try to teach through mandatory pro bono requirements (see Adcock in this volume. 2005. Granfield & Veliz in this volume. But no person’s values are expressed in a vacuum. organizations that employ lawyers to provide legal services have a number of interests that might be expected to affect their lawyers’ volunteer behavior. law firms are businesses that sell services in a market (Abel 1989). Among other things. in particular. as well as their own clients’ personal interests (Rhode 2004. The analysis that follows is not meant to exhaust the possible market interests at play. One can also be fairly confident that many of those hours are correctly understood as donations by law firms rather than by the individual attorneys doing the work. I then focus my empirical analysis on one. but to highlight three important ones and to suggest some of their potential consequences. and government . Lawyers. Insights gained from the study of what lawyers and law firms do and why they do it can aid us in designing policies that might encourage the expression of professional ethics in ways that bring greater public benefit. have a special concern for the public interest in their role as “officers of the court” (Gaetke 1989): they are ethically bound to consider the interests of justice. Seeking to further justice is one important reason that lawyers provide counsel and representation to people and to causes that would otherwise go unrepresented or unserved. and in this volume). Therefore. Legal services markets are one important context within which attorneys make choices about how to live out their ethical commitments in their professional lives as lawyers (see Dinovitzer & Garth in this volume). 1969).102 private lawyers and the public interest programs that provide civil legal aid come from lawyers working in large law firms. As other chapters in this volume show. they will likely play an important role in deciding how much labor will be provided and to what purposes that labor will be devoted.

Pro bono work affords opportunities for young lawyers to receive basic training.6 This concern is as old as legal aid under capitalism. Such conflicts emerge when a lawyer or a firm serves classes of clients whose group interests are opposed—for example. especially among organizations that get their revenues from the private market for legal services. if those lawyers are inexperienced. This is perhaps an obvious point. in continuing as viable economic entities. Part of how they try to achieve this is through offering rewards—pay. Galanter & Palay 1991. such as appearing in court to litigate. opportunities for promotion. Phillips 2001)—but they may also offer opportunities to do particular kinds of work. The desire to continue as a business likely means that some amount of surplus is necessary for a firm to donate pro bono services through subsidizing lawyers’ pro bono work.lawyers’ pro bono service and market-reliant legal aid 103 agencies—to recruit able lawyers and. Finally. but it has an important consequence. to do hands-on client service and court and tribunal work. and little of law schools’ core curriculum is related to the practicalities of doing lawyers’ work. Few law schools require clinical legal education. law firms have a basic interest in persistence. Newly minted lawyers also often lack experience in the practice of law. The opportunity to do pro bono work under supervision by experienced attorneys in organized pro bono programs can thus be both a recruiting tool and a means of equipping recruited attorneys with lawyerly skills. 1418). A limit exists on the amount of pro bono that will be subsidized. Daniels & Martin 2009). Organizations that employ lawyers usually want to attract and retain good ones. such as work that allows young lawyers to live out value commitments by serving causes that are important to them. credit card companies and consumer debtors. Interview studies in contemporary large law firms reveal that these firms sometimes try to avoid conflicts by proscribing firm lawyers’ work on volunteer projects that might offend paying clients (Cummings 2004:116–121. and reflects a desire to prevent positional conflicts of interest (Smith 1919). or to engage early in tasks they would not otherwise see until after several years of large firm practice. to find ways to train them. Law firms also use their participation in pro bono programs as a marketing tool with potential clients (Daniels & Martin 2009:13–16). . Another market interest. Law firms’ interest in business creation creates two concerns that may affect their lawyers’ pro bono participation. is in business creation. Law firms want to maintain their relationships with existing clients and often to cultivate relationships with new clients. or landlords and tenants. As one partner in a large firm reported apropos of positional 6. Positional conflicts likely have greater impact on the types of legal services provided to the indigent than on the amount of such services. First. and to have control of a case from start to finish (Cummings 2004. it is clear that law firms select pro bono projects with an eye to avoiding those that might antagonize existing or potential clients. sushi and massages (Browning 2007. Spaulding 1998:1414.

104 private lawyers and the public interest conflicts and selecting between potential pro bono projects. Providing free work can. limited issues—for example.g. it also wants to maintain a high price for the services it provides (Abbott 1988. some evidence suggests that lawyers’ pro bono service activity is sensitive to their concerns about encroachment onto their turf by other occupations. competing occupations defending themselves against charges of the unauthorized practice of law have argued that their services are needed because the high cost of lawyers’ services puts civil justice beyond the means of many ordinary Americans (e. If poor people go unserved by lawyers. The State Bar of Nevada). “other occupations—document preparers. the aggregated positional conflicts faced by local law firms may not restrict the range of civil-law troubles that pro bono can serve: one firm’s positional conflicts could be compensated for by another’s lack of conflicts in the same area of law.g. Nevada Lawyer 2005). However. Moore 2004:11–13). The profession wants to maintain a basic level of quality in legal services and to protect the public from unqualified or unscrupulous practitioners.. state legal professions have encouraged lawyers to do pro bono work both in the service of justice and in defense of professional boundaries (e. Larson 1977. then the supply of legal services for poor people facing problems with businesses in those industries (for example.. This finding suggests that pro bono service is today. Weeden 2001).g. In response to these challenges. To my knowledge. as it has . In response to these concerns. estate planners. “We [the firm] know what side our bread is buttered on. state legislatures have considered. act collectively to restrict the supply of services by restricting their production (Abbott 1988. perhaps seemingly paradoxically. The legal profession does not restrict supply only for selfish reasons. financial advisors. . because law firms may be unwilling to participate in pro bono projects that target the industries that pay their bills. certain matters involving immigration (e. An analysis comparing lawyers’ pro bono participation in 40 states found that lawyers participated in organized civil pro bono programs at higher rates in states where the legal profession was concerned that lawyers’ work was under threat from unauthorized practice by other occupations (Sandefur 2007). Friedson 1994). Greenwell v. if a local market is dominated by clients from a particular industry (for example. including law.” paralegals—“can step in to provide services at fee levels . If a local legal services market is fairly diversified. All professional occupations. Abel 1989.. problems with credit cards or utility bills or service) may be highly restricted. no empirical research has assessed the quantitative impact of positional conflicts on the types or amount of pro bono services provided. be a way to help lawyers keep control of the supply of legal services. it is also concerned about the public interest. An important means through which this is achieved in the legal profession is lawyers’ legal monopoly on the provision of legal services (Abel 1989). . social workers. Indeed. Abel 1989. and we stay there” (Spaulding 1998:1409). banking or energy). what amounts to the practice of law by nonlawyers for specific. that poor people can afford” (Sandefur 2007:88). At the same time. and sometimes approved. Second.

Legal Services Markets and Lawyers’ Pro Bono Service Evidence for the relationship between pro bono service and conditions in legal services markets comes from two sources: an investigation of state-to-state differences in lawyers’ rates of participation in organized programs delivering service to poor people. I found that market conditions—revenues per lawyer in the state and whether or not the state profession perceived threats from other occupations’ unauthorized practice of law—explained more than half of all that the models could explain about variation across states in pro bono participation. but they do constitute compelling evidence that the amount of available legal aid is linked to conditions in legal services markets. The costs of doing business likely place a limit on the amount of service any law firm or individual lawyer can afford to donate. “one way . The most elaborate model of pro bono participation across states explained about two-thirds of the total variance (R2 =. and an investigation of market-to-market differences in the average hours of pro bono produced by young lawyers. state professions’ attempts to encourage lawyers’ pro bono service. Defending the boundaries of the profession is a long-term project (Abbott 1988. Many factors—such as regional or national norms about how high partner profits or associate starting salaries should be.7 7.65). and that American-style civil legal assistance is consequently market-reliant. This information was linked to information about state legal professions’ concerns surrounding unauthorized practice. but it is a clear and powerful regularity. The data available are not sufficient to demonstrate a causal link. and when revenues are lower they produce less. which provided information about pro bono participation in 40 states (Center for Pro Bono 1998). . to reduce demand for less expensive service providers” (Rhode 2005:97). When revenues per lawyer are higher in a legal services market. and revenues in state legal services markets (Sandefur 2007). The specific values of these costs and of the related limits are neither natural nor self-evident. individual law firms must also make a sustainable living.lawyers’ pro bono service and market-reliant legal aid 105 long been. In the short term. In multivariate models that assessed the relative contributions of these different factors to cross-state variation in lawyers’ service. Abel 1989). as well as a firm’s bottom line—shape the amount of pro bono that any lawyer or law firm will be willing to do. The source of pro bono data was a 1997 survey of organized civil pro bono programs across the United States. producing profits sufficient to compensate partners and pay salaries for associates and other employed staff such as secretaries and paralegals. The level of legal aid funding in each state and . The state-level study compared the percentage of lawyers in each state who participated in organized pro bono programs that delivered civil legal services to poor people. . The relationship between revenues and public service is not some kind of economic law. the lawyers there produce more pro bono service.

the average number of hours that they served. the private practice of law) per employee in that industry for the specific market (e. Here. Minneapolis.9 the size of the state legal professions accounted for 9 percent of variation across states in lawyers’ pro bono participation rates. information about law . the content of state professional ethical codes dictating norms about pro bono service. and.65) of the variance explained by the most elaborate model (Sandefur 2007: Table 3). or 55 percent (=. Concrete and specific attempts to recruit lawyers into pro bono service—for example. In the After the JD study. and the revenues per worker in the legal services market in which he or she worked. These regression models were computed using weights to correct for stratified sampling.e.106 private lawyers and the public interest Market conditions explained more about variation across states in pro bono than did the size of state legal professions. Across states. My models predicted these two measures of participation as a function of two factors: whether the lawyer said that his or her pro bono hours were all billable (i. I investigated the amount of pro bono service provided by young lawyers working in private practice law firms across 19 different legal services markets included in the study. I modeled two different measures of young lawyers’ pro bono work: whether a lawyer did any pro bono work at all.39/.8 For the average state in the study. The measure of revenues comes from the Economic Censuses of the United States. and represents the receipts to the for-profit legal services industry (i. In comparison with state legal professions that did not perceive a threat of unauthorized practice. legal aid funding.g. such as the state of Oklahoma (Dinovitzer et al.. 9. the average state legal profession that did evidenced 7 percentage points more participation in organized civil pro bono programs (Sandefur 2007:101). These ranged from large urban markets such as New York City to markets smaller in terms both of the number of lawyers and of the revenues they collect. that the firm rather than the lawyer made the donation). or the state of Oklahoma). the existence of pro bono reporting requirements and the content of state professional ethical codes concerning pro bono bore no relationship to differences in state pro bono participation levels (see Sandefur 2007:89–93. The second analysis draws on the After the JD study. an increase of one standard deviation in receipts to the legal services industry per lawyer (about $24. lawyers’ participation in organized civil pro bono programs was strongly related to conditions in legal services markets. 2004).e.. New York City.000) was associated with an increase of almost 5 percentage points in the share of the state profession that participated in organized civil pro bono programs. 8. among lawyers who did pro bono work. Table 3). and state professions’ other aspirational attempts to encourage pro bono service. a statewide pro bono organization working with specific law firms to secure their attorneys’ participation in organized pro bono programs—were associated with higher rates of pro bono participation. However. and looks at pro bono work by individual lawyers.. while information about revenues and concerns about unauthorized practice accounted for an additional 39 percent of the variance.

lawyers’ pro bono service and market-reliant legal aid 107

Among young U.S. lawyers in 2003, I found that, on average, private practice lawyers in more lucrative legal services markets were no more likely to report doing any pro bono work than were those in less lucrative markets. However, among lawyers doing pro bono work, those working in more lucrative markets performed more service: an increase in market revenues of one standard deviation ($38,000 per employee in the legal services industry) was associated with a predicted increase of 11 hours of pro bono work by individual attorneys (p <.001). Law firm subsidy was also associated with increased pro bono service. Among lawyers who did at least some pro bono work, those whose service was fully subsidized by their law firm performed, on average, about 11 hours more pro bono work than did those whose pro bono service was only partially subsidized or not subsidized at all by their employers (p <.10). These are simple analyses, but they are also very suggestive. We know that many other factors affect pro bono participation besides subsidy and market conditions, but the findings from these two studies suggest that market conditions and law firm subsidy are significant factors shaping lawyers’ pro bono behavior. The evidence available is largely circumstantial. However, taken all together, it suggests that pro bono service—including that service that contributes to civil legal assistance—is linked to conditions in legal services markets. This relationship obtains, in part, because a lawyer’s individual service is reliant upon his or her organization’s subsidy: in many instances it is not individual lawyers, but their employers, that donate their time. Because pro bono service is powerfully related to conditions in legal services markets, and American-style civil legal assistance is substantially reliant on that service, one might fairly describe civil legal aid in the United States as market-reliant through its dependence on pro bono.

half full or half empty? goals and institutional design
Among the questions posed by authors in this volume are whether private practice lawyers are doing enough pro bono and whether they are doing the right kinds of pro bono (Rhode in this volume). These are important questions, but they are normative questions not amenable to sociological analysis. They are, in addition, distinct analytically from questions about what factors shape lawyers’ pro bono behavior and about the consequences of lawyers’ pro bono work. As other authors in this volume have compellingly shown, pro bono has become institutionalized in the large firm sector of legal services markets (Boutcher in this volume; Cummings 2004). It has also become institutionalized as a way of providing civil legal assistance (Sandefur 2007). The aim of this chapter has

firms’ subsidy of pro bono work is available only for attorneys who reported doing pro bono work.

108 private lawyers and the public interest

been to understand something of how these institutional arrangements work, and to identify some of the vulnerabilities they create—not for lawyers, but for people who rely on civil legal assistance. In the United States, civil legal assistance is significantly market-reliant. To characterize American-style legal aid in this way is an analytic description, not a normative evaluation. American-style assistance is substantially dependent on volunteer labor, particularly that of lawyers working in organized civil pro bono programs. This labor, in turn, is sensitive to market conditions, leaving U.S. legal aid market-reliant at the second order, in the sense that it depends for labor on sources of supply that are conditioned by market dynamics. Whether this state of affairs is desirable or undesirable depends upon one’s goals. If one’s goal is substantial volunteer activity by the private practice bar, then the glass looks half full. An enormous number of lawyers—perhaps as many as 200,000—participate in organized civil pro bono programs that provide civil legal services to poor people (Sandefur 2007). An even greater number of lawyers do other work that they themselves regard as public service (Rhode 2004, 2005). Whether or not their contributions to civil legal assistance are “enough” by some normative standard, they are substantial in sheer quantity and significant in their contribution to civil legal aid. If, on the other hand, one’s goal is a stable and reliable system of civil legal assistance that provides the services that indigent people need or want when and where they need or want them, the glass looks rather different, and the half-full/half-empty metaphor starts to fail as a description. One way to achieve the goal of adequate civil legal aid would be for government to fund an ample supply of qualified legal aid lawyers. The United States decided against this strategy over two decades ago (Abel in this volume; Johnson 1999; Kilwein 1999). The pro bono programs that exist today are in part a legacy of American lawyers’ response to cuts to U.S. legal aid in the 1980s and 1990s, specifically Congress’s dramatic reductions in federal funding for the LSC and imposition of restrictions on the services that LSC grants were permitted to support (Houseman and Perle 2001, 2003; Kilwein 1999). A heavy reliance on volunteers to provide an important public service is also, as noted above, a characteristically American-style way of getting the job done. Reliance on volunteerism has some potential strengths. For example, pro bono programs are independent from government in important ways that insulate them from the kinds of pressures faced by the Legal Services Corporation. Though these programs are affected by market conditions, their independence from government could potentially give them the capacity to be resilient and effective sources of civil legal assistance for poor people. Many of the parties whom the poor find themselves confronting are agencies of government: those that decide, for example, what wage and hour laws will be, or who will receive how much in Temporary Assistance for Needy Families (formerly Aid to Families with Dependent Children) funds, housing subsidies, social security

lawyers’ pro bono service and market-reliant legal aid 109

stipends, veteran’s benefits, and the like. Unlike LSC-funded attorneys, pro bono lawyers’ work is not funded by the same government that funds these agencies. Whereas Congress has substantially restricted the scope of LSC attorneys’ work—for example, these lawyers are not permitted to litigate for welfare reform—it has much less scope to directly restrict pro bono lawyering. However, whether pro bono’s potential to provide a reliable and resilient source of civil legal assistance can be realized depends upon the willingness of pro bono lawyers and the law firms in which they work to coordinate their activities and to direct their work toward areas of need, which may not correspond to areas of lawyer interest. The challenge of matching supply to need is not unique to the portion of legal aid that is supplied through pro bono. In important ways, American-style civil legal assistance is disconnected from its service population. Few civil pro bono programs spend many resources trying to ascertain what services their potential clients want or need. In part, this reflects market-reliance: the interests of important market players—businesses that buy legal services from large law firms and are concerned about positional conflicts, young lawyers sought by law firms who want to do pro bono work that is interesting, fashionable, and satisfying—drive some of what these programs do. But a lack of attention to what legal aid clients want is not unique to volunteer lawyer programs. Gathering the intelligence that would allow a systematic match between need or demand and services provided has never been a prominent component of American-style civil legal assistance. The central federal agency that funds civil legal assistance in the United States, the Legal Services Corporation, collects information about what its grantees do, but not about what its service population wants or about the problems that poor people actually experience (see, for example, LSC 2005; see generally Abel 1985). To the extent that the LSC sets the norms in American-style civil legal assistance, it models for other organizations and programs an indifference to the issue of matching the content of services to existing need or demand. In order to make this kind of match, we would require much better intelligence about the civil-law problems of the American public than we currently have. The last comprehensive national legal needs survey in the United States was conducted in the 1970s (Curran 1977); the most recent partially representative survey is at this point 15 years old (Consortium on Legal Services and the Public 1994). In contrast, other countries—for example, Canada, England and Wales, and Australia—have ongoing, government-based research programs that explore and document the legal problems of their publics (Currie 2007, 2009; Mulherin & Coumarelos 2007; Pleasence et al. 2006). This research, more sophisticated both methodologically and conceptually than the American tradition of legal needs studies, is used by governments to guide central legal aid policy (Moorhead & Pleasence 2003; Pleasence et al. 1999; Sandefur 2008, 2009). Given the differences in how these countries’ legal systems are organized, a good American system of legal intelligence collection would probably not import

110 private lawyers and the public interest

the commonwealth model whole-cloth. In the American context, provision of legal services is locally initiated; lawyers are licensed to practice by individual states; and many laws, codes, and regulations are determined at state or local levels. The different organization of our legal system means that we might want to organize the collection of information regionally or locally, to ensure that a given area’s providers could get information about the problems of their own, local clients. A variety of entities exist that could take on the task of coordinating intelligence-gathering, including the Legal Services Corporation or the Bureau of Justice Statistics. But whoever oversees the work, some kind of intelligence is necessary to match legal aid supply to need or to demand, particularly in the absence of a market from which to make inferences about what clients might want or could use. In addition to lacking any central intelligence function, the very design of American-style civil legal assistance creates challenges of coordination. Countries such as England and Wales provide legal aid through “judicare,” a system in which government pays private lawyers to provide services to people whose incomes make them eligible to receive civil legal assistance (Paterson 1991)—a model of provision in some respects similar to the United States’s Medicare program for providing health services. The budgets for judicare programs are centrally controlled and managed, and it is clear in these systems both who needs the intelligence about demand and need and who coordinates legal aid labor: the central government, which coordinates labor by deciding what kinds of lawyer services will be reimbursed and at what levels. The United States’s legal aid system is structured very differently, with labor and funding coming from a wide variety of sources, drawing on resources controlled by many different organizations, programs, and agencies. In contrast to the judicare countries, there is no central point where the American-style system comes together (Abel in this volume). If this basic structure for legal aid provision remains unchanged, one could look for potential points of coordination within the existing system. Good candidates include the major granting agencies that fund civil legal aid work and the programs that use lawyers’ pro bono labor, particularly state bar associations, Interest on Lawyers’ Trust Accounts (IOLTA) fund programs, and the Legal Services Corporation. As a term of their grants, these grantors could require grantees to provide services that local populations want or need—identified through intelligence-gathering—and to coordinate their services to prevent gaps or redundancies. This coordination would direct volunteer labor toward providing services that low-income Americans want or could use, but at a cost. This kind of coordination would require pro bono and other legal aid programs and the lawyers who serve in them to sacrifice some of the independence they currently enjoy. The changes proposed here presume a continued commitment on the part of Americans to American-style civil legal assistance: they are remedial rather

lawyers’ pro bono service and market-reliant legal aid 111

than radical. Although such innovations might soften the impact of market-reliance on the provision of legal aid services, they could not eliminate it. Recessions, such as the one we are in at the time of this writing, will reduce revenues to the legal services industry at the same time that they swell the ranks of the poor. The part of legal aid provided by pro bono may thus start to shrink at the same moment demand for legal aid begins to grow. Law firms that were deeply committed to public service could, for a time at least, keep staff idled by a recession occupied with pro bono service. But, whatever their value commitments or visions of professionalism, only firms that had in good times built up substantial surpluses would be able to donate labor for very long, and even those firms could not sustain this indefinitely. The market-reliance of American-style civil legal assistance creates a predictably unreliable system for providing civil legal aid. What could change this is not a revival of lawyers’ commitment to classical professional values, but a creative redesign of the institution of legal aid itself, taking effective and efficient advantage of the enormous pool of talent and commitment among contemporary American lawyers.

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This view posits pro bono work as a kind of “loss leader. scholars argue that members of the bar must be enlisted as part of a moral commitment to serve people who otherwise cannot afford legal assistance (Rhode 2005). pro bono as an elite strategy in early lawyer careers ronit dinovitzer and bryant g.6. From this vantage point. This perspective is especially relevant to exploring the dynamics of semi-autonomous fields such as law—spaces of competition involving “players” who compete according to the “rules of the game” of the field. In other words. Of particular interest according to this perspective is the social construction of the rules of the game within a .. a second literature recognizes pro bono as one aspect of market promotion (see Lochner 1975). These two general approaches—legitimacy and demand creation—can be assimilated into a Bourdieusian perspective on the legal profession. This is most trenchantly highlighted in Richard Abel’s (1988) work which demonstrates how legal aid in England and in the United States helped to build the demand for legal services.” Pro bono introduces clients to the potential advantages that come from legal services. the goal is to encourage more lawyers to provide more pro bono services. garth introduction The conventional argument for pro bono legal service—heard from the organized bar and scholars alike—is that lawyers have a moral obligation to perform such service. Rather than focusing solely on the demand-side for pro bono legal services. and at the same time it helps to sustain a network of referral business. in order to sustain the legitimacy of the bar’s monopoly. Pointing to the large unmet need for legal services. American Bar Association 1994) was part of an effort to build demand for lawyers as the key agents for solving problems that may have a legal component (cf. In contrast. lawyers must demonstrate a commitment to access to justice for disadvantaged individuals. Others build a parallel argument that lawyers are obligated to provide pro bono legal services because of the monopoly they are granted over the provision of legal services (Christensen 1981. work that emphasizes the beneficial economic consequences of pro bono demonstrates that the enterprise of providing free legal services is not separate from the business of making money and serving powerful clients.g. And it is equally demonstrated by the fact that the movement to document the unmet “legal needs” of ordinary Americans through systematic surveys (e. Sossin 2008). Blankenberg 1999).

and an actor who has internalized the rules of the game of the field will spontaneously orient his or her strategies according to these underlying stakes and principles (76–77. . in the mode of ‘it is stronger than me. serves to build the field while re-enacting and supporting the behavior that the field encourages and rewards (see review in Rhode 2005). it is not because they necessarily expect any reward in doing so—much less a financial one—or because there is any rational cost-benefit calculation on their part. “[i]n well-constituted societies of honor. . and do not question their merit (Bourdieu 1998:77). The voluminous literature on pro bono. the kinds of capital that are valued in the field. Yet if actors engage in “disinterested” activity. The notion of a field that makes disinterestedness a norm leads to the question of how that norm relates to the structure of rewards within the field. 83). activity in a particular field may be at the same time interested (as opposed to disinterested) and altruistic.” In Bourdieu’s (1998:87) terms. however. This behavior. Within a Bourdieusian framework. “[w]ithout doubt the social universes within which disinterestedness is the official norm are not necessarily governed throughout by disinterestedness: behind the appearance of piety. by participating in a field (such as law) where value is accorded to disinterested acts. It is not that all behavior is pure. Pierre Bourdieu’s 1998 lecture entitled “Is a Disinterested Act Possible?” provides a useful starting point to situate pro bono activity within the patterns of behavior of actors in the legal field. virtue. value. Indeed. in Bourdieu’s (1998:88) terms. agents internalize the importance. Again. finding that individuals indeed acted according to the norm of disinterestedness fostered within the field.” Bourdieu observed this behavior empirically. and altruistic acts. and the behavior of those who compete for success. there may be disinterested habitus. one does not merely counterpose altruism to selfishness.” There are those who passionately conform to what honor dictates with no expectation of reward. participation in some realms of social life requires actors to engage in what are apparently gratuitous. Rather.’ disinterested acts can be carried out. and expectation of engaging in these activities. “[i]f disinterestedness is sociologically possible. which assiduously proclaims the goodness of those who do pro bono work.” (87). is what Bourdieu (1977) refers to as “habitus. oriented toward the rules of the game of the field. Bourdieu indicates that actors may invest in such “disinterested” activity while doing so “in accordance with their interests” (83). and a feel for what might advance his or her position within the game. then. As a result. In contrast to the legal profession’s largely promotional and selfless view of pro bono. camouflaged interests . there are subtle. This orientation implies that the actor has a conscious or unconscious stake in the game. Such well-meaning lawyers are easy to locate in the world of pro bono legal services. He further noted that . and the habitus-field relationship is such that. disinterestedness. it can be so only through the encounter between habitus predisposed to disinterestedness and the universes in which disinterestedness is rewarded. in the form of spontaneity or passion.116 private lawyers and the public interest particular field. unprofitable.

large law firms with substantial resources and programs for the encouragement of pro bono are bound to generate more pro bono than firms that have no such programs (Cummings 2004. It is not just a matter. the division of labor within the legal field tends to reinforce social advantage and disadvantage (Heinz & Laumann 1982). as suggested in the preceding paragraphs. They need in the first place to build a demand for their services. They and their law firms. That means. They are judged within the profession as a whole. drawing on more general applications of Bourdieu’s theory to the sociology of law. It might therefore be hypothesized that in certain fields “it is better to seem disinterested. The rewards for altruism may be material or symbolic. Thus. however. Boutcher in this volume). that pro bono generally helps to legitimate a system whereby the overwhelming amount of resources work to sustain corporate power and clients with substantial economic means (Dezalay & Garth 2004. by conforming to the norm of disinterestedness. They may accrue to those who have internalized the norms of the field or to those who hypocritically advance by pretending to embody the universal norm.pro bono as an elite strategy in early lawyer careers 117 “[b]y ‘getting into line’ with the official norm. we posit that there is a division of labor within the legal field such that elites take the lead in promoting the ideals of the profession while also reaping the profits that come from those ideals (Dezalay & Garth 2004). as scholars have shown. Third. Cummings 2004). even though it still provides . the “pro bono” that takes place among solo and small-firm practitioners is more likely to be loss-leader marketing than pro bono in the large-firm sense. In this chapter. these individuals actually gained more economic reward than they would have if they had failed to act in a disinterested fashion. The strategy of investment in professional virtues is relatively more available to those who are socialized in the virtues of noblesse oblige and are in a position to implement the strategy (Garth 2004). of seeing what the incentives are for pro bono in different legal environments. they managed to add profits provided by conformity with the universal to profits that an ‘interested’ strategy provides” (89). the rank and file of the profession typically do not have quite the same orientation to those ideals. Similarly. because ordinary practitioners have to survive and make a living. Elite status is confirmed in part because of the enactment of legal virtue—and the apparent distance it provides from the pure commerce of providing legal services. according to a definition of pro bono that makes more sense in legitimating legal services to large corporate entities. Of course. Second.g. then. First.. we wish to draw on this theoretical perspective to better understand pro bono work in the legal field. Fourth. for example. compete to gain recognition for pro bono activity and public service (e. the legal field tends to be structured in order to reward those who work to sustain the legitimacy of the field as a whole. as generous and altruistic rather than egotistical” (89). to simplify a point that we will not develop here. Gordon 2008).

Louis. Pro bono is a career strategy that is rewarded materially and symbolically. the after the jd study This chapter relies on the first wave of data from the After the JD (AJD) study. . Those from higher socioeconomic backgrounds or their proxy. or an entire state. will express an orientation that predisposes them to pro bono service. a portion of a state outside large metropolitan areas.000 new lawyers (Chicago. Hispanic. IN. generalize to the national population. Lawyers in larger corporate law firms.118 private lawyers and the public interest services to individuals who cannot afford them (Levin in this volume. The sampling design used a two-stage process. with each unit comprised of a metropolitan area. The study is based on a sample representative of the national population of lawyers who were admitted to the bar in 2000 and who graduated from law school between June 1998 and July 2000. a national longitudinal survey of law graduates (Dinovitzer et al. the study included an oversample of 1. Below we describe a unique study of early legal careers that allows us to fully explore pro bono work within the context of the legal field. we analyze data from the sample that combines the nationally representative sample of lawyers and the oversample of minority lawyers. smaller markets (CT. 2004). The PSUs included all four “major” markets. DC). and elite lawyers more generally. New York. the nation was divided into 18 strata by region and size of the new lawyer population. Los Angeles. In the second stage.465 new lawyers from minority groups (Black. whether it is rewarded (or whether there is evidence of such rewards early in careers). the further questions we wish to explore involve who invests in pro bono. those with more than 2. and how that investment may relate to structures of hierarchy in the profession and society as a whole. 3. TN. Each stratum was then divided into primary sampling units (PSU). Lochner 1975. These questions can be loosely formulated into the following hypotheses: 1. individuals were sampled from each of the PSUs at rates that would. OR). Although prior work has provided us with the context from which to explore these hypotheses. Houston. Seron 1996). will be more likely to do pro bono work. San Francisco). In addition. Following our Bourdieusian approach. and one PSU was chosen within each stratum. For purposes of the present analysis. In the first stage. and nine of the remaining. Atlanta. The data we describe below certainly confirm these general findings.000 new lawyers (Boston. Minneapolis. These responses were weighted according to their appearance in the particular geographic region from which they were sampled. and Washington. 2. FL remainder. and Asian American). elite schools. those with between 750 and 2. combined. St. five of the nine “large” markets. UT. NJ remainder. OK. none of this work has been able to systematically address them.

with about 70 percent of these lawyers engaging in some pro bono work.15 28. 71 percent responded either to the mail questionnaire or to a telephone interview.1 pro bono hours by practice setting Pro Bono Hours (excluding zero) Mean Median Any or No Pro Bono Worked some Worked n0 pro pro bono bono 79.pro bono as an elite strategy in early lawyer careers 119 The final sample included 9.30% 41.21 261. for a total of 4.90% 23.50% 69. In these largest corporate law firms.10% 62.40% 50.50% 46.60% 49. respectively).58 30.00% 47.10% 76. lawyers working in legal services and nonprofits report the highest average hours of pro bono work (261 hours and 80 hours. lawyers performed an average of 73 hours of pro bono work in a 12-month period. the highest number of pro bono hours—as expected—is found among those working in the largest firms of over 251 lawyers. Unfortunately.27 20.00% 52.60% 56.70% 58.39 47.18 21. and another 8 percent were not eligible for the study.90% 78. Table 6.32 10 30 20 16 25 40 10 20 20 30 20 10 .90% 37.538 valid responses. Analysis We begin by offering an overview of the patterns of pro bono work in the AJD sample. Data collection was based on a mail questionnaire initially fielded in May 2002. about 20 percent of sample members could not be located.10% 21.51 80.40% 44. which is a full 26 hours more than the table 6.29 29. with nonrespondents followed up by mail and phone (with the telephone survey using a somewhat abridged version of the mail questionnaire).80% 16.29 73. but of the original sample members who were located and who met the criteria for inclusion in the study. Among those working in private law firms.1 outlines the distribution of pro bono by practice settings.10% Solo Private firm 2–20 Private firm 21–100 Private firm 101–250 Private firm 251+ Government Legal services or PD Public interest Nonprofit or education Business Other 46.20% 83.90% 20.192 lawyers in the 18 PSUs. It is not surprising to find that across the profession. though the data suggest that some of these respondents count their regular work hours as pro bono work.50% 30.50% 53.

News category of tier three graduates. It may be that graduates of the fourth tier are more committed to pro bono work (and we will explore this possibility further below) and will find ways to engage in public service even if their work settings do not explicitly promote or reward it.2): African American respondents engage in the most pro bono work per year (66 hours) and Hispanics (for no apparent reason) the least (37 hours). some may argue that this anomaly may be the result of market forces. Alternatively. Another constituency that reports fairly high levels of pro bono is solo practitioners.S. with almost 80 percent of these lawyers reporting that they do some pro bono work. In private law firms we find that pro bono hours decline as firm size declines. As researchers have noted for some time. News fourth tier law schools engage in more pro bono work than their counterparts from schools ranked 41st to 100th.g. Lochner 1975). and salary declining monotonically with law school rank. As we have shown elsewhere. with graduates of the country’s most elite law schools obtaining positions in large corporate law firms (Dinovitzer & Garth 2007). fourth tier graduates may be relying on pro bono to account for unpaid client bills or to build up their client base. Cummings 2004). lawyers for government).. Our prior analyses also indicated that the rank ordering of law schools is step-graded. or perhaps they are not getting as much responsibility and client work as they would like in law firm settings. and with the average solo practitioner engaging in 47 hours of pro bono service over 12 months.120 private lawyers and the public interest amount of pro bono work in the settings with the next highest averages (firms of 101–250 lawyers and solo practice). the nature of pro bono work for solo practitioners is quite different from that in corporate firms (Cummings 2004.2. there is a strong relationship between law school eliteness and the settings within which lawyers work. and because some lawyers in the public sector do not differentiate between their regular work and pro bono work. We begin by considering the relationship between law schools and pro bono service. but the AJD data do not differentiate across types of pro bono work. though it flattens out among the smaller and larger firms of between 2 and 100 lawyers. or are limited in their ability to provide pro bono services (e. This pattern of stratification follows almost perfectly through into the arena of pro bono service. Because the pressure to provide pro bono services is focused on lawyers in private practice (Boutcher in this volume. the average hours of pro bono peak at 90 hours for graduates of top-ten schools and decline to a low of 31 hours for the U. whereas women on average engage in about 4 more . working in a corporate law firm. As indicated in Table 6. with status indicators such as parental occupational prestige. This narrowing of our focus will allow us to hold private practice setting constant. the remainder of our analyses will focus on AJD lawyers who are working in solo practice and in private law firms. the anomaly is that graduates of U. The patterns of pro bono work by gender and race reveal some expected and some surprising patterns (Table 6. and to better explore who invests in pro bono and how that investment may relate to patterns of stratification in the profession.S.

00% 60. to the settings within which they work. and are gaining the skills and experience necessary to move elsewhere. Because practice settings are such strong determinants of participation in pro bono work. on the other hand. we also stratified the race and gender results by practice settings.pro bono as an elite strategy in early lawyer careers 121 hours of pro bono work per year than men (48 vs. especially in large law firms.3 65.20% . Black lawyers engage in more pro bono work than other lawyers (106 hours in firms of over 251 lawyers compared to 72 hours for white lawyers in these firms).22 48.42 41.58 50 40 20 20 20 20 30 20 30 20 25 20 71.30% 28.00% 39.70% 71.80% 60.71 37.80% 29.70% 42. 44 hours).58 59.30% 57.25 43.40% 44.00% 31.40% 54.00% 68.40% 50.60% 49. Thus the earlier finding of lower pro bono hours among Hispanic respondents seems to be due.33 45.60% 45.70% 59.20% 39.60% 55. The data indicate that Black lawyers on average engage in more pro bono service.30% 40. Stratifying by firm size also demonstrates that Hispanic lawyers report some of the highest pro bono hours in the largest law firms (76 hours).2 pro bono hours by law school tier. are much more table 6. it may be that Black lawyers do not expect to be staying in these settings.91 51. but that Hispanic respondents working outside of the largest firms report lower pro bono hours than the average lawyer. but only in particular settings. but in small and solo practice the averages are much more similar.17 31.7 36.70% 48. We speculate that the higher rates of pro bono for Black lawyers. race. in large part. may derive from a greater commitment to “helping others”. and gender Pro Bono Hours (excluding zero) Mean Median Any or No Pro Bono Worked some pro bono Worked n0 pro bono law school tier Ranked 1–10 Ranked 11–20 Ranked 21–40 Ranked 41–100 Tier 3 Tier 4 race Black Hispanic Asian White gender Female Male 89. alternatively. The data for women.90% 61.10% 39. in larger law firms (and especially in the largest law firms).06 45.30% 51.

5 pro bono hours. and desire to help individuals Pro Bono Hours (excluding zero) Percent Reporting any Pro Bono Mean Pro bono not at all important in job choice Pro bono extremely important in job choice Did not engage in pro bono work in law school Performed pro bono work while in law school Desire to help individuals as a lawyer rated as “irrelevant” Desire to help individuals as a lawyer rated as “very important” 34. with graduates of more elite law schools and corporate lawyers in the largest firms more likely to engage in pro bono work. As we show in Table 6.4% 93. with women reporting higher hours compared to men in all settings except for solo practice. These patterns are closely related to.3 pro bono hours by importance of pro bono hours to job choice.5% 67. In contrast.1% 55.3% 52. engagement in pro bono during law school. lawyers who perform the most pro bono work report that pro bono opportunities were an extremely important factor in their job choice: these lawyers report an average of 98. lawyers who rated pro bono as not at all important in their choice of first job reported an average of 34. with prior pro bono experience resulting in about 14 more hours of pro bono service per year. The results in Table 6.73 51.49 98.2 48. We also find that engaging in pro bono activities during law school is related to the number of pro bono hours lawyers perform once they are in the job market.4% 71.5 pro bono hours per year. table 6.5 percent of those whose desire to help individuals was rated as irrelevant. and in part derive from. we analyze the patterns of pro bono based on respondents’ ratings of their desire to help individuals as a goal in their decision to attend law school.14% . different orientations and dispositions toward engaging in pro bono work.122 private lawyers and the public interest consistent.3 indicate that although the average pro bono hours are almost identical regardless of their desire to help individuals. The patterns we identify above highlight a stratification in pro bono service.32 54. Finally.3. 67 percent of respondents who indicated a desire to help individuals engaged in some pro bono work compared to 52.04 48.53 40.

and father’s occupational status). a variable that represents respondents’ ratings of whether they attended law school in order to help individuals (rated as 1 = irrelevant through 5 = very important). gender. the second model introduces dummy variables for law school eliteness (relying on rankings published in the U. Respondents in the AJD survey were asked to report the number of pro bono hours they performed during the last 12 months. with higher GPAs corresponding to an increase in pro bono service. and pro bono hours. We approach our analysis with a series of nested models. In order to adjust for this censoring. The results are presented in Table 6. we employ a Tobit regression. elite law school graduates working in large law firms. We begin with an analysis of the determinants of pro bono service. adding the explanatory variables in stages. but rather is also produced by a particular orientation that is found among a subset of lawyers—in this case.S. almost 40 percent reported that they performed no pro bono hours in this time period. 2003) and law school grade-point average (GPA). Further analyses are required to better determine both the sources of capital that drive pro bono service and the sources of capital that pro bono may produce. This technique provides us with both an estimate of the probability that an individual will engage in any amount of pro bono work (a nonzero result) and an estimate for the predictors of the number of pro bono hours for those who report any pro bono service.pro bono as an elite strategy in early lawyer careers 123 Multivariate Models The findings thus far provide a glimpse into the potential relationships between pro bono and the stratification of legal services. in the multivariate context we find only a weak significant effect for Hispanic respondents.4. race. and an interaction term that represents top-ten law graduates who work in the largest law firms. The second model. the variable for pro bono hours is left censored. The first model shows that despite the bivariate relationship seen earlier between race. The interaction term is an important test of our hypothesis that engagement in pro bono is not merely the result of working in settings that facilitate pro bono. As a result. News and World Report. and the fourth model introduces a range of variables that represent mechanisms that may lead some individuals to engage in more pro bono work than others. Finally. In the first model we control only for demographic characteristics (gender. We also find a strong positive and significant effect for law school GPA. which . a variable that represents whether a respondent’s law firm allows him or her to count pro bono hours as billable time. the third model introduces variables for work hours and law firm size. who engage in fewer pro bono hours. These include a dummy variable representing whether respondents were engaged with pro bono work while in law school. In this model. because there were a number of outliers (n = 8) in the respondents’ reports of pro bono hours. with a large proportion of 0 responses. who engage in significantly more pro bono hours than graduates of fourth tier law schools. shows a positive and significant effect for top-ten and top-twenty law school graduates. as expected. we top-coded pro bono at 400 hours.

24) (17.34) (16.74) .5* –131.40** (7.996 –109.00† 32.59† –16.22† 20.282) (5.473) (7.65) (14.580 –2.49*** (8.43* (9.09** (6.242) practice setting (excluded category is solo & small firm) Private firm 21–100 –17.02 (9.72** –13.69** 23.991 (10.05 7.966 –3.61) (9.186) Pro bono hours as billable 40.157 –0.850) (11.207) (0.214) (0.30 –14.368) Private firm 101–250 –9.351 2.461† (0.629) (7.16 –17.124 private lawyers and the public interest table 6.547 –4.25 (16.36) (8.953) Law school pro bono work 23.221) (0.68* 19.764) (6.793) Black 30.02) (38.546) Top 21–40 law school –0.709) Father’s occupational status 0.68) Constant –3.80) (33.01) (10.962) (6.303) (7.80) Top 11–20 law school 14.890) Private firm 251+ 23.3** (13.15* –17.59) (18.128** (2.73 33.44 –16.0393 –0.14† (19.80) (18.642) (7.5** –101.65 –11.181) (7.14** (5.869) Asian –10.843 –5.43*** 26.24† 10.35 –15.718) Desire to help individuals 7.181) law school rank (excluded category is schools ranked 41 or lower) Top ten law school 34.774) (5.54) Hispanic –18.161 (7.810) (9.934) Law School GPA 34.4 tobit model of pro bono hours (Model 1) Male (Model 2) (Model 3) (Model 4) –3.675) Top Ten*firm 251+ 37.463 0.298) (0.715) Work Hours 0.25 (18.130 (0.379) (7.06) (39.17) (9.004) (4.614) (7.730 (8.59† 28.127 –0.105 –0.784 (5.24† (10.

we find a positive and significant (though weak) effect for Black respondents. We find strong evidence that the trajectories that lead people to the most prestigious positions are strongly related to pro bono work. the more pro bono hours they perform. we also find that law firm programs themselves are important facilitators of pro bono work—respondents who work in firms where their pro bono hours count toward their billable hours engage in significantly more pro bono work than do respondents who do not have such programs available. We also find that new lawyers who engaged in pro bono work during law school perform more pro bono hours once they are in practice. external programs that facilitate pro bono work are an important part of the story. As expected. we find that the more strongly respondents identify helping individuals as an important goal in their decision to attend law school. those working in medium firms of 21–100 lawyers engage in significantly less pro bono than their solo and small firm counterparts.49*** (7.87*** (5. we do find evidence that.139) 1266 (Model 3) 66. * p < 0. Although these two findings support our contention that engagement in pro bono work is part of a broader orientation that is cultivated before lawyers enter the labor market. The third model introduces practice settings.01. Finally. although an orientation to pro bono service is an important predictor of taking up this work. ** p < 0. This interaction effect suggests that pro bono service is not merely the result of working in large corporate law firms. independent of this orientation. respondents working in the largest law firms (with 251+ lawyers) engage in significantly more pro bono work compared to their counterparts working in solo or small law firms. in contrast.40*** (6. and pro bono hours. *** p < 0.pro bono as an elite strategy in early lawyer careers 125 (Model 1) Constant Observations 70.05.497) 1266 (Model 4) 63.88*** (7. This finding is in keeping with prior research (Granfield 1992.10).983) 1266 Standard errors in parentheses † p < 0. we consider the effect of the interaction term representing top-ten law graduates working in the largest corporate law firms.798) 1266 (Model 2) 68. dispositions. who engage in significantly more pro bono hours than their white counterparts.10. Erlanger et al. The fourth and final model introduces the range of mechanisms that might help to further contextualize the relationship between social position. where the average . which is positive and significant (p <. First. 1996) that identifies a relationship between an initial commitment to public interest and the likelihood that law graduates will pursue public interest jobs. Therefore. and that these trajectories are set quite early in lawyers’ careers.001 controls for practice settings and GPA.

This orientation is produced at least in part by the law schools themselves: we find that 50 percent of respondents who attended top-ten law schools reported engaging in pro bono work while in law school. Yet to fully flesh out Bourdieu’s perspective. These results suggest that for elite law graduates. With respect to our hypotheses. The AJD survey asked respondents to rate the importance of pro bono work in their job choice. we need to also document whether the orientations and dispositions toward pro bono work themselves reflect and reinforce the hierarchy of the profession. Taken together. with these elite graduates going on to work in the country’s most prestigious and high-paying corporate law firms. As Bourdieu (1998) notes. compared to 23 percent of fourth tier graduates. promoted. we find a strong gender effect. elite law graduates carry these orientations with them into their job preferences and into their legal careers. An analysis of responses to this question can help us to differentiate whether the responses reflect a social patterning that is consistent with our hypotheses. with men significantly less likely than women to give high ratings to pro bono opportunities. an orientation to service is inculcated before they even enter the labor force. and as a result the elite law graduates continue to engage in pro bono work while at the same time serving business. with . our findings describe a system whereby an orientation toward pro bono service is especially inculcated. and nurtured in particular law schools. What we instead find is that elite law graduates working in the largest corporate law firms engage in significantly more pro bono work than their peers: this suggests that there is a structure to pro bono work that reflects the hierarchy of the profession. the results we present in Table 6. Engaging in pro bono work is part of the game of new lawyer careers.5 are remarkably clear: an ordinary least squares (OLS) regression predicting the importance of pro bono as a factor in lawyers’ job choice indicates that elite law graduates rate pro bono opportunities more highly than do graduates of lower-tier law schools. we have considered the structural positions and dispositions that relate to engaging in pro bono work. To this point. Although support for pro bono among elite students is likely the result of the relative entrenchment of pro bono programs in elite law schools compared to nonelite schools (Association of American Law Schools 2001). Confirming Granfield’s (2007) analysis of support for mandatory pro bono programs. independent of characteristics such as race and gender. dispositions—in this case attitudes toward pro bono—both reflect and legitimate social differentiation. with elite law graduates bestowed with the role of noblesse oblige. These firms themselves continue to promote noblesse oblige by allowing their associates to count their pro bono hours as part of their billable hours.126 private lawyers and the public interest pro bono hours are higher than in other settings. pro bono and its rewards An important part of our account is that pro bono service is not an end in itself.

006 (0.231) Observations 2615 0.185) Top 41–100 law school –0. *** p < 0.222) 0. For others.004) law school rank (excluded category is tier 4) Top ten law school 0.032 (0. with pro bono serving as a form of training.059 (0.169) Tier 3 law school –0.001 pro bono service functioning to provide far more than free legal services to those who could not otherwise afford them.795** (0.126) 0. Lamont 2000) to their work in corporate law firms.653* (0. We hypothesize that for some lawyers in private practice.184) Top 21–40 law school 0.05.10.167) Constant 2. giving new lawyers opportunities to meet with clients and go to court—opportunities that would not otherwise be available to junior associates in large law firms.235) 0.102) 0. And for others.073 R2 Standard errors in parentheses † p < 0. . ** p < 0. with pro bono providing symbolic capital in the form of moral justification.678*** (0.308 (0. pro bono may help to build stature and connections that lead to material and other career rewards over time.841*** (0.0008 (0.243) Top 11–20 law school 0. we expect that pro bono service can provide a more tangible form of capital. * p < 0.5 ols regression—predicting importance of pro bono opportunities in job choice B Male Black Hispanic Asian Father’s occupational status –0.01.403* (0. engaging in pro bono service allows them to provide a moral meaning (cf.pro bono as an elite strategy in early lawyer careers 127 table 6.075 (0.

” concerns the reported relationship between work and broader social issues (workplace diversity. as are graduates of top-20. and we include a continuous variable to measure the effect of the actual number of pro bono hours worked. however.” is comprised of two items: satisfaction with compensation levels and satisfaction with opportunities for advancement. Here we find a significant and positive effect for GPA. and in the subsequent three. We again rely on the subsample of lawyers working in private practice to estimate four separate models of job satisfaction—one each for satisfaction with job setting. with satisfaction increasing alongside GPA. The first form represents “job setting satisfaction. We include a dichotomous variable to reflect the large proportion of individuals who do not engage in any pro bono work. . we rely on two variables for pro bono work because of the skewed nature of this variable. is in examining the relationship between pro bono work and job satisfaction. “power track satisfaction. working more pro bono hours actually counters this positive effect. and the social value of the work). substance of work. top-40. The results indicate diverging effects for these two variables: we find a significant positive effect for respondents who perform any pro bono work. In contrast. We explore these hypotheses by examining the relationship between pro bono work and four forms of job satisfaction. we find that graduates of top-ten law schools are more satisfied with their job setting compared to graduates of fourth tier law schools. control over the work. and job security. satisfaction with job settings decreases. relationships with colleagues. and lawyers working in the nation’s largest cities are less satisfied than those working elsewhere. opportunities for pro bono work. the results are displayed in Table 6. The fourth form. which we have described elsewhere (Dinovitzer & Garth 2007). These diverging effects present an interesting paradox: although engaging in pro bono work as a general matter increases satisfaction.” consolidating ratings of recognition received at work. indicating that doing some pro bono work compared to none significantly increases satisfaction with job settings. the social index. Our main interest. The results for the model predicting respondents’ satisfaction with their job setting suggest some patterns seen before (Dinovitzer & Garth 2007): lawyers working in the large corporate law firms are less satisfied with their job settings than are lawyers working in small and solo practice. The second model predicts satisfaction with substance of work. including ratings of satisfaction with the substantive area of respondents’ work and opportunities for building skills. indicating that as pro bono hours increase. In this model. The second form is “work substance satisfaction. the variable representing the number of pro bono hours is negative and significant. On the other hand. and top-100 law schools. We return to this point below. The third form. and the power track.6.128 private lawyers and the public interest Either way.” which reflects the intrinsic interest of the work. and analyzing these transformations can allow us to better understand the value of disinterestedness in new lawyer careers. we posit that pro bono work is often translated into other forms of capital. “social value satisfaction.

843) (0.141* 0.0754 (0.367) 0.973* 0.00251 (0.423) Private firm 101–250 –4.0236) (0.217 (0.393) 0.394* (0.271) (0.688*** –1.446) Private firm 251+ –3.637) Top 21–40 law school 3.591) Major metro area 0.467 (0.078*** (0.301) 0.pro bono as an elite strategy in early lawyer careers 129 table 6.048) (0.766) (0.482 (0.130) .271*** (0.266) 0.430* 0.49*** 14.386) –0.467) law school rank (excluded category is tier 4) Top ten law school 3.00786) –0.00678) 0.362* –1.687† (0.722† (0.0167) (0.961) (0.160) –0.028 –1.380) –0.982 0.536) Top 41–100 law school 1.623) (0.00944) practice setting (excluded category is solo & small firm) Private firm 21–100 –2.0173 0.782* –1.484) –1.00789) Law school GPA 1.0120* –0.702) (0.00869 (0.405) –0.843 (0.493) –0.710) (0.00990 (0.275 (0.701) (0.00461) (0.351) (0.811) 0.00305) Any pro bono 1.520) (0.00690* 0.0275 (0.251) Continued Male 0.6 four ols models of job satisfaction Setting Substance Social Index Power Track 0.520) Tier 3 law school 1.995*** (1.542) –0.472 (1.623* (0.455 (0.748* 1.871) (0.330) 0.530) (2.0346 0.951† (1.347 (0.480) (0.296) White 1.343*** 0.71*** 11.475) Pro bono hours –0.071* (0.469** (0.063* (0.00311) (0.203* –1.0159) (0.034† –1.592) (0.156) 1.00809 (0.416) Constant 23.221 0.499) Father’s occupational status 0.111 (0.000103 (0.636 –0.573 (0.921) (0.00798) 1.00445 (0.556** (0.0360* 0.723 (1.722) (0.220) Work hours 0.367) (1.578) 0.0633 (0.027*** –1.247) 1.369) 0.379) 0.00119) 0.592) Top 11–20 law school 2.411 (0.597 1.0192* (0.618 (0.369 (1.700** 0.451† –2.00921 (0.050) (0.393) 0.00869 (0.667 (0.793*** (0.550) 0.15*** (2.287) 0.500** (0.485) (0.0105 (0.

130 private lawyers and the public interest table 6. We find that engaging in any pro bono work compared to none significantly increases satisfaction with the social index. The diverging effects of pro bono suggest that pro bono provides a symbolic good—it is not how much pro bono one does but the fact of doing it that provides lawyers . engaging in more pro bono hours significantly decreased satisfaction. except for the positive and significant (p <.05. and with increased work hours. The two pro bono variables display similar effects as before: engaging in some pro bono versus none increases satisfaction with the job setting. ** p < 0. satisfaction again decreases for those working in large cities. We continue to find a negative effect for working in large cities and a surprisingly positive effect for work hours.10.103 Observations R2 1204 0.001 The law school effects are mostly not present in this model. The effects of pro bono in this model are straightforward: engaging in any amount of pro bono compared to none increases satisfaction with the power track. but we continue to find negative effects for those working in large cities and large law firms—though this time we find a negative effect for those working in medium-sized firms as well.047 1181 0.6 four ols models of job satisfaction (cont’d) Setting Substance Social Index Power Track 1267 0. and we again find that working in the largest law firms decreases satisfaction.10) effect for graduates of top-40 law schools.070 1290 0. The final model considers satisfaction with the power track—that is. But the models for setting and substance satisfaction suggest a more complex story: in both models. Taken together. Since the dependent variable in this analysis is satisfaction with the social value of work. men are more satisfied than women with this aspect of their position. regardless of how we measure satisfaction. The model for satisfaction with the social index suggests that white respondents are more satisfied with this aspect of their job. As expected. whereas the number of pro bono hours does not have a significant relationship with this form of satisfaction. but the increase in pro bono hours decreases this form of job satisfaction.156 Standard errors in parentheses † p < 0.01. satisfaction with compensation and opportunities for advancement. the four models of job satisfaction are instructive: engaging in some pro bono work (compared to none) provides a sense of satisfaction for respondents. with graduation from a top-20 and top-40 law school. * p < 0. the effect is not significant. *** p < 0. the effects of pro bono do not diverge in this model. and although the variable for pro bono hours is positive. Satisfaction with the power track also increases along with GPA.

this article seeks to situate pro bono work within the broader legal field and to recognize that pro bono work. which includes ratings of satisfaction with training and with the substantive area of work. or it may signal a perceived “lack of fit” with the business of the law firm that bodes poorly for the future. They may conclude opportunistically that professional success requires some investment in disinterestedness. Some individuals with a head start to elite status or with outsider aspirations to join the elite may also come to the same behavior. that there is an interest in disinterestedness. Our work is situated within a viewpoint that posits a division of labor within the legal field. As Bourdieu notes. pro bono seems to provide a veneer of doing good for lawyers working in private practice. and the best players know just how much to do. discussion and conclusions Following a Bourdieusian approach. Too much pro bono may signal a lack of work from paying clients (or the partners who control access to them). and which allows them to make sense of their own careers and their workplaces. Yet some amount of pro bono is consistent with—and even necessary for—the fast track in the game of the legal profession. ideals such as pro bono become part of the set of orientations and dispositions—the habitus—that is part of the elite lawyers’ game. This engagement may be making palatable an otherwise unpleasant status quo in the work lives of young associates.pro bono as an elite strategy in early lawyer careers 131 with job satisfaction. Law firms do not give associates enough interesting and challenging work. a rationally determined action calculated in advance as an act for which they will be rewarded. In this way. Whatever their actual motives. with elites more likely than the rank and file of the profession both to promote the ideals of the profession and to reap the profits that come from those ideals. with the result that associates rely on pro bono work to fulfill their intellectual needs as well as their demands for more practical training. the elites are more likely to compete to gain recognition for pro bono activity and public service. Success in law firms. however. Our models also suggest that pro bono may also provide a more tangible form of capital: we find that engaging in pro bono work increases satisfaction with the substance of work. . a form of symbolic capital that new lawyers can draw on to assuage their (dis)satisfaction with their new careers. and they are rewarded for it. may carry with it a particular social and symbolic value—in Bourdieu’s terms. Their engagement in pro bono work is not necessarily. but from a different starting point. depends on an interaction between pro bono and serving paying clients. the structure of the legal field leads them to act in a way that fulfills the ideals of the profession (and which at the same time legitimates the profession itself). as an altruistic act. Therefore. however. pro bono may be providing a form of training and engagement with substantive issues that new lawyers may not otherwise have access to.

for many new lawyers. Although we cannot delineate how pro bono relates to partnership decisions and attrition at large law firms because we are examining the early careers of lawyers.g. that engaging in pro bono work is related to lawyers’ orientations toward legal practice. Paralleling Garth’s (2004:100–101) argument in the context of public service. and social background. Again. 2005). Thus. Pro bono may be a strategy for those who are more marginal.. the AJD data do not allow us to sort and identify these different forms of pro bono work in our analyses. We know too that not all pro bono work is equal. Indeed. although the power strategy requires corporate success and pro bono work. in keeping with Bourdieu’s approach.132 private lawyers and the public interest Our results provide support for this characterization of the legal profession. not all large-firm lawyers equally perform this altruistic work. The data also suggest that pro bono work likely functions in a more concrete way to increase lawyer satisfaction by offering new lawyers substantively interesting work and opportunities to engage with clients—features that are otherwise largely absent from their private law settings. Unfortunately. Heinz et al. Our analysis is of course incomplete in some respects as well. but that increasing pro bono hours either decreases or has no effect on job satisfaction. pro bono work can serve other ends that we have not yet examined. for those who are looking to leave their settings. . We find that individuals who rate pro bono work as an extremely important feature of their job engage in more pro bono hours. and we also demonstrate that elite law graduates are more likely than others to express this disposition. or for those who know that their futures in the corporate sector are limited. counting pro bono work as billable time). even within the large corporate firms (Garth 2004. our results suggest that engaging in pro bono work brings with it important symbolic and tangible capital for new lawyers. and thus pro bono cannot equally bring prestige to all lawyers. this combination suggests that pro bono provides a symbolic form of capital that is divorced from how much pro bono work one actually does. work hours. Our work also explored the contention that there is a value to disinterestedness by investigating the relationship between pro bono work and job satisfaction. Three years into a career is too early to see material results of what are by definition long-term strategies. our results suggest that elite law school graduates working in the largest corporate law firms engage in significantly more pro bono work than their peers—and this holds when controlling for a full range of factors including the incentives that law firms offer (e. future analyses will be able to draw on the AJD study as it continues to follow lawyers. with some forms of pro bono providing more prestige than others. this is only one side of the story. We find that although lawyers in large law firms engage in more pro bono work. There is no doubt that. high-prestige pro bono work is not equally available to all lawyers. We find that engaging in some pro bono work versus none increases all forms of job satisfaction. yet the data indeed suggest that some differentiation is already occurring. We also find.

Chicago: American Bar Association. Robert (1992) Making Elite Lawyers: Visions of Law at Harvard and Beyond. Mia Cahill. Erlanger.” 41 Law and Society Review 1–50. Dezalay. American Bar Association (1994) Legal Needs and Civil Justice: A Survey of Americans. (1981) “The Lawyer’s Pro Bono Publico Responsibility. we must clearly also acknowledge that pro bono work provides a good in and of itself. Gordon. United Kingdom: Cambridge University Press.” 29 Law and Social Inquiry 615–638. The Transformation of Legal Aid: Comparative and Historical Studies.” 6 American Bar Foundation Research Journal 1–19. Blankenburg. 1870–2000. United Kingdom: Polity Press. and Chicago: American Bar Foundation. Therefore. ——(1998) Practical Reason: On the Theory of Action. Granfield. Barlow F. despite documenting the value of disinterestedness. Howard S. Scott (2004) “The Politics of Pro Bono. 2008). Charles R. Bourdieu.pro bono as an elite strategy in early lawyer careers 133 Finally. Dinovitzer. Dinovitzer. .. (2004) “Noblesse Oblige as an Alternative Career Strategy. Cambridge: Cambridge University Press. Ronit and Bryant G. KS: NALP Foundation for Law Career Research and Education. eds. http://www. Erhard (1999) “The Lawyers’ Lobby and the Welfare State: The Political Economy of Legal Aid. New York: Routledge. ——(2007) “The Meaning of Pro Bono: Institutional Variations in Professional Obligations among Lawyers.. vol. regardless of the secondary value that it might bring to the lawyers who provide it.” 41 Houston Law Review 93–111.” in F. Grossberg and C. Regan et al. Overland Park. What we are positing is that it is important to recognize the value of pro bono so that we can better understand positions of power within the legal profession and how that professional hierarchy is structured and maintained.” 41 Law and Society Review 113–146..aals. Ronit et al.pdf (accessed December 28. Oxford: Blackwell. Garth (2007) “Lawyer Satisfaction in the Process of Structuring Legal Careers.. Yves and Bryant G. Bryant G. Garth. Richard (1988) The Legal Profession in England and Wales. Haines (1996) “Law Student Idealism and Job Choice: Some New Data on an Old Question.” 30 Law and Society Review 851–864. Cummings. we are not arguing that pro bono work is all a “shuck” simply because there is an interest in disinterestedness.” 52 UCLA Law Review 1–149. Oxford: Oxford University Press. and Kathleen M. Cambridge.org/probono/probono. Garth (2004) “The Confrontation between the Big Five and Big Law: Turf Battles and Ethical Debates as Contests for Professional Credibility. Cambridge. Robert (2008) “The American Legal Profession. Epp. references Abel. Association of American Law Schools (2001) A Handbook on Law School Pro Bono Programs. The Twentieth Century and After (1920–). eds. Christensen. The Cambridge History of Law in America. (2004) After the JD: First Results of a National Study of Legal Careers. 3. Pierre (1977) Outline of a Theory of Practice.” in M. Tomlins.

. Philip R. Chicago: University of Chicago Press. Stanford. John P. Lochner. and Immigration. Heinz. Cambridge. and Edward O. (1975) “The No Fee and Low Fee Legal Practice of Private Attorneys.134 private lawyers and the public interest Heinz.” 41 Law and Society Review 79–112. and Pro Bono Publico. (2005) Urban Lawyers: The New Social Structure of the Bar.. MA: Harvard University Press. Deborah (2005) Pro Bono in Principle and in Practice: Public Service and the Professions. Class.” 46 Osgoode Hall Law Journal 131–158. Sandefur. Lorne (2008) “The Public Interest. Seron. Rhode. Lamont. Professionalism. John P. Philadelphia: Temple University Press. Rebecca (2007) “Lawyers’ Pro Bono Service and American-Style Civil Legal Assistance. Sossin. Chicago: American Bar Foundation.” 9 Law and Society Review 431–473. Michelle (2000) The Dignity of Working Men: Morality and the Boundaries of Race. Carroll (1996) The Business of Practicing Law: The Work Lives of Solo and SmallFirm Attorneys. CA: Stanford University Press. et al. Laumann (1982) Chicago Lawyers: The Social Structure of the Bar.

the delivery of pro bono was idiosyncratic. and the participants of the University of California. The formalization of pro bono has been one of the major projects of the professional bar in recent years. Becky Sandefur. As Cummings (2004:4) notes. Kelsy Kretschmer. boutcher introduction 1 Over the past decade. I especially thank the editors of this volume. usually in the form of surveys. for their extremely helpful comments. and money to raise a professional pro bono consciousness and to mobilize lawyers to engage in more pro bono work. David John Frank. I have benefited from the comments and advice of Scott Cummings.” The institutionalization of pro bono and the increasing role of the private bar in providing legal aid to marginalized groups provides a great opportunity to analyze how pro bono operates within the context of large firms. Recent scholarship has illustrated the varied ways that pro bono has rapidly and profoundly changed in form over the past decade (Cummings 2004). Much of the empirical research that does exist on pro bono. I also wish to thank the Center for Organizational Research (COR) at UCI for providing funding. the institutionalization of pro bono in large law firms Trends and Variation Across the AmLaw 200 steven a. “Whereas pro bono had traditionally been provided informally—frequently by solo and small-firm practitioners who conferred free services as a matter of individual largesse—by the end of the 1990s pro bono was regimented and organized. David Meyer. although the organized bar has spent a considerable amount of time. little empirical analysis exists on the topic (Sandefur 2007:101). Carroll Seron. . tends to focus on individual lawyers’ motivations and attitudes. Historically. distributed through a network of structures designed to facilitate the mass provision of free services by law firm volunteers acting out of professional duty. and the Law Firms Working Group for generously providing much of the data that appears in this chapter. and not on the organizational characteristics that facilitate or 1. however. the practice and organization of pro bono publico has undergone dramatic changes within the American legal profession. Mayer Zald. Irvine (UCI) Social Movement and Social Justice Workshop. pro bono is now a systematic enterprise throughout the legal profession. Paradoxically. energy.7. Bob Granfield and Lynn Mather.

Burke et al. this chapter examines the overall trends in pro bono participation across the top 200 law firms between 1998 and 2005. there should be real observable effects in the pro bono practices of these firms. 2001). The legal profession is not organized around a single set of goals. If large-firm pro bono is becoming institutionalized (Cummings 2004). Specifically. which provide the theoretical frame for the chapter. noting the important factors that have contributed to the rise of pro bono within this segment of the legal profession. such as the economic performance and geographic location of the firm. that is. 2005). the day-to-day networks of colleagues and local institutions that shape the norms of practice (Mather et al. they do not examine pro bono practices over time (see Galanter & Palay 1995. and the organizational factors that facilitate. However.” that is. but instead is driven by two distinct hemispheres differentiated by the type of client—one hemisphere represents large organizations. This chapter contributes to existing studies of pro bono by empirically examining the organizational and institutional factors that lead some firms to do more pro bono work. We would expect that one important effect of pro bono institutionalization is increased commitment of each firm in terms of the total hours devoted to pro bono. as ranked by 2. whereas small-firm and solo practitioners primarily assist individuals. and the other primarily serves individuals (Heinz & Laumann 1982.136 private lawyers and the public interest impede a law firm’s pro bono practice. the process of institutionalization is mediated by specific organizational factors. such as corporations. I discuss my data and methods and then examine the trends in the amount of hours that large firms commit to pro bono for the top 200 firms between 1998 and 2005. I begin this chapter with a discussion of the development and institutionalization of pro bono within large firms. large-firm pro bono targets organizations that assist the poor and other marginalized groups. Although the American Bar Association doesn’t distinguish between the different hemispheres of the legal profession in its definition of pro bono. Next. a firm’s pro bono commitment. 1994). The institutionalization of pro bono is not only mediated by organizational factors specific to the law firm. Heinz et al. but is also mediated by the organization of the profession itself. lawyers’ norms about professional practice are mediated by overlapping “communities of practice. Large law firms can be thought of as one community of practice where elite lawyers’ norms about pro bono practice are formed. I then outline some of the central themes of sociological neoinstitutionalism. Thus. Mather et al 2001. which is related to the practice context (Lochner 1975. Many surveys have been conducted by professional groups such as the American Bar Association’s Pro Bono Center and various state bar associations. or impede. Seron 1996. Even within each hemisphere.2 The few analyses that do exist at the firm level are typically cross-sectional. research has shown that important differences exist in how lawyers approach pro bono work. see also Granfield 2007a). .

the topic of pro bono publico has experienced a renaissance within the legal profession (Cummings 2004. These developments appear to mark the presence of a genuine pro bono movement. The current push to institutionalize pro bono takes its cues from the aspirational guidelines that define a lawyer’s professional responsibility. and Georgetown Law Center’s Pro Bono Institute monitor the pro bono work of large firms. An annual Equal Justice Conference brings together pro bono managers and other professionals to discuss means of increasing legal access for the poor. For example. Rhode 2005). “Every lawyer has a professional responsibility to provide legal services to those unable to pay. The Association of Pro Bono Counsel (APBCo).equaljusticeconference. which passed in 2002 (Pearce 2001). Kitzmiller v. Finally. showcased the pro bono involvement of two partners from the Philadelphia firm Pepper Hamilton in the intelligent design case. The topic of largefirm pro bono is everywhere. A lawyer should aspire to render at least (50) hours of pro bono publico legal services per year” (quoted in Granfield . Model Rule 6. and also provide networking opportunities where firm managers can “speed date” with potential nonprofit pro bono clients (www. Large firms routinely report their pro bono activities on their websites and in their annual reports. the National Association for Legal Career Professionals (NALP). I report the results of my analysis and conclude with a discussion about pro bono in large firms. probonocounsel.com).php.org).org/challenge. Professional organizations.1 of the ABA’s Model Rules of Professional Conduct states that all lawyers have a duty to provide legal assistance to those who cannot afford it on their own.. dedicated to the development of pro bono counsel within large firms was formed in 2006 and now has close to 100 members (www. The Model Rule was revised more than 30 times between the initial adoption and the current revision. Rhode 2005). which has swept the legal profession in response to longstanding criticisms that American lawyers were stinting on their professional responsibilities to serve the poor and other marginalized groups (e. the American Bar Association suggests a guideline for lawyers to follow. rather. Kronman 1993. Monkey Girl. Linowitz 1994. The Pro Bono Institute monitors the Pro Bono Challenge.g.probonoinst. the rule states. the institutionalization of pro bono Over the past decade.the institutionalization of pro bono in large law firms 137 The American Lawyer. Currently. where large firms (currently more than 150 firms) can sign up to commit either 3 or 5 percent of their total billable hours toward pro bono (www. such as the ABA’s Center for Pro Bono. see also Cummings 2004). Even a recent book. in addition to giving awards to firms and individual lawyers for their pro bono achievements (Cummings 2004:14). This conference includes workshops where new pro bono managers can learn how to successfully structure their firms’ programs. Dover (Humes 2007). There is no standard definition of acceptable pro bono.

see also Cummings 2004). the recent mobilization of large numbers of lawyers to provide pro bono services does not result from the formalization of the Model Rules. As part of the general trend toward decentralizing governmental support for social services. Organizations such as the American Bar Association (ABA) Standing Committee on Pro Bono and Public Service and the Pro Bono Institute at Georgetown Law Center have focused on facilitating lawyers’ commitment to pro bono. the bar has been a major contributor in building the current pro bono movement. Beginning with President Reagan. The private bar has become one vital source of civil legal assistance funding—so substantial. in fact. investing heavily in organizing nonprofit pro bono programs and promoting private-sector volunteerism in large law firms. by the end of the millennium it had become pro bono’s most stalwart supporter” (2004:18). the contemporary movement to institutionalize pro bono results from the convergence of several important factors that have emerged over the last halfcentury within the state. redistricting cases. the federal government severely cut its support of the Legal Services Corporation (LSC). the increasing recruitment of private lawyers to assist the poor meant that pro bono legal work had become the “largest component of civil legal assistance in the United States” (Sandefur 2007:85. formalized pro bono programs and curricula have sprung up across the country. lawyers have always had the ethical responsibility to provide equal access to the poor. federal funding for legal services has decreased sharply since the early 1980s. However. and the law firm. class-action lawsuits. the legal profession. which has led some to argue that the ABA’s definition is an elite definition of pro bono (see Levin in this volume). The reduction in funding was coupled with the restriction of whole classes of cases and activities that grantee organizations could not engage in. yet have done so idiosyncratically. Instead. “the organized bar played a central role in building the institutional structures of pro bono during this time. Two main fronts in particular were the target of this new pro bono movement: law schools and large law firms. regardless of practice site. This definition of pro bono outlines the professional bar’s aspiration for all lawyers. that by the late 1990s. but funded in a piecemeal fashion from a variety of different sources (Sandefur in this volume). which has funded numerous legal service organizations to assist the poor. This constituted a dramatic shift in position: Whereas the organized bar had historically offered only meager support for pro bono practice. Within law schools. To some extent. who tried to eliminate all federal funding of legal services when he first came to office. Responding to the restructuring of federal legal services and the longstanding critiques of increasing commercialization of the legal profession. criminal defense. As Cummings notes. As of August 2007. 35 law schools had a mandatory graduation .138 private lawyers and the public interest and Mather in this volume:4). such as abortion cases. and lobbying activities (Houseman 2002). The current system of civil legal assistance in the United States is no longer primarily centralized through the federal government.

and increased social movement activism drew elite law school graduates away from the big firm in search of jobs where they could pursue social change (Auerbach 1976:278–279. Heinz et al. 2004). One consequence of the rapid growth of the big firm was the demand for large numbers of associates from elite schools. In response to this new competition. which included responses from 169 total schools.org/ legalservices/probono/lawschools/pb_programs_chart. Nelson 1988. The growth of large firms has led them to increasingly specialize.abanet. as the lure of social activism began to recede during the 1970s and 1980s. the rise of the public interest field. There is evidence that suggests that the pro bono movement has had a more significant impact on large-firm practices than in law schools.the institutionalization of pro bono in large law firms 139 requirement that involved pro bono or some form of public service. Galanter & Palay 1991. routinize. recent empirical studies have shown no statistical difference between graduates of mandatory programs and their peers in rates of pro bono participation after graduation (Granfield 2007b. large firms no longer felt pressured to pursue organized pro bono programs. and bureaucratize their organizational structures (Galanter & Palay 1991. 1978:123). During the second half of the twentieth century. some large firms began to formalize pro bono programs in order to recruit elite students (Handler et al. American Bar Association 2007). Heinz et al. However. the new pro bono 3. and 24 schools had no formal program but had student pro bono groups (see Adcock in this volume.7 times more than solo practitioners (Dinovitzer et al. These numbers represent returned surveys of law school pro bono programs as of August 2007. . 1978:123). 2005). A recent study found that law offices of over 251 lawyers did three times more pro bono work on average than smaller offices (those with fewer than 100 lawyers). However. Nelson 1988. Powell 1988:161–165.3 These programs are designed with the goal of socializing students with a commitment toward public service. although the efforts of these programs should be applauded. during the 1960s and 1970s. and commitment to pro bono waned (Handler et al. and more than 1. 2005). In terms of individual participation rates. Galanter & Palay 1991). competition with the legal services movement. However. The main reason for the difference between large and small firms is closely tied to the evolution of the big firm.html#definitions. http://www. It wasn’t until the turn of the twenty-first century that a new wave of formalized pro bono departments took off as large firms saw their profits soar and the number of large firms increased (Cummings 2004). see also Rhode 2005). large-firm lawyers do more pro bono work than lawyers in other work settings. However. large firms sprang up in other metropolitan areas across the country (Hobson 1986. see also Cummings 2004:13). there has been an explosion in the growth and number of large firms (Abel 1989. Initially centered in New York City. 110 schools had a formal voluntary program that was not mandatory for graduation.

often staffed by a pro bono manager. Pro bono entrepreneurs. Jepperson 1991). Largely for reasons of data availability. important life-course events such as marriage or going to college are commonly referred to as institutions because they are decisions often taken for granted among individuals of a certain place and class. leads to successful retention of good associates. sociologists will refer to institutionalization as the process by which elements of social structure or human interaction become taken for granted. and provides good publicity for the firm (see Dinovitzer & Garth in this volume. Thus. the current pro bono movement is structured upon important changes in the state. they argue. For example. the institutional landscape from which the current movement receives its support provides much firmer ground for the movement to grow. implement and structure the firm’s pro bono practices as well as provide rotating opportunities that connect associates with a network of nonprofit organizations. Sociological Neoinstitutionalism and Large-Firm Pro Bono The study of institutions and institutionalization is a common area of empirical analysis within sociology. Although the institutionalization of pro bono within the private bar provides much-needed legal assistance to the poor. 1978:123). I focus on large law firms—specifically. Epstein 2002:1693–1694). it is one of the pillars of the contemporary pro bono movement and allows me to examine the efficacy of the profession’s directed efforts to institutionalize pro bono over the past decade. An institution “represents a social order or pattern that has attained a certain state or property.” and institutionalization refers to the process by which this occurs (Jepperson 1991:145). For example. Although this group constitutes a small subset of the legal profession. Joel Handler and his colleagues identified only 24 formalized programs in large firms in 1973 (Handler et al.140 private lawyers and the public interest wave was markedly different from its predecessor of the 1960s. Institutions are rule-like in our perception of them because they constrain our behavior. the top 200 firms as ranked by The American Lawyer. Increased commitment to pro bono. it also provides beneficial outcomes for the firm. provides learning opportunities where associates can diversify their legal training. they are . and the law firm. and these processes are conceived as relatively stable elements that are self-generating and self-“policing” (Scott 2008. These programs. Pro bono departments function like other legal departments and centralize the administration of a firm’s pro bono practice (Cummings 2004). but now pro bono departments can be found in many of the top firms across the country. However. Furthermore. the profession. institutionalization can refer to both macro and micro processes. bar leaders. Lardent 2000. These changes provide ample reason to analyze what effect the current institutional movement has on the pro bono commitment of the legal profession. Markedly different from earlier attempts to organize pro bono in the 1960s and 1970s. and firm managers are quick to tout the business case for pro bono. but also because the profession has directed a lot of attention toward elite lawyers. Often.

In terms of economic performance. For example. However. the structures are often adopted because organizations seek legitimacy within their environment. the United Nations) (Jepperson 1991). Zucker 1977. 1992). As argued above.g. very little is known about how similarly situated firms vary in their response to institutional pressures (Westphal & Zajac 2001. pro bono commitment will be mediated by existing organizational arrangements within each firm. organizational structure. firm departments. and geographic location. However. the formalization of a pro bono department is institutionalized to the extent that it becomes rationalized as a common feature within the modern law firm. institutional activity surrounding pro bono was very dynamic. This study examines variation in pro bono commitment among large law firms during a period of high levels of institutional activity.the institutionalization of pro bono in large law firms 141 not overtly coercive. for example. by the late 1990s. formal adoption of a policy or department is often divorced from real practices on the ground. This occurs because organizations often seek legitimacy within their professional field and will create formal policies in symbolic compliance with professional ideals (Edelman 1990. I analyze three organizational characteristics that might mediate the institutionalization of pro bono: economic performance. The sociological definition of an institution differs from the definition used in other disciplines—such as political science. Among large law firms. In particular. Empirical studies of institutional theory have largely focused on the adoption and subsequent diffusion of new organizational practices across a field or the decoupling of formal policies from informal practices within an organization. This is commonly referred to as “loose coupling” (see Meyer & Rowan 1977). Some of the early statements focused on formal organizations and organizational fields (see Meyer & Rowan 1977. and professional organizations devoted to expanding pro bono commitment throughout the legal profession. rather. rather. I expect that these characteristics will affect a firm’s pro bono commitment in different ways. referring to the rule-like conventions that coordinate action within the organization. This description evokes the external environment of an organization—organizations do not simply make decisions in a vacuum. see also Oliver 1991).. Sociological neoinstitutionalism has had a big impact within the field of organizational behavior. These studies examined how components of formal organization become institutionalized and diffused throughout an organizational environment. in which an institution is often referred to as a formal organization or association (e. with the creation of new managerial roles. pro bono hours actively compete . institutions constitute behavior by prescribing action based on a shared set of knowledge. but implement structures relative to other similarly situated actors in their environment. DiMaggio & Powell 1983). Meyer and Rowan (1977) defined institutions as “rationalized myths” within an organization. Institutionalists stress that the adoption of these structures is not based on concerns over organizational efficiency or the interests of rational actors.

this study emulates past empirical studies of large-firm pro bono by Burke et al. The data are unbalanced. However. . such as gross revenue. in which each firm would contribute the same number of observations across the same set of years.4 The dependent variable for this study is a firm’s commitment to pro bono. In part. 2008). I expect that firms in the Northeast will be more committed to pro bono than firms in other regions of the country. (1994) and Galanter and Palay (1995) in using data collected and reported by The American Lawyer (see also Lancaster et al. I expect that firms will do so at the cost of pro bono. 5. The Northeast is the birthplace of the large firm and there may be an imprinting effect among these firms with respect to pro bono. I also expect that increases in the number of partners and associates will provide more incentives and opportunities for pro bono because pro bono is often touted as a means to recruit and train associates. (1994) and Galanter and Palay (1995). I expect that larger firms will do more pro bono than smaller ones. The American Lawyer collects annual data on various organizational measures related to the top 200 firms. Sutton & Dobbin 1996). data and methods I follow both Burke et al. Regarding organizational structure. This is in contrast to a balanced dataset. In practice.142 private lawyers and the public interest for billable hours. Organizational scholars have long argued that firm size is related to increased formalization and complexity of the workplace (see Blau & Schoenherr 1971. and I include more firms. Furthermore. and partners are often responsible for bringing pro bono contacts to the firm. I expect that larger firms are more apt to respond to changes in the institutional structure of pro bono and have the resources to do more pro bono work. I measure this as the average pro bono hours per lawyer. the annual ranking of 4. unbalanced datasets are common as a result of subject attrition or missing data. meaning that each firm contributes a different number of observations and contributes at different intervals.309 observations across a total set of 224 law firms. Northeastern firms are also more likely to be densely connected to each other. To the extent that firms are able to generate more billable hours. geographical location.5 This is partly because of some firms not reporting data when surveyed by The American Lawyer but also because of the way that The American Lawyer ranks the firms in the top 200. In terms of geography. and pro bono performance. The dataset contains a maximum set of 1. and in that case are more likely to monitor each other’s pro bono behavior. the present analysis examines a longer time period than the two previous studies. I also expect that firms with higher profits can afford to do more pro bono than firms with lesser profits. Most importantly. However. profits per partner. Because The American Lawyer ranks each firm based on gross revenue. this study differs in important methodological ways.

I perform a cross-sectional time-series analysis. a firm ranked 180th in 1998 could fall off the list in 1999.. Unfortunately. I believe that my measure of commitment sufficiently allows me to answer the question posed at the beginning of this chapter: What are the organizational and institutional factors that lead some large firms to do more (or less) pro bono work? I regress several independent variables on the dependent variable. In order to analyze the relationship between the three organizational characteristics and large-firm pro bono. based on data from The American Lawyer. the Northeast is the reference category. this measure does not allow me to say anything about the individuals within the firm doing pro bono work. and West. Midwest. This measure differs from attitudinal measures of commitment commonly used in pro bono surveys. Although large firms typically have offices in many locations. which is independent of the revenues of the firm—larger firms could conceivably have higher costs as a result of hiring more personnel. Galanter & Palay 1991). South. which can feed into profitability. or whether the work is transactional or litigation. Profits per partner taps into the profitability of the firm. for example.g. I use the percent change in revenue as opposed to gross revenues in order to normalize across the field of firms. In order to test for the relationship between economic performance and pro bono. I also test the geographical location of each firm. Previous analyses aggregated these two variables into one organizational size variable.the institutionalization of pro bono in large law firms 143 firms can change depending on how well (or badly) a law firm does the previous year. growth in associates and growth in partners should be conceived as separate processes (e. Gross revenue is highly correlated to the size of the firm—larger firms have higher revenues. DC. However. For example. I operationalize pro bono commitment as the average pro bono hours worked per lawyer. I am unable to say anything about what type of pro bono work these firms are doing. I use two different measures: the percent change in revenues and profits per partner. which I code as Northeast. I then coded each firm as belonging to its corresponding census region: Northeast. In order to test for the relationship between organizational structure and pro bono. However. In the subsequent analyses. I use the headquarter city or the largest office listed. The only exception to this case is for law firms located in Washington. whether these hours represent large civil rights cases or pro bono assistance in neighborhood legal clinics. Furthermore. only to reappear again later. I do a log transformation of profits per partner because the variable is skewed. I also control for the overall size of the firm. Traditional ordinary least squares (OLS) regression is an inconsistent and inefficient method for analyzing panel data due to correlation of the error terms . However. I do a log transformation of the overall size of the firm because the variable is skewed. my measure allows me to get at the aggregate behavioral dimension of pro bono activity within the firm. I use the percent change in the number of associates in the firm and the percent change in the number of partners.

I found evidence of autocorrelation in my error terms and added controls for it. 6. over two million hours of pro bono were contributed by 167 firms for which data is available. this could be the result of factors other than institutionalization. I cannot use fixed effects models. which implements the methods developed by Baltagi and Wu (1999). Figure 7. Two common methods in social science research for analyzing panel data are the fixed effects and the random effects models.8 First.8 million hours were contributed by the AmLaw 200. the fixed effects model can be substantively interpreted as throwing out all between-firm variation (see Brady 2003:564). Greene 2003. Because one of my key variables of interest is the geographic location of each firm. I begin my analyses in 1998 in order to include the AmLaw 200. I use a general least squares estimation method and control for first-order autocorrelation. Between 1998 and 2005. This test gave further support in my use of the random effects model. This method allows for unbalanced panels and automatically corrects for autocorrelation where the disturbance term is firstorder autoregressive (StataCorp 2007). Although this trend line shows that total participation. Specifically. In this analysis. I examine the total number of pro bono hours contributed by the AmLaw 200 firms.7 trends in pro bono participation across large law firms This section analyzes the trends in pro bono performance across the top 200 firms as ranked by The American Lawyer (herein referred to as the AmLaw 200) between 1998 and 2005. I use the “xtregar” command in Stata version 10. Hsiao 1986). Thus.1 shows the total number of hours reported each year by all of the firms in the dataset. Although data are available for the top 100 firms prior to 1998. . the response rate for the AmLaw 200 varied from a low of 84 percent (167 firms reporting out of the possible 200) in 1998 to 100 percent (all 200 firms reporting) in 2005. A common statistical test for deciding between fixed effects and random effects models is the Hausman specification test (1978). This value rose steadily to almost double by 2005. 8. when nearly 3. which does not change over time. I use the random effects model because fixed effects regression removes any time-invariant independent variables from the analysis. such as growth in the total number of lawyers in each firm or an increase in the response rate of the firms over time.144 private lawyers and the public interest (Alderson & Nielsen 2002. which compares the consistent fixed effects model to the efficient random effects model (StataCorp 2007). I examine the average hours of pro bono per lawyer across the organizational field. In 1998. The total number of firms represented each year varies depending on the number of responses that The American Lawyer receives. increased throughout the time period. This measure is a better indication of large-firm pro bono participation because it controls for the size of the firm.6 Furthermore. Next. measured in absolute hours. 7.

000. 1998–2005 Figure 7.000 3.000 2.2 shows three trend lines in terms of the average hours of pro bono per lawyer. The solid bold line is the average across all of the top 200 firms. The other two lines are trends for the top 100 firms (AmLaw 100) and the second 100 firms (AmLaw 200). Average hours per lawyer Total hours 60 50 40 30 20 AmLaw 100 firms 10 All firms AmLaw 200 firms 1998 1999 2000 2001 Year 2002 2003 2004 2005 0 figure 7.000 1.000.000.500. The average across all firms does appear to gradually increase over the time period—rising about 5 hours on average between 1998 and 2005.2 average hours of pro bono per lawyer.000 0 1998 1999 2000 2001 Year 2002 2003 2004 2005 figure 7.000 1.000 3.500. 1998–2005 .000 2.the institutionalization of pro bono in large law firms 145 4.000.1 total pro bono hours.500.000 500.

Thus.2 shows that the average hours per lawyer failed to reach the professional bar’s aspirational mandate of 50 hours per lawyer stated in the Model Rule 6. for the top 100 firms. However. whereas change in revenues is more indicative of the demand for legal services from corporate clients. model 1 shows that firms in the South. whereas the second group of firms actually decreased their average commitment over the time period.1 shows the results of my statistical analyses. Midwestern and Southern firms do significantly less pro bono work than Northeastern firms. This model shows that most of the previously significant variables no . profits per partner has a positive effect on pro bono. I ran three models to analyze large-firm commitment to pro bono. after controlling for change in revenue. This model shows that the percent change in revenues has a negative and significant effect on pro bono commitment. I turn next to the results of my analyses. and firm size are again all statistically significant and in the same direction as for model 1. profits per partner have a positive and significant effect on pro bono. which suggests that firms where partners make more money have a higher commitment to pro bono. Furthermore. Model 2 tests the same variables in model 1 but only for the AmLaw 100 firms. and West do significantly less pro bono work on average than firms in the Northeast. These different effects indicate that these two economic variables potentially operate in distinct ways—profits per partner is more indicative of internal economic processes within the organization. Figure 7. The first model included all of the firms in the dataset. profits per partner. The composition of partners or associates is not significant. it wasn’t until 2005 that these firms reached the 50 hour per lawyer threshold. However. Model 1 shows the results for all of the law firms in the dataset. but distinguished between the top 100 firms (AmLaw 100) and the second 100 firms (AmLaw 200) in light of the diverging trends in commitment to pro bono (see Figure 7. Furthermore.2). Moreover. but there is no significant difference between the Northeast and the West. although the top 100 firms appear to have taken seriously the call for increased pro bono. 2008). results Table 7. The negative effect of gross revenues provides support for the suggestion that billable hours are competing with pro bono hours and that firms that can generate more billable hours will do so at the cost of pro bono (see also Lancaster et al.146 private lawyers and the public interest These trends indicate that average hours of pro bono per lawyer increased for the top firms. Model 3 tests the same set of variables for the AmLaw 200 firms (firms ranked 101–200). but the percent change in partners or associates has no statistical effect. Percent change in revenue. I then ran two additional models with the same set of variables.1. Model 1 also shows that larger firms do more pro bono. Midwest.

Berle 1933.021) 0.034) West −9.661 (4. critics have routinely expressed concerns about the increasing commercialization of the large law firm (see. However.055) −11.049) Percent Change in Partners −0. Midwest.050) −11.984 (5. and West all do significantly less pro bono work than the Northeast.092 R-Squared Between 0. and firm size have no statistical effect on pro bono commitment.the institutionalization of pro bono in large law firms 147 table 7.1 effects of selected organizational characteristics on large-firm pro bono participation.10 (two-tailed tests) (GLS Random Effects Corrected for First-Order Autocorrelation.787) −130.009 Associates (.002 (.679) Total Number of 10. Linowitz 1994.05.160 0.008 (.018) Percent Change in 0. discussion and conclusion For over a century. the composition of partners and associates has no effect on pro bono commitment.153) 0.046 (5.599 (5. The increasing connections to business were thought to be antithetical to the professional obligation to .061 (3.438 (1. 1998–2005 Model 1: All Firms Percent Change in Revenue −11.992) −9.229 (4.494 R-Squared Within 0.751) Profits per Partner 5.633 (2.100 759 *** *** *** Model 3: AmLaw 200 −8. Kronman 1993.141 R-Squared Overall 0.393) 30.672) 8.490 (5. the South. Nelson & Trubek 1992).021) −0. Stone 1934..015 0.672) 10. Standard Errors in Parentheses) longer have a statistical effect among these firms.285 (5. ***p <.804) 0.279) −9.220 (4.738 (4. †p <.141 N 1309 *** *** *** Model 2: AmLaw 100 −16. e. Percent change in revenue.017 (.01. profits per partner.665 (3.510 Lawyers (2.258 0.264) Constant −91.001.486 0.642 (2.016 (0. as in model 1.858) 0.067 0.023 (.954) −10.010 (2.465 (4.036) South −12.310) Midwest −11. **p <.916) −6.613) −0.074 550 ** ** * *** † † * † † *** *p <.053 0.g.628 (4. Similarly.

Thus.148 private lawyers and the public interest serve the public good. although many of these firms have created elaborate departments and programs to illustrate their support for pro bono.g. Thus. The current movement to institutionalize pro bono is embedded in the latest professional outcry against the commercialization of legal practice.. arguments that pro bono is institutionalized among large firms are only partially accurate. This concern was similarly shared by former Chief Justice Harlan Fiske Stone. there remains a gap in overall commitment in terms of hours. which have decreased their overall commitment to pro bono over the last decade (see Figure 7. Hence. pro bono is a story of elite lawyers. institutionalized pro bono still remains a distant reality among many of the richest firms.g. These repeated concerns over the increasing commercialization of the profession have regularly led to renewed calls for greater professionalism. What is different about the contemporary critique is that large firms appear to have gotten the message..2). Rhode 2005). Solomon 1992:148–149). who worried that the increasing commercialization of the large firm “has made the learned profession of an earlier day the obsequious servant of business and tainted it with the morals and manners of the marketplace in the most anti-social manifestations” (Stone 1934:6–7. quoted in Galanter & Palay 1991:17). It’s more accurate to think about pro bono as being in the process of becoming institutionalized—albeit only among certain firms—with this process mediated by specific organizational and institutional characteristics. “The complete commercialization of the American bar has stripped it of any social functions it might have performed for individuals without wealth” (Berle 1933:342. . As Dinovitzer and Garth argue (in this volume). quoted in Galanter & Palay 1991:18). But even the richest 100 firms have only recently reached the professional bar’s mandate of 50 hours of pro bono per lawyer. Pro bono practice is far from being a taken-for-granted feature of the modern firm. Thus. this study analyzed a variety of organizational characteristics to understand which factors facilitate and hinder pro bono commitment among large law firms. large firm practice was seen as nothing more than a business itself and as being in conflict with lawyers’ professional duty to serve the public good (see also Nelson 1988). e. Meyer & Rowan 1977). although these calls have often produced lackluster results (see. large firms have reoriented their approach to pro bono through the restructuring of their pro bono practices. as noble as their efforts appear to be. As I have argued in this chapter. The gap between pro bono structure and practices on the ground lends support to the idea that the current pro bono movement is more symbolic than substantive (cf. large firms can promote the professional ideal because they have the revenues to do so. Critics of the private bar are quick to point out that pro bono is on the decline while profits continue to soar among large firms (see. e. Pro bono becomes a way for elite firms to distinguish themselves within the profession. although there is evidence to suggest that the contemporary pro bono movement is radically different from earlier waves (Cummings 2004). However. This gap is most striking among the second 100 firms. As one commentator noted over 75 years ago.

and more formalized firms are able to react to institutional changes more quickly. This finding provides some evidence to suggest that large firm pro bono is not driven from below by interested associates or by concern for keeping associates happy. the percent change in the composition of associates or partners has no statistical effect on pro bono participation. My results do suggest that geography matters for pro bono commitment. I find that firms in the Northeast do more pro bono work on average than firms in other geographic regions. This effect remains after controlling for economic performance and firm size. The results of my analysis indicate that change in revenue has a negative effect on pro bono commitment. firms that generate higher profits per partner do more pro bono. and firms that can generate higher revenues through increased billing will do so to the cost of their commitment to pro bono. Large firms might create new pro bono structures. are oriented toward maximizing profits. these two findings provide evidence for the commercialization thesis: large firms are businesses and. but the structural realities of the workplace can have an important mediating effect on what associates actually do after being hired. Firm size is indicative of formalization. precisely because they can afford to do so. Much of institutional theory has separated the institutional sphere from the economic sphere (Powell 1991). Taken together. I found relatively little evidence that the personnel characteristics of large firms affect pro bono commitment. The overall size of the firm has a positive effect on pro bono commitment. Sandefur 2007). institutional developments can be mediated by economic and competitive factors (see Sherer & Lee 2002). This does not necessarily mean that economic engagement is antithetical to public service. Billable hours are in direct competition with pro bono hours. legal services will remain vulnerable to the economic realities of private corporations (see also Cummings 2004. Associates might report that they are interested in pursuing pro bono work when they look for jobs. We might expect this to be the case because New York City has traditionally been . there is no indication that pro bono is driven by internal labor market demands. Similarly. However. like any business. but the economic realities of the firm mediate the implementation of these practices. this has important implications for the delivery of legal services to the poor. Nonetheless. as I have shown. The current rhetoric surrounding professional obligations appears to be secondary to the economic realities that drive the contemporary pro bono system.the institutionalization of pro bono in large law firms 149 The most important organizational factors are associated with the economic performance of the firm. such as the creation of a department and the hiring of staff to oversee the firm’s pro bono practice. Indeed. firms with higher profits per partner do more pro bono work. which indicates that the institutional development of pro bono is more robust in the Northeast than in other regions of the country. However. Thus. As the federal government continues to decentralize the delivery of social services. These findings also provide evidence that institutions and markets are more connected than previously theorized.

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which now contribute millions of hours of pro bono service annually to individuals and organizations that could not afford to hire lawyers (Raymond 2008). who comprise more than 60 percent of all private practitioners (Carson 2004:8–9). Firm lawyers may be given time off to work exclusively on pro bono matters while still receiving 1. The pro bono efforts of these lawyers have not received focused attention. Lawyers in solo and small (2. 13). More than 50 million people are eligible to receive civil legal services from programs that are funded by the Legal Services Corporation (Legal Services Corporation Report 2007:2). A lawyer or administrator runs the firm’s pro bono program. Just a few examples of the differences suffice to make this point. contribute more time and in greater numbers to the pro bono legal representation of persons of limited means than any other group of lawyers (Heinz et al. Indeed. “pro bono work means something different to lawyers across different organizational sectors within the hierarchy of the legal profession” (2007a:141). pro bono work has been thoroughly institutionalized (Boutcher in this volume). even though they are different in many respects from the pro bono experiences of other lawyers. Pro bono work performed by large firms is typically performed entirely free of charge and is supplied to clients different from those ordinarily served by the firm. These numbers do not include undocumented immigrants living in the United States who may fall below the federal poverty guidelines but are not eligible for legal assistance from LSC-funded programs. As Robert Granfield has observed.8.1 Much attention has been devoted to the pro bono efforts of the largest law firms. the organized bar increasingly has provided pro bono legal assistance to the more than 50 million people of limited means in the United States. pro bono and low bono in the solo and small law firm context leslie c . Ruggiere & Carpanzano 2008:10.to 5lawyer) firms. and the supports available for this work. But the lawyers in the largest firms comprise only about 20 percent of the lawyers in private practice (American Bar Association (ABA) Standing Committee on Pro Bono and Public Service 2009:2). solo and small firms differ significantly from larger firm settings with respect to the ways in which pro bono work is found and performed. the types of work performed. In large law firms. levin introduction Over the last 35 years. 2005:131. the motivations and incentives for performing it. .

are often very different from those in large-firm practices. The terms “low bono” and “reduced-fee pro bono” are used interchangeably throughout this chapter to refer to the provision of legal services at substantially reduced fees to persons who cannot otherwise afford them. lawyers in solo and small firms do not have the support staff or associates that are available to large-firm lawyers to help them with pro bono work. and in their economic success (Landon 1990. . the firm cultures of solo and small firms. 2001:141. the very meaning of pro bono in the solo and small-firm context is different than in the large-firm setting. Other lawyers build practices serving middle-class and wealthier clients in personal plight areas such as family law. Solo and small-firm lawyers do. Still others represent organizations and work in the same practice areas found in large law firms (Levin 2004:325). which involves the provision of legal services at reduced rates to individuals. share common concerns about bringing in new business and being able to service their clients’ matters diligently and competently. Pro bono is rarely important for small-firm recruiting. They may devote enormous resources to a single case. but more often it comes through friends. even in the context of pro bono. every hour these practitioners spend performing pro bono work affects their monthly take-home income. however.156 private lawyers and the public interest full compensation. Cash flow is also a constant concern and can make it difficult for these lawyers to hire as much administrative support as they need (Mather et al. They vary considerably in the types of clients they represent. Some of the pro bono work performed by solo and small-firm practitioners is received from referrals by organized pro bono programs designed to provide free legal services to the poor. family. Cummings & Southworth in this volume). in their level of administrative support. Levin 2001). Consequently. including regular clients.2 Thus. who cannot otherwise pay (Stull 2004). or criminal law. Because their compensation is very directly tied to what they earn on an hourly or flat-fee basis. In contrast. 343–345). and existing clients (ABA Standing Committee on Pro Bono and Public Service 2005:14). however. and may actually be discouraged by firm partners because of economic concerns (Mather et al. Rhode 2005:168). It would be a mistake. Moreover. to think of solo and small-firm lawyers as a monolithic group. 2001:151–153). Many consider themselves to be doing pro bono when they perform “low bono” work. some large-firm lawyers may feel direct pressure from their colleagues or their clients to perform pro bono work (Boon & Whyte 1999:187–188. Seron 1996. and the motivations of lawyers in such firms for taking pro bono cases. Some are essentially cause lawyers who deliberately choose to represent underserved populations (Kelly 1994. Large law firms view their pro bono programs as critically important to recruitment of new associates and firm marketing. These concerns 2. landlord–tenant law. Levin 2004:323–324. which are areas in which underserved populations also need legal assistance.

It will consider the political and marketing environment in which the organized bar’s pro bono rule evolved and the ways in which the rule is presently viewed by solo and small-firm practitioners. pro bono publico often meant working for nonpaying clients or for those who were simply unable to pay. et al. 1972:8. but it also included work for the community that was nonlegal in nature.pro bono and low bono in the solo and small law firm context 157 can raise special challenges when these lawyers contemplate taking on pro bono work. the bar has not shared a common understanding of the term “pro bono publico” (Marks et al. and marketing of pro bono in private practice: dual perspectives While U. which articulated the official view that providing pro bono service to persons of limited means is a professional value (Marks. History and Bar Politics It was not until the late 1960s that efforts began in earnest to encourage lawyers to view pro bono work for persons of limited means as a professional value (Powell 1988:161–162. as funding for the Legal Services Corporation (LSC) was being cut (Adcock in this volume). For solo and small-firm lawyers. 1972:15–16. Maute 2002:123–124). the chapter will consider how the obligation to perform pro bono work may be inculcated in solo and small-firm lawyers. Cummings 2004:10). and will provide some suggestions for how pro bono might be conceptualized. This can be seen most clearly in the adoption by the ABA in 1983 of Model Rule 6. Since then. By the early 1980s. Abel 1989:129–130. the chapter reveals how low bono work performed for individuals who cannot afford a lawyer is insufficiently recognized and valued by the organized bar. the organized bar began to embrace this type of pro bono as a professional value. Abel 1989:129. In doing so. encouraged. Finally. as a part of running a business. lawyers at large law firms often gave their time to endeavors such as sitting on symphony boards and other civic activities that might lead to new corporate business (Marks et al. The term was understood to mean free legal work or work performed at reduced rates. politics. the history. 10. and even as a revenue source. In contrast. lawyers have reportedly always provided some free legal services to clients who were unable to pay. Rhode 2005:115). 1972:8. Maute 2002:119–128).S. This chapter examines pro bono in the solo and small-firm context. It will also look at data that provide some insight into the meaning and practice of pro bono in solo and small law firms as a professional value. large law firms increasingly have provided the . Only relatively recently has the lawyer’s obligation to perform pro bono work for individuals of limited means come to be taken seriously by large segments of the legal profession.1. and organized so that these practitioners can perform it more easily.

but is still not a true bar norm. the insertion of pro bono requirements in ethical codes is part of the professionalism project. but it was opposed by the New York State Bar Association because of the reactions of solo and small-firm attorneys (Greshin 1989:2. wholly apart from the reality (Powell 1988:173). including solo and small-firm lawyers. in 1979. Large firms. the New York Lawyer’s Code of Professional Responsibility defined “pro bono” as free legal services to individuals of limited means.1. Today the provision of pro bono services to persons of limited means is an aspiration of the legal profession. and several states have diluted ABA Model Rule 6. and has symbolic significance in demonstrating the profession’s concern about moral standards. which states that a “lawyer should aspire to render at least” 50 hours of pro bono services per year. which was vigorously opposed by a number of groups.” This same dynamic was played out in New York at around the same time when the elite Association of the Bar of the City of New York made a similar mandatory pro bono proposal (Powell 1988:162–164).158 private lawyers and the public interest resources and prestige to promote pro bono as an important professional goal (Cummings 2004:32. or its dollar equivalent (Schneyer 1989:701). Boutcher in this volume). . when the Association of the Bar supported a mandatory pro bono rule. have been more open to mandatory pro bono proposals. as evidenced by the fact that many lawyers continue to perform no pro bono work for these individuals. The elite bar’s efforts to elevate the provision of pro bono service from a professional goal to an actual obligation highlight some of the differences between pro bono as practiced in large law firms and in solo and small firms. Behar 1992:2.” It is telling that no state has adopted a requirement that lawyers perform pro bono work. including minimum hour requirements. which have more resources to devote to pro bono. This feeling was no doubt exacerbated by the fact that at that time. but does not require it.1 stresses that the pro bono responsibility “is not intended to be enforced through disciplinary process.1 by removing annual target hours or the emphasis on serving 3. but did not include reduced-fee services of the sort solo and small-firm practitioners often provide to their clients who are unable to pay. The Comment to Rule 6. This is not intended to suggest that elite lawyers were necessarily more concerned about helping underserved populations. Rather. the ABA’s Kutak Commission considered a 40-hour per year mandatory pro bono rule. The bar’s reluctance to embrace pro bono as a core value is reflected in ABA Model Rule 6. and again in the early 1990s.3 Thus. Solo and small-firm lawyers strongly opposed a mandatory pro bono rule and saw it as something that the elite of the bar was attempting to foist upon them (Seron 1996:129–130). whereas solo and small-firm lawyers have generally opposed them. The latter were concerned about their ability to meet mandatory minimums and resented the efforts by large-firm lawyers to impose requirements on them that they may not be able to meet or “buy out. Crider 2004:9–10).

pro bono and low bono in the solo and small law firm context 159

individuals of limited means (Connecticut Rule 6.1; Kansas Rule 6.1; Michigan Rule 6.1). The current ABA Model Rule 6.1 (a) reflects the large-firm view of pro bono. It places the greatest emphasis on rendering the “substantial majority” of legal services “without fee or expectation of fee” to persons of limited means or to organizations in matters that are designed to address the needs of persons of limited means.4 Although Model Rule 6.1 (b) (2) states that lawyers should provide “any additional services” through “delivery of legal services at a substantially reduced fee to persons of limited means,” the structure of Rule 6.1 conveys that this is a less valued and desirable method of rendering pro bono service. A few states, such as Florida and Illinois, equate “pro bono” work exclusively with free legal services or with a monetary contribution to a legal aid organization (Rules Regulating the Florida Bar 4-6.1; Illinois Supreme Court Rule 756 (f)). In some states, lawyers can discharge their pro bono obligations “collectively,” which in larger firms allows for one or more lawyers to work on pro bono matters that may be attributed to others lawyers in the firm (Arizona Rule 6.1 (c); Virginia Rule 6.1 (b)). Pro Bono and the Market As previously noted, pro bono in the solo and small-firm context often arises from the everyday work of these lawyers, when a person who needs help walks in the door or a client is no longer able to pay. Although the lawyers may accept the work because it will allow them to improve their skills, because they hope it will later help them build their client base (Lochner 1975:460), or because even a reduced fee will help them with their cash flow, most of them do not deliberately seek out this type of work. It is not viewed by most of these lawyers as helpful for recruiting other lawyers or for marketing themselves or their firms. In contrast, the opportunity to perform pro bono work in large law firms was of some importance in recruiting new associates in the late 1960s, and pro bono work had become institutionalized in some large firms during the 1970s (Marks et al. 1972:85–92; Handler et al. 1975:1388; Galanter & Palay 1992:52). Although many of the largest law firms performed some pro bono work during the 1980s, the commitment to pro bono work was relatively modest, with a few notable exceptions (Abel 1989:130; Vielmetti 1989:1). This commitment grew in the 1990s, and in 1993, in order to promote pro bono activity among large law firms, the American Bar Association instituted the Law Firm Pro Bono Challenge, which called upon firms of over 50 lawyers to devote 3 percent of their total billable hours annually to providing legal assistance to persons of limited means (Dean 1993:3). After a period of retrenchment from pro bono initiatives by large firms

4. See Granfield and Mather (in this volume:4) for the full text of ABA Model Rule 6.1.

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because of rising salary costs (Cummings 2004:38–39), in 2002, The American Lawyer started to calculate its “A-List” of large law firms based, in part, on pro bono performance. Once large firms started being ranked in this fashion by The American Lawyer, it appears that their pro bono efforts shot up. Stories abound of large-firm efforts to increase pro bono participation due, at least in part, to the AmLaw rankings (Sandburg 2006; Hallman 2007). For large law firms, pro bono work is important for associate hiring, retention of lawyers, training, improved client relationships, and business development (Lardent 2000; Justus 2003:366–372). For these reasons, pro bono efforts are now prominently advertised on firm websites, in firm newsletters, and in news announcements. The definition of pro bono work remains contested even within the elite bar, and the reasons appear to be more related to marketing than to moral philosophy. Questions have arisen over whether it is appropriate for large firms to report as “pro bono” work performed on cases in which court-awarded attorneys’ fees were retained by the firm (Kolker 2006). Controversies have also arisen, for example, over whether Winston & Strawn’s work on former Illinois Governor George Ryan’s criminal case, to which the firm devoted a 20-person legal team, could properly “count” as pro bono under The American Lawyer definition, when Ryan earned an annual pension of $195,000 and was not “poor” (Kolker 2006). After discovering “a few examples of overreaching,” The American Lawyer spent a year devising a common definition of “pro bono” (Press 2007). The new definition refers to activities of the firm “undertaken normally without expectation of fee not in the course of ordinary commercial practice” including (but not limited to) “the delivery of legal services to persons of limited means.” The provision of legal services to various organizations where payment of standard legal fees would significantly deplete the organization’s economic resources is also considered “pro bono.”

pro bono participation and attitudes
Most of the data about pro bono work by the legal profession come from the American Bar Association, The American Lawyer, and state bar surveys that are based on self-reports of pro bono participation. This survey data must be viewed with caution. The terminology used in some of the surveys is vague and comparisons are difficult because the studies are measuring somewhat different activities. For example, New York’s most recent study of pro bono participation does not include low bono services provided to persons of limited means, yet many other studies do. Lawyers in different states are differently situated with respect to the urgency and the obviousness of the unmet need. Natural and manmade disasters may account for unusual levels of pro bono activity in certain jurisdictions during some time periods. It is also likely that there is some response bias, because those who participate in pro bono activities are more likely to respond to surveys than are those who do

pro bono and low bono in the solo and small law firm context 161

not (Heberlein & Baumgartner 1978:458; Martin 1994:333; Groves et al. 2004:25). State reports based on state-mandated pro bono reporting may be more accurate because of the high response rate, although cognitive biases may still produce an overstatement of pro bono work actually performed. The pro bono participation in the jurisdictions with mandatory reporting may also not be generalizable to pro bono experiences throughout the United States, because reporting requirements may increase actual pro bono participation or at least reports of participation. Nevertheless, the studies do provide some insight into the relative levels of pro bono participation, the bar’s views toward pro bono work, and the ways in which such work is performed in solo and small-firm practice. General Trends The most recent nationwide survey of pro bono participation by lawyers, which was conducted by the ABA in 2008, indicated that in the preceding 12 months, 73 percent of respondents provided free legal services to persons of limited means or to organizations that serve the poor (ABA Standing Committee on Pro Bono and Public Service 2009:10). This number, which was based on a telephone survey of 1,100 lawyers, appears to be high. Other state studies and reports during roughly comparable time periods estimate that the percentage of lawyers who provide free legal assistance, directly or indirectly,5 to benefit underserved populations ranges from 33 percent to 58 percent (2007 Pro Bono Contributions of Wisconsin Lawyers 2008:3; Ruggiere & Carpanzano 2008:9; Illinois Attorney Registration and Disciplinary Commission 2009:6–7). A smaller but still significant percentage of lawyers report doing pro bono in the form of reduced-fee work for underserved populations (Casey & Co. 2002:11; Montana Voluntary Pro Bono Reporting 2002–2003; Ruggiere & Carpanzano 2008:13; 2007 Pro Bono Contributions of Wisconsin Lawyers 2008:17). In some jurisdictions, almost as many hours of reduced-fee services were provided to persons of limited means and organizations that serve the poor as hours of free legal services (Ruggiere 2006:12; 2007 Pro Bono Contributions of Wisconsin Lawyers 2008:17). The studies consistently show that more lawyers in private practice perform pro bono work than in-house lawyers or government attorneys (Heinz et al. 2005:131; ABA Standing Committee on Pro Bono and Public Service 2009:10–11; Maryland Administrative Offices of the Courts 2008:24). More lawyers in solo and small firms and in the largest firms do pro bono work than those in firms of 6 to 50 lawyers (Maryland Administrative Offices of the Courts 2008:20–21). Older lawyers are more likely to perform free pro bono work than are younger attorneys (ABA Standing Committee on Pro Bono and Public Service 2005:16;
5. “Indirect services” are the provision of legal services to civic, religious, or other organizations in matters designed primarily to address the needs of persons of limited means.

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Standing Committee on Pro Bono Legal Services 2006:App. G). Middle age and older attorneys may perform more hours, on average, of pro bono legal services at substantially reduced fees than other lawyers (Ruggiere & Carpanzano 2008:14). Pro Bono Participation by Solo and Small-Firm Lawyers—The Numbers State bar statistics provide a clearer picture of the nature and extent of pro bono participation in solo and small-firm settings. For example, a Maryland report of the pro bono service of all admitted lawyers revealed that a higher percentage of lawyers in rural areas—who tend to practice in solo and small firms—rendered pro bono services than lawyers in other regions (Maryland Administrative Offices of the Courts 2008:9, 21). A larger percentage of solo and small-firm practitioners engaged in some pro bono work than lawyers in other private practice settings: 77.3 percent of solo practitioners and 70.6 percent of small-firm members did pro bono work, as compared to 68.4 percent of lawyers in firms of over 50 lawyers. The largest number of pro bono hours was devoted to family/domestic practice and almost 70 percent of the family law bar provided pro bono service (2008:15–16). Likewise, the State Bar of Texas surveyed 500 members about their pro bono activities and found that 76.7 percent of rural lawyers provided free direct or indirect legal services to benefit the poor (Ruggiere & Carpanzano 2008:10). Urban lawyers in small firms (1–5 lawyers) were more likely to perform free legal direct or indirect services to the poor than were lawyers in other practice settings. Urban small-firm lawyers (44.5 percent) and rural lawyers (54.7 percent) also were significantly more likely to provide legal services at substantially reduced fees than were lawyers in other practice settings (2008:13). Not only do more solo and small-firm lawyers provide free and reduced-fee services to the poor than other lawyers, but the average number of hours they provide may rival or exceed the average number of hours devoted by lawyers who perform pro bono in other practice settings. Comparisons are admittedly difficult, especially because large-firm lawyers—who are required to keep detailed track of their billable and nonbillable time—may keep more accurate records than solo and small-firm lawyers. Nevertheless, Missouri lawyers in solo and small (1- to 9-lawyer) firms who perform pro bono reported devoting substantially more time, on average, to providing free legal help to the poor than did large-firm lawyers who performed pro bono (Casey & Co. 2002:33). Wisconsin solo lawyers and Missouri solo and small-firm lawyers who performed pro bono provided substantially more reduced-fee hours to individuals of limited means than did large-firm lawyers who performed pro bono (Casey & Co. 2002:32–33; 2007 Pro Bono Contributions of Wisconsin Lawyers 2008:17). The most common reason cited by all lawyers for not doing more pro bono work was lack of time (Kaye & Lippman, 2004:17; Modell 2005; ABA Standing Committee on Pro Bono and Public Service 2009:23; Kelly Carmody & Associates

pro bono and low bono in the solo and small law firm context 163

2008:16). Some small-firm lawyers who represent low-income clients on a regular basis believe that they do “de facto” pro bono work and could not take on any more pro bono work (Rhode 2005:135). Lack of administrative support may also discourage pro bono work by some solo and small-firm lawyers (Ruggiere 2006:41). Qualitative Research on Pro Bono in the Solo and Small-Firm Context There are a few studies of solo and small-firm lawyers that provide deeper insight into their pro bono practices and attitudes. In his 1972 study of lawyers in Erie County, New York, Philip Lochner (1975:436–437) found that solo lawyers did not seek out no-fee and “low fee” work, which often came to them through business or professional contacts who knew someone who needed a lawyer. Most of the clients were middle- or lower-class individuals who were young or who held clerical jobs or jobs as skilled or unskilled manual laborers. These clients were not usually the genuinely poor, but rather the “temporarily disadvantaged” who lacked the savings to pay for a lawyer (1975:443, 449–452). The predominant reason why the lawyers took these clients was the hope that the current no-fee/ low-fee client would become a paying client or that it would otherwise help their business. Less often, lawyers took on this work for charitable reasons or because of a sense of obligation to the community or to the ethnic group to which the attorney belonged. The amount of time spent on these pro bono matters was generally less than the time afforded a paying client, and the effort expended was, at times, not as high (1975:456, 459). Lochner’s observations are consistent with Carroll Seron’s study of lawyers in solo and small (under 15-lawyer) firms in the New York City area. Seron (1996:130–131) reported that these lawyers viewed the professional obligation to be of service as an individual moral obligation that grew out of their day-to-day work with individual clients. Almost all of the lawyers she interviewed claimed to have done pro bono work as they defined it. Although they strongly opposed mandatory pro bono,6 these lawyers often viewed themselves as doing pro bono work when their clients could not pay for their legal services. Some of this pro bono was planned, as when a lawyer decided at the outset of the representation to charge a reduced fee or no fee; more often, it was unplanned. Some of these lawyers also viewed their contingent fee work or their paid work as appointed counsel in criminal cases as a type of pro bono work (1996:129–133). Likewise, Lynn Mather et al. (2001) reported in Divorce Lawyers at Work that virtually all the lawyers they interviewed—who were predominantly solo and small-firm lawyers in New England—provided services to some needy clients who were unable to pay the full fees for legal assistance. Although some of their
6. This opposition to mandatory pro bono apparently continues to the present. According to a recent study, solo and small-firm attorneys are significantly less likely to support mandatory pro bono than larger-firm lawyers (Granfield 2007a:132).

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pro bono work came from bar-organized referral systems, the work often came from people who simply showed up in the lawyers’ offices. Some divorce lawyers took on needy clients knowing that they could not pay or could only pay a discounted fee, while a larger group reported feeling an obligation to continue representing a paying client who could no longer afford the lawyer’s fee. Most of this informal pro bono work was performed by solo practitioners and those who were already representing lower-income and moderate-income clients. Divorce lawyers in the largest firms were least likely to reduce their fees (2001:135–138). Two findings from Divorce Lawyers at Work are particularly important. First, divorce lawyers who worked in firms sometimes encountered significant pressure from partners and employees to turn down pro bono work, because if a client could not pay, it affected the entire firm. Firm policies and procedures sometimes limited billing decisions or were used as a “scapegoat” to explain the firm’s financial requirements (2001:137, 151–153). Second, the financial challenges of running a law practice and the conventional wisdom about good office management practices left some lawyers who provided reduced-fee pro bono assistance feeling that it reflected poor office management. As noted by Mather et al., there is little bar recognition for this type of pro bono work, and the law office management literature consistently advises on how to collect fees promptly and ensure full payment from clients. Thus, lawyers who provided reduced-fee assistance were just as likely to report guilt as pride in connection with their pro bono work (2001:138–139, 151). In contrast, Michael Kelly (1994), in his Lives of Lawyers, described a small firm, which he called Marks & Feinberg, that deliberately sought to assist lowincome clients. The founding partners of the firm had worked for not-for-profit legal defense funds before forming their partnership, which primarily did criminal defense work and civil rights litigation. The lawyers’ criminal defense work was comprised of “blue collar” defense and occasional court-appointed firstdegree murder cases. The civil rights and discrimination litigation was conducted primarily in cases in which statutory attorneys’ fees were available if the firm prevailed (1994:156). These lawyers had no budgeting system and no way of systematically measuring whether their caseload could generate enough profit to sustain the firm. Not surprisingly, they perpetually struggled to financially “squeak by” (1994:162, 170). These studies of solo and small-firm lawyers provide some insight into the manner in which pro bono work is viewed and provided by these practitioners. They reveal that pro bono work often grows out of the lawyers’ existing practices and their personal relations, rather than out of deliberate efforts to seek out legal work that will benefit the poor. This observation is consistent with Seron’s (1996:130) finding that solo and small-firm lawyers’ view of their professional responsibility obligations is “firmly located within a framework of their day-today caseload of clients” rather than in some socially based commitment to a collective good.

friends. and families often represented middle-class individuals who were going through hard times. In the first.pro bono and low bono in the solo and small law firm context 165 the delivery of pro bono services by solo and small-firm practitioners Exploration of the different mechanisms through which solo and small-firm lawyers deliver pro bono services further highlights some of the differences between the pro bono experiences of these lawyers and the elite bar. or legal services pro bono programs in which individuals of limited means are referred to volunteer attorneys who provide their services free of charge. As Lochner (1975) noted. can help to provide a deeper understanding of the meaning of pro bono in this practice setting. Some of the planned pro bono work also comes to solo and small-firm lawyers through friends and family. which is often run by a bar association. It is unclear how much of this pro bono work benefits the poor and how much of it goes to individuals who are more solidly middle class. Occasional Planned No-Fee Pro Bono7 Lawyers in solo and small-firm practice. Reduced-fee programs take two forms. court. or from individuals who simply walk in the door “and tug at your heartstrings” (Stull 2004). the lawyers who provided pro bono services for individuals referred to them by their business associates. . which are often embedded in fee-generating activities for solo and smallfirm lawyers. participate in formal bar. the lawyer receives the reduced fee directly from the client. This may be especially common in rural areas. Formal Reduced-Fee Programs Solo and small-firm attorneys also provide reduced-fee services through formal programs designed to assist individuals of limited means. where lawyers personally know many of the people in the community (Renaud 2000). or other nonprofit organization. like large-firm lawyers. In some cases. The term “planned” pro bono is used to describe matters that the lawyer agrees to take on at the outset of a representation on a free or reduced-fee basis. the lawyer receives the reduced fee from the government or a legal services organization and the lawyer provides legal representation without cost to the client. rather than truly indigent clients. These programs are grouped together because they both result in lawyers being paid a reduced fee 7. may volunteer to assist with other organized projects such as those that provide assistance to death row clients or detainees at Guantanamo Bay. legal services organization. solo and small-firm lawyers. They often provide pro bono work in their own areas of expertise. These delivery mechanisms. It contrasts with “unplanned” pro bono. like larger-firm lawyers. which arises when lawyers provide free or reduced-fee services at some point after the representation commences because their clients can no longer pay. In the second.

are the primary providers of these reduced-fee legal services.1 Comment 7). by more experienced lawyers to supplement their income from their established law practices. landlord–tenant law. For example. which started in 1966. Appointed counsel work is undertaken by lawyers while building their practices. that solo and small-firm lawyers. and by other lawyers who simply seek to provide access to justice for indigent clients.000 per case. is Wisconsin Judicare. Little information has been gathered systematically about which lawyers participate in these programs and for how long. Low Bono Law Practices A third way in which solo and small-firm lawyers deliver legal services to persons of limited means is through law practices that are consciously positioned to serve low-income individuals. the Oregon State Bar has instituted a Modest Means Program that refers individuals who earn up to 200 percent of the poverty guidelines to lawyers who provide legal services in the areas of family law. who disproportionately practice in personal plight areas.and moderate-income clients to pay the reduced fees directly to the lawyers. If the case is approved. Perhaps the best-known example of a reduced-fee program in which the government pays the lawyer is court-appointed counsel for indigent clients in criminal cases. It seems likely. law schools and other . Lawyers are paid $50 per hour and an amount not exceeding $1. One such program. These lawyers typically serve on a panel of criminal defense lawyers who are willing to serve as appointed counsel at fixed rates. some lawyers provide reduced-fee services at low fixed rates through formal programs that require low. Judicare is funded by the Legal Services Corporation as well as the state. The programs are also explicitly recognized as pro bono activities under ABA Model Rule 6. the Maryland Legal Services Corporation has launched the Child Custody Representation Project to provide representation to low-income individuals in contested child custody cases. and may report the work in their annual pro bono reports (Hurley 2005). The compensation rates mostly range from $60 to $100 per hour and some have had capped maximums (Spangenberg Group 2007). During the last dozen years. In other instances. Similarly. and criminal defense at a rate of no more than $60 per hour.1. however.166 private lawyers and the public interest through a formal program that is designed to benefit low-income clients. although they are in a less preferred category than the provision of free legal services (ABA Rule 6. the lawyer is paid a low hourly fee ($45 per hour) for the work performed for eligible clients (Wisconsin Judicare 2008). It bills itself as a “low bono” alternative for clients who cannot qualify for free legal services (Oregon State Bar). and uses the private bar to represent low-income persons who would qualify for assistance from LSC-funded programs. A few jurisdictions have also institutionalized judicare programs. which pay private attorneys a low hourly fee to provide legal services to low-income individuals in civil cases.

I mean I’m making some—somewhat more—doing better financially but I’m not . A survey of the practitioners in the network revealed that on average. and discounted support services such as electronic research and insurance (Cooper 2002. For example. . It created the Community Legal Resource Network. the lawyer may feel a desire or a moral commitment to continue to represent the client. especially when litigation 8. these practices can be economically difficult to sustain. but cannot readily withdraw from representing the client. Unplanned Pro Bono: Nonpayers Who Become Pro Bono Clients When a lawyer has a client who can no longer afford to pay her fees. but not always. Not surprisingly. 37 percent were fullfee. the lawyer may not feel such a desire or commitment. The lawyers characterized slightly more than half of their clients as “impoverished” or “low income” (Law School Consortium Project 2005:2). In some cases. I think the phrase that’s come up is this is low bono [laughs]—just a little—I mean I’m not—[my] financial situation is not sort of like starkly different in some ways.org 2008).pro bono and low bono in the solo and small law firm context 167 groups have worked with solo and small-firm practitioners to organize and support “low bono” law firm practices that provide discounted fee work to clients and take on other cases that may produce revenue through fee-shifting statutes. Cases may be complex. 42 percent of the matters were handled on a low bono/discounted basis. Dhillon 2008). Working in personal plight areas such as family or immigration law can be emotionally draining. . listservs. she responded: [I]n terms of the professional context and my client base is similar—a lot of the people who end up being clients could easily be clients of the office.and middle-income communities and in finding an economically viable way in which to do so (Lowbono. but hourly fees are low. and the remainder was free legal work. Burnout is a problem because it can be difficult to sustain the pace with so little remuneration and so many demands on the lawyer. NY. the lawyer may find herself providing free or reduced-fee legal work. 7 percent were fee-shifting cases. Interview with Attorney in Queens. Vacations are hard to take and difficult to afford. but not always for those who are indigent and not in an entirely voluntary sense. when one Consortium member was asked to describe the difference between her previous practice at a not-for-profit organization that represented immigrants and her current practice as a solo practitioner. In other cases. For example. . which includes about 800 solo and small-firm practitioners and provides support for these lawyers through mentoring. the Law School Consortium Project is a network of 16 law schools that helps solo and small-firm attorneys who are interested in serving low.8 Maintaining these practices takes a toll on the lawyers. Some of them are a little—[are] more on their feet financially.

reflects the views and practices of the elite (corporate) segment of the profession. Ethical obligations to handle client matters competently may require lawyers to continue to perform some legal work.1(a). 2005:29). As will be discussed below. but they are actively discouraged within some circles. one important question to consider is whether to revise Rule 6. the pro bono experiences among those firms are more similar to each other than they are to the large-firm pro bono experience. Thus. and their commitment to performing pro bono work. “you should withdraw from a case as soon as clients give you the indication that they’re not going to live up to their fee agreement” (Foonberg 2004:329).1 has come to reflect the dominant view of what pro bono means in practice. which was promulgated by the historically elite ABA. Not only are these efforts not recognized by the elite bar. implications and ideas for serving persons of limited means The preceding description of the pro bono practices of solo and small-firm practitioners reconfirms Heinz and Laumann’s observation that there are two distinct sectors of the U. legal profession: one represents individuals and the other represents large organizations (Heinz et al. It may actually operate to discourage some of the free and reduced-fee work that would otherwise be performed. Not only do the lawyers who practice in these sectors serve different types of clients and practice in different office environments. Model Rule 6. Solo and small-firm lawyers who perform free or reduced-fee work under these circumstances sometimes view it as pro bono work. Social relations within small communities may also make withdrawal difficult. even though there may be some altruism involved in the continuing willingness to represent the client for little or no compensation. even when it becomes apparent that the client will be unable to pay. The cases handled on this basis may not receive the same attention as paying matters. this type of work is often viewed as a failure of the lawyer’s business management skills. Nevertheless. it minimizes the important contributions of solo and small-firm lawyers. their financial resources. A second question is how to increase . As one well-known author of law office management books for solo and smallfirm lawyers advises. This does not mean that there are not significant differences in pro bono practices among solo and small firms based on their clientele. and not those of solo and small-firm lawyers.168 private lawyers and the public interest is ongoing. to the extent that the ABA’s Model Rule 6.1 to reflect a less elite view of pro bono and to place some of the day-to-day contributions of solo and small-firm lawyers in a more positive light.1. which only includes work undertaken without expectation of a fee. although it is not recognized as such under ABA Model Rule 6. but their conception and performance of pro bono work also differ in important respects. Not surprisingly.S. Moreover.

563 for a family of four. Citro & Michael 1995). 2000. criminal. In cases where important personal rights or relationships are at stake (e. The LSC guidelines make eligible those who earn at or below 125 percent of the federal poverty level guidelines.. or where entitlements (e. employment. it is important to consider redefining “pro bono” in a way that recognizes the realities of practice in that setting. family. In order to encourage more pro bono work by lawyers in solo and small law firms.g. The pro bono practices of solo and small-firm lawyers highlight a problem that has been largely ignored by the elite bar: many Americans—and not just those whose incomes are easily measured in relation to the federal poverty guidelines—cannot afford the legal fees charged by lawyers for the important legal problems that arise in their everyday lives. Redefining Pro Bono In order to encourage more pro bono work by solo and small-firm practitioners. In 2009. Individuals earning less than that amount fall within the definition of the “working poor” (Acs et al.” “Persons of limited means” are “those who qualify for participation in programs funded by the Legal Services Corporation and those whose incomes and financial resources are slightly above the guidelines utilized by such programs” (ABA Model Rule 6. in order to combat the perception that such work simply reflects poor law office management practices and should be avoided. the lawyer should provide a substantial majority of the (50) hours of legal services without fee or expectation of fee to persons of limited means.1 Comment 3). which in 2009 was $27. which do not account for significant variability in the cost of . their provision of free and reduced-fee services to certain individuals should be recognized as providing a valued service. This requires four changes in the ABA’s current pro bono rule.S. As previously noted. Census Bureau 2008a). the definition of “persons of limited means” should be expanded. and gives the contributions of these lawyers a positive meaning. A). the term “person of limited means” needs to be defined more expansively. The current definition—which is limited to people with income and assets that are no more than “slightly above” 125 percent of the poverty guidelines— excludes many individuals who genuinely cannot afford lawyers. First.g. App. It should also not be linked to the federal poverty guidelines. Many solo and small-firm lawyers are confronted with this reality on a regular basis and attempt to address some of the needs of those individuals while still earning a living.pro bono and low bono in the solo and small law firm context 169 the participation of solo and small-firm lawyers in pro bono activities that will address more of the critical legal needs of persons of limited means. or immigration law). social security or workers’ compensation) or housing are at issue. even 200 percent of the poverty guidelines only amounted to an income of $44.100 for a family of four (45 CFR Part 1611. The poverty guidelines are extremely low and based on outdated methodology (Ruggles 1990.1 (a) provides that “[a] lawyer should aspire to render at least (50) hours of pro bono publico legal services per year” and that “[i]n fulfilling this responsibility.. ABA Model Rule 6. U.

There is admittedly good reason to encourage “no-fee” legal work by those who can perform it. reduced-fee pro bono performed by solo and small-firm lawyers can require a significant sacrifice. legal work for a substantially reduced fee should not be relegated to a secondary position in the Model Rules—or worse. Treating free legal work as the most favored form of pro bono reinforces the status hierarchies in the profession and devalues a good deal of the work that solo and small-firm lawyers perform for underserved populations. in New York and California. In contrast. the Comment accompanying ABA Model Rule 6. such as when a lowincome client becomes unemployed during the course of the representation and the solo or small-firm lawyer continues to represent the client without an expectation of full payment. has not undertaken the work with an altruistic motive. some lawyers will claim that they have performed . To the extent that the Model Rules seek to convey the values of the profession. excluded altogether from the definition of “pro bono” under some state bar rules.1 also conveys that no-fee pro bono is the “purest” form of pro bono.S.1 that states “services rendered cannot be considered pro bono if an anticipated fee is uncollected” deserves reconsideration. and then is unable to collect the fee. Obviously. for recruiting and marketing reasons. there is a danger that if the definition of pro bono is expanded to include clients with somewhat higher incomes and situations where lawyers originally expected to be paid. this type of behavior should be encouraged and viewed by the bar as pro bono. Many largefirm lawyers draw precisely the same salaries for their pro bono work as for their paying work. In some circumstances. Census Bureau 2008b). The fact that this may happen with some frequency in certain types of solo and small-firm practices—or that it arises out of the lawyer’s day-to-day work—does not change the fact that the lawyer is at that point working free of charge or at reduced rates for a client who would not otherwise be able to obtain legal assistance. a lawyer who performs legal work believing she will be paid. as evidenced by the fact that some large-firm lawyers undertake pro bono work. “persons of limited means” should be defined as individuals whose income and assets are less than twothirds of the state’s median family income. it is approximately $51.500 (U. But Model Rule 6. This approach would allow for a more realistic definition of the persons who genuinely cannot afford a lawyer than is provided by percentages tied to the federal poverty guidelines. at least in part. Third. Instead.000. Second. they should not communicate that the reduced-fee work of solo and small-firm lawyers is less highly valued than the no-fee work performed in large law firms. For example. when in fact the “purity” of the motivations underlying no-fee pro bono work is debatable. even if no fee is charged for the work performed for their pro bono client. two-thirds of the median family income for a four-person family in Arkansas and Mississippi is just under $37.170 private lawyers and the public interest living in the continental United States. But what “counts” as pro bono for large-firm lawyers is not based entirely on a lawyer’s altruistic motives. Finally.

pro bono and low bono in the solo and small law firm context 171

“pro bono” work in situations where the term should not be applied. One way to minimize this occurrence would be to define what it means to perform work at a “substantially reduced fee.” For example, a “substantially reduced fee” might be defined as a reduction by 50 percent or more of the rate typically charged a middle-class client for the same legal service in the community. In addition, the work should only be considered pro bono if performed for persons of limited means (as defined above), if the matter involves fundamental legal rights, and if the reduction occurred because a client became unable to pay, rather than because of a fee dispute or other disagreement with the client. Other Factors Affecting Pro Bono Participation Although rules of professional conduct inform lawyers’ understanding of the norms of the profession, a rule change alone—and particularly an exhortatory rule—will not, standing alone, significantly alter lawyer conduct. In order to identify effective strategies for encouraging solo and small-firm practitioners to perform pro bono work and to make it easier for them to do so, it is important to consider the other factors that are likely to affect their ability, opportunity, and willingness to perform pro bono work. Those factors most likely include the lawyer’s existing clientele, individual personal factors, and the lawyer’s work place and communities of practice. A lawyer’s regular clientele will directly affect the extent to which the lawyer is exposed to lower-income individuals who need legal assistance and the ability of the lawyer to draw on his or her existing knowledge base to assist such individuals. Thus, some solo and small-firm practitioners will perform pro bono work simply because the opportunity directly presents itself and the lawyer knows how to help. Lawyers who work in low bono private practices routinely encounter the opportunity to serve low-income clients and draw on their existing legal knowledge to help them. A second and much larger group is other solo and small-firm lawyers who serve individual clients in personal plight matters, but who primarily represent middle-class and wealthier clients. These lawyers are likely to receive referrals or “walk-in” clients who are seeking pro bono assistance. They also encounter clients who started the representation intending to pay, but who have a reversal of circumstances before the end of the representation that render full payment impossible. There is also a third group of solo and small-firm attorneys who mostly represent organizations and work in practice areas found in larger corporate law firms. These lawyers are less likely in their regular practices to encounter low-income individuals who present legal problems that they can readily address. Of course, even when the opportunity to perform pro bono work presents itself in a regular practice, not all lawyers will agree to perform the work. A lawyer’s willingness to provide pro bono assistance will also vary based on individual personal factors including, inter alia, financial circumstances, level of office support, career stage, and family commitments. Thus, new lawyers who do not yet

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have a full practice may be willing to take on pro bono work to gain experience, contacts, and possibly—down the road—paying clients. For other lawyers, pressures to pay the rent and support staff may trump the willingness to provide free legal work, especially where paying clients are available. In solo practices, where there is no one else but the lawyer to do the work, and often limited support staff, pro bono work may not feel “possible.” It seems clear, however, that even opportunity and individual factors do not entirely account for the decision to perform pro bono work. Lawyers consistently report that the main reasons they perform pro bono work are a sense of satisfaction and a sense of obligation (Granfield 2007b:1399; Rhode 2005:136; Ruggiere 2006:44). From where does this sense of obligation arise? Recent research suggests that it may not come from pro bono experiences in law school. As Granfield (2007b:382–385, 1391) has noted, workplace may be a stronger predictor of pro bono work in practice than law school socialization. Workplace settings account for differences in volunteer behavior and “[s]uch differences are likely due to the institutionalized norms, values, pressures, and constraints that exist within distinct workplaces” (Granfield 2007a:142). Other scholars have also suggested that the greatest external influence on altruistic behavior by lawyers is probably the “practice site” (Boon & Whyte 1999:172–173). In solo and small-firm practice, however, the “workplace” is not necessarily the discrete law firm. Solo attorneys often share a suite with other lawyers. Even small firms sometimes share office space with other lawyers. Solo and smallfirm lawyers learn from watching other lawyers in a variety of contexts (Seron 1996:8–9; Levin 2001:879–880). They are socialized not only in the office spaces that they occupy, but also in court and in other places where they observe colleagues (Carlin 1966:166–67). For this reason, it may be useful to think about the communities of practice within which these lawyers operate and how they might affect the lawyers’ views of pro bono. Mather et al. found that divorce lawyers, who often practice in solo and small-firm settings, are heavily influenced by their communities of practice—that is, “the groups of lawyers with whom lawyers interact and to whom they compare themselves” who help shape the decision-making of lawyers through collegial influence and controls (2001:6,14). Particular norms and choices of divorce lawyers are linked to communities of practice and are shaped by them. Thus, it is useful to consider how the communities of practice of solo and small-firm lawyers may contribute to creating their views of pro bono work and any sense of obligation to perform it. Presumably the lawyers who deliberately build low bono practices and join networks such as the Community Legal Resource Network are part of a community that reinforces the value of providing legal services to underserved populations. But for other solo and small-firm lawyers, there may be few positive messages that would communicate a sense of obligation to perform pro bono work. No doubt some lawyers observe pro bono work performed by others in

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their offices. But much of it may not be perceived as pro bono work, because it receives little or no recognition by the organized bar or from peers. Moreover, free work or reduced-fee work performed for clients who are unable to pay may not be discussed much among office colleagues. For these lawyers, such work may be perceived as a sign of poor law office management rather than as a positive societal contribution. In addition, for solo and small-firm lawyers with organizational clients, pro bono opportunities may not naturally present themselves within their offices or communities of practice. In the absence of a culture that encourages reaching out for pro bono work—or special knowledge about how to perform it—pro bono is less likely to be undertaken by these lawyers. Strategies for Increasing Pro Bono Participation Local and specialty bar associations could play an important role in promoting pro bono work among solo and small-firm lawyers. Many solo and small-firm practitioners belong to at least one voluntary bar association, and it is often a local or specialty bar association rather than an elite one (Levin 2004:333). For some solo and small-firm lawyers, these bar associations play an especially important role in their socialization, their professional development, and their advice sharing (Levin 2005). These local and specialty bar associations—and not the elite bar groups—are the locus of community for some solo and small-firm lawyers. Pro bono initiatives and awards by these groups could convey a powerful and positive message. An example of a specialty bar effectively promoting pro bono by its members can be found in the relatively recent efforts of the American Association of Justice (formerly known as ATLA). Prior to 2001, the plaintiffs’ personal injury bar, which is comprised mostly of solo and small-firm lawyers, did not have a culture of actively promoting pro bono work for persons of limited means. This changed when ATLA organized a large pro bono project known such as “Trial Lawyers Care,” which provided free legal services to over 1,700 victim-families making claims based on the events of September 11, 2001 (Trial Lawyers Care Project 2004:5–6). This pro bono initiative involved 1,100 trial lawyers who might not otherwise have performed pro bono work and suggests one way in which a specialty bar can help to promote a sense of obligation to perform pro bono. Local bar associations and specialty bars that are composed primarily of solo and small-firm lawyers could also do more to organize short-term pro bono projects that benefit individuals of limited means. An example would be American Immigration Lawyers Association’s Citizenship Day, on which immigration lawyers make themselves available to individuals who have questions about their eligibility for U.S. citizenship. Bar associations could encourage pro bono participation by lawyers who do not work in personal plight areas by offering on-site training on the day of the activity to enable those lawyers

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to assist individuals with legal problems that fall outside the lawyers’ usual practice areas. Another way to increase pro bono activity among solo and small-firm lawyers is for local and specialty bar associations to actively promote the view that certain reduced-fee legal work is “pro bono.” One way to do this is to create more reduced-fee lawyer referral programs for individuals of limited means. These programs could offer lawyers training and “mentors” who would be available to answer questions, and could be advertised as an opportunity for lawyers not only to perform an important service, but also to gain experience while building a practice. Bar associations could also sponsor programs in which lawyers could discuss the best ways to manage their planned and “unplanned” reduced-fee pro bono. If the provision of pro bono—including low bono—is actively discussed and promoted by these bar associations, it could help alter negative perceptions about taking on this work. Local bar associations could also help to increase pro bono participation among solo and small-firm lawyers by working to address the malpractice insurance problem. Lawyers in solo and small-firm practice were more likely than lawyers in other settings to believe that free malpractice coverage for pro bono work would encourage lawyers to perform pro bono (Rhode 2005:135; Brown 2006:App. B; ABA Standing Committee on Pro Bono and Public Service 2009:20–21). Lawyers who receive pro bono referrals from legal services organizations are often covered by the organization’s malpractice policy, but many solo and small-firm practitioners do not take on pro bono work through these formal referrals. Some of them do not have legal malpractice insurance, even for their paying clients, or do not have coverage to practice in areas outside their usual areas of expertise. This is a significant problem that would be more effectively addressed at the collective bar association level rather than by individual lawyers. Finally, bar associations could advocate for rule changes that would permit solo and small-firm lawyers to provide unbundled services, which is likely to increase their willingness to provide pro bono assistance. Unbundled services, or “discrete task representation,” occurs when an attorney provides a specific service to a client who is otherwise handling an action pro se. Unbundled services may include, inter alia, reviewing a client’s papers, preparing a set of papers, conducting some factual investigation, or other limited activities. Solo and smallfirm lawyers have cited the ability to “unbundle” services as a factor that would encourage pro bono participation (Brown 2006:App. B). Some jurisdictions have been resistant to permitting lawyers to provide unbundled legal services because of concerns that the client will be inadequately protected or that the court will be misled as to whether the individual is actually proceeding pro se. Nevertheless, an increasing number of states have accepted this practice (ABA Standing Committee on Delivery of Legal Services 2008). Enabling solo and small-firm lawyers to limit the scope of their assistance to discrete tasks may

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encourage them to perform some pro bono services for individuals who cannot afford—but desperately need—some legal assistance that these lawyers would not otherwise be permitted to provide.

conclusion
The meaning of pro bono in solo and small-firm practice is often fundamentally different in those settings than in large law firms. Notwithstanding the differences between the large-firm and small-firm pro bono experience, pro bono as a professional value may be an area in which large-firm and small-firm lawyers can share more common ground than the differences suggest. The core concept underlying ABA Model Rule 6.1—that lawyers should aspire to perform pro bono work for individuals who genuinely cannot afford a lawyer—is a concept about which many lawyers can generally agree. Disagreements arise mostly from the bar’s official definition of “pro bono,” which currently reflects the views of the bar elite and has the unintended consequence of causing even solo and small-firm lawyers to denigrate much of the reduced-fee work they perform for needy clients. The definition of “pro bono” has important implications, not just for the unity of the bar’s vision, but for the poor, for the working poor, and for the middle class, as well. Lawyers’ fees can be expensive, and it is not just the poor or nearpoor who sometimes find themselves unable to pay for legal services. When solo and small-firm lawyers provide pro bono assistance for individuals of limited means, the lawyers still need to pay their rent and their office staff. They may need to “make up” for what they lost in income by increasing the fees they charge their paying clients. Yet these paying clients are often middle-class individuals who, like the poor and near-poor, need legal assistance but struggle to pay for it. If all of these people are to obtain access to justice, they need to be able to afford their lawyers. Ultimately, by looking at pro bono in the solo and small-firm context, we can observe the fault lines in the delivery of legal services in the United States. The LSC and other experts are in complete agreement that existing legal services programs and pro bono performed by the private bar will not address all of the unmet needs of the more than 50 million individuals who are eligible for LSCfunded programs. There are, in addition, millions more who do not qualify for assistance from LSC-funded programs, but who genuinely cannot afford a lawyer. As more lawyers are devoting their time to representing organizations, and the cost of legal services is increasing in the United States, it is unclear how even the average individual will afford legal representation in the future. Closer examination of the solo and small firm experience with providing free and reduced-fee services may help us to identify productive strategies to address those needs. In the end, however, significant reform in the delivery of U.S. legal

176 private lawyers and the public interest

services will be needed to ensure that most individuals can obtain legal assistance with their important legal needs in the future.

references
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” 61 ABA Journal 1388–1394. Kelly. (1990) Country Lawyers: The Impact of Context on Professional Practice. Handler. et al.” http://www. Granfield. Lawyers’ Ideals/Lawyers’ Practices: Tranformations in the American Legal Profession. Nelson et al.” 70 Fordham Law Review 847–900. Robert M.” 41 Law and Society Review 113–146. John P. (1994) Lives of Lawyers: Journeys in the Organizations of Practice. New York State Unified Court System. Hallman. Lardent. Greshin.” San Francisco. . Prepared for the Florida Supreme Court/The Florida Bar’s Standing Committee on Pro Bono Legal Service. Chicago. (2005) Urban Lawyers: The New Social Structure of the Bar. Cornell University Press. CA. Kaye. Heberlein. Landon.” 43 American Sociological Review 447–462. 2. 105. ——(2007b) “Institutionalizing Public Service in Law School: Results on the Impact of Mandatory Pro Bono Programs. T. (2000) “Making the Business Case for Pro Bono.” The American Lawyer July 2007. 2007–September 30. Donald D. MI: University of Michigan Press. Hurley. Leslie C. Michael J. 1.pro bono and low bono in the solo and small law firm context 177 Galanter. Ann Arbor. 2007.. Law Firm Pro Bono Project. IL. Levin. New York: Praeger. (2004) “The Role of Topic Interest in Survey Participation Decisions.gov/ lscgov4/sar2007_09_30.” unpublished paper. (1975) “The Public Interest Activities of Private Practice Lawyers. (2003) “Using Business Strategies and Innovative Practices to Institutionalize Pro Bono in Private Law Firms. 1989. and R.. Esther F. M. Kolker. Law School Consortium Project (2005) “Law School Network Practitioner Survey Report.lsc. Ben (2007) “Pro Bono Starts at the Top. and Jonathan Lippman (2004) The Future of Pro Bono in New York: Report on the 2002 Pro Bono Activities of the New York State Bar. Benjamin (1989) “Perspective: Big/Small Firm Split in State Bar.pdf (accessed December 30. Joel F.” in R. Illinois Attorney Registration and Disciplinary Commission (2009) 2008 Annual Report.” 68 Public Opinion Quarterly 2–31. (2001) “Preliminary Reflections on the Professional Development of Solo and Small Law Firm Practitioners. Justus. Judith S.” 72 University of Missouri–Kansas City Law Review 365–375. 92.” The American Lawyer July 2006. et al.” New York Law Journal November 8. DC.” Baltimore Daily Record March 4. NY. Robert (2007a) “The Meaning of Pro Bono: Institutional Variations in Professional Obligations among Lawyers. Legal Services Corporation Report (2007) “Semiannual Report to the Congress of the United States for the Period April 1. Baumgartner (1978) “Factors Affecting Response Rates to Mailed Questionnaires: A Quantitative Analysis of the Published Literature. eds. Jolie L. Kelly Carmody & Associates (2008) Pro Bono: Looking Back. A. Carolyn (2006) “One Law Firm’s Pro Bono Work is Another’s Loss Leader: What Should or Shouldn’t Count. Heinz. Washington. Ithaca. 2008). Chicago: University of Chicago Press. Mark and Thomas Palay (1992) “The Transformation of the Big Law Firm. et al. Launches Program to Help Parents in Custody Cases. Lawrence (2005) “MD Legal Services Corp.” 54 Buffalo Law Review 1355–1412. Groves. Moving Forward.

Powell. Lynn et al.” 37 Arizona State Law Journal 589–624. http://www. Judith L.” The American Lawyer July 2007. Marks. Oregon State Bar.” The American Lawyer July 2007. Patricia (1990) Drawing the Line: Alternative Poverty Measures and Their Implications for Public Policy. Modell. Ruggiere. People Know Who You Are and How Good. Ted (1989) “ Professionalism as Bar Politics: The Making of the Model Rules of Professional Conduct.org (accessed August 15. and Professional Responsibility. Deborah L. Sandburg. Annapolis. Ruggles. Aric (2007) “Pro Bono 2007: Drawing the Line. the Public. L. Lochner.jsp?id=1202422945752 (accessed December 30. ——(2005) “Lawyers in Cyberspace: The Impact of Legal Listservs on the Professional Development and Ethical Decisionmaking of Lawyers. New York: Oxford University Press. (2005) Pro Bono in Principle and Practice: Public Service and the Professions. (2001) Divorce Lawyers at Work: Varieties of Professionalism in Practice. Paul (2006) State Bar of Texas Bar Survey of 2005 Pro Bono.law. DC. Philip R. Denton.” 9 Law and Society Review 431–473. (1972) The Lawyer. Prepared by ANASYS. 2008). Bristol. C. Year 2007. Jennifer (2005) “Addressing Unmet Legal Need in Rhode Island: Barriers and Incentives to Pro Bono Participation.” unpublished paper. et al. 2008). Carroll (1996) The Business of Practicing Law: The Work Lives of Solo and SmallFirm Attorneys. Montana Voluntary Pro Bono Reporting (2002–2003) unpublished report on file with author. Lowbono. Press. 2008). Mather. Texas: Survey Research Center University of North Texas.org (2008) http://www. “Modest Means Program. Schneyer. Renaud.org/_docs/forms/ modestmeans. MD. CA. Maute. Texas: Survey Research Center University of North Texas. Philadelphia: Temple University Press. Raymond. Ruggiere. RI. (2002) “Changing Conceptions of Lawyers’ Pro Bono Responsibilities: From Change Noblesse Oblige to Stated Expectations.” 36 Journal of the Market Research Society 327–338.pdf (accessed December 30. Denton. 6. Michael J. (1988) From Patrician to Professional Elite: The Transformation of the New York City Bar Association. Jr. Stanford. . The Urban Institute Press: Washington.” 41 Houston Law Review 309–392. Brenda (2006) “Taking the High Road to the A-List. Rhode.com/jsp/article. (1975) “The No Fee and Low Fee Legal Practice of Private Attorneys. Stanford University Press.” Fulton County Daily Report October 2. Raymond F. Nate (2008) “Pro Bono 2008: A Silver Lining to Economic Downturn?. Tricia (2000) “Rural Law: No Place to Hide—In the Country.osbar. 119. (1994) “The Impact of Topic Interest on Mail Survey Response Behavior. Inc. Feinstein Institute for Legal Service. New York: Russell Sage Foundation.lowbono.” The American Lawyer July 2006. Paul and Marielena Carpanzano (2008) State Bar of Texas Bar Survey of 2007 Pro Bono.. Maryland Administrative Offices of the Courts (2008) Final Report: Current Status of Pro Bono Service Among Maryland Lawyers.” http://www.” 14 Law and Social Inquiry 677–737. Chicago: American Bar Foundation. Martin.” 77 Tulane Law Review 91–162. Seron.178 private lawyers and the public interest ——(2004) “The Ethical World of Solo and Small Law Firm Practitioners.

WI: State Bar of Wisconsin.census.” http://www. Petersburg Times September 18. rules cited ABA Models Rules of Professional Conduct Rule 6.” http:// www. Stull. and the Florida Foundation on the Voluntary Pro Bono Attorney Plan. Bruce (1989) “Firm Creates Stir with Commitment to Public Service Work.F.org/pai/enroll. 2004. Standing Committee on Pro Bono Legal Service (2006) Report to the Supreme Court of Florida. org/legalservices/sclaid/defender/downloads/2007FelonyCompRatesUpdate_ Nonfelony.” http://www.S.html (accessed June 9.” http://www.pdf (accessed December 30. 2008). pt. State Bar of Wisconsin (2008) 2007 Pro Bono Contributions of Wisconsin Lawyers. 2008).1 (2008) Virginia Rules of Professional Conduct Rule 6. A (2009). 2008).html (accessed December 30.gov/hhes/ www/poverty/definitions.1 (2009) Illinois Supreme Court Rule 756 (f) (2008) Kansas Rules of Professional Conduct Rule 6. 2008). Inc. Vielmetti. App. Madison. 1611. Census Bureau (2008a) “Poverty—Definitions.” http://www. 1. Small Firm Attorneys Lack Time. regulations cited 45 C. Resources for Pro Bono.1 (2008) .html (accessed December 30.census. 2009). (2008) “Join Wisconsin Judicare’s Panel of Attorneys.R. ——(2008b) “Income—Median Family Income in the Last 12 Months by Family Size. Elizabeth (2004) “Many Solo.1 (2007) Michigan Rules of Professional Conduct Rule 6.abanet.pdf (accessed December 30.gov/hhes/www/income/statemedinc. the Florida Bar.” New York Law Journal December 13.org/homepage/TLCreport.1 (2008) Connecticut Rules of Profession Conduct Rule 6.1 (2008) Arizona Rules of Professional Conduct Rule 6. Trial Lawyers Care Project (2004) “Report to Congress: Thousands of Heroes—The Rest of Us Could Only Help. Wisconsin Judicare.1 (2009) Rules Regulating the Florida Bar Rule 4-6.judicare. U.pro bono and low bono in the solo and small law firm context 179 Spangenberg Group (2007) “Rates of Compensation Paid to Court-Appointed Counsel in Non-Capital Felony Cases at Trial: A State-by-State Overview.” St.atlanet.

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part III pro bono in the interest of public service .

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see also Lochner 1975:442–448. between profit and principle The Private Public Interest Firm scott l.1 of the American Bar Association’s Model Rules of Professional Conduct. Because none of the existing research (including our own) is designed to test propositions about private public interest firms. to provide legal services to those unable to pay. and constraints on. This conception differs from the notion of public service associated with lawyers in solo and small-firm practice. .9. as well as interview data we collected from a small number of firms in connection with other projects: Cummings’s research on Hadsell & Stormer and associated . Efforts to fuse private practice and the public good produce different approaches and ideologies across practice sites (Granfield 2007). Some of them reinforce the conventional definition of pro bono. where lawyers fulfill their professional duty by taking a break from billable work to provide free legal services to persons of limited means or to organizations that advocate for deserving causes (White 2000:140). see also Boutcher in this volume. and as law students seek alternative public interest careers. whereas others assert a distinct public role for private lawyers. we draw upon multiple sources to offer a preliminary assessment of opportunities for. The recent literature on pro bono has focused primarily on the provision of pro bono services by big firms (Cummings 2004. 1978a:112). The narrow duty is codified in Rule 6. Yet private public interest firms remain underexamined in the contemporary scholarly literature (Sarat & Scheingold 2005:12). who often view their acceptance of reduced fees from clients based on ability to pay as a means of promoting access to justice (Levin in this volume. Epstein 2002). This chapter considers the relationship between private practice and the public good through the lens of a different organizational form: the “private public interest firm. . interest in them has increased as the field has become larger and more complex. which calls for “[e]very lawyer . the pursuit of public interest goals within these firms and to sketch an agenda for future research.” Although such firms have existed since the early days of the public interest law movement (Handler et al. Seron 1996:132).” The broad aspiration envisions private legal practice as a vehicle for advancing the public good (Katzmann 1995)—a notion rooted in a core ideal of legal professionalism (Scheingold & Sarat 2004:11). Our sources include the secondary academic literature. cummings and ann southworth introduction “Pro bono publico”—which means “for the public good”—is at once a narrow duty and a broad aspiration.

the private public interest firm Definition The term “private public interest law firm” refers to a range of “hybrid” entities that fuse “private” and “public” goals. Key among these is the source of funding: private public interest firms generally rely on fees rather than charitable donations. Handler and his colleagues identified the emergence . such firms are sometimes founded by lawyers who previously worked in nonprofit organizations. each with its own tensions and ambiguities. Its development has been influenced by “pull” and “push” factors: the advent of fee-shifting statutes has provided a significant financial incentive for private practice in areas associated with public interest law. these firms blur the line between profit-making and advancing the public interest. This chapter describes the evolution of private public interest firms and explores the meaning and practice of public interest law within them. by their very nature. One approach defines these firms by reference to the nature of the practice areas around which the firms are organized and the types of strategies they employ.184 private lawyers and the public interest firms in the Los Angeles area (Cummings 2009) and Southworth’s study of lawyers in the conservative coalition (Southworth 2008). In a classic study of public interest law in the 1970s. The private public interest law firm has emerged as a practice site that attempts to marry “profit and principle” on very different economic and political terms than the large commercial law firm—providing an alternative way for lawyers to pursue public ends through private means that challenges the conventional pro bono model. the private public interest firm resembles its counterpart in the nonprofit sector. We also gathered data from two published directories of private public interest firms and from the websites of firms listed in those directories. Insofar as its lawyers pursue a political mission beyond client service. Indeed. However. Two different approaches to defining private public interest firms have emerged. while constraints on nonprofit public interest organizations have prodded some lawyers to enter the private sector in search of greater autonomy. and they sometimes share issue agendas with nonprofit legal groups and collaborate with them on cases (Cummings 2009). Focusing on the private public interest firm therefore reveals a distinctive public vision of private practice that allows us to reconceive “lawyering for the good” (Granfield 2007) as a spectrum of marketembedded practices (Sandefur in this volume) that vary across practice sites. there are crucial distinctions between private public interest law firms and their nonprofit counterparts. Distinguishing private public interest firms from their commercial counterparts is more challenging because. Our analysis of the trajectory of the private public interest sector suggests that it has grown in scale and complexity over the past quarter-century. which is itself a contested concept.

This “contest over the meaning of ‘public interest law’” (Southworth 2005a) led some scholars to search for another conceptual category to capture missiondriven legal work across the ideological spectrum. such as environmental organizations. The researchers considered two factors: whether the firms devoted a significant part of their practice (at least 25 percent) to public interest “issue areas”—including civil liberties. This big-tent approach avoids concerns about ideological bias and conceptual incoherence. the environment. the University of Southern California (USC) breaks down private public interest firms into different categories: those that “provide legal services to the underrepresented. which were increasingly well-funded and politically powerful. education. 1. securities litigation firms (if the lawyers view their function primarily in terms of holding corporations accountable to their shareholders rather than earning a living). the cause lawyering concept emphasizes professional identity rather than areas of practice. the definition was designed to include firms with practice areas analogous to those of legal nonprofit groups like the American Civil Liberties Union or the National Association for the Advancement of Colored People Legal Defense and Educational Fund (LDF).1 Critics charged that this definition did not fit some groups that bore the public interest label. conceivably including lawyers in personal injury firms (if the lawyers are motivated primarily by a desire to vindicate victims’ rights). In contrast to public interest law. The problem with this definition related to the notion that “public interest” work was the representation of groups that were “underrepresented” in the broader political process (Weisbrod 1978:22). 1978b:60). and housing—and whether their cases involved either law reform or impact class action strategies that would produce benefits beyond the parties to the litigation (Handler et al. lawyers on the right laid their own claim to the “public interest” and challenged what they viewed as liberal bias in the traditional formulation (Southworth 2005a). and even corporate law firms (if the lawyers identify sufficiently with their clients’ business objectives). employment. Some law school job placement materials rely in part on the classic “underrepresented” rationale to define private public interest firms. Moreover.” those that represent unions. as the conservative movement began developing a parallel infrastructure of legal advocacy organizations in the 1970s and 1980s.between profit and principle 185 of what they termed “mixed firms. and those that represent public agencies (USC Law School 2002). 1978b:60–61). . Sarat and Scheingold’s definition of “cause lawyering” has been the most influential alternative. welfare. In short. premised on the deployment of legal skill to “pursue ends and ideals that transcend client service” (Scheingold & Sarat 2004:3). For instance. for-profit sector of the economy” but devoted “a significant portion of their resources to activities of the [public interest law] type” (Handler et al. consumer protection. but the definition potentially applies to a broad spectrum of lawyers.” which were located in the “private.

. a relevant criterion is whether a firm devotes a significant part of its practice to areas that have analogues in the nonprofit public interest sector (Nielsen & Albiston 2006.186 private lawyers and the public interest Contemporary efforts to stake out an alternative conception of the private public interest law firm sometimes blend the two previous approaches. In this sense. For the purposes of the research. we are agnostic about what constitutes the public interest and thus view the category as potentially including firms with visions of the public good spanning the full range of the political spectrum. for example. Yale Law School (2008:1) takes a similar approach. immigration. and disability rights. Lawyers’ ideas about professionalism have long . They are organized as forprofit entities.” We define private public interest firms as for-profit legal practices structured around service to some vision of the public interest. Evidence that one might use to evaluate whether a private firm “qualifies” would include the firm’s practice areas (and how clients are billed). some law school resource guides assert a broad notion of what qualifies as a public interest “cause. consumer protection. rather than to make money. articulated directly or in firm mission statements. where inevitable boundary disputes would crystallize the concept and permit a more searching exploration of its tensions.” while nonetheless grounding the definition in specific practice categories commonly associated with the public interest sector. political. Other evidence might include the self-perceptions of firm lawyers. or economic vision that includes helping underrepresented groups and/or promoting change. civil rights. environmental law. disability rights.” but then identifies “common areas of practice. Development Transformations in the for-profit and nonprofit arenas have spurred the development of private public interest firms and promoted an alternative vision of private lawyering for the public good. criminal defense. Whether any particular firm falls within the category is an empirical question requiring investigation into the firm’s activities and the commitments of its lawyers. but we anticipate that it would produce a large variety of firms with divergent practice specialties and cultures— some at the core of the private public interest firm category and others toward the periphery. which may reflect a firm’s commitments and suggest its underlying mission. The “Private Public Interest and Plaintiff’s Firm Guide” published by Columbia Law School and Harvard Law School (2007:2–3). civil rights. Rhode 2008). and environmental law. defining “public interest law firms” as those with a “primary mission . defines private public interest firms as for-profit businesses that bring cases to promote “a particular social. We do not undertake the categorization project here.” while suggesting that “typical” practice areas include “plaintiffs’ employment discrimination. but advancing the public interest is one of their primary purposes— a core mission rather than a secondary concern. . to assist underrepresented people or causes.” including employment discrimination. For instance.

The “country lawyer. The notion of “pro bono publico”—lawyering “for the public good”—grew out of strands of practice emanating from different strata of the profession. They included the early American practice of appointing counsel in criminal cases (Shapiro 1980). Although efforts to make pro bono mandatory failed. Inside the big firm.” in contrast. the conception of pro bono as unpaid services to the poor has reinforced an association between professional virtue and large law firms because lawyers in these practices are financially best situated to provide free services (Cummings 2004:33–41. 2001:156). civil legal aid system (Sandefur 2007). and efforts by elite white lawyers in the early 1900s to exempt their work on behalf of LDF from ethical rules on the ground that no fees were charged (Carle 2002). The conventional vision of pro bono has diverged from the realities of solo and small-firm practice. “lawyer-aristocrats” and “country lawyers” offered differing models of lawyers’ contributions to society (Scheingold & Sarat 2004:30–32). Even during the so-called “golden age of civic professionalism” (Galanter 1996). pro bono evolved in a way that fits comfortably with conventional practice norms: private lawyers who move back and forth between paying and pro bono clients can disclaim moral responsibility for either (Cummings 2004). and taking time away from private practice to serve in public office (Kronman 1993). Elite lawyers claimed to discharge their public obligations by mediating between client and community—channeling client desires into socially beneficial outcomes (Simon 1998). and the provision of “legal services without fee” by private lawyers to “persons of limited means” grew to become a substantial component of the U.S. The rise of the big law firm in the last half of the century (Abel 1989. As the federal legal services program came under attack in the early 1980s (Houseman 2007)—thus threatening the provision of free legal services to the poor—the American Bar Association revised its ethical rules. for the first time identifying “pro bono publico service” as an ethical duty in the 1983 Model Rules of Professional Conduct. Galanter & Palay 1991) transformed elite practice and contributed to the institutionalization of the pro bono ideal (Cummings 2004). where lawyers have been less able to forgo payment in .between profit and principle 187 reflected the economics of legal practice and social stratification within the bar (Marks et al. voluntary pro bono was nonetheless codified as a professional aspiration. where economic success rested on the zealous pursuit of corporate client interests. The economic transformation of the profession in the twentieth century revised conceptions of professional service while also reinforcing divisions between the elite and nonelite bars. 1972). In contrast to the image of legal aid and public interest lawyers as ideologically committed activists. the “ideology of advocacy” prevailed (Simon 1978). the lawyer’s public role was divided from private client relations: public service came to be associated not with moderating the desires of paying clients but rather with volunteering on behalf of nonpaying ones (Pearce 2001). Moreover. served his community by representing clients at reduced rates or for no fee at all (Scheingold & Sarat 2004:31–32). Mather et al. There.

most of the union clients left. who also had a distinguished career. When the firm began in 1943. . 3. Solo and small-firm lawyers do not neatly separate paid from unpaid work. it specialized in civil rights and civil liberties cases. many equate public service with reduced-cost. United States. Margolis was in partnership with John McTernan. while also representing Southern California chapters of the Congress of Industrial Organizations.3 For nearly 50 years. the firm of Margolis & McTernan was founded in 1943 by legendary radical lawyers Ben Margolis and John McTernan. with the most desirable work disproportionately available to lawyers in the sectors of the profession that hold the highest social status. and also built a maritime practice through its representation of the International Longshore & Warehouse Union (Cummings 2009). fearful that their association would expose them to government persecution. Although solo and small-firm lawyers do. a distinct conception of the relationship between the private firm and the public good has emerged. 2. However. Going forward. or “low bono. This type of private practice is not new (Berlin et al. Rather. 354 U. both of whom were charter members of the Los Angeles chapter of the National Lawyers Guild (Cummings 2009).S.188 private lawyers and the public interest the name of public service (Lochner 1975. 2001:139). Garth (2004) and Heinz et al. Landon 1990)2—an updated version of the “country lawyer” ideal. the firm subsidized its political cases with fee-generating work on personal injury and products liability matters. lawyers either negotiate reduced fees in advance or write them down after the representation ends and it becomes apparent that the client cannot pay the contract price (Levin in this volume). in fact. Accordingly. after the firm was blacklisted for its representation of communists. winning cases striking down racially restrictive housing covenants and segregated unions. In Los Angeles. Private public interest firms have developed as a subset of small-firm practice— one defined by an organizational commitment to the public interest that transcends the occasional provision of no-fee or reduced-fee client services. at the lower end of the legal profession’s status hierarchy. and often view service to a working class clientele as a form of public service (Levin in this volume). Under this model.” work (Seron 1996:127–136. Mather et al. 298 (1957). Margolis was an ardent communist best known for his representation of the “Hollywood Ten” before the House Un-American Activities Committee in 1947 and his Supreme Court advocacy to reverse the convictions of Communist Party leaders charged with advocating the overthrow of the government. forged through the entrepreneurial efforts of prominent lawyers (Epstein in this volume). take on conventional pro bono cases without the expectation of payment (Levin in this volume). some version has existed since at least the early part of the twentieth century. for example. and establishing the right of defendants to examine evidence gained from informers (Cummings 2009). 1970). (2005) have shown that opportunities for pro bono and public service are stratified. Yates v.

specialized. Yet private public interest firm lawyers have sought to distinguish themselves from 4.S. Kritzer 2002:754). changes in discovery rules and settlement practices (enhancing the role of lawyers). Green. The evolution of private public interest law firms is part of a broader story about the trajectory of the plaintiffs’ bar. some of these firms emerged from plaintiff-side tort practices (Handler et al. See. Heinz et al. As Yeazell (2001b) details in his study of civil litigation. the erosion of governmental immunity (exposing governments to tort liability). 88-455. In response to these improved circumstances. Heinz & Laumann 1994. In addition to advancing civil rights through legal advocacy. and the increased availability of law firm credit (permitting the financing of large-scale litigation over time). and expert” (Yeazell 2001b:200. 1978a:113). The government practice of paying private attorneys for taking on indigent defendants in certain cases also contributed to the development of small-firm criminal defense practices. . low-paying cases with high-risk. excluded from the white legal establishment. Harris. to build their own professional capital and serve their communities (Porter 1998).4 and some continue to use tort practice to subsidize mission-driven work. 2005). over the past 50 years. plaintiffs’ lawyers restructured their practices. No. with many moving into government service and gaining state and federal judicial appointments. Pub. Criminal Justice Act of 1964. 78 Stat. 2004). 552 (1964) (codified as amended at 18 U. The Norris firm initially focused on criminal defense but expanded into civil rights after Brown v. using contingent fees to “justify their investment of time” (Yeazell 2006:704) and diversifying their portfolio of cases across substantive areas in order to balance low-risk. see also Dinovitzer et al. § 3006A (2006)) (providing for the appointment of criminal attorneys for a fee).C. high-paying ones in profitable combinations (Kritzer 2004:12. the firms’ lawyers also adopted a more conventional model of public service.between profit and principle 189 While Margolis & McTernan grew out of the postwar radical left. plaintiffs’ firms in the postwar era reorganized and became better capitalized because of the spread of liability insurance (increasing of the pool of solvent defendants). Private public interest firms have benefited from some of the same trends that improved the fortunes of the plaintiffs’ bar (Yeazell 2001a). the doctrinal expansion of defective products liability (raising the prospect of large-scale recovery against corporations). These changes transformed the plaintiffs’ bar. Schmidt. Indeed. Although the social status of solo and small-firm lawyers has remained low relative to their corporate firm counterparts (Carlin 1994:xxiii. It used its connections with the Black community to carve out practice areas supporting Black businesses and churches (Porter 1998:164). Higginbotham & Associates emerged in the 1950s as an effort by prominent African American attorneys. for example. Board of Education. the plaintiffs’ bar as a whole has become “more deeply capitalized. the Philadelphia-based Norris. partner Leon Higginbotham became the Chief Judge of the Third Circuit Court of Appeals (Porter 1998:151). L. Most prominently.

6. 2000e-5(k) (2006)). . § 706(k) (codified as amended at 42 U.”8 The era of fee-shifting ushered in by these statutes contributed to an explosion of public interest litigation and provoked a countermovement to curtail fee awards (Luban 2003:241–245). Other firms grew out of earlier models associated with African American lawyers who pursued civil rights cases for modest fees (Carle 2001).5 (West Supp.S. allowing fee awards in cases where “a significant benefit . Thus. 88-352.5 After the Supreme Court held that federal courts could not award fees to prevailing parties in other public interest suits without statutory authorization. .S. Civil Rights Act of 1964.C. §§ 2000a-3(b). 9. in contrast to the profit-maximizing approach of contingency-fee lawyers more generally. 421 U. Title II. which provided for attorney’s fees in cases brought under section 1983. in the face of defense “sacrifice offers” that condition damage settlements on the waiver of statutory attorney’s fees. § 204(b). L. has been conferred on the general public or a large class of persons. Pub. private public interest firm lawyers have sought to pursue a “double bottomline”—measuring practice outcomes in terms of economic return and the advancement of public interest goals. 240 (1975). which expanded opportunities to recover fees under state law. Alyeska Pipeline Service Co. Evans v. Title IX. and other federal statutes. Some states crafted their own private attorney general statutes (Rubenstein 2004). Pub.190 private lawyers and the public interest the profit-orientation associated with the plaintiffs’ bar by organizing their practices not only to make money but also to promote the public interest. These firms therefore adopted the ethos— and often the legal objectives—of the public interest law movement as it emerged in the 1960s and 1970s. For example. 7. the availability of fee-shifting statutes has permitted cause-oriented lawyers to build their own practices and firms around issues such as employment discrimination and police abuse (Bagenstos 2007).C. Proc. . No.S. Civ. Thus. § 1988 (2006)). 8. The Civil Rights Act of 1964 carried its own attorney’s fee provision in employment discrimination cases under Title VII and in public accommodations cases under Title II. L.. v. Title VII. 717 (1986). On the opportunity side. No. Jeff D. 90 Stat.6 Congress passed the Civil Rights Attorney’s Fees Awards Act in 1976.9 some private public interest lawyers 5.S. 2641 (codified as amended at 42 U. The evolution of private public interest law firms has also been shaped by a set of structural opportunities and constraints peculiar to this field. 94-556. private public interest lawyers have been able to adapt their fee arrangements and reorganize their practices to maintain financial viability. Although court decisions have complicated attorneys’ efforts to recover fees in statutory fee cases. Wilderness Society.7 thus opening the door to a broader range of potentially remunerative civil rights lawsuits against governmental and private actors. 1978). California passed its private attorney general fee provision in 1977 (McDermott & Rothschild 1978:138). Code § 1021. Cal. 475 U. And still others combined public interest goals with private forms in innovative new configurations (Trubek & Kransberger 1998).

Against this backdrop. Lawyers’ complaints about the nonprofit sector focus on its lower pay. Albiston and Nielsen (2007:1133) note that civil rights lawyers are more hesitant to take on cases that seek only injunctive relief.between profit and principle 191 have structured their retainer agreements to provide for a contingency fee in the absence of a statutory fee award. Rhode 2008). v. However. This focus has reflected the public– private divide within the field. the scarcity of jobs. limited training opportunities. and better facilities (Katz & Bernabei 1994). a variety of constraints associated with nonprofit practice have encouraged lawyers to move into the private sector. Nielsen & Albiston 2006. In the wake of the Supreme Court’s elimination of fee awards under the “catalyst theory. These general limitations have been compounded by specific funding and substantive restrictions imposed on the federal legal services program over the last 25 years (Cummings 2004:21–22). more autonomy from funding sources. the nongovernmental sector has become a less congenial arena for litigators: groups have found it difficult to raise foundation funds to sustain ongoing litigation operations. where nonprofit groups have grown into a major advocacy force sustained by governmental funding and private philanthropy (see Aron 1989. attorney’s fees.11 While the availability of fees has made public interest law firms economically feasible. and insufficient resources for large-scale litigation. 532 U. because there is no possibility of a contingent fee and strategic settlement may negate a statutory fee award. . Inc. Yet as private public interest firms 10. while restrictions on federal legal services programs have eliminated the ability to pursue class actions. they have rejected the prevalent view of public interest work as a kind of practice specialty best left to government programs. legal services organizations.S. private public interest firms have offered lawyers the chance to pursue public goals (Trubek 2007:1137) while enjoying some of the advantages associated with private practice. Buckhannon Board & Care Home. In so doing. 11. Accordingly. West Virginia Dep’t of Health & Human Resources. and cases involving most undocumented immigrants (Houseman 2007).”10 this alternative contingency fee structure has also protected private public interest lawyers against strategic settlement by defendants in cases seeking damages (Albiston & Nielsen 2007). Private public interest firms have thus prompted “a reconsideration of the now assumed separation between socially conscious lawyering and private practice” (Trubek & Kransberger 1998). 598 (2001). while importing a more ambitious conception of professionalism into the private sector (Scheingold & Bloom 1998). The conventional paradigm of public interest practice has centered on the work of nonprofit organizations as the vanguard of legal reform. such as greater freedom to shift agendas. while for-profit firms have been viewed with suspicion as driven more by the pursuit of fees than by social justice (Trubek & Kransberger 1998:202). and nonprofit public interest law groups (Gordon 2003:1209).

such as low salaries. As one indication of the interest in private public interest law firms. By organizing practice around a cause to believe in (Scheingold & Sarat 2004). City University of New York. the Law School Consortium Project was launched in 1997 (initially including the University of Maryland. About two-thirds of these firms employed four or fewer attorneys. this division (which was never complete) has increasingly come under stress. On the right. Nevertheless. The Council for Public Interest Law (1976:136) identified 44 firms that devoted over half of their work to public interest practice. Erichson 2004). suggesting the influence of the public interest movement and of the advent of attorney’s fee statutes. and Northeastern University law schools). as the conservative movement has increasingly relied on legal strategies to advance its diverse missions. in this section. Design Although the private public interest firm sector has emerged as an important “arena of professionalism” (Nelson & Trubek 1992).000— then the starting salary for first-year law firm associates (Council for Public 12. The quantitative evidence is dated and the qualitative research. we draw upon the existing data. As the deregulatory thrust of social policy over the past quarter-century has foregrounded corporate accountability as a target of public interest advocacy on the left (Ashar 2007). which have focused on challenging government actors (Trubek 2005). Nearly all of the firms were established after 1969. provides only snapshots of a small number of firms. to provide support to law schools promoting communitybased solo and small-firm lawyers working to enhance access to justice (Blom 2006). and high turnover. and it found that these firms employed 160 lawyers. In the mid-1970s. with 60 percent of lawyers in these firms earning no more than $20. though rich. with funding from the Open Society Institute. we know relatively little about it.12 fueled by the economic opportunities presented by for-profit practice and disillusionment with the constraints of nonprofit organizations. Thus. to sketch a tentative portrait of the field. supplemented with preliminary findings from our own research.192 private lawyers and the public interest have gained prominence. private firms have gained importance as practice sites with the resources. these firms destabilize the ideology of advocacy associated with private practice and challenge the conventional noblesse oblige vision of professional service. and financial incentives to litigate against corporate legal violations—in contrast to classic public interest law firms. the private public interest law firm has become an alternative site for “doing well” and “doing good” (Wilkins 2004. small-firm practitioners have come to play significant supporting roles (Southworth 2005b). low pay was standard. the existence of a handful of private public interest firms prompted scholarly inquiry into their form and function. . lack of training. allowing lawyers to take on large-scale litigation that nonprofit groups cannot pursue because of resource limits—and big-firm pro bono programs will not because of business conflicts—while also addressing other deficits associated with nonprofit practice. expertise.

including establishing ongoing cooperative relationships with nonprofit public interest groups.500 in 2009 dollars.between profit and principle 193 Interest Law 1976:137). were quite small (with an average of five lawyers).000 in 1975 (when the survey was conducted) was worth approximately $79. This picture looked quite similar to the one painted by Handler and his colleagues. taking advantage of federal programs subsidizing the cost of public participation in regulatory agencies. there is some evidence that the field has grown since these early studies. About Us. The most common public interest practice areas were consumer protection. . 1978a).14 and it does not disaggregate private public interest and general plaintiffs’ firms. postings on listservs and other reports. and civil rights work (Handler et al. http://pslawnet. allows subscribers to search for information on public interest job opportunities and employer profiles.org/aboutpslawnet. PSLawNet. $20. 14. and relying on non–public interest cases to supplement their income (Council for Public Interest Law 1976:138–140). The Guide’s list is generated by compiling firms that submit job postings to Columbia and Harvard Law Schools. and recommendations from colleagues at other institutions. 15. criminal law. Personal injury law was the most common “regular work” practice area. firms at which Columbia and Harvard students work. 1978a:114).13 The firms relied on varying economic arrangements to promote stability. participating in prepaid legal services plans.15 The site is essentially a bulletin board: firms appear in the database if they either create their own employer profiles or post job opportunities on one of the many public interest listservs that 13. Adjusted for inflation based on the Consumer Price Index. followed by labor and general commercial law (Handler et al. 1978a:112–113). and paid relatively low salaries. Columbia and Harvard Law Schools’ “Private Public Interest and Plaintiff’s Firm Guide” (2007) provides a list of firms. whose study of “mixed firms” identified 100 public interest lawyers practicing in approximately 20 private firms during the early 1970s (Handler et al. and types of advocacy. which required clients to pay and lawyers to subsidize their mission-driven work with commercial cases (Handler et al. office size and summer job openings. Although there are no current systematic data on private public interest firms. Both of the two main databases on the private public interest law sector suffer from limitations that substantially restrict their usefulness as sources of systematic information about the field. PSLawNet. It also found that most mixed firms were located in the Northeast. areas of specialization. an online database administered by the National Association for Law Placement (NALP). environmental law. 1978a:113). The Guide does not purport to be comprehensive. The study also concluded that the firms’ “regular work” focused on individuals and small businesses that could not pay large fees. The Handler study attributed the scarcity of such firms to the inherent limits of the model. employment discrimination. with contact information. housing.

or (4) mischaracterized as legal. http://hadsellstormer. environmental protection. collectively. Inc. and other private attorney general models of law enforcement. The case studies reveal that private public interest law firms pursue a variety of different substantive agendas including progressive causes—such as racial justice. The Los Angeles-area civil rights firm of Hadsell & Stormer asserts that it is committed to “fight[ing] injustice. Some firms combine these approaches. reversing Roe v. no matter what form it takes.and over-inclusive.16 NALP does not claim that the site is comprehensive. asserts that it is “dedicated to upholding and advancing the civil and human 16. and practice areas. and after eliminating firms that appeared to have been improperly included in the list. a civil rights firm focused on employment and housing that operates out of the same building as Hadsell & Stormer (Cummings 2009). although some generate substantial incomes.” and restricting governmental regulation (Southworth 2005b). promoting “family values. with 187 in California. a large portion of which are located outside the Northeast (72 of the listed firms (22 percent). 18.194 private lawyers and the public interest PSLawNet staff members monitor. and gender equity—and causes associated with conservatives and libertarians—for example. Firm size appears to be constrained by the lack of predictability in revenue streams. Searching the “Law Firm—Public Interest Focus/Practice” database on the PSLawNet site generates a list of 464 firms nationwide. Massachusetts. 2007). but many depend upon contingency fee arrangements. (2) defunct. Other firms build practices primarily on paid service to nonprofit organizations devoted to causes they endorse. we found that the mean size was eight lawyers (with a median of three). lists 329 firms. . civil liberties.org/aboutpslawnet. A handful of qualitative studies also provide important insights into the nature of private public interest law firms and the tradeoffs involved in pursuing public goals through for-profit entities. Despite the limitations of these databases. Wade.com/ (accessed August 29. for instance. for example. usually with fewer than ten lawyers. they may nevertheless indicate trends regarding firm location.17 Employment law and civil rights were the most commonly cited practice areas of these firms. the list is likely to be both under. These studies also suggest that private public interest law firms are typically small. fee-shifting statutes. Therefore. are based in California). See About PSLawNet. DC. and law firms can unilaterally choose to be listed as a public interest law firm. 17. Katz & Bernabei 1994). Looking just at firms based in California.. Both databases suggest that the field has grown in size and geographic diversity since its early days. The “false positives” included firms that were (1) double-listed.”18 while Traber & Vorhees. Hadsell & Stormer. The firms’ financing models vary. and Washington. size. The Columbia and Harvard Guide. Many of these firms struggle financially (see Trubek & Kransberger 1998. and only 117 in New York. (3) mischaracterized as for-profit. at http://pslawnet.

research and investigation. with “radical lawyers” espousing the most politically transformative missions. the lawyers in Trubek and Kransberger’s study (1998:211) “stressed the importance of creating a more collaborative and less traditionally hierarchical relationship with the client. the use of the press. . Green. That’s what we’ve always done. literally. http://tvlegal. For instance. describes the firm’s “overall objective” as “social justice and equality of opportunity” (Porter 1998:173–174). wanted to be able to take any case we wanted” (Cummings 2009). Feinberg. while “critical lawyers”—those whose emphasis was on client empowerment—tended to focus on achieving “discrete.” Similarly. pseudonymously called Marks. Bernabei & Katz reported that in addition to litigation. it advanced civil rights causes through “counseling. When Hadsell & Stormer formed its partnership in 1992. 19. One of the founders of a firm. Other studies highlight the attraction of private public interest firms for lawyers seeking to experiment with unconventional client relationships and advocacy tactics. by contrast. Fried & Burch in Kelly’s study (2007:31) of the relationship between practice context and conceptions of professionalism. and organizing and educating grassroots groups” (Katz & Bernabei 1994:294). lobbying. Traber & Voorhees. personal agency. and insisted on the importance of client empowerment.” Lawyers associated with civil rights and civil liberties firms. and autonomy. For instance. were focused on “upholding constitutional principles or defending the legal ‘system’” (1998:239). the lawyers at the Washington. said that his practice was built to serve “the little guy battling the giant.”19 Porter’s profile of Norris. 2009). The existing research suggests that one attraction of private public interest law firms is that they allow lawyers to structure practices to match their political commitments (Scheingold & Sarat 2004:88). DC–based Bernabei & Katz started their civil rights firm in order to “maximize discretion to select cases” consistent with their own political goals (Katz & Bernabei 1994: 196–197).com (accessed January 30.” Scheingold and Bloom (1998:239) found that the small firm lawyers in their Seattle sample embraced a range of political causes. Southworth’s research on conservative and libertarian lawyers similarly found lawyers who gravitated toward small firms where they could build practices consistent with their political and/or religious values (Southworth 2005b:96).between profit and principle 195 rights of all people. Harris. Schmidt. Kilwein (1998) found that small-firm Pittsburgh lawyers pursued a range of radical goals. mobilizing community demonstrations. a Philadelphia practice established in the early 1950s. And we really. Lawyers profiled in the literature emphasize the strong advantage of flexibility in case selection. the lawyers asserted that “we wanted to be as unfettered as possible and we knew that the closer you get to a grant-funded organization the more restrictions there’s going to be. such as client empowerment and political mobilization. Higginbotham & Associates. short-term gains for clients.

however. for instance. It therefore allows us to rethink “lawyering for the good” as a spectrum of market-embedded practices that require different tradeoffs across practice sites to accommodate public ideals and private economic realities. offering a preliminary comparison of the private . Hadsell & Stormer.” subsidized “transgressive” work with “paying non-political clients. the private public interest firm model reflects an alternative vision of market-driven practice that attempts to unify profit and principle on terms that diverge significantly from the big firm. but rather how market-dependence shapes opportunities and constraints across sectors of the private bar—and how different organizational structures influence the meaning and practice of lawyering for the good (see Sarat & Scheingold 2005:11). Some claim to pursue only work that the principals believe in—and sacrifice income to do so.” Solo and small-firm attorneys argue that their “low bono” work for lower-income clients discharges their professional duties. employment. Scheingold and Bloom’s research (1998:246) similarly found that attorneys in small firms. The literature reveals that private public interest firms adopt a variety of economic models. civil liberties. Many firms. whistleblower. Traber & Voorhees. and human rights law (Cummings 2009).” the marketplace of ideals: lawyering for the good across private practice By rejecting the conventional professional dichotomy that severs paid work from the public good.196 private lawyers and the public interest But the autonomy of lawyers in private public interest firms is limited by financial imperatives (Scheingold & Sarat 2004:88). Other firms take cases that do not further their political ideals at all. reports that it has never taken a case outside its core practice of civil rights. housing. From this perspective. whose financial status tended to be “precarious. The community-based El Centro practice. also combined foundation grants with client fees. This section begins such an analysis. studied by Trubek and Kransberger (1998:218). and prisoners rights cases—declined to supplement its caseload with matters taken purely for financial reasons (though they did receive a small amount of foundation funding) and paid its attorneys on a nonprofit scale (Katz & Bernabei 1994). for instance. supplement their mission-driven work with other matters that are consistent with their commitments but not especially dear to them. Similarly. the question is not which type of private practice best promotes the public interest. represented wealthy executives in employment contract disputes in what one lawyer called its “white male cases” (Cummings 2009). which were limited based on ability to pay. forcing tradeoffs to balance mission and monetary reward. in order to subsidize the work they deem to be in the public interest. AIDS discrimination. Big-firm attorneys render unpaid services to deserving clients as a way of “giving back. Bernabei & Katz—which accepted civil rights. Private public interest firm lawyers suggest that their fee-generating cases advance important public purposes.

20 the private public interest firm is by definition 20. it does not compensate for the mischief caused by the conventional model’s allocation of services without regard for the merits of clients and their goals. In private public interest firms. Whereas the big firm is organized around fee-generating service to commercial (largely corporate) clients. In this spirit. lawyers tend to emphasize commitment to particular social and political goals as the sine qua non of public service. They do not feel obliged to participate in pro bono service in order to vindicate their sense of professional virtue. they view pro bono as a way to salve large-firm lawyers’ consciences about the moral unworthiness of their daily work and to put a kind face on such practice for the public. Case Selection The dockets of large firms and private public interest law firms differ substantially. Lawyer Ideology Lawyers in large law firms and private public interest law firms offer starkly different conceptions of how their practices relate to the professional ideal of “lawyering for the good” (Granfield 2007). Some of them stake out stronger positions. Even firms with the highest number of pro bono hours devote a relatively small percentage of their time to pro bono work. In large law firms. lawyers in private public interest firms sometimes appear skeptical about (or even hostile to) the notion that lawyers’ altruistic impulses should find primary expression through the provision of unpaid legal services. They suggest that the bar’s emphasis on pro bono service diverts attention from the question that drives their own practice choice— whether the firm’s daily work serves or undermines the public interest (Cummings 2009). case selection practices. Lawyers in private public interest firms see their own paid work as valuable and consistent with the public good. Whereas big-firm lawyers tend to regard pro bono (along with civic involvement) as a primary outlet for public service. For example. as conventionally defined. in contrast. According to these critics.between profit and principle 197 public interest firm and the big firm pro bono model across the dimensions of lawyer ideology. lawyers generally espouse the conventional view of public service as sporadic volunteerism via pro bono (Scheingold & Bloom 1998:245). which holds lawyers unaccountable for their choices of clients and goals. They generally view their mission-driven work as all of a piece with their paid work. at Jenner & Block. the top-ranked . as a modest public-spirited gesture promoted by lawyers whose practice model is much less consistent with the public interest than their own. and tend to see pro bono. even if pro bono accomplishes some good. with unpaid pro bono constituting a small fraction of the overall docket. private public interest lawyers fault the bar for devoting such attention to promoting pro bono rather than reexamining its support for “the ideology of advocacy” (Simon 1978). and approaches to unpaid pro bono work.

environmental. the pro bono coordinator at Skadden. there are also systemic gaps. but the defendants in these cases tend to be small-time scam artists who have defrauded home owners of their equity. Slate. such as challenges to placing environmental hazards in low-income neighborhoods. Big firms sometimes take consumer cases against private companies.198 private lawyers and the public interest organized around service to some vision of the public good. nonprofit environmental advocacy organizations complain that big firms will not touch certain types of environmental cases. and score high on law firm rankings (Cummings 2004:81–82). informal law firm practices exclude many pro bono cases (Spaulding 1998). or firm in The American Lawyer’s 2008 Pro Bono Scorecard. for multiple and often overlapping reasons: to advance political causes. Cases involving the preservation of endangered species or particular natural habitats fare better in large-firm pro bono programs. environmental groups rely on private public interest law firms for support (Cummings 2004:119). but anecdotal accounts suggest that they strongly influence large-firm pro bono dockets. Big firms accept different types of cases. . help those in need. the average lawyer did 175 hours of pro bono per year—about 9 percent of total billable hours based on a 2000-hour billable year (Pro Bono Scorecard 2008). The most noticeable effect is to bar pro bono cases that strike at the heart of corporate clients’ interests. In those cases. although they can be perceived as antidevelopment and therefore are risky for developer-side firms. which requires building a practice that is consistent with the firm’s political aims even if it generates less financial security. However. Meagher & Flom has indicated that the firm rarely accepts employment-related civil rights cases because of conflicts with labor clients. and consumer cases against major companies. It also augments the nonprofit public interest sector by contributing firm resources to support large-scale law reform efforts that nonprofit organizations cannot manage alone (Rhode 2008:2070). Big-firm pro bono reinforces the federal legal services program by providing more attorneys for direct service representation and handling the cases that the program is prohibited from undertaking. Similarly. Case selection in the private public interest firm is driven by the desire to balance mission and monetary reward. Although most big firms state that they give lawyers wide latitude to accept pro bono matters. particularly with respect to cases involving major challenges to corporate practices—which big-firm pro bono shuns. as well as by lawyers’ professional commitments. particularly employment. recruit and train lawyers. predatory lenders who charge usurious interest. There is no systematic evidence of the impact of positional conflicts. whereas it more readily takes voting rights and housing cases (Cummings 2004:119). Arps. including high-profile impact cases and smaller direct services cases. The portfolio of pro bono cases in big firms is shaped by competitive pressures and political realities. For example.

Firms that represent housing developers shy away from landlord–tenant matters. One lawyer recounted how his firm prohibited him from representing an elderly African American resident shot by local police because the firm represented the city in other types of matters and would not sue an important client (Wilkins 2004:77). gun control. provide small firms with an economic incentive to aggressively pursue claims against deep-pocket companies. age. Big firms generally do not bring impact suits against major corporations for finance discrimination or sue major banks for credit fraud. Firms also consider how politically controversial pro bono matters will play with their client constituency.between profit and principle 199 document preparers who pose as lawyers. it represented a coalition of community organizations seeking to block an initiative that would have allowed Wal-Mart to open a Supercenter store in Inglewood. As a result. while others shy away from cases involving hate speech. even when positional conflicts are not technically at issue. and firms that do municipal bond work decline to sue local jurisdictions. cases involving employment discrimination on the basis of race. in which they represent individuals or classes in suits against companies to redress labor. In that case. Because private public interest firms fill some of the gaps left by big firm pro bono. Barnhill & Galland— the former firm of President Barack Obama—built its success on its employment discrimination practice. Chicago’s Miner. environmental. Requests for pro bono assistance for plaintiffs bringing products liability suits also typically elicit swift rejection (Cummings 2004:120). Chatten-Brown & Carstens in Los Angeles handles land use and environmental protection matters with potentially broad public impact. they sometimes find themselves on the opposite side of the table from big firms. combined with the opportunity for attorney’s fees. or religion. That means. California. In one prominent case. firms that represent biomedical clients engaged in animal testing avoid animal rights cases. Some firms therefore decline to take pro bono cases on either side of the abortion debate. sex. For instance. employment. the firm was paid by a local union opposing . leading individual law firms to decline cases that conflict with their practice specialties. on the left. and disability are staples of some private public interest firms. The availability of private attorney general statutes has also enabled some private public interest firms to develop niche environmental practices. Other common practice specialties include employment law (wage-and-hour enforcement and worker’s compensation) and consumer protection. For example. Contingency fee arrangements. Positional conflicts also operate in a less categorical fashion. Thus. or consumer violations. Private public interest firms often take on cases that big firms do not want and nonprofit organizations cannot afford. On the right. cause-oriented firms take on cases that are too politically sensitive for other firms or that require a particular substantive expertise that small-firm lawyers possess. firms sometimes take a dim view of “pro bono activities that might merely offend the firm’s regular clients or its prospective clients” (Scheingold & Sarat 2004:77). that such firms have dockets often consisting of “corporate accountability” cases.

there is a well-documented history of elite lawyers devoting portions of their careers to government service and leveraging their prominence in the public sector to attract business after returning to private practice (Smigel 1969). As this suggests. like their counterparts in other types of private practice. some firms develop relationships with organizational clients in the community development and affordable housing sector. just as public service work is the exception rather than the rule for most large law firms. Marks. Feinberg. For example. especially when state subsidies are available. illustrating another common financing model used by private public interest firms: alliance with repeat-player organizational clients.” in which case selection attempts to balance financial reward and social impact. In addition to union affiliation. In addition. in part. In general. private public interest firms pursue a “double bottom line. Yet this dichotomy is problematic. Because private public interest firms often focus on practice areas that promise consistent returns against economically viable targets. while private public interest lawyers select cause-advancing cases “within” the framework of fee-generation. Wilkins (2004) has shown that Black corporate lawyers have pursued public service. whereas private public interest firms take on what are. But lawyers in private public interest firms view work accepted for purely financial reasons as the exception rather than the rule. lawyers in private public interest firms. Big-firm pro bono is typically understood as a check on the crass commercial concerns of large firms—an elevation of private legal practice above the morals of the marketplace. particularly in the discrimination context. must generate enough income to cover costs and keep their practices afloat. because big-firm pro bono and small-firm public interest work intersect and diverge in more complex ways. some firms take on the representation of criminal defendants. pro bono cases with no (or very little) expectation of recovering fees. which represents developers and investors in complex federally subsidized real estate deals. to . For individual lawyers. in effect. there is evidence to suggest that the selection and prosecution of big-firm pro bono cases is sometimes tied to bottomline calculations. One of the most notable affordable housing firms is Bocarsly Emden Cowan Esmail & Arndt LLP. In particular. Even the most successful of these firms sometimes accept work that the firms’ lawyers do not find particularly compelling—a concession that is in tension with the goal of building a practice around worthy causes. But recent scholarship suggests a number of ways in which pro bono is also a product of economic concerns. Fried & Burch reports that in choosing cases it routinely weighs out-of-pocket costs against the benefits of cases and the possibility of recovering fees (Kelly 2007:51). Pro Bono The conventional typology of public service in the private firm has big-firm commercial lawyers engaging in pro bono as an act “outside” of their market-driven practice.200 private lawyers and the public interest Wal-Mart. some of them also regularly sue government agencies.

they view this practice as the price of persuading . Cummings 2004:40–41. In addition to these perceived economic rewards of pro bono. Accordingly. while 45 percent said that their firms retained a portion of the fees and donated the rest. it is not unusual for firms to accept cases on a pro bono basis but later collect fees. one-third said that the retained fees were placed in the firms’ general revenue. whether or not the case “counts” as pro bono hinges on the firm’s ex ante intention to collect fees. when firms accept cases that might generate attorney’s fees. some big firms reap even more concrete benefits “beyond the heart” (Rubin 2006). In practice. however. and contacts” (see also Dinovitzer & Garth in this volume). Rhode 2005). it is often treated as an article of faith among pro bono proponents. Pro bono has also been promoted as a strategy for retaining mid-level lawyers who are burned out on corporate client service and who see pro bono as a way to reconnect to the profession’s ideals. too. 14 percent of firms reported keeping all of the fees awarded in pro bono matters. while the rest used the awards to fund pro bono programs and support other charitable groups (Pro Bono Institute 2008:5). According to a 2007–2008 survey of law firms conducted by the Pro Bono Institute (2008:5). Though the “business case” for pro bono has not been empirically tested. they sometimes use them to cover litigation costs and the expenses of running pro bono departments (Kolker 2006). Firms. depending “on how much the fees are and how much time the firm put into it and what the needs of the nonprofit are” (Rubin 2006:10). pro bono “refers to activities of the firm undertaken normally without expectation of fee and not in the course of ordinary commercial practice” (Pro Bono Institute 2004:6). visibility. Although lawyers in nonprofits privately complain about firms that keep fees. the study suggests that firms retain some fees in a majority of cases. And although firms do not keep fees to remunerate lawyers directly.between profit and principle 201 generate career assets that they find difficult to acquire through insider strategies: “experience. Of those firms that retained some portion of the attorney’s fee awards. 72–73). Although pro bono advocates urge firms to donate legal fees in pro bono cases to the nonprofit organizations with which firms co-counsel (Rubin 2006). Big law firms compete for recognition as top pro bono performers. Well-known firms such as Los Angeles-based O’Melveny & Myers evaluate fee awards on a case-by-case basis. sometimes claim to benefit economically from pro bono. Law firm leaders acknowledge using pro bono as a marketing tool to recruit idealistic associates and as a vehicle to train young lawyers who would otherwise lack the experience necessary to conduct meaningful work on complex paying cases (Cummings 2004. Under the Pro Bono Institute’s Law Firm Challenge. which suggests that at least some firm leaders expect investments in pro bono to pay economic dividends: more productive associates and an edge in the competition for talent and clients. with high-profile “signature projects” and pro bono success stories generating publicity that may attract new clients interested in burnishing their image for public service with their customer base (Abel 1989:38.

Thus. 2nd Dist. County of Albany. In addition. even if it may be highly valued by individual lawyers working in those firms. 184 n. .3d 182.3d 162 (2nd Cir. Arbor Hill Concerned Citizens Neighborhood Ass’n v. 219). 484 F. where advancing a cause (beyond client service) is not the organization’s mission. By contrast. Private public interest firms often limit their own profitability by insisting that their work should be compatible with the firm’s mission. opinion amended and superseded by Arbor Hill Concerned Citizens Ass’n v.”). Ayromloo. in awarding attorney’s fees. may look at “whether the attorney was initially acting pro bono (such that a client might be aware that the attorney expected low or non-existing remuneration)”). 1278 (Cal. Trubek and Kransberger said of the lawyers in the practices they studied that “the struggle to maintain their practice often seems overwhelming” and that there is “‘constant financial tension’ and financial insecurity” (1998. App. This financial concern also is heard in big firms. they sometimes find themselves doing pro bono conventionally defined—either by choice (waiving fees ex ante in cases that advance the core mission) or necessity (reducing fees post hoc in cases in which clients become unable to pay). 522 F.2 (2nd Cir. undercutting the notion of pro bono as an “extra-market” activity. for private public interest lawyers. 2008) (“Our decision today in no way suggests that attorneys from non-profit organizations or attorneys from private law firms engaged in pro bono work are excluded from the usual approach to determining attorneys’ fees. with some courts holding that fee awards should be reduced or eliminated in successful cases taken on a pro bono basis. the choice of pro bono cases is a constitutive act. When private public interest firms select cases for pro bono representation. the matter still “counts” as pro bono so long as it was undertaken “without expectation” of the award at the outset.21 Thus. with due consideration for how it affects the firm’s financial viability. it is better understood in terms of its satisfaction of broader professional service obligations.202 private lawyers and the public interest firms to accept future pro bono representation (Rubin 2006). the ideal of pro bono as volunteerism often gives way to the reality of big firms “getting paid” for pro bono work. Lawyers in private public interest firms feel pressure to generate fees in order to fulfill the institutions’ public purposes. App. This is different from the choice of cases in the big-firm setting. For big-firm lawyers. see also Pro Bono Institute 2004:8). 4th 1270. See Cruz v. For example. but the scale of cause-oriented practice gives it a different salience. the choice tends to be intimately bound up with the firms’ political identity. leading critics to accuse firms of having it both ways (Kolker 2006. County of Albany. 2007) (suggesting that a court. A property rights lawyer said of the firm’s pro bono work 21. The question of whether a case qualifies as “pro bono” has made its way into court discussions of whether to award attorney’s fees in the first instance. When big firms keep all or part of an attorney’s fees award. some lawyers in the private public interest firms suggest that pro bono is a practice that must be used cautiously. although private public interest firm lawyers reject the conventional distinction between paid and unpaid work. 155 Cal. 2007) (criticizing such a holding by a lower court).

who tend to object to mandatory pro bono on the ground that “coerced” volunteerism will result in inferior service.g. Heinz et al. September 26. then we can’t do any of [the cause] stuff” (confidential interview. Instead. September 10. the lawyers’ self-conception as advocates for the “underdog” means that they view all their work—including routine civil rights cases—through the lens of social activism and do not bracket specific cases as pro bono matters that are qualitatively distinct from the cases that comprise the rest of their docket. requiring private lawyers to take on pro bono civil rights cases will encourage judges “in the belief that lawyering for the public interest is a form of charity. Bagenstos (2007:189) offers another objection to mandatory pro bono focused on the potential impact on civil rights firms. If we can’t keep enough coming in to keep the doors open. however. At Hadsell & Stormer. In his view. January 2002). “I knew I wouldn’t get paid because they involved the kind of appeal where we asked the court to change the law in order to win. September 2002). Some firms do so openly and in advance.between profit and principle 203 that “it’s always a balance. . could be a major loss for civil rights litigation. 2002). Other firms accept cases on a contingency basis but have little faith in their chances of recovery. on net. Some private public interest firms that accept such high-risk. . for example. which they oppose on principle. because it’s a business.” He noted. a property rights lawyer reported that his small firm does “a lot of amicus work that we don’t get paid for. 2005. that we take on simply in an effort to try to push the law in some direction” (confidential interview. Mather et al. the firm’s raison d’etre is the “righteous” case—one that stirs passion in the firm attorneys.22 As in solo and small firms more generally (Levin in this volume). and it may lead them to tighten the rules for statutory attorneys’ fees even further. For example. 2001. The result. As firm partner Dan Stormer puts it: “I don’t believe in pro bono” (Cummings 2009)). As another property rights lawyer said of many cases that he handled on a contingency basis. and should be. There are two distinguishing features of the righteous case: (1) the client 22. politically significant cases refuse to associate the practice with the conventional model of pro bono.” . private public interest law firms vary in how explicit they are about taking on pro bono cases for no fee. . Powell 1988)—a justification different from the one given by big firm lawyers. that he charged this client—and all his nonprofit clients—much less than he charged clients whose causes he cared about less (confidential interview. who believe that their legal intervention helps to right a manifest wrong. but most of the time we lost those” (confidential interview. [it is] a constant subject of discussion.. 2002). This resistance to unpaid work is consistent with other research finding that lawyers in small firms generally do not support mandatory pro bono because of its impact on the bottom-line (e. A lawyer in a firm devoted to socially conservative causes reacted somewhat defensively to a question about whether his work for a large nonprofit prolife group was pro bono: “there [is] a lot of pro bono associated with my practice but you cannot take on the chunk of business that they had for me without being paid. I won a few of those.

conclusion This sketch of private public interest firms highlights some ways in which practice settings and cultures shape professional norms and behavior with respect to public service. In Doe v. the firm sued to protect a community garden located south of downtown Los Angeles. . and at one point every one of its ten lawyers was working on the litigation even though “financially it made no sense at all” (Cummings 2009). and (2) the financial outcome of the case for the firm is uncertain. the firm is representing a class of Nigerian villagers in a case that challenges Chevron for human rights abuses related to its alleged support of the Nigerian military in the shooting of protesters on a Chevron oil platform and the destruction of two villages in the Niger Delta. Recognizing why the prevailing view rankles these lawyers may help to open the conversation about what is at stake in debates about pro bono service. the firm always holds out hope for a recovery. righteous cases are not uniformly financial losers—thus. pro bono seems almost beside the point—a distraction from what they see as a more important inquiry about whether the firm’s core function is consistent with the public interest. for lawyers in private public interest firms dedicated to a particular social mission. but there is a sense in which they are the firm’s lifeblood. Specifically. is not a “singular ideology of professionalism operating across the legal profession” (Granfield 2007:120). The South Central Farmers typifies one of Hadsell & Stormer’s righteous cases. In 2006. In what it sees as another righteous case. providing the moral and political authority that sustains the firm’s collective mission (Cummings 2009). But after some favorable court rulings. Unocal. It might discourage an excessive focus on pro bono as the measure of the private bar’s commitment to the public weal and challenge the conventional wisdom that lawyers in private practice contribute most when they charge least. Our analysis suggests that private public interest lawyers tend to have a very different stake in the fight over how lawyers should serve the public good. the firm ended up settling the case for an undisclosed (but presumably large) amount. Significantly. but rather a particular view of professionalism that is more congenial to lawyers in some practice settings than others. It shows that the bar’s definition of pro bono.204 private lawyers and the public interest is from a social group deemed less powerful. These cases comprise a minority of those on the docket. the firm initially viewed the case as a financial long shot given the completely untested nature of the international human rights claims against a corporate defendant under the Alien Tort Statute. as unpaid service to clients who are unable to pay. a human rights suit against the Unocal oil company for supporting the Burmese military in committing abuses against workers on Unocal’s oil pipeline.

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and in the commitment to pro bono work of a substantial number of large law firms. over time. suggesting that the service ideal remains alive. and Jessica Sperling who helped with further research and organization of the paper. Many businesses do this as well. for the profession. moved closer to a business model. Charisma-Producing Events. the most prestigious. a number of analysts of the legal profession (Larson 1977. and large. Sandefur 2007). 2. Furthermore. such as medicine or the ministry—in which service is part of their vital core—the legal profession has. in the mandates of national and regional bar associations.3 In this chapter. but there is not a collective mandate that they do. civil legal assistance (Galanter & Palay 1995. issues entrepreneurs Charisma. Abbott 1988) have questioned whether this defining characteristic is true any longer for the law. More than some professions. I am grateful also to Howard Epstein for his editorial diligence. a service-to-society ethos has always found expression in the voices of respected leaders of the bar (Kronman 1993. Attorneys employed in civil legal service organizations devote more hours to providing civil legal aid to the poor. . and the Shaping of Pro Bono Practice in Large Law Firms cynthia fuchs epstein introduction 1 The classic sociological definition of a profession—one that differentiates professions from business and other activities—holds that among other things its work must contribute to the public good (Parsons 1954 [1949]). 3. with consequences for society. the large “Wall Street” firms that most closely define high-stakes business law in this country are precisely the firms that contribute the legal personnel whose pro bono service makes up the largest component of U.S. Nonetheless. These firms include those founded by members of the white Anglo-Saxon Protestant (WASP) establishment around the turn of the twentieth 1. I suggest that this has something to do with the mission and culture set by a number of the profession’s charismatic leaders. some of whom were founders or early recruits in firms that were to become. Linowitz & Mayer 1994). as measured by numbers of lawyers and total revenues. and perhaps ironically.10. and are today. I wish to thank Robert Sauté and Bonnie French for assistance in the first stage of this research.2 However. how the ethos is addressed and carried out varies greatly. affluent. and for lawyers themselves. Of course.

Most pro bono work by lawyers in firms was connected to personal assistance to needy people the lawyer knew. The periods that most affected lawyers I interviewed and those whose lives I found in historical accounts were the years of President Franklin Delano Roosevelt’s New Deal. the brother-in-law of President John Kennedy.4 I further suggest that a subset of leaders holding strong public service views were professionally situated during particular historic moments—charismatic periods that motivated lawyers and other citizens to think and act beyond pedestrian day-to-day tasks. and Hella Winston).7 During the New Deal and the immediate prewar period.” although Wall Street firms (those characterized by the WASP establishment) and “midtown” firms (characterized by having had Jewish and Catholic founders) are still regarded to have a somewhat different character. 7. the Civil Rights movement of the 1950s and 1960s. built their own parallel institutions in the mid–twentieth century. He became a partner of the firm of Fried Frank in 1970. They were joined by other recruits who were excluded from the establishment because they did 4. The evidence presented below is suggestive rather than conclusive. I began to search the web for information about the histories of the large firms with which I had contact.212 private lawyers and the public interest century (Smigel 1964).5 My conclusions are based on insights gained from a study6 on the factors that influence law students’ choice of careers in the public interest. The old distinctions have. See my forthcoming book (with Robert Sauté. the first head of which was Sergeant Shriver. It was only after I interviewed a group of lawyers in firms known for pro bono activity as background for the study of student choice of public service law careers that I had the serendipitous (Merton & Barber 2004) observation—based on unsolicited comments made by several firm leaders—that there was a relationship between firms’ pro bono activity and the earlier public-spirited behavior of their founders or of major partners whose lives were touched by mobilizing events during periods of history that evoked social consciousness. or service to religious and cultural organizations of which he (recall. been undercut by a more “democratic” recruitment of lawyers from dissimilar backgrounds and some commitment to “diversity. The “War on Poverty” was introduced by President Lyndon Johnson in a speech on January 8. 6. some “insiders” in the elite WASP legal establishment were recruited into government service on an emergency basis. and a minimal commitment to pro bono work. Shriver later started the Peace Corps and other organizations devoted to the public interest. 1964. With this in mind. and those created by Jewish and Catholic lawyers who. over the past several decades. immediate self-interest. . 5. excluded from the Wall Street law firms. and the War on Poverty. no women were in these firms) was a member. These lawyers had been recommended—by informants in the law schools in the prior study or by lawyers in public interest firms I interviewed—as promoting pro bono activities in their firms. and resulted in the inauguration of the Office of Economic Opportunity. World War II. The Lawyers for the People: Law Students’ Choice of Careers in the Public Interest. Mitra Rastegar.

8 setting up programs or providing examples of service. In later years. and. motivated younger lawyers succeeded both groups of elders. such as “reputational entrepreneurs. located in New York and San Francisco. and By Whom? As we know. currently. (Other historic moments were to come still later. because they were Catholics or Jews (Powell 1988). 8. for individuals deemed unjustly imprisoned. for immigrants. marked by movements that sought to provide rights for individuals with alternative sexual identities. I decided to include a number of interviews with lawyers responsible for guiding pro bono programs in their firms. . The concept of “entrepreneurs” of various kinds. The interviews were conducted to provide background on the opportunity structure (Merton 1995) available to students in the schools being surveyed. either by mandate or by providing an inspirational point of reference that law partners in succeeding generations cite in devoting firm resources to pro bono activity. These entrepreneurs were prime movers in the institutionalization of new kinds of pro bono work (Granfield 2007) that went beyond the individualistic practices that characterized such work in the past. and ranked high in the listing reported by The American Lawyer magazine. I became aware of how much the models set by individuals and the policies set by their predecessors mattered in establishing the climate in firms supporting pro bono work.”) I further suggest that lawyers affected by these movements who became titans in business law often also became entrepreneurs of pro bono work. These firms. for those involved in cases arising out of the Iraq war and the “war on terror. In my study of the factors that contribute to law students’ choice to enter careers in the public interest. during the charismatic period marked by the social movements of the 1960s. known for their pro bono activity. often attracted students who wished to do public interest work but were unable to forgo the income they would make in the private sector. After the war. the ways in which pro bono work became institutionalized often rested on the behavior of particular individuals who placed their stamps on their firms and bar associations (Powell 1988).issues entrepreneurs 213 not share the social and cultural capital of its members (Bourdieu 1984 [1979])— for example. and thus creating in their firms “a culture of commitment” (Rhode 1999. King & Fine 2000). some again starting their own firms.” has been used creatively by Gary Alan Fine in his cultural analyses (see Fine 1996. 2003) to pro bono work. lawyers and the legal profession as a whole respond to changing times and social conditions in the contexts of their collective and personal histories. many non-establishment recruits went on to establish successful competing firms. How Have These Cultures Been Created. In the course of the interviews. Although I am not an advocate of the “great man” theory of history (Carlyle 1888).

all of which contribute to the firms’ commitments to pro bono work. the process by which organizations tend to mimic each others’ behavior (DiMaggio & Powell 1983). Mills 1945). For a view of the social and political forces that influenced the institutionalization of pro bono in firms. they were often recipients of the legacies of the iconic figures that preceded them. Focusing on these individuals is of importance because law firms. the impact of those I shall call “issues entrepreneurs” and the charismatic webs they spin also prove to be significant and are important factors in firms’ commitments to pro bono activity. They were also viewed as strategic mentors and role 9. have also been key players in creating and supporting pro bono programs and are well known in the legal community.” as characterized by the subtitle of a paper by Judith L. the value of pro bono in providing a positive public-relations spin stressing integrity (Epstein 2002). assigning. have cultures and social structures informed by their pasts (Stinchcombe 1965. Nonetheless. at the time when the individuals made their mark. see Sauté (2008).9 the pressure of clients. The New York and San Francisco-based lawyers I interviewed for this inquiry were recommended through a snowball sample as those responsible for guiding. Other lawyers. but developed their own leadership and supportive roles informed and inspired by the social movements of their time. They have not only framed the cultures of their firms. These include isomorphism. As I learned by interviewing a subset of them. and the visibility (Merton 1957) created by an active legal press that ranks firms for their pro bono activities. self-interest. Maute (2002–2003). and otherwise charting the role of their firms in pro bono legal work for the publics they serve. like other organizations. and ProBono Net. currently in practice but less well known to the world outside the law. this observation does not preclude other explanations for the pro bono patterns of large firms. .10 There has also been development of organizations that coordinate work on cases with large firms (and public interest firms) such as the Lawyers’ Alliance. this focus does not address the institutional ambivalence many firms demonstrate as they both support pro bono activities and make the cost of engaging in them high for their practitioners (for example. As I shall note later. their careers were admired as exemplary and provided the legendary stories that—as we have come to understand in new work on cultural analysis—contribute to the ongoing culture of organizations and societies (Economides & O’Leary 2007. Though they were not exactly personal role models (Merton 1957). some of these individual legacies were especially important because. by not counting lawyers’ time spent working on pro bono matters as billable hours). Gamson 2002). Volunteers of Legal Services.214 private lawyers and the public interest Of course. 10. Further. they have changed the entire concept of pro bono law “from chance noblesse oblige to stated expectations. their firms were very small compared with firms today and individuals’ contributions were visible and important. These lawyers’ histories have been important in creating the culture and structures for doing pro bono work that exist today.

that drew some later leaders to public interest concerns. I began my analysis by highlighting the lives and contributions of selected formative pro bono leaders in the firms in which I conducted interviews. such as firm websites and obituaries. These interviews provided me with information on their personal inspirations for pro bono involvement and with examples of the extent of pro bono institutionalization within their firms. issues and problems are “defined. such entrepreneurs organize networks and other structures to promote 11. Leaders in firms that set the tone for innovation in pro bono activity were often outliers in some ways. nearly all of them men. women constitute only 17 percent of partners in the top 250 law firms in the United States. such as social movement involvement. As McCarthy and Zald (1977:1215) explain. By intertwining strong leadership and commitment to public service. It was not until the 1980s that women became a presence in the large firms. However. created. I augmented these accounts with biographical information about leaders of the firms from public sources.11 whether from elite law firms or from outside the WASP establishment. I identified other factors. some lawyers who came from conventional backgrounds left the traditional life-course trajectories followed by others of their social class.” Able to identify significant issues that others might also embrace. in general. were influenced by participation in charismaproducing events such as the New Deal. Formative Pro Bono Leaders Charismatic leaders (Weber 1947 [1922]) usually do not arise in conventional settings in which lives are orderly and bound by traditions. Exploring the influence of charismatic individuals. or perhaps were also identified as having charismatic qualities touched off by what we may frame as charismatic events. Virginia 1996). most women’s rights issues were handled outside the large firms. on lawyers currently involved in pro bono work. I examined the specific ways in which public service work has been institutionalized into firms’ cultures and organizational structures. Firms later took up some cases of sex segregation. it was men who were important in creating the culture of commitment in large firms. and even today. After explaining some key changes in law firms since the days of the formative pro bono leaders. 12. and the social movements of the 1960s and 1970s. Therefore. in the firms I studied.issues entrepreneurs 215 models who inspired others in their firms. and manipulated by issue entrepreneurs. such as those involving the Virginia Military Academy and the Citadel (in South Carolina). World War II. perhaps because there were virtually no women lawyers in them at the time to mobilize. the formative leaders. As I noted earlier. . the Woman’s Movement of the 1960s was less a source of pro bono work in the firms. including these early figures. these lawyers developed roles as issues entrepreneurs. Curiously.12 The biographies of these men contribute to ongoing stories of social leadership. Yet. two publicly funded colleges that excluded women (United States v.

. for they embraced pro bono work and helped to develop a culture and in some cases an infrastructure working toward that goal.S. ambassador to the Philippines for two years and headed the American Red Cross during World War II. a noted civic leader and fighter for social justice. was named deputy U. for these leaders also influenced the overall perception of corporate firms’ work as an activity that should include public service aims. served as the U. . P. . Debevoise & Plimpton has handled more asylum cases for the Lawyers Committee for Human Rights than any other law firm in recent years. not unlike his brother (Mayor of New York John Lindsay) . .S. . During World War II. early pro bono leaders can be classified as “entrepreneurs” in the legal world. In an interview with a current partner in this firm.216 private lawyers and the public interest their causes. After the war. His public service work also focused on domestic issues. another name partner. It has been honored by the Center for Constitutional Rights and the Legal Aid Society. The effects of the networks they created for their pro bono efforts can also be interpreted in a broader sense. a founding partner of this firm in 1931. attorney in New York. as chair of the board of trustees of the Russell Sage Foundation) until his death in 2004. another founder. after work as an assistant U. lawyers of elite backgronds and their firms Debevoise & Plimpton Eli Whitney Debevoise. was named ambassador to the UN under Presidents Kennedy and Johnson. He joined the firm in 1937 when it had only 11 partners (today it has 600 partners). Ruebhausen first worked as an attorney in the Lend-Lease Administration and then became general counsel for the Office of Scientific Research and Development. the legacy of these founders and other inspirational figures was reported in this way: [There has always been a tradition of pro bono work in this firm]. was another early pro bono leader in this firm and its presiding partner for 1972–1981. . Francis T. He remained active in many civic and charitable causes (for example. Oscar (Rebhausan) had been president of the City Bar and George Lindsay had been chairman of the Lawyers’ Committee for Civil Rights and spent a significant amount of time in Africa fighting against apartheid . Although the term has often been used to describe social movement leaders.S. including the chairmanship of the New York State Task Force on Youth and Juvenile Delinquency. and was the winner of the ABA Pro Bono award in 2006. Plimpton. Ruebhausen is credited with drafting the document that led to the establishment of the National Science Foundation in 1950. high commissioner for Germany after World War II. William Stevenson. Oscar Ruebhausen. . he was of the liberal Republican establishment. [and] just happened to put his energies where his mouth was on .

. John Hall. like Ulysses. was conducted by myself and several graduate students and resulted in a report published in the Fordham Law Review (Epstein et al. . . Tweed was among the people that Jack Kennedy called to the White House in the sixties to create the Lawyers’ Committee. Tweed. displayed significant involvement in public interest and government service. This study.issues entrepreneurs 217 some areas of doing good. He was also chair of the Lawyers’ Committee for Civil Rights. initiated by the Committee on Women of the Association of the Bar of the City of New York. Morris Hadley was a trustee of the Russell Sage Foundation and both a trustee and a long-term president of the New York Public Library. . Barbara Paul Robinson—the first woman partner named by Debevoise. founded in 1866. . . . Another respondent in the firm expressed particularly high praise for Frank Logan. chaired the Volunteer Lawyers AIDS Project. setting a tone of commitment to pro bono work that extends to the present. He left the firm and then came back and has argued several death penalty cases in front of the Supreme Court. The current chair of our litigation group. 1995). well known in that regard. Hadley & McCloy Each name partner of this firm. a former chairman of Milbank who created the firm’s pro bono practice. Albert Milbank served on the board of directors of the Welfare Board of New York City and Greater New York. One former partner. when there was a move to a greater business orientation. . recognized the need to lash our pro bono values to the mast 13. [Going back in time. senior counsel in the firm. and brought to fruition a study that documented the glass ceiling facing women lawyers who aspire to become partners in large firms. worked as a long-term vice president of the New York Legal Aid Society. This model of service persists beyond the founders to recent and current firm partners. . . . . in 1976—became the first woman president of the prestigious Association of the Bar of the City of New York. and Alex Forger. Elliot Richardson. and Harrison Tweed was a president of the New York Legal Aid Society and the first chair of the Lawyers’ Committee for Civil Rights under Law. “Logan. had been Nelson Rockefeller’s counsel at age 31. spent a year and a half as an associate creating and opening up Community Law offices. held several cabinet posts in the 1970s and won the Presidential Medal of Freedom in 1998.] Rod Perkins . As a current partner in the firm reported: There have always been public figures involved in the firm’s leadership going back to Harry Tweed. Alexander Forger. and was a president of the World Bank and a chairman of the Ford Foundation.13 Milbank. and was president of the Legal Services Corporation during the Clinton Administration. . As he noted. in the 1990s. . . In recent times. who was . . .

Eisenhower as chief judge of the U.” Friendly. During World War II. He also served as a president of the Association of the Bar of the City of New York (1933–1935). Simpson Thatcher has become one of the top-ranked law firms in the country and was named as a 2008 pro bono leader. later went to work with the Lend-Lease Administration. state and national level’” (Berger 2002). Friendly. when he made “a stubborn but not too successful effort to persuade the lawyers to devote Saturdays to providing the city’s needy with free legal advice” (Berger 2002). a successor partner. he was also director of the United States . Cyrus Vance. serving as chairs on civil rights groups. He was also president of the New York City Bar Association in 1975–1976. Chairman of the Council on Foreign Relations. was known for public service under several presidents. He served as secretary of state in the cabinet of President Jimmy Carter. was appointed by President Dwight D. Vance was chairman of the board of the Rockefeller Foundation. and for 1970–1972 he was named to the New York Commission on Government Integrity to investigate corruption at all levels of government in the state. Vance was described as the epitome of the American establishment “who moved seamlessly from the prep schools of New England and the Ivy League colleges of the east to the law firms of Wall Street.S. Thomas Thatcher. Simpson Thatcher Founded in 1880.” He was reported as saying that “‘a lot of us were raised in families where we were taught that we were very fortunate. served as solicitor general of the United States under Herbert Hoover and later became a judge on the New York State Court of Appeals. that we were going to have a good education. Its partners have included many lawyers who have worked in the highest reaches of government and thereby set a tone for public service. who had been a law clerk to Justice Louis D. George Ball. and creating firm positions dedicated to pro bono work. and Fowler Hamilton. whose forebears go back to the founding fathers. Court of Appeals for the Second Circuit. Brandeis. serving on presidential administrations.218 private lawyers and the public interest in order to preserve it through what he saw as a perilous trip through the region inhabited by the economic sirens. all of whom are cited on the firm’s website as examples of a “firm culture” in which “the practice of law is a privilege. Ball.” Others also mentioned more recent firm leaders who had done such service work as opening community law offices. In his New York Times obituary. one that carries with it the responsibility to apply our talents for the benefit of less privileged individuals and communities. and that we had the responsibility to return to the community some of the benefits and blessings we had. with time out for service in government. who had served in the New Deal after graduating from law school in 1933. and that there was an obligation to participate in government service at the local. Cleary Gottleib This firm was founded in 1946 by Henry J.

Clark is cited as a mentor to Robert Raven. The American Lawyer (2004) wrote: “He built a partnership that didn’t require pro bono work. Firm lawyers described Raven as creating a culture of service to society. Robert Porter Patterson Sr. Its high-profile work is exemplified by James J. showed by example how important it is to give back to the legal profession and the community and spearheaded the rejuvenation of the Legal Aid Society of San Francisco in the 1960s. including Michael Mukasey. He created a strong mentoring system . It is ranked third on The American Lawyer’s “A-List” of the top 20 firms in the nation and among the top ten in the magazine’s 2008 pro bono survey (holding this position since 1999). Roosevelt and later became undersecretary of war in 1940 and secretary of war under President Harry Truman in 1945. and in 1968 it was the first firm to establish an externship granting lawyers paid leaves to work at legal services organizations. Herbert Clark. but it is noted for its public service. the American captured in Afghanistan and tried and convicted for serving with the Taliban. Attorney General. Patterson also participated in the initial planning of desegregation of the armed forces and served as president of the Association of the Bar of the City of New York. .S.” A lawyer we interviewed at the firm noted her own current commitment as stemming from the legacy created by Raven and those he mentored. He also organized the state bar to keep alive the Legal Services Corporation that then-Governor Ronald Reagan hoped to abolish. a founding partner. it expected it.. Raven became an accomplished litigator and an advocate for public service and was elected president of the Bar Association of San Francisco. he hired women and promoted them before that was conventional thinking. Fowler Hamilton was also committed to public service and served as the director of the Agency for International Development. Patterson & Belknap is a small firm (200 lawyers) compared to other elite firms. delegate to the United Nations and argued “forcefully but unsuccessfully against United States involvement in the Vietnam war” (McFadden 1994).S. The name partner. This firm views its pro bono program “as central to the firm’s value system” and has resisted attempts to reduce it. known for his defense of John Walker Lindh. . Brosnahan. Other lawyers from the firm have continued to work for public interest and government services. and advocated for the status and participation of minorities in state bar activities and the legal profession. when the firm had more than 1. was appointed as a judge of the U. a past partner who joined the firm in 1952 as its seventeenth lawyer and died in 2004. Court of Appeals by Franklin D. Patterson & Belknap Founded in 1919.S. the former U. .issues entrepreneurs 219 Strategic Bombing Survey. The work done by the three founding partners has since been integrated into the structure of the firm. and he later served as undersecretary of state and U. Morrison & Foerster According to a firm account (Morrison & Foerster 2004).000 lawyers.

Arthur L. Garrison joined the National Urban League in 1924 and later became its president. Nazism. Liman. he also promoted civil liberties as a longtime member of the American Civil Liberties Union and defended Langston Hughes and Arthur Miller when they were summoned by Senator Joseph McCarthy to testify before the Senate Permanent Subcommittee on Investigations. Simon Rifkind. He was on the commission to investigate the Attica Prison riot of 1971. Garrison. was a great grandson of the abolitionist William Lloyd Garrison and the grandson of Wendell Phillips Garrison. Lloyd K. A fellowship created in his name enables its holders to work full time for a year in a law-related endeavor to further the public interest. a name partner. and intolerance. was Jewish and grew up in an era when his formative influences were World War II. His many activities include service on the boards of the American Civil Liberties Union. he fought racial prejudice all his life. has also been a model for the integration of pro bono work and profit-making work in this firm. he was legislative secretary to Senator Robert F. He was called to government service several times by Presidents Franklin Delano Roosevelt and Harry Truman. Weiss. Paul. among others. He was also chief counsel of the Senate Committee’s hearing on the Iran-Contra scandal. the literary editor of The Nation. From 1927 to 1933. a lawyer in Brosnahan’s practice group noted her own involvement in setting up the needle exchange program for addicts in San Francisco and her pro bono work for the AIDS foundation. Brosnahan is reported to have emphasized the value of profession over business. He was a federal judge from 1941 to 1950 and later served as an advisor to President Kennedy. Paul. During a time of conflict over priorities in the firm. and received an LLB from Columbia Law School in 1925. Wharton & Garrison Founded in 1945. Inspired by Martin Luther King Jr. sometimes clashing with younger partners who assert that the bottom line is primary. Weiss was the first major New York firm to hire a Black lawyer and one of the first to hire a female partner. the winner of numerous awards and ranked among the top litigators in the country. As an example of the firm’s continuing emphasis on pro bono. and the Lawyers’ Committee for Human Rights. and in the 1950s he was a member of the Democratic Party reform movement in New York City. a senior partner at the firm. He graduated in 1922 from the legendary tuition-free College of the City of New York (CCNY). Rifkind. was a name partner of the firm and a renowned trial attorney known for his representation of needy Holocaust survivors. also Jewish. According to his obituary in the New York Times he also “made his living representing both corporate tycoons and scalawags” (Haberman 1997). . Legal Services for Children. Rifkind was born in Russia and immigrated to the United States with his parents when he was nine years old.220 private lawyers and the public interest Brosnahan. Wagner and helped him draw up important New Deal measures.

which supports another scholarship program to prepare talented students of diverse racial and socioeconomic backgrounds for careers as lawyers and engages in considerable pro bono activities. Current activities of the firm include its representation of detainees held by the United States at Guantanamo Bay and civil rights activity in the areas of same-sex marriage and prisoner’s rights. and the firm gave legal support to individuals who were targeted by the Senator’s committee (Westwood 1978). . founded in 1946. A New Deal liberal. On retirement from the firm. and exemplifies Arnold & Porter’s commitment to social justice.issues entrepreneurs 221 The firm also helped Thurgood Marshall prepare Brown v. such as the Legal Aid Society’s Servant of Justice Award. Arnold & Porter The name partners of this firm.000 lawyers). New York. Before attending Harvard Law School. joined the tiny firm. Skadden partners who were interviewed for this study note the record of Skadden lawyers in taking on pro bono cases. he grew up in a Jewish family in modest economic circumstances in Brooklyn. Porter served as chairman of the Federal Communications Commission. Tennessee. Halpern worked for the firm in 14. Board of Education in the 1950s. was a founder of the City University of New York Law School (a school with a formal mission to train advocates for the poor and disadvantaged). which pay $46. the patriarch of Skadden Arps. Flom gave $10 million to support good works and inspired the Skadden Fellowships. Paul Porter and Thurman Arnold. They included Abe Fortas. who was also interviewed for this study. The other original name partners. as its first associate in 1954 (today the firm has more than 2. were also involved in public service and government work. Arnold is also known for his resistance to the loyalty hysteria of the McCarthy period. In 2008. The firm formerly was named Arnold. Arps.14 born into a Jewish family in Memphis. Slate Meagher & Flom Joseph Flom. who appointed him to the Supreme Court. and Thurman Arnold headed the antitrust division of the Department of Justice. the Department of Defense’s Distinguished Service Medal. he became a counselor to Lyndon Johnson. His legacy has continued in the firm. Charles Halpern (2008). Skadden. and the CCNY Presidential Medal for Distinguished Achievement and Public Service. Skadden Arps led The American Lawyer’s financial success rankings. Distant from the elite world of the Wall Street firms. Many of his awards convey his commitment to social justice and public service. he was a graduate of CCNY. were New Deal alumni who had been creative designers of government institutions and programs to promote public welfare. founded in 1948. Fortas & Porter.000 to each of 25 law school graduates each year who devise projects in public interest organizations that could not otherwise finance them.

she notes a senior litigation partner. as a source of inspiration. socially active associates who became partners and in turn expanded the firm’s culture of pro bono work. West Virginia. Erikson (private communication) recalls that the young lawyers who managed the case. he went on to co-found the Center for Law and Social Policy and the Alliance for Justice. the Law School. Two liberal partners. reminded him of Bobby Kennedy in that they wanted to do good as well as have successful legal careers. now a partner there. a disaster immortalized in a book by the sociologist Kai Erikson. Joe McLaughlin. who died in 1918. and the Hall of Graduate Studies and funded the prestigious Sterling Professorships. Firm members have in succeeding years taken on many pro bono cases and established such a reputation that students oriented toward practicing pro bono law have chosen it in preference to other firms. I learned of the firm’s reputation from Valerie Vojdik. John Sterling. was a philanthropist whose bequests to Yale University paid for the construction of a new library. and Shannon [Faulkner. A personal note: I met Valerie Vojdik when she asked me to become an expert witness in the Citadel case. Vojdik wrote to me: There is a huge photo of Henry Weisburg and I and Mary Warren. while an associate at Shearman & Sterling. In particular. who. Everything in Its Path (1976). became the lead lawyer for the case against the Citadel. The name partners also supported younger lawyers who came after Halpern in taking on pro bono cases.” also were involved in the Citadel case. but the culture of commitment grew in the firm. walking to court that was in the New York Times. South Carolina’s state-funded military academy that refused to admit women students. Harry Huge and Gerald Stern. the client in the Citadel case]. Shearman & Sterling Founded in 1873.222 private lawyers and the public interest his first job after law school. One suit was pressed on behalf of the victims of a flood caused by the negligence of coal mine operators in Buffalo Creek. When I asked Vojdik about the firm’s involvement. and the partners permitted him to defer reporting for work in order to spend a month with the Lawyers Constitutional Defense Committee doing volunteer legal work in support of the civil rights movement. which continue to this day.” She noted that it was beneficial for elite firms to do pro bono work because it gave their associates litigation experience. and we have been in contact since. “for whom social justice was also very important.15 she observed that in the 1980s and 1990s “S & S developed a strong pro bono practice. It has been blown up and posted with all of the other corporate deals and accomplishments of the firm next to the 15. this firm’s earliest clients were the industrialist Jay Gould and members of the Rockefeller family. The firm attracted more progressive. .

lawyers active in establishing and supporting pro bono programs express how they and their colleagues experienced the influence of the 1960s and 1970s on their law careers: [Pro bono leaders] tend to be people who went to college and law school in the sixties. But . but others joined organizations and participated in marches and demonstrations against racial inequality and the Vietnam War. . . This was the Watergate era and there was a lot scrolling in my head about lawyers as agents of protecting a free society. and they were moved by these causes. She was so excited to meet me because she knew S & S trumpeted its work on the Citadel case and . Robert Sauté’s (2008) work on the New York Legal Aid Society notes that lawyers were drawn to the organization because of their “sixties generation” idealism. . she saw the photograph next to the Lawyers’ Dining Room. During my third year. Most of the lawyers with whom we spoke—who were in their fifties or sixties at the time of their interviews—reported that they were in some ways affected by the sixties social movements. Who right after law school spent four years in Legal Aid or were involved in writing the Constitution of [an] emerging African republic and who have always felt this is something they would be doing. I met a woman who clerked at S & S this summer. . . I was never a radical. . clients and visitors. . . but I kept focusing on the lawyers who were able to make changes. . I still remember that the primary criterion that I had for interviewing at law firms was how much pro . . how could you not have been shaped by that period? I wasn’t out marching and I wasn’t going to demonstrations. So it is continuing to attract lawyers who value social justice. when I was interviewing . . I think that is how the culture grows. In the following quotes from a number of interviews. I had a lot of sympathy. So its commitment and pride are showcased for the firm’s lawyers.issues entrepreneurs 223 Lawyers Dining Room. the influence of social movements A number of committed pro bono lawyers we interviewed said they had been influenced not only by inspirational figures in their firms but also by the social movements shaking the society as they began their careers. They also often had connections to individuals who were activists and who engaged them in projects or activities that had a mobilizing effect on them (Granovetter 1973). . Some were merely sympathetic. even if they were not engaged as radicals or activists. . They went to college and law school at a time when issues of social justice were in the air. I found that the legacies of the 1960s and 1970s were especially prominent on these lawyers’ personal paths toward pro bono commitments. . .

I was involved. . In fact. . at that time. . I went to demonstrations in Washington and all that. Interested in doing a lot of pro bono work but within the context of working for a law firm as opposed to look[ing] for a full-time public interest career.224 private lawyers and the public interest bono work they did. . because it meets every Tuesday night. that was a big catalyst as well. We and most of the larger firms in town signed up to take turns staffing the clinic. I think that was my first connection with the Lawyers’ Committee for Civil Rights . . . . . I think at that point I had the zeal of the newly converted. I think that’s one of the major influences here. How much would they let me do? And it was . and that was very typical of my peers at Yale at the time. In fact. which has become known as the Tuesday Night Clinic. is that the leadership of large firms has encouraged younger people within the firms to do pro bono work. two. The people that founded the Lawyers Committee. *** At this firm. It was just a time when we all got clean for Gene [McCarthy]. I think. It was founded by Yale law students in my class and the two classes ahead of mine. *** I was involved in the antiwar movement and the student politics and educational reform stuff. It was more people who were one. I went to New Hampshire to campaign in’68. Not giving any thought to other alternatives. I don’t recall that I had any mentors in the pro bono arena that were among the senior people in the firm. For all this time not knowing what I wanted to do and now I had an idea that I wanted to be a litigator and so it was full steam ahead. who just were generally people probably 20 years older than I . they created a level of commitment that they succeeded in passing along and instilling in younger people in their respective law firms and so there’s just been a communitywide tradition and particularly in the big firms. . *** . which I think partly is a product of Yale’s peculiarities and also just a function of the times. The Environmental Defense Fund came out of that. We all either wanted to go into public interest work full time or wanted to do a lot of pro bono work. But I think a lot of it too was that the Lawyers’ Committee for Civil Rights did a very effective job of developing relationships with all of the big law firms in town and then when the Lawyers Committee started a clinic. . as an example. in particular. . . . for example. I would say it was probably starting . It was pretty much a class-wide phenomenon. opportunities in the public sector were so limited that a number of my peers founded public interest organizations of their own. . three years ahead of me that had gotten that going. And I think we all felt like we wanted to make a change. in the mid-70s.

became partners in this firm. Harrington used the term to refer to middle-class liberals who demonstrated strong sympathies for underdog groups. Today’s megafirms started out very small and remained so for decades. . The structural shifts include a vast change in size of law firms. for [X’s] law firm. . compared with a range of 600 to 2. involvement in pro bono work has changed form and become a part of the firm itself. “Why do you want to come here and practice money-grubbing law?” And I was trying to figure out what to say . By serving as issues entrepreneurs and instilling a strong focus on pro bono work. Being here is enough. . The top “large” Wall Street firms that Smigel (1964) reported on in the early 1960s were composed of 100 to 150 lawyers. The changes in law firms over time indicate how the integration of pro bono work into general firm structure and mentality has allowed it to survive and thrive during a time when practice in large firms is based less and less on personal relationships.” a term coined by Michael Harrington (1968). triggered at various times by events such as war and economic stress. As Scott Cummings (2004) has ably demonstrated. Indeed. Just as former pro bono leaders had been influenced by and responded to movements of their times.000 lawyers today. And so he [the partner] takes a look at my resume and says.issues entrepreneurs 225 *** . . so did their successors see their role in creating change. (Asked about the other lawyers who. I had spent my summer after my first year [working] for a law commune in Berkeley and then I had worked. They were all people who were active in the Lawyers Guild. and party politics. pro bono activity has shifted from the personal responsibility of individual lawyers to the collective responsibility of large firms. with him. . These individuals might all be characterized as “conscience constituents. legislation. he said):. The structure of the legal profession has also changed in many ways because of ideological shifts in the society. they altered the focus of corporate law firms to include public service efforts. As the focus has moved from the individual and personal to the organizational and structural. the summer of my second year. the social movement atmosphere giving them a sense of duty to help those in need. [but] he said. “doing good” has changed in meaning over the years and no doubt will change further to match changes in the social environment as well as institutional changes in the legal profession. . “You don’t have to answer that question. institutionalization of pro bono practice and structural changes in law firms The role of the early pro bono leaders extended far beyond serving as figureheads and models for future lawyers. . social movement activity.

226 private lawyers and the public interest No doubt. Although certain lawyers . calling on firms to dedicate 3–5 percent of their annual billable hours to pro bono work. In 1993. there also have been shifts in the organization of the pro bono clientele. responding to the reduction in government funds for the Legal Services Corporation. and by 1991 it doubled again to 57 firms (Sauté 2008). In 1976. There has also been an increasing shift to pro bono work done collectively by organizations that initiate and coordinate the work of a subset of large firms and by firms acting through coordinators or committees. Six months after its founding. As noted before. They are individuals. serving clients who are members of one’s inner circle is only a minor part of pro bono work. executive director of the Volunteers of Legal Service. In addition. called for further development of pro bono by large law firms. especially in large firms. individual lawyers in the smaller partnerships of the past had more influence than they do today. The focus was on action by individual lawyers. or social affiliation with an elite supporting religious institution or the arts (Maute 2002–2003). And of course. and with the loosening of prejudice against lawyers who hold formerly stigmatized identities. It often was conceived as a lawyer’s way to demonstrate personal charity. lawyers who share these identities often are mobilized to act on behalf of such clients. the American Bar Association unveiled its Law Firm Pro Bono Challenge. Clients are now typically members of disenfranchised and subordinated groups or of racial and national minorities. serving on each other’s favorite charity boards and contributing money to their favorite causes. Dean. Changes in the Organization of Pro Bono Work “Doing good” once involved role partners—lawyers and clients—who worked together. and pro bono work is seen as properly a part of the firm’s obligations. Changes in the Pro Bono Clientele As corporations and law firms have grown in size. William J. by the end of 1979 that number grew to 30. the lawyers handling the legal issues that were appropriate. clients facing classic problems of the poor also seek the aid of lawyers in their quests for help. but they are often mobilized within organizations oriented toward their problems. persons with physical disabilities. and pro bono activity was in general quite individualistic. lawyers handle pro bono clients with whom they generally share no personal relationship. NYLPI had enlisted nine of the city’s most prestigious firms for its ambitious pro bono program. In today’s pro bono world. organizations have developed to enlist large firms’ participation in pro bono work. the Council of New York Law Associates and the Young Lawyers Committee of the Association of the Bar of the City of New York joined forces to incorporate New York Lawyers for the Public Interest. many iconic lawyers made their marks when their firms were substantially smaller than they are at present. or those who have alternative sexual preferences. In 1995. Instead. In this era of identity politics.

He said: Today. many firms have been able to move to a more business-oriented culture without limiting their public interest commitments. . . I have some time . Thus. . One noted that when he began working at his firm “there was a lot scrolling in my head about lawyers as agents protecting a free society. Other lawyers served on their firms’ pro bono committees and were involved in efforts to revise and improve their pro bono programs.” But another explained that pro bono work can help a lawyer make partner.issues entrepreneurs 227 stand out as prototypical leaders. an associate who has a desire to do something will contact me or contact an assistant director . I could in the right place in law make different kinds of changes. . Public Service Embedded in the Profession’s Image Many pro bono lawyers interviewed stressed the perceived intertwined relationship between the legal profession and public service. Many of the early leaders and the lawyers I interviewed had been responsible for institutionalizing pro bono practice in their firms and creating reward structures in which pro bono work is acknowledged. . . wholly arranged by the law firm.” Asked why some become absorbed in pro bono throughout their careers. . asserting that “that’s where the institutional personality comes in. some reporting they were expected to spend 100 percent of their time on it. groups and committees engage in the selection and performance of pro bono work. for “pro bono matters are high-profile matters within the firm [and] the people who do pro bono get a lot of recognition for it. and say.” Another lawyer.” Another declared that “I think lawyers do have an obligation to do it [pro bono work]. Describing how pro bono cases are chosen in his firm. In this sense. speaking of the process by which a lawyer chooses a pro bono case at his firm. demonstrating how this “culture of commitment” has spread across the profession. one respondent noted the importance of the firm environment. I believe that individual lawyers play critical roles in the new institutionalization of pro bono activity and that they have played a role in the transition to the new format of instituting pro bono work in firms. individuals—both issues entrepreneurs and the inspirational pro bono leaders who preceded them—have ensured the survival of a pro bono focus within large firms today by embedding it in the structure of the firm itself. Despite these organizational changes. “I’m interested in doing . . one interviewee said “we get a printout—it’s about ten pages and we flip through it and it’s just tons and tons of material. in which lawyers left the firm for four months to do public interest work for specific organizations. One respondent participated in an externship program.” Many respondents held positions specifically devoted to pro bono work. such as counting it toward the billable hours tallies of the lawyers involved. . . And that comes out quite regularly. illustrated the extent to which pro bono work has become part of the firm’s culture and work.

we have an engagement letter to the client. affected by dramatic moments in the history of their times.” Or. check 17 lists and this website and center. Moreover. I will go through all the same administrative steps that they do with any other case.” “What do you want to do?” “I don’t know. . . referring to the profession’s historical predecessors. and there are no conflicts. Within these leading law firms. major figures call upon a shared history and tradition to appeal to individual lawyers’ sense of solidarity and identity. Andrew (1988) The System of Professions: An Essay on the Division of Expert Labour. then you should check out this and check out that.228 private lawyers and the public interest and I would like to do a pro bono project. . What is important about the iconic figures is that they have given legitimation to pro bono activities and have reinforced this commitment as part of the identity of their firms and of their profession. . a discursive approach that links attorneys’ interests. have contributed to that change and have become issues entrepreneurs in promoting a social agenda in the law. This is a first attempt to identify some of the factors contributing to the change and to show how iconic individuals. americanlawyer. Then I get more involved.” conclusion Change in the social structure of pro bono activities in the legal profession has been chronicled and examined in this paper. I say.html (accessed 6 October 2008). When we decide the person is the right person and the case is the right case. .” “Okay.” And through that process the individual selects something they are interested in. Chicago: The University of Chicago Press. younger pro bono advocates legitimate and promote current pro bono service. and a firm’s culture—its legacy—together. as does my assistant. American Lawyer. It says. and. ‘You can’t take this unless someone else in the firm is going to help you. The (2004) “Lifetime Achievement Awards. Such individuals have contributed to their firms’ cultures and set in place institutional legacies that have lasting consequences for the performance of pro bono work. perceptions. They also create a framing perspective. If it’s a domestic violence case that’s going to trial in two weeks and the person is a second-year banking lawyer. references Abbott. not permitting it to be defined as a threat to profitability.” http://www. argue that pro bono is not only in their firm’s financial interest but also part of its identity. “I’m interested in children. It’s all very formalized.com/LAA. “You will do this and this.’ So I do that up-front screening. . I look over what they want to do. And where it’s appropriate. .” “Well.

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defining how lawyers understand their role in making legal services available to poor and underrepresented groups. For nearly 20 years. the role of volunteer lawyers in challenging the conditions of a local housing crisis in buffalo. According to Cummings (2004:6). The implications of organized pro bono’s emergence and institutionalization deserve more nuanced scholarly attention than has been given. NY. My analysis seeks to interrogate the relationship between organized pro bono and legal professionalism within the context of a day-in-court workplace setting that emphasizes individual client service over substantial law reform (Katz 1982. In the late 1980s the Bar Association of Erie County (BAEC) worked to establish the Volunteer Lawyers Project (VLP)—which has since incorporated as a nonprofit legal services provider—to direct the recruitment of private attorneys and organize the provision of volunteer legal services to low-income members of the local community. In this study.” This chapter follows from and seeks to build on this observation. an intricate network of professional. I explore how these private attorneys conceive of and perform roles as providers of pro bono legal services to the poor in an area of urgent need: housing and landlord–tenant relations. according to Cummings (2004). Southworth 1996a). I present findings from a case study of organized pro bono service in Buffalo. private commercial and nonprofit. Little is known. ny james clarke gocker introduction The organization and delivery of pro bono legal services has become increasingly institutionalized over the last quarter-century in jurisdictions across the United States.11. direct client service pro bono program—the Attorney of the Morning (AOM) program—which pairs private attorneys with low-income tenants facing summary eviction proceedings in Buffalo’s Housing Court. for instance. VLP has administered a targeted. and public-sector legal organizations has emerged and set out to construct a “centralized and streamlined” pro bono system. about how these changes affect the consciousness and actions of legal practitioners around issues of pro bono service. During this time. organized pro bono inculcates a set of “values and practices that have become deeply ingrained as part of the culture of legal professionalism. The BAEC and VLP tout the success of the program in increasing low-income tenants’ .

models of the law and of lawyering” (Nelson & Trubek 1992:179). for example. as well as other institutions of local governance. Clearly. Although I will go into more detail below. (2001).1 However. The way in which private attorneys situate themselves. as volunteers within these environments has consequences. and perhaps less easily obtained through experimental or survey-based methods. local efforts to meet the legal needs of low-income individuals and communities through the provision of various forms of civil assistance already rely on significant commitments made by private attorneys working in a voluntary or pro bono capacity (see Sandefur 2007). Attorneys’ position as day-in-court volunteers shapes the meaning of professional commitment to pro bono service. The AOM program further resembles an arena of professionalism. according to a recent report by the Pro Bono Committee for the Eighth Judicial District (2006)—which includes the City of Buffalo and Erie County—the legal needs of the poor and indigent in the area of housing continue to go unmet. these issues are critical for understanding how the provision of free legal assistance to the poor affects access to justice. For recent empirical research that demonstrates the effectiveness of free legal assistance programs in protecting low-income tenants’ due process rights in summary eviction proceedings. I view the AOM program as a pro bono workplace setting (Granfield 2007) embedded within a dynamic institutional field. (2008). seek innovative ways to manage and/or resolve complex housing issues. Mirroring involvement nationally. Office of the Administrative Judge of the Civil Court of the City of New York. are the ways in which attorneys’ pro bono service is socially constructed. is that service in the AOM program appears to circumscribe traditional or familiar 1. that is. in which Buffalo Housing Court and additional legal services providers. Because of the persistence of unmet needs. The first finding. VLP has recently initiated efforts to boost levels of participation in pro bono activities by members of the local private legal community. and it mediates the relationship between their sense of professionalism and their perceived capacity and willingness to transcend the “local social environment” (Katz 1982) of VLP and the AOM program in order to connect their service to movements for social and legal change around issues of access to housing for the poor. explicitly or implicitly. But equally critical to an understanding of justice in this area. or are situated. see Seron et al.232 private lawyers and the public interest access to justice. in preventing or delaying the execution of eviction warrants or in securing rent abatements for tenants who have alleged substandard living conditions. around which the bulk my discussion is focused. et al. I can highlight the following set of findings. These efforts have included more systematic recruitment of and outreach to private attorneys in Western New York by a dedicated pro bono coordinator employed at VLP. a setting “in which groups construct. The analysis and claims that I present should not be understood as an attempt at evaluation research in a narrow instrumental sense—I do not try to evaluate the effectiveness of the AOM program. .

Logan & Molotch 1987). Section 8 voucher recipients). and civic groups to bear under a common problem-solving authority. For attorneys who volunteer in the AOM program. place-. Volunteer attorneys in turn cultivate meanings of legal professionalism out of the opportunities and constraints that this bounded form of service sets in motion (see Southworth 1996b).g. or professional 2. or between housing conceived as a social resource or speculative commodity form (see Stone 2006). where the same City Court judge now presides over the administration of housing violations and summary eviction proceedings in a single consolidated term. These changes bring legal issues related to the physical condition of properties. necessary—dimensions of service that the cultural parameters of the pro bono workplace setting are established and communicated. the majority of whom were white. Most attorneys who were interviewed said they are encouraged to volunteer for only one morning session each fiscal quarter.g. For AOM program volunteers. fades under the weight of a routinized pro bono role performance. and the interests of political. I ended up with an effective sample size of 19 respondents. The list of 31 attorneys included active volunteers in the AOM program only. Certain types of clients (e. property relations. the court has adopted a problem-solving orientation in its exercise of expansive jurisdictional powers and through collaboration with neighborhood-level grassroots organizations and individuals. Service typically occurs during a three-hour-long term of service in a single morning session at Housing Court.. however.. It is through these basic—and. middle-aged men. and stages in a case (e. Meanwhile.g. and task-based conditions. The inherent tension between the use value and exchange value of land and the urban built environment (see Harvey 1973. At the same time. From an initial list of 31 names supplied by VLP. this observation takes root in the simple fact that provision of legal representation to low-income tenants is bounded by time-. appeals) essentially remain off-limits to volunteer attorneys. in the view of many attorneys. I conducted in-depth interviews with 19 attorneys—solo or small-firm practitioners in Buffalo and Erie County. serves as the basic expression of this contradictory tendency. on the implications of this research. relates to the delivery of bounded forms of legal service within an environment of institutional innovation. economic. The second finding. an institutional response that attempts to manage these contradictory tendencies through creative legal and policy interventions continues to evolve. specifically as they relate to norms of client advocacy and expectations of professional efficacy. warranty of habitability). participation gives them critical insight into the effects that underlying contradictions of speculative forms of property ownership have on low-income individuals and communities.the role of volunteer lawyers 233 understandings of legal representation. For this research. in terms of social. New York.. demographic. cases (e. . This institutional response relates to the recent reorganization of Buffalo Housing Court. as a result it was likely not representative.2 The power of this insight.

(2) lawyer-client interactions in the AOM program. with a follow-up phone call.234 private lawyers and the public interest characteristics. This model enables attorneys to render services efficiently “within a controlled environment” where they can “carve out well-defined time slots within which to do pro bono cases. and one attorney declined to participate. Seron et al. bounded forms of civil legal assistance to the poor Time-. The program was developed around a concept of . thus buying them additional time to arrange for alternative housing. (3) VLP and volunteer attorney relations. if necessary. For example. typically follow a prescribed procedural course and result in a limited range of outcomes for both landlords and tenants. For a landlord to begin a proceeding. In nonpayment cases. In terms of substantive areas of practice. a tenant must be served notice of the scheduled court appearance as well as the landlord’s reasons for seeking the eviction. Landlords can prevail in court when a judge issues a warrant of eviction and perhaps a money judgment against a tenant. legal representation delivered beneficial procedural and substantive outcomes to poor tenants—including favorable settlement agreements—and a decrease in the rates of eviction and the value of money judgments issued against tenants. and (4) pro bono service and the politics of housing. of the broader universe of attorneys in either the Erie County Bar Association or the New York State Bar Association. and extend tenure. More often. In an experimental study of a free legal assistance program for indigent tenants in New York City’s Housing Court. Summary eviction proceedings in New York State courts. tenants’ only recourse in a summary proceeding is to plead with the court for a stay of the warrant to evict. win rent abatements. tenants can make counterclaims that seek to enforce habitability standards. the New York City Bar and the Civil Court system in New York City commissioned a study of a pilot Volunteer Lawyer for a Day program.” The clinic model of service introduces flexibility and rationality into private lawyers’ experience of pro bono. albeit bounded. More recently. for example. such as nonpayment of rent or holdover at the conclusion of a lease. and task-bound forms of civil legal assistance to the poor and indigent are not uncommon in either organized pro bono or salaried legal assistance contexts. I invited each attorney to participate first by mail and then. Cummings (2004:76) describes the virtues that many nonprofit pro bono programs find in organizing volunteer opportunities around a clinic model of professional service. With each respondent I followed a semistructured interview guide organized around four salient themes: (1) general impressions of pro bono service. housing and landlord–tenant law are typical areas where bounded forms of legal representation—one-shot or day-incourt models—are often hailed for their effectiveness and efficiency. place-. Eleven attorneys did not respond to either invitation attempt. (2001) found that the provision of full.

declined. however. is double-edged. it functions as an efficient form of representation to the extent that housing cases possess certain factual and procedural regularities that diminish the need for more intimate lawyer–client relationships. Katz’s (1982) analysis of poverty law practice within a legal aid organization identifies features of time. day-in-court jurisprudence into a means for personally accepting everyday professional and moral limitations” (Katz 1982:56). . Bounded forms of legal representation have played a role in the legal services and legal aid contexts as well. in terms of the distribution of legal tasks and relations among lawyers and clients. But in its actual implementation during this period of institutional change. legal services attorneys in the Bronx found that horizontal representation produced a series of unfavorable consequences for themselves and for their low-income clients—“The quality of individual representation . but only for the duration of pretrial settlement conferences. attorneys share caseloads and responsibilities for representing the same clients in court. “By adopting ‘reasonableness’ as a working ethic. never felt they had exercised all their professional skills (except in the rare case they represented from beginning to end)” (Lazerson 1982:149). . [And] lawyers . and the overall efficiency of summary eviction proceedings. Legal aid attorneys also rely on the uniform. perceptions of procedural fairness.the role of volunteer lawyers 235 unbundled legal services or limited-scope representation common in nonlitigated matters. According to Lazerson. A subsequent evaluation of the program reported that unbundled legal representation increases access to justice. organizationally controlled context of their work to apply a veneer of predictably to the trajectory of legal representation they provide to clients. Clients often did not know who was representing them until they appeared in court. Legal Aid lawyers translate the procedural. In a critical analysis of institutional reform of New York City’s Housing Court system in the 1970s. Pro se tenants in Housing Court were provided with free legal representation in nonpayment cases. Under this model of service. Lazerson (1982:148) describes how legal services organizations active in the Bronx Housing Court at the time made a strategic decision to switch from vertical forms of client representation to horizontal forms.” in order to handle heavy caseloads and intake duties. . Under these conditions. horizontal representation in the housing and landlord–tenant context. legal aid attorneys adopt a working “ethic of reasonableness” that enables them to give certain meaning to their work. which rely on an “extensive division of labor. . .and task-bound legal service set within a “local social environment” that mitigate the meanings of “involvement” and commitment and induce complacency among attorneys around issues of equal justice for the poor. They construct the legal problems of transient poor clients as routine. In a general sense. Short-term relations with clients localized around immediate crises in clients’ lives—typical of poverty practice—force attorneys to “become reconciled to their restricted ability to determine the meaning of their work to clients” (Katz 1982:29).

I will attempt to demonstrate how their participation within a bounded form of legal service unsettles conventional notions of legal representation—specifically. as well as their motivations to continue participating. Not surprisingly. whether they are individuals or nonprofit organizations. volunteer attorneys suggest that these contests are in fact non-zero-sum games or that they at least hold out the possibility for win-win outcomes. The few attorneys who have experienced a conflict in the past removed themselves from the case yet continued representing other tenants in their role as a pro bono service provider. For close to half of the attorneys I spoke with. Professional connections—colleagues who referred attorneys to pro bono opportunities with VLP—or a desire to build or hone legal skills represented additional inroads into VLP’s network of pro bono providers. service in the AOM program aligns closely with their private practice area in real estate and their representation of private landlords. either out of respect for VLP staff or on the basis of a recognition that the legal community as a whole has not adequately answered the call to serve. participation in vlp and the aom program I asked attorneys to discuss their particular pathways into organized pro bono with VLP. For 13 of the attorneys I interviewed. Attorneys’ service is sustained by an intrinsic sense of moral obligation and professional duty. This process in turn has implications for how attorneys conceive of their role as providers of free legal assistance to the poor. Although disputes between landlords and tenants are often described in adversarial terms. but also for how their role as pro bono providers largely fails to articulate with an evolving institutional response to and management of the local housing crisis in Buffalo. Attorneys’ reluctance to perceive their representation of landlords and tenants in terms of “tangled loyalties” (Shapiro 2002:5–6) might result from the nature of the intermediary role they often play in housing court. Motivations to continue participating in the AOM program and working with VLP remain consistent with initial commitments for attorneys across the sample. a key factor in the decision to serve and a continuing source of motivation is an overarching sense of professional obligation to meet the needs of disadvantaged members of the local community. client advocacy and professional efficacy. and more specifically their recruitment into the AOM program. For at least four attorneys. Attorneys suggest that this situation does not lead to substantial direct conflicts of interest. participation in the AOM program began after being successfully recruited by a VLP staff member as they represented a feepaying private landlord in summary eviction proceedings at Housing Court. . original motivations are now supplemented by a strong desire to help VLP as an organization.236 private lawyers and the public interest Turning to volunteer attorneys’ accounts of their service in the AOM program.

stipulated settlements. Service is bounded by time and place. informal and court-mediated negotiations with landlords and/or their attorneys. And in the brief few moments that you have to talk to them you better accomplish a couple of things: First. it incorporates formal. and routine elements of legal service familiar enough to many attorneys—client intake and case review performed by VLP staff. as well as by a division of . one of your other five cases. And in the meantime the court is wanting to keep the cases moving. Large-firm attorney These insights point to essential features of service in the AOM program that set it apart. you’ve got to find out what their goal is. . as a bounded pro bono workplace setting. On the other hand. interns. You never know how complex they’re going to be. The overarching AOM experience at Housing Court borders on organized mayhem and expresses a basic tension as a “controlled environment” imbued with uncertainty. Now that’s what I refer to as triage. . So while you’re out negotiating with a landlord. the court’s about to call your case. you have to identify what the issues are from a legal basis.” uneven caseloads.the role of volunteer lawyers 237 the aom program as a bounded pro bono workplace setting I usually meet them [tenant clients] the morning I’m there. unpredictability. . “triage. and fleeting time with clients—that many private attorneys believe are necessary byproducts of the technical requirements found within statutory summary eviction proceedings. to see if there is some way for a solution outside of eviction.” “damage control. And even if it’s a few sentences just to give you an understanding of how they got there and what the underlying issues are. Third. It’s not an uplifting experience. . is not a gauzy moment in movies where everything is wonderful and aren’t we doing great. . It’s damage control. Solo practitioner Attorney of the Morning . I then try to talk to whoever the landlord is or the landlord’s representative to find out where they are. It’s the first time I meet them. you’ve got to understand what’s really going on with them. Its like a legal MASH unit—You never know how many cases you’re going to get. systematic. and volunteer attorneys. Solo practitioner The one thing about the Attorney of the Morning program is that you’re in and out. Second. from conditions lawyers typically encounter in either their private practices or other forms of pro bono work they do. Its very intense for the three hours you’re in there. On one hand. and judicial hearings. the operation of the AOM program channels more unfamiliar qualities of direct legal service— intensity. The other significant and defining feature of pro bono service within this setting is that it is finite.

annual hourly commitments ranged from a low of 6 hours to a high of 72 hours. This line of defense is seen as a stop-gap measure to buy clients time while their landlords refile claims. that would require returning to court on a specified date. because clients either plead nonpayment of rent to their attorneys or else fail to supply material support. Annual hourly commitments to the AOM program vary widely. Client Advocacy The bounded conditions of the workplace setting serve to destabilize conventional notions and practices of client representation and advocacy. only then to relinquish client representation in these cases to more experienced staff attorneys at VLP or legal services. Attorneys report 3. Far less often do attorneys pursue a factual defense of their clients’ interests. if the landlord-tenant relationship remains amicable. And for the 17 attorneys who have participated in the program longer than one year.3 Client representation begins and ends on the same day and in the same location. attorneys can attempt to buy time for their clients to relocate. volunteer attorneys can invoke any number of procedural defenses aimed at dismissing a landlord’s claim on grounds of improper notice or filing errors. . hourly commitments often vary from year to year within a set range. or. and broader social outcomes potentially at stake in housing matters. With the assistance of the court. under circumstances characterized by greater landlord–tenant antagonism and ill will. Section 8 cases are instead assigned to a housing attorney from a local legal services provider that partners with VLP in administering the AOM program on alternate days. these conditions appear to encroach upon lawyers’ experience of “involvement” (Katz 1982:106–122) and to contribute to feelings of personal and professional detachment from clients’ biographies. such as trials and appeals. such as rent receipts. A fourth condition of service within the AOM program that further circumscribes attorneys’ experiences relates to the annual hourly commitments attorneys are able or willing to make. and legal service providers. And attorneys are generally precluded from participating in later phases of adjudication. to substantiate counter-claims against a landlord. Section 8 rental assistance and warranty of habitability cases. or more complex areas of landlord-tenant law—for example. paralegal. Alternatively. Most volunteer attorneys I spoke with have alleged substandard housing conditions and raised these issues in habitability-based defenses before the court. to come up with money owed in back rent. Volunteer attorneys are not required to perform coordinating roles associated with initial client intake or referrals of clients to emergency housing assistance providers. Among individual attorneys in this study. The legal work that volunteer attorneys are encouraged to perform within this setting typically involves pretrial negotiation over the terms of stipulated settlements between the parties in a proceeding. In these negotiations. Generally. more complex legal issues.238 private lawyers and the public interest task-based labor among paid and unpaid and among nonlegal.

together with the scripted nature of summary proceedings. and a halting empathy for tenants’ accounts of marginalizing bad-luck circumstances. therefore. Such a foundation appears to frustrate volunteer attorneys’ attempts to pursue with confidence either a takecharge style of individual client service that might border on domination or a more deferential approach that relies on dialogue and the reciprocal development of case strategy (see Southworth 1996b). So you need to help the clients focus on what’s important for today. . . though some people are harder to empathize with than others. . a pragmatic professional detachment. are built on a temporary foundation that combines elements of mutual trust/suspicion. sheds further light on several of these aspects of client representation: Attorney: Many times my major job is to stay objective because I tend to empathize in many cases. . and deteriorating relationships with landlords. He described a particular experience he had of being called a racist by a client he was representing one morning in the AOM program. Solo practitioner This attorney’s views are fairly representative of the views of other attorneys I spoke with. empathy is in practice partially undermined by the need to get at a client’s “real issues” in a limited amount of time: They all want to tell you their whole story and not all of it is critical to the case. .4 Lawyer–client relationships in Housing Court. and it also makes it much easier to deal with the landlord as a human being . One medium-sized firm attorney was the only respondent to voluntarily raise and then discuss issues of race as they pertained to the lawyer-client relationship. poor housing accommodations. He believed this was an unfair characterization in light of the fact he was providing free legal services at the time.the role of volunteer lawyers 239 that the time constraints they confront each morning. The following exchange I had with one attorney. . it doesn’t really affect me maybe because I try as hard as I can to stay objective. as one attorney readily admits. Interviewer: What do you mean by objectivity or why is objectivity important in these situations? Attorney: I think you reach better conclusions and you can advocate more effectively and you can negotiate more effectively when you develop a more objective view. The experience caused him to discontinue his participation in the program for one year. I usually don’t have any problem if the tenant just told me the landlord’s an ogre. a solo practitioner. not what 4. For example. affect their ability to cultivate an effective rapport with clients. [If] you ally your feelings too closely with those of the tenant I think it distorts reality sufficiently so the judges will laugh at your pathetic argument and you may well have wished you’d made whatever agreement you could’ve with the landlord earlier.

And you have to help them focus on that. But the nature of housing and evictions is such that a landlord is forced to go through this process unless a person leaves voluntarily. let’s get to the real issues here. by all accounts an adversarial mode of legal representation persists within the context of the AOM program. or even cast in doubt. Solo practitioner The apparent practical limitation placed on attorneys’ abilities to fully integrate empathy into their client advocacy has consequences. So they’re not real disputes in that sense. For one attorney. You need to get to know your client well enough to be able to read between those lines and figure it out. To be clear. but also to ferret out whether they’re telling you the truth or the lies.240 private lawyers and the public interest a rotten S. empathy represents a means of establishing the validity of clients’ accounts and not merely an expression of pure understanding: You’ve got to understand your client in order to represent them properly. the landlord’s been. attorneys who represent landlords in fee-based work are a special case to the extent that they carry sympathies for landlords’ interests that likely develop within relatively unbounded private practice settings back into the work they do in the AOM program. but. Solo practitioner . These sympathies are expressed at times as straightforward allegiance—such as one attorney’s assertion that the behavior and actions of tenants often transforms respectable landlords into “scumlords”—but more often in nuanced ways: The vast majority of evictions are not disputes in the sense where one individual has a different view of the facts than the other individual. we can see that a conditional form of client advocacy also gets expressed through conciliatory relations between volunteer attorneys and opposing parties. It is simply the disparity of a tenant who is unable to pay. Often it forces attorneys to concede to more conditional forms of client advocacy in which tenants’ interests and needs are held to a high level of scrutiny. Solo practitioner Returning to the statements expressed in the exchange I had with the attorney. There is in many respects no penalty for the tenant who wants to be forced out rather than leave voluntarily. It is common for the 13 attorneys who represent private landlords to admit sympathies for landlords’ interests that reach beyond the particulars of an individual case. However.O. Do you have the money? Did you pay the money? Did you not pay? You know. So that’s what you have then. this is typically expressed in instances where attorneys’ zealous advocacy wins favorable terms for tenants in stipulated settlements or the dismissal of landlords’ claims on the basis of procedural errors.B. There are many that tell you lies because they want to win a case.

the attorney directs his sympathies to landlords’ position of procedural disadvantage within the law. and the law followed to the letter even though their knowledge of the law is seen as limited. are not bridled by a comparable burden and are thus free to choose the method of their own dispossession. another attorney. Attorneys’ sympathies extend to different categories of landlords as well. and you see visually on a daily basis in this program. the nature and meaning of tenants’ substantive disadvantage vis-à-vis the law is marginalized. Several attorneys I interviewed indicate that they commonly deploy the insights they gain while serving in the program back into private fee-based consultations . trust. Characteristics such as continuity. So I do see both sides of the coin.the role of volunteer lawyers 241 In the above attorney’s view of law on the books—that is. attorneys recognize and respect conciliatory repeat players as willing and reasonable participants in settlement negotiations. rapport. believes that many landlords in this group are often too willing. and personal and professional history are missing from lawyer– client dynamics in the bounded AOM program. At the same time. that there’s a big grey area in between. And the stereotypical story of wealthy capitalists providing the substandard housing and reaping great financial rewards. On one hand. Tenants. as prima facie disparities. despite their experience. However. meanwhile. having been replaced in most instances by an emerging class of marginal landlords—those whose social locations and economic fortunes more closely approximate those of tenants. attorneys express less sympathy for novice hardliners who want immediate possession. one attorney observes: You see how private sector landlords trying to make a go of it in providing rental housing in our city often have a very. Small-firm attorney Attorneys’ sympathies for landlords’ interests in Housing Court can perhaps be traced back to characteristics of the relatively unbounded relationships they have with landlord clients in private practice. monetary damages awarded in their favor. Two attorneys concede that landlords have the upper hand in legal proceedings because of their experience with the system and knowledge of the law. In characterizing summary eviction proceedings as “not real disputes” and. to help tenants through rough times. rather. On the other hand. and that as a result they often get burned. very tough time. In attempting to dispel the myth of the private slumlord. I don’t see landlords as the villain and impoverished tenants as being saintly. that’s just so off the mark it’s almost laughable. A familiar category of landlord—the slumlord—is recast by many private attorneys as a bit player in the current housing crisis in Buffalo. the real property actions and proceedings law—due process rights impose an undue burden on landlords who seek to reclaim possession of private property. an inhouse counsel. I recognize.

One attorney’s response stands out because it has the potential to represent the views of a considerable number of landlords’ attorneys who participate in the AOM program: Some landlords have chosen to operate on the margins. This attorney’s experience is echoed by a solo practitioner’s comment that “the lack of relationship with clients can create a condition of unpredictability. the client and an associate both spoke up. using them to encourage landlords to live up to their broad legal obligations to maintain habitable conditions or to more mundane requirements to provide tenants with receipts for rental payments. For example. and in turn were immediately issued a five-day warrant of eviction.242 private lawyers and the public interest with clients involved in the landlord and property investment game. . I mean if somebody steps out of line and they don’t pay for one month. they advise their clients of the tremendous risks associated with speculative property ownership in low-income rental markets. Returning to the client to discuss the proposed settlement offer. The client and his associate then denounced the volunteer attorney for his ambiguous representation of the client’s interests.” . or in attempting to fashion a new class of savvy and diligent investors capable of expropriating sustainable rates of profit from the low-income rental housing market. or even a couple months. . They have gone into high-risk neighborhoods. then you’ve got to move on it quickly because you have every right under the law to evict them. In the courtroom. And if they’re establishing a pattern of nonpayment then you’ve got to act on it quickly. In one account. . It occurred on the heels of a negotiation with a landlord to buy his client time to vacate the client’s residence. but you have to be diligent about your work in those neighborhoods. whether in forewarning a potential investor client of the risks that adhere to the legal obligations of property ownership in marginal areas. when the attorney presented the settlement to the judge. a small-firm attorney claims he was challenged by a client in the courtroom for misrepresenting the client’s interests before the judge. According to the attorney. Small-firm practitioner The insights that attorneys take away from their experience representing low-income tenants are narrowly redeemed in private practice. Another theme that emerges in the interviews relates to the authenticity of client advocacy. the attorney was accused of serving the landlord’s interests behind the client’s back. And you can function in high-risk neighborhoods. It appears less common for attorneys to mobilize their insights from a tenant-oriented perspective. especially before the judge. they loudly protested the settlement offer currently on the table. Several attorneys shared with me anxieties they have regarding their role as authentic advocates of client interests in Housing Court. and with certain clients they advise against such investments. in lieu of a warrant to evict.

. . . Small-firm attorney Professional Efficacy In addition to the turbulent experience of an unstable form of client advocacy. It is at this intersection of perceived legal and social impact that volunteer attorneys wrestle with a conception of professional efficacy. with communities being raped and pillaged. for example. what we’re doing. promote family stability. You walk out feeling depressed because there’s a mess out there and . Large-firm attorney I don’t see . my guess is in the eyes of our pro bono clients. From the vantage point of VLP and its partners in the legal assistance community. narrow instrumental meanings of professional efficacy are easily drawn around the work attorneys are expected to perform. the AOM program aims to prevent homelessness. with the broader housing crisis. really does not impact that. Pro bono work for Attorney of the Morning is markedly different than any other pro bono work. since we don’t have that trust and rapport with our own clients. sometimes they’ll say to me. saying. You don’t walk out of the courthouse whistling. in the L&T court seeking to evict them. what you just did has absolutely no effect whatsoever. .the role of volunteer lawyers 243 In a summary statement indicative of the inherent instability or insecurity of client advocacy under conditions of bounded service in the AOM program. Attorneys measure their success in meeting these goals against a range of predictable procedural outcomes as well as the less certain extended social impact of their client defense. . We become an extension of the legal system judging them rather than representing them. Institutional administrator In the landlord–tenant context. we’re viewed as much as that system as we are as an individual confidential legal representative of the client. we don’t actually obtain the full story and gain the confidence and as a result clients often tell us things that aren’t entirely candid. a volunteer attorney concludes: Because we don’t really have that ongoing professional trusting relationship with the client. . we’re viewed as much as an extension of the legal system and the adversaries who are. . I feel good about what just happened. So very often. volunteer attorneys confront particular meanings of effective professional representation of the poor that are communicated by their workplace setting. Boy. volunteer lawyers. and preserve housing-related entitlements enjoyed by low-income tenants who face the possibility of eviction. .

these understandings continue to be traced back to the social and organizational dimensions of the workplace setting—the bounded nature of pro bono service in the AOM program and the meaning of attorneys’ client advocacy. buying time (at most a few extra weeks) for a client to either find alternative accommodations or get current on rental payments in order to secure tenure. professional efficacy is attenuated by early forms of legal intervention and client service that are missing from his experience of the AOM program: When someone is assigned to you. there may have been different guidance or opportunity you could have provided which could have prevented if not delayed the situation the individual finds themselves in. which is often times limited documentation. and avoiding or minimizing the amount of a money judgment levied against a tenant by the court. buying time for a client to relocate.g. combines with the lack of rapport and mutual trust between lawyers and clients to substantially limit the possibilities for more . . or more precisely a lack of consistent control over clients.. dismissal of a landlord’s action on the basis of procedural error (e. you get what you get. Whereas had an attorney been assigned or consulted . Medium-sized-firm attorney Absent earlier forms of intervention. defective paperwork or improper service). More complex and contradictory understandings of professional efficacy emerge from these experiences as well. prospects for effective client representation often unfold for many attorneys in the AOM program as they do for this attorney: When I’m in a voluntary situation. thus averting the issuance of a warrant to evict. Nevertheless. In far fewer cases do attorneys report winning rent abatements in judicial hearings or securing concessions from landlords to make improvements in a rental unit as part of a stipulated settlement. For one attorney in a medium-sized firm. These outcomes include (1) in nonpayment cases. . conflicting stories. and (3) in lieu of a negotiated settlement. Medium-sized-firm attorney A perceived lack of leverage over clients.244 private lawyers and the public interest including several “reasonable” outcomes that attorneys typically play a key role in bringing about. it’s usually one of the last resorts. sooner. And other than saying. . Often times the person is looking for help and it’s almost too late. “I’m not going to be able to help you without this.” you have no leverage over the client. attorneys believe that their ability to secure any of these outcomes for low-income clients. First. obviously through Attorney of the Morning . . vindicates the meaning of pro bono contributions in this particular area of housing law. which essentially amounts to a more adversarial mode of buying time. (2) in holdover cases. all kinds of things.

In the large-firm attorney’s experiences as a volunteer. capitalism. yet fail in certain respects to articulate with lawyers’ pro bono roles or with the critical knowledge they gain while representing indigents. But the fact that it does come up so frequently on these eviction proceedings.” Nearly half of the lawyers I spoke with describe some variation of a “win-win” outcome as the best-case scenario for resolving these situations5—in other words. when landlords face extended vacancy rates and increased operating expenses. though one whose euphemistic qualities proscribe an expectation of broader substantive justice. private property. Both of the attorneys’ insights above point us in this direction. the conditions of the local housing crisis and their effects on real people materialize everyday in the context of the AOM program. “unsophisticated. attorneys are left to consume the stories and images of displacement. Whether or not they’re not habitable is a thing I couldn’t determine from seeing a few pictures or listening to somebody make a few descriptions. Large-firm attorney Therefore. By his own admonition. A third example widely cited by attorneys whose sense of professional efficacy is informed by the “win-win” concept occurs in winter months. has the “gun hand. They will often allow tenants to stay through the winter so that a unit remains heated at the tenants’ expense. and by others’ as well. . law. buying a tenant time from a landlord to relocate in exchange for an orderly eviction that protects the landlord’s property interests against retaliatory acts of vandalism. and more general economic dislocation in much the same way they consume the deteriorating built environment during the 5. An attorney described another example of a win-win outcome that arrives in the form of a “constructive eviction”—the judge orders a tenant to vacate his or her premises after finding living conditions substandard. so to speak. Plus. the feeling that pro bono service has been vindicated by instrumental action alone is threatened each time he concludes a three-hour term in Housing Court. This grants a form of backhanded relief to the landlord. In a second sense.the role of volunteer lawyers 245 broadly substantive and effective representation. As participants in the program. disinvestment. many lawyers often find their experience of professional efficacy at the mercy of unproven. I have no way of knowing. these people are talking in unsworn testimony. so what’s truth and what’s not. as one solo practitioner puts it. one attorney asserts: I realize there are a lot of properties out there that are not maintained properly. volunteer attorneys’ narrower understandings of professional efficacy and pro bono service—delivery of a benefit to disadvantaged strangers under constrained working conditions—are routinely challenged within the AOM program by the operations of more transcendent institutional forces— poverty. In a particularly astute observation that further illustrates these issues. there must be something to it.” or “unprepared” clients as much as at the mercy of a landlord who. This particular “win-win” outcome becomes a practical embodiment of professional efficacy.

Modest. and task-bound characteristics of their work. The findings I present in this chapter speak to these issues by illustrating how private attorneys’ experiences as volunteers within an organized pro bono program are bounded by features of their workplace setting.246 private lawyers and the public interest morning commute or from the panoramic vistas afforded by their private legal offices: as concrete and tragic phenomena ultimately beyond their effective professional control. however. Private attorneys express a desire to have volunteer roles and opportunities made available to them in the context of the AOM program that somehow transcend the finite boundaries of service yet preserve the element of autonomy that many experience. the attorney will periodically check in . Under existing filing. one attorney claims to already incorporate follow-up practices within his commitment to service. the possibility of earlier forms of intervention is severely compromised. could give attorneys the ability to investigate tenants’ substantial claims of habitability violations or other accusations of landlord malfeasance. Often times in court the information and documentation necessary to qualify such claims is not trusted or is not readily available. service. Several attorneys point to post-settlement or post-eviction follow-up as another area in which services could be extended without creating an undue burden on volunteer attorneys. In the days and weeks after negotiating stipulated settlements between the parties. A more robust pro bono role therefore remains unsettled or undeveloped. The bounded nature of pro bono service in the AOM program continuously unsettles attorneys’ pro bono roles in two ways: First. though significant. even a narrow window of time. For two attorneys. Second. conclusion The institutionalization of pro bono and the incorporation of private attorneys into poverty law practice settings raises important questions that relate to the meaning of professional service and the distribution of equal justice to the poor. and strategic involvement in the ongoing transformation of the broader institutional environment (see White 2000). and notice provisions contained within the real property actions and proceedings law. Nevertheless. the role they pursue for themselves as effective professional client advocates is made inherently unstable by the time-. active. proposals for change in this direction come from attorneys’ reflections on their own experiences with their current pro bono roles. this would involve earlier opportunities for lawyerclient interaction aimed at building relationships and heading off initial signs of distress before they escalate into full-blown legal problems. the bounded nature of service in the AOM program creates a role expectation for attorneys that precludes more collective. These conditions circumscribe meanings of professional service to the extent that they disrupt lawyer–client relations as well as expectations for effective forms of service. place-. In fact. for example.

other legal services providers.. Abel.” in R. 1. references Cummings. tactical. NY. et al.” 52 UCLA Law Review 1–149. for example. New York: Academic Press. Interestingly. Jack (1982) Poor People’s Lawyers in Transition. Katz.. without changing the bounded model of pro bono service delivery in order to complement this pattern of institutional change. Trubek (1992) “Arenas of Professionalism: The Professional Ideologies of Lawyers in Context. Within a context of institutional innovation. vol. and Harvey L. Mark H. to include.” in R. Ithaca. though. Rather. Office of the Administrative Judge of the Civil Court of the City of New York. However.. the Only Justice Is in the Halls. or the social impact of an order of eviction on tenants’ lives and the life of the communities in which they are embedded. Molotch (1987) Urban Fortunes: The Political Economy of Place. eds. Robert L. Inc. His experience contrasts with other attorneys’ admissions of ignorance regarding follow-through and enforcement of stipulated settlements. (1982) “In the Halls of Justice.” 41 Law and Society Review 113–146. volunteer attorneys’ roles and insights have been less than fully integrated into the moral. and strategic calculations of the court and.” thus suggesting his own cognizance of the limits of his pro bono role. Lawyer’s Ideals/Lawyer’s Practices: Transformation in the American Legal Profession. John R. David (1974) “Class-Monopoly Rent. and David M. That is not to say that volunteer attorneys are unaware of their changing institutional environment— many in fact are. Nelson et al. Nelson. Buffalo. CA: University of California Press. Granfield. Robert (2007) “The Meaning of Pro Bono: Institutional Variations in Professional Obligations among Lawyers. such an expansion is unlikely to occur. of municipal government. Finance Capital and the Urban Revolution. attorneys by and large are constrained in their ability to transcend the bounded terms of professionalism—routine. NY: Cornell University Press. ed. and noninstitutionalized grassroots actors. New Brunswick. NJ: Rutgers University Press. Eighth Judicial District Pro Bono Committee Initial Report and 2006-07 Action Now Plan (2006). The Politics of Informal Justice.the role of volunteer lawyers 247 with tenants and landlords to ensure that both sides are adhering to the agreedupon conditions of the settlement agreement. (2008) Volunteer Lawyer for a Day Project Report. the attorney describes his role in performing this work as “nonlegal. individual client representation—that epitomize service in the AOM program. Logan. Scott L.” 8 Regional Studies 239–255. Harvey. Lazerson. Berkeley. (2004) “The Politics of Pro Bono. It is possible that innovations within the broader institutional field will create a space for the expansion of the meaning of professional service in the AOM program. reform-oriented principles or transactional forms of service that incorporate planning skills and competencies (see Southworth 1996a). The American Experience. . more broadly. day-in-court.

Shapiro. (2002) Tangled Loyalties: Conflict of Interest in Legal Practice. Rebecca L.” in R. . Ann Arbor. (2007) “Lawyers’ Pro Bono Service and American-Style Civil Legal Assistance. Bratt et al. MI: University of Michigan Press. Stone. Susan P. PA: Temple University Press.” 41 Law and Society Review 79–112. eds. Philadelphia. Ann (1996a) “Business Planning for the Destitute? Lawyers as Facilitators in Civil Rights and Poverty Practice.” 1996 Wisconsin Law Review 1121–1169. A Right to Housing: Foundation for a New Social Agenda. Lucie E. White.” 9 Georgetown Journal of Legal Ethics 1101–1155. Carroll et al. Southworth. Seron.” 50 Journal of Legal Education 134–146. ——(1996b) “Lawyer-Client Decisionmaking in Civil Rights and Poverty Practice: An Empirical Study of Lawyers’ Norms.248 private lawyers and the public interest Pro Bono Committee for the Eighth Judicial District 2005.” 35 Law and Society Review 419–434. Michael E.. (2000) “Pro Bono or Partnership? Rethinking Lawyers’ Public Service Obligations for a New Millennium. (2001) “The Impact of Legal Counsel on Outcomes for Poor Tenants in New York City’s Housing Court: Results of a Randomized Experiment. (2006) “Social Ownership.. Sandefur.

part iv the future of pro bono .

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. But in practice. when people attempt to benefit another. unique to this charitable context. experience. . rethinking the public in lawyers’ public service Strategic Philanthropy and the Bottom Line deborah l . Mueller 1979:4. Their assumption is that all reasoned action is motivated by some self-interest: after all. it scarcely matters. Some branches of philosophy and economics deny the possibility of wholly disinterested behavior (Andreoni 1990: 1. of course. . the bar’s commitment to provide unpaid service “pro bono publico” implies concern for the public good. rhode “Law firms . The bottom line on this question is the bottom line. This essay draws on an article of the same title in the Fordham Law Review (2009). contacts. And from a societal standpoint. training. why else would someone act? (Batson 1991:3–4. what difference does it make if law firms volunteer time on civil rights cases less out of concern for social justice than out of a desire to improve their recruitment. Loder 2001:467. Part of what individuals find fulfilling about charitable contributions 1. As a matter of principle.12. Katz 2000:14). reputation. Lerner 1982. pro bono has never been only about what is good for the public. On this view. when a man gives money to famine relief. and relationships? Such concerns are not.” —Chicago lawyer (New Approaches 2005:6) introduction 1 In principle. And whether they matter is part of a longstanding debate about the meaning of altruism. Yet to view public service solely in terms of professional interests is troubling on both moral and pragmatic grounds. 1987:756. and rankings in The American Lawyer? The point is to get their contributions. it is because they derive personal satisfaction from doing so. Gauthier 1986:1–20). Batson 1991:6. do not support pro bono unless there is a business reason to do so. an action taken because benefiting others feels intrinsically rewarding stands on different ethical footing than an action taken because it will bring extrinsic rewards (Elster 1990:44–52). why should we care whether his motive is to enhance his standing with the Rotary Club? So too. To borrow the philosopher Bernard Williams’s (1972:66) example. It has also been about what is good for lawyers: what will enhance their reputation. Cialdini et al.

The full potential of pro bono work is more likely to emerge under a framework grounded in strategic philanthropy. Frumkin 2002:8–9). This essay explores the way that lawyers’ own pragmatic interests can marginalize more socially responsible considerations. Yet this ethical focus is too often eclipsed by an overly narrow “business case” for pro bono service. and accountability that have compromised the effectiveness of even the best-intentioned public service initiatives. what counts as pro bono? How much of what American lawyers consider “pro bono” work has a primary purpose or effect of benefiting the public? That is impossible to gauge. health. Some evidence also suggests that lawyers motivated by internalized commitments are the most likely to engage in substantial and sustained service (Rosenhan 1970:263–267). Of course. Darly 1991:312–317). Mansbridge 1990:136–137). that framework demands clarity in goals and specific measurements of achievement. Both conventional usage and official bar definitions of pro bono service are quite elastic. where most clients are not in a position to evaluate or challenge the adequacy of aid.252 private lawyers and the public interest is a sense that they are expressing moral values and serving broader social objectives (Rhode 2005:58–59. A strategic philanthropic approach also encourages the kind of public service opportunities that most benefit the public. In essence. that will require a more reflective process for establishing priorities and evaluating progress. In the American Bar Association’s (ABA’s) current Model Rules of . Billable hours credit can ensure that individuals have the time to offer assistance that they are internally motivated to provide. encouraging individuals to engage in public service for intrinsic reasons advances societal objectives. A wide array of evidence suggests that selfless action is good for the self. Those who provide legal services based on deeply felt values are more likely to do their best than are those who are merely fulfilling a firm’s hourly quota or improving their legal skills. Luks & Payne 2001:16–18. 118–119. It also chronicles the inadequacies in program design. Its premise is that those who make philanthropic contributions want the maximum social return on their investment (Brest & Harvey 2008:7–15. 45–54. It is generally less expensive and more effective to rely on internal motivations than on external incentives and sanctions to ensure quality assistance (Loder 2001:468. and self-esteem (Rhode 2005:59. Moreover. it enhances satisfaction. often they are mutually reinforcing. evaluation. Batson 1991:59. as a practical matter. That is particularly true in contexts such as pro bono legal work. For lawyers’ pro bono programs. Bank of America 2008). The point is simply that encouraging individuals and employers to view pro bono contributions in terms of their social impact is likely to enhance their performance. 60. intrinsic and extrinsic motivations are not mutually exclusive. Luks & Payne 2001:17–18.

these disputes over definition are emblematic of more fundamental differences over the rationale for charitable contributions. or legal system. only about twofifths of lawyers in the nation’s 200 most profitable firms have contributed at least 20 hours per year (Press 2008:3–11). ABA Survey results finding that two-thirds of lawyers report doing some pro bono work are not inconsistent with this estimate. After finding that some of those firms were stretching its definition. or charitable. legal profession. civic. Under that standard. . community.2 Rating systems that employ a more rigorous definition of pro bono find still lower contribution rates. A “substantial majority” of their contributions should go to “persons of limited means” or organizations assisting them. and that much of this assistance does not go to individuals of limited means or to public interest organizations. The American Lawyer uses a standard developed by the Pro Bono Institute. Based on such reports. religious. How much effect The American Lawyer’s tightened definition will have on these practices remains unclear. consider contributions to local government agencies and cultural institutions as public service. and want to retain some or all of the court-awarded fees that they eventually collect in pro bono cases to support their other nonpaying work (Kolker 2006: 105–106. 2. however. Only six states require reporting of pro bono contributions (ABA 2007). the best estimates indicate that lawyers’ average pro bono contribution is less than half a dollar per day and half an hour per week. favors for friends. Rule 6. and cases where fees turn out to be uncollectible (Rhode 2005:145–148). The American Lawyer recently clarified its standard to exclude board service. 125–126. which tracks the ABA Rule but excludes activities designed to improve the law or legal profession.” How many lawyers meet even this expansive definition is unclear. and work for well-endowed government and nonprofit institutions that does not address the needs of the poor or protect civil rights (Press 2007:119). cases that generate fee awards that are not donated to legal aid. Additional assistance should go to activities that improve the law. or that support “civil rights. Moreover. given that the average hourly contribution of lawyers who offered pro bono assistance needs to be adjusted for the numbers who did not. and family members. clients. civil liberties or public rights. Many lawyers.1 asks that lawyers “aspire” to provide at least 50 hours of pro bono work each year or the financial equivalent. and for those whose contributions involved activities such as bar association services (ABA Standing Commission on Pro Bono and Public Service 2005). However. governmental and educational organizations” if payment of fees would “significantly deplete the organization’s economic resources or be otherwise inappropriate. many lawyers have included in their reports or in responses to other surveys work that is of questionable public value. such as bar association activities. Bronstad 2008:4).rethinking the public in lawyers’ public service 253 Professional Conduct. such as bar committee work. even among the most profitable segments of the bar.

volunteer service is a way to continue making productive use of their skills on a less demanding schedule (Alfisi 2006:30. Millemann 1990:18). intermittently enforced by the courts and repeatedly affirmed in bar ethical codes (Ex Parte Sparks 1979). Empirical research suggests that lawyers have provided more unpaid representation in states where they have experienced 3. employer policies and encouragement (2. professional benefits such as contacts. As bar leaders have also recognized. Lash 2008:8). Cary & Snyder 1991. and then a sense of professional obligation. Granfield & Koenig 2003:495). People contribute out of a sense of empathy and obligation. In a society in which over four-fifths of the legal needs of the poor and two. contacts. Granfield 2007:137. Other lawyers cite practical payoffs: public service can bring recognition. Rhode 2005:7. or other disadvantaged groups can also be an important form of “giving back” and affirming identity (Wilkins 2004:1.5). they most often cite personal satisfaction.5).7). a sense of professional obligation (3. . ethnic. Work for racial. such public service offers their most rewarding experiences.7). bar pro bono assistance can help relieve pressure for more systemic reforms that would reduce the need for attorneys (Rhode 2004b:3). Menkel-Meadow 1998:31).” and to express the values that sent them to law school in the first instance (Rhode 2005:131–132).7). followed by employer policies and encouragement and career benefits. Eisenberg 1986:30–56. Judges and commentators have often maintained that some reasonable amount of assistance is an appropriate condition of the privilege to practice (Rhode 2005:3. the motivations were: personal satisfaction (4. training.3 For many attorneys. direct client relationships. For attorneys phasing into retirement. On a scale of 1 to 5. When asked about their motivation for pro bono work. Lawyers are no exception.254 private lawyers and the public interest pro bono for whom? the profession’s interest in public service The lack of consensus about what constitutes pro bono work is partly attributable to the lack of consensus about why lawyers should do it.to threefifths of the needs of moderate-income individuals remain unmet. it is a way to feel that they are “making a difference. 228. and it also translates into tangible personal and professional benefits. and out of a desire for rewards and recognition (Frumkin 2006:256–257.2). and referrals (2. Hoffman 1989:65–85. Galanter 1999:1081). and trial experience (2. A sense of obligation may also grow out of the profession’s longstanding tradition of pro bono representation. Olson 1965:60. and expertise in a field in which they would like to obtain paid work (Rhode 2005:131–132. 173–175. reputation and recognition (2. Rhode (2005:13). Giving makes givers feel good about themselves. the profession has a strong selfinterest in seeing that its members voluntarily assume such obligations. Granfield 2007:139. 165–167. Oliner & Oliner 1988:113. Attorneys’ public service reflects the same mix of motives that underpins other charitable contributions. with 5 being most important. trial experience.

pro bono representation fills an important gap. the response most often chosen was provision of free legal services to the needy. No office picnics or parties can give you that” (Rhode 2005:30). along with recruitment and retention. Harris 2008). limitations of current programs These bottom-line concerns have led many bar leaders to stress the business case for pro bono initiatives. Pro bono assistance also serves the bar’s reputational interests. The benefits are particularly great for the largest firms. is that the public interest may become an unintended casualty. for their part. litigation experience. client contact. self-interest” (New Approaches 2005:6). self-interest. pro bono work “is an enormous morale booster for the entire firm. two-thirds of Americans indicated that it would favorably influence their opinion (Peter D. and their pro bono performance is ranked by The American Lawyer based on the number of annual hours per lawyer and the percentage of lawyers who contribute more than 20 hours. Legal employers. . Problems arise in several forms: the quality of service. and the criteria for selection.” Interviews with senior managers leave no doubt that many firms have responded to these rankings by substantially improving their pro bono programs (Harris 2008:29–30. as primary justifications for their public service initiatives (New Approaches 2005:10. Rhode 2005:30). the need for recognition. have comparable interests in supporting pro bono work. Hart Research Associates 1993:18). They have the resources to attract and underwrite high-profile cases. Law firms and media ranking systems compile information on the quantity. which vary somewhat across practice settings. The American Lawyer 2007:88. Everyone feels that they touched a life. . A firm’s pro bono rating also accounts for a third of its score in the competition for membership on The American Lawyer’s coveted “A-List” of the nation’s top 20 firms. . Firm leaders consistently cite these professional benefits. As corporate clients become increasingly unwilling to subsidize training of young associates. 95). As one veteran repeatedly emphasized to American Bar Foundation researchers. As one lawyer put it. nonpaying cases can offer training. and firms become too highly leveraged to provide career development opportunities to all who need them. The risk. intellectual challenge.rethinking the public in lawyers’ public service 255 greater threats from other occupations (Sandefur 2007:79). Such work can also enhance the firms’ reputation and visibility in the community. and responsibility far beyond what is available in their other work (Granfield 2007:138. Particularly for junior attorneys in large firms. In one representative survey that asked what could improve the image of lawyers. Hallman 2007:92. One chronic difficulty stems from the inadequacy of oversight and accountability. A low score also risks relegating the firm to the magazine’s occasional profiles of “cellar dwellers. however. Cummings 2004:1. “often pounding the table”: “self-interest. .

inexperienced legal teams may “research ad nauseam useless issues.” Many firms that “on paper have a partner in charge on the case do not believe the partner is doing anything” (Harris 2008:24. the difficulty lies with associates who are disenchanted with their pro bono options. and their relatives. Many surveys find that attorneys are foreclosed from taking on matters that would . or for partners’ “pet organizations.” Particularly where pro bono cases are seen as training opportunities for junior lawyers. Almost half the lawyers in my pro bono study expressed dissatisfaction with the kind of work their firms permitted (Rhode 2005:148). The American Lawyer rankings may have perverse results if firms pressure attorneys to participate without providing a range of satisfying opportunities. Wilkins 2004:78). As one pro bono coordinator of a New York law firm noted. 26. not weeks” (Rhode 2008:2072.” struck many associates as “not truly” pro bono (Rhode 2005:148). Here again. The more specialized the work. others let bottomline considerations prevail. quoting Janet Stotland.” or push those issues at the expense of better arguments because they lack “proper mentoring and guidance. quoting Richard Rothschild). so you got 50 years to life. when supervisors actively manage the case and prevent time-consuming pointless effort. As the leader of one death penalty organization noted. but don’t want to give them the time . Although some organizations are willing to provide outside counsel with the necessary background in substantive law. the more difficulties arise in finding or equipping volunteer lawyers with the relevant skill sets. quoting Mitchell Kamin. And ironically enough. Rhode 2008:2072. A National Law Journal cartoon (Harris 2007:23) captures the problem. It portrays an obviously outraged defendant being led out of court as his lawyer cheerily concedes. almost half reported extensive or moderate problems with quality in the pro bono work they obtained from outside firms (Rhode 2008:2070). “we are making our statistics in The American Lawyer look worse even though we are doing [the work] more efficiently” (Harris 2008:24). . 2008). quoting Richard Rothschild). and supervisors have little incentive to monitor performance. . of pro bono work. the result may be ineffective or inefficient service. and clients often lack the knowledge or leverage to raise concerns. In my own recent survey of leading public interest legal organizations.256 private lawyers and the public interest not quality. they generally lack staff to “train a junior associate in how to take a deposition” (Rhode 2008:2072. so think of all you saved at that end. Favors for clients. “All right. but my work was pro bono. in his field “getting people to the point of real competence takes years. In some cases. often because the programs do not provide sufficient choice or credit. don’t want to make the commitment” (Rhode 2008:2072. when other paid work comes up” (Rhode 2008:2072. Although many firms go to considerable lengths to ensure that public service clients are not treated as second-class citizens. A related problem involves lawyers who “want to do pro bono work in theory but in practice. These employers look for “training and opportunities for bored associates. other lawyers. quoting Brian Stevenson).

About one-fifth of surveyed public interest organizations experienced extensive or moderate difficulties around these issues. or make the arguments in important cases. . Even firms that make some effort to assess participants’ satisfaction do not necessarily act on what they find. As a partner at O’Melveny & Myers noted. Although many public interest organizations are willing to let cooperating attorneys argue cases and monopolize the associated publicity. quoting John Bouman). A typical illustration involved an associate who repeatedly received assignments such as drafting a letter to the Internal Revenue Service (IRS) on behalf of the Catholic Church that the supervising partner attended. And no one feels pressure to ask because those concerns are not one of the major factors driving job choice or firm profits (Rhode 2005:149). and appeared unwilling to invest the resources necessary to design a more productive approach (Secret 2008:4–5). Some firms took the position that “if it’s our money. they take lots of time . hog the credit. Wilkins 2004:77. . only one-third of summer associates reported that their day of required service at a local legal services organization had been worthwhile. that result may not well serve the client or the cause. Public visibility provides the psychic income and credibility with donors that are the lifeblood of many underfunded public interest groups (Rhode 2008:2068. but the attorneys in charge had no plans to scrap the program. which have long-term policy objectives to consider (Rhode 2008:2071. since she cannot bill for them. or are drafted for matters that hold no interest (Rhode 2005:148. Rhode 2008. the discontent of junior lawyers or summer recruits may fail to register because they are reluctant to raise concerns if no one asks. The firm paid the organization a substantial sum to provide pro bono work. These projects “drive her crazy.rethinking the public in lawyers’ public service 257 offend the political sensibilities of firm leadership or major clients. Allowing pro bono counsel to exercise that degree of authority has generally been unacceptable to public interest organizations. Other performance problems arise when relatively inexperienced pro bono attorneys want to call the shots. A further limitation in lawyers’ public service initiatives involves the criteria for selection. Many law firm pro bono coordinators are quite candid about the kinds of cases their attorneys will accept. the “worst thing in the world is to give them a bad experience—that . the result ill serves all concerned (Secret 2008:4. and she then doesn’t have time to work on pro bono projects that she really cares about” (Cameron 2007:2). Participants in summer programs have reported similar concerns with required service. Often the organization has more experienced counsel and is in greater need of recognition than are financially well-off firms. All too often. we should have control over spending it” (Rhode 2008:2071. Some of those assigned to assist low-income clients have lacked the interest or cultural competence for such work. But those concerns may fall by the wayside when firms view pro bono in terms of self-interest rather than societal responsibility. quoting Anthony Romero and Carl Pope). At one Los Angeles firm. Spaulding 1998:1395). Vongsawad 2007). Cummings 2004).

a cherry-picking strategy may ill serve broader societal interests. most firms are strikingly unbusinesslike in the way that they structure their programs. For Manatt. . Unless the firm also provides some general financial support to the referring organization to handle less marketable matters.258 private lawyers and the public interest means . Research on strategic philanthropy in general and public interest legal efforts in particular suggests that the most effective approach is to be systematic in identifying goals.” or clear villain (such as “one of the city’s worst slumlords”) (Lash 2008:7–8. When asked about how effectiveness is measured. As in other philanthropic contexts where the need for help vastly exceeds the supply. the only state that reports on the distribution of pro bono work compared with the demand for legal assistance. This is not to suggest that quality concerns are entirely missing. or collaboration with “an expert mentor. quoting Susie Hoffman). [and only] cases that are likely to be winnable or to achieve some sort of feel-good result. indigent clients’ greatest needs involve family matters. one Wall Street partner expressed a common view with uncommon candor: “we are not able to answer this question as it is posed . and associate satisfaction. Many receive more requests for pro bono work than they can accommodate. no difficult clients. which generally control access to the most interesting high-visibility cases. A related problem involves the lack of strategic focus in formulating selection standards. can afford to be selective in their choice of outside counsel. One obvious reason for the lack of attention to program effectiveness is the lack of accountability for the consequences. In Maryland. but they often screen out those who need help most.” (Lash 2008:9. The result is missed opportunities for both the profession and the public. but those cases rank seventh or eighth in lawyers’ pro bono contributions (Dipasquale 2007). . quoting David Lash). .” (Lash 2008:4. . quoting Cristin Zeisler).” “Perfect for the busy partner” is a “must-use phrase” for certain projects.” Emphasizing “sorrow and disaster” is far less effective than showing how a case “will benefit the volunteer” through opportunities for court appearances. partner priorities. Such criteria make sense in selling cases. we cannot opine as to which of our pro bono programs effectively contribute to the community” (Harris 2008:24–25. so they choose firms . development of negotiating skills. most lawyers’ pro bono work falls short. The result is often a mismatch between public needs. Seldom do they even survey their own members about giving priorities or attempt to monitor the satisfaction of clients or the social impact of particular initiatives. designing cost-effective strategies to address them. Phelps & Phillips. those who contribute assistance often face inadequate pressure to worry about recipients’ satisfaction or social impact (Frumkin 2006:371). By this standard. “save the sob stories/sell the skills. Relatively few firms engage in any systematic assessment of community needs or of the most cost-effective use of resources. quoting Paul Saunders). Crowell & Moring wants a “compelling story” a “worthwhile client or cause. The most well-established public interest organizations. and developing criteria to measure their achievement (Frumkin 2006:5–7). Despite all the discussion about the business case for pro bono.

most lawyers have internalized an ethic of client service and care about their reputation among colleagues and the local community. but the result is not necessarily the most cost-effective use of resources. Pro bono decision making often lacks that sense of direction. But even the best intentioned attorneys may operate with unduly flattering self-evaluations when more disinterested forms of oversight are absent. The risk. Lawyers making individual decisions about their own contributions can afford to do so based on the same personal considerations that guide other charitable contributions. while also meeting professional responsibilities and advancing the public interest (Harris 2008). however. . But decision makers with control over significant investments would benefit from a more strategic approach. a strategic approach to pro bono service Paul Brest. any road will take you there” (Brest & Harvey 2008:33). that approach should have at least four critical dimensions: • • • • a process for identifying objectives and establishing priorities among them a process for selecting projects that will best advance those objectives policies that encourage participation and ensure its quality a system for overseeing performance and evaluating how well objectives are being met In essence. a program that seeks to serve them all equally will serve none most effectively. From a prudential standpoint. is that by failing to be explicit about sometimes competing objectives. those who make substantial pro bono contributions need to become more strategic in setting goals and monitoring progress in achieving them. For organizations. The result is often a “spray and pray” approach. which spreads assistance widely in the hope that somehow something good will come of it (Frumkin 2006:371). Moreover. likes to remind nonprofit organizations that “if you don’t know where you are going. One way of avoiding controversy is to offer something for everyone. Something usually does. such an ad hoc approach is not particularly problematic. Many lawyers have not thought deeply about their objectives or have no principled way of resolving conflicts among them. Many law firms present their programs as enhancing recruitment and training.rethinking the public in lawyers’ public service 259 that have demonstrated a commitment to effective representation (Harris 2008). When the amounts of assistance are small. Yet many lawyers are reluctant to acknowledge or address the tensions. former law professor and now president of the Hewlett Foundation. Identifying Priorities and Projects Pro bono activities serve multiple goals that often tug in different directions. that reluctance is understandable.

programs should target compelling unmet needs that participants have special interest and capacity in addressing. Clarity about program priorities can. then some attention to the political fallout is prudent. organizations need to demonstrate a commitment to public service that is affirmed by their . as did one firm leader. talents. and holding pro bono decision-makers accountable for the results. help in channeling efforts and determining how much autonomy to give lawyers in selecting projects. advance them on their own time. Harris 2008). But if an important goal is to maximize reputation and recruitment. and encourage more substantial involvement in high-visibility projects through recognition in marketing. a Los Angeles firm focused on abused and neglected children. Rhode 2008.260 private lawyers and the public interest A more strategic approach requires establishing priorities and developing opportunities that reflect them. of course. one Philadelphia firm surveyed its members and local service providers and decided to assist veterans and the elderly. abortion. If the goal is to maximize social impact. however. Well-publicized tensions have surfaced when pro bono attorneys have represented controversial positions in areas such as affirmative action. If the objective is to maximize recruitment and training. Organizations need a formal process for identifying those values. For organizations with this philosophy. then employers need a case selection process that reflects broadly held views and is generally accepted as legitimate. and gay and lesbian rights (Chen 2007:15. and a Silicon Valley firm offered its start-up expertise to local nonprofit organizations (Aneiro 2006. Such approaches are often cost-effective because the investment in training and contacts pays off in multiple cases. then it makes sense to respect the diverse commitments of its members and provide credit and resources for whatever causes they choose. When a central function of pro bono programs is to express organizational values. So. the program could require minimum contributions from all attorneys. Well-designed programs can offer a range of opportunities that reflect different preferences. Maximizing Participation and Quality Research on philanthropy in general and pro bono programs in particular leaves no doubt about the strategies most likely to promote involvement. First. If the primary goal is to enhance reputation and rankings. and compensation decisions. employers should ensure a broad range of well-supervised options offering marketable skills and full billable hour credit for participation (New Approaches 2005). To develop such projects. Both approaches require sustained quality control and financial support (Rhode 2005. and levels of commitment. that “I’d like to think [our choice of cases] reflects values” (Chen 2007:16). employers should develop expertise in some specialized area. or build longterm collaborations with well-established public interest organizations. it is not enough to assert. These goals need not be mutually exclusive. promotion. for example. If a firm’s primary objective is to maximize attorney satisfaction. Lawyers with different commitments can. but they need not receive billing credit and institutional resources. 16). Jones 2007:B1).

Offering trivial rewards. or iPods for those who meet a mandatory 20-hour minimum. and more resources and reforms. For example. however. In one firm. Since Florida has required reporting of pro bono work. clients. Some efforts in the ABA’s recent campaign to promote a “Renaissance of Idealism” fall into this category: billboards advertising good works. Aneiro. continuing legal education credit. training. is window dressing. referring organizations. 100). 94). the reforms most likely to encourage unpaid work included crediting it toward billable hour requirements. Program administrators can note that the firm’s chair “is doing this.12) identify strategies for assessing effectiveness. . Particularly in organizations that lack a strong tradition of service. exhortatory advisory resolutions. and valuing it in promotion and compensation decisions (Rhode 2005:150. the number of lawyers providing assistance to the poor has increased by 35 percent. leaders need to demonstrate their support in tangible ways. 103).4 The same is true of programs that fail to ensure sufficient choices. Aneiro 2006). legal needs surveys. like a dinner for lawyers who contribute at least ten hours. ranks major firms on measures including pro bono commitments 4. appointment of a fulltime coordinator and personal involvement by leaders has been critical.5 But initiatives that look like public relations gestures push in precisely the wrong direction. Requiring lawyers to report their contributions can also generate more hours and financial assistance. What does not work. which include collecting evaluations from participants. Their participation makes it possible to pressure nonparticipants. Databases. quoting Scott Edelman). and backup resources. and the legal media in efforts to pressure legal employers also makes sense. the number of hours has increased by 160 percent and financial contributions have increased by 243 percent (Pro Bono Legal Service 2006). a student-led group. and peer review teams (Morrissey 2008:84). describing Sullivan and Cromwell dinner and Milbank Tweed iPod (2006. and awards for exceptional service can all help to increase the amount and quality of pro bono participation.rethinking the public in lawyers’ public service 261 leadership and institutionalized in their policies. what is your excuse? He’s the busiest guy in the firm” (Hallman 2007:93. The ABA Standards for Programs Providing Civil Legal Services to Persons of Limited Means (Standard 2. For lawyers in my survey. pro bono participation rose 100 percent after the managing partner took every opportunity to stress its importance (Harris 2008. clients. 5. Building a Better Legal Profession. In other firms. supervision. this includes creating an effective administrative structure to identify and oversee appropriate projects. or pressure without adequate placement and oversight structures. may send a message other than what is intended (Aneiro 2006:100. model powerpoints. Translating the bar’s civic obligations into daily practices will require less aspirational rhetoric. An analogous point applies to bar association initiatives. Enlisting students. and “I am an idealist” buttons (Commission on Renaissance of Idealism in the Legal Profession 2006).

the result might be a significant change in law firm priorities. 1). controlled experiment to demonstrate the causal influence of any single strategy (Brest & Harvey 2008: 141–164). but also the least potential for promoting long-term societal interests. Wilkins 2004). Brest 2006:229.” he noted. 237. “[M]uch of what we call legal work for the public interest is essentially selfserving: Lawyers use public interest litigation to promote their own agendas. More effort should also address social impact.262 private lawyers and the public interest (Liptak 2007:A10). On similar reasoning. as Albert Einstein reportedly observed. we also lack consensus on what those interests are. 253. And if more legal publications published pro bono rankings of more legal employers. partner with a public interest organization to improve public policies. but also how satisfied participants. According to Jacobs. We lack effective tools for calculating the social returns on these strategies. In many philanthropic contexts. and collaborating legal service organizations are with their contributions. It is of course true. . [and] for training and experience” (Jacobs 2008:2. and another in which environmental lawyers delayed levees that might have averted some of the flooding damage from Hurricane Katrina. If more clients joined a coordinated campaign. In some contexts. that “[n]ot everything that can be counted. It could assist survivors in filing temporary restraining orders and obtaining appropriate support services. If a significant number of students act on that information. involving a broad spectrum of the legal market. Employers need to know not simply who contributes and how much. Frumkin 2006. clients. social and political . Jacobs cites a case in which pro bono Wall Street lawyers held up the eviction of a woman who kept allegedly unsanitary birds in her public housing. many employers will respond accordingly. and not everything that counts can be counted” (Brest & Harvey 2008:15). evaluating effectiveness A final group of strategies should focus on evaluation. only some pro bono matters really deserve that label. Gertner 2008:74). Sievers 2006:249. some government and corporate counsel’s offices in the United States and abroad have begun considering pro bono records in allocating legal work (Rhode 2005:167–169. the social return on investment is hard to quantify and compare (Teles 2008.” But presumably not everything that those schools and hospitals want to do is “good . For example. Federal judge Dennis Jacobs made precisely that point in a widely publicized speech before the Federalist Society: “No public good is good for everybody. or help to develop violence prevention and offender treatment programs. and the representation of pro se litigants whose claims have likely merit. counts. the heightened visibility might help to improve performance. . As illustrations. Providing individual services carries the lowest risks of failure. It is generally impossible to do a random. Among those that meet his definition are “corporate work for nonprofit schools and hospitals. a firm that wants to focus on domestic violence has multiple options.

rethinking the public in lawyers’ public service 263 for everyone. . They often assume that anything given pro bono is pro bono. Convincing lawyers that they will do well by doing good is a key strategy in sustaining charitable commitments. regardless of cost-effectiveness. Kathryn (2006) “The Senior Law Public Interest Project. But that is no reason to avoid the effort. Evaluating public interest work entails subjective decisions about what constitutes the public interest. American Bar Association (2007) State-by-State Pro Bono Rules. donors who want to make a difference cannot afford to conflate good intentions with good results (Brest 2006:247). and there are better and worse ways of making such evaluations. are they meeting needs that experts or target groups consider most compelling? How many individuals are they assisting? If the matter involves policy or work or impact litigation. Critics such as Jacobs are surely right on one point. references Alfisi. As Steven Teles’s study (2008) of the conservative public interest movement notes. it comes as no surprise that pro bono is increasingly presented as a bottom-line issue. they generally speak in shorthand. but not the concept. what are the chances of a long-term legal or political payoff? Will the work help to raise public understanding or increase clients’ self-sufficiency? Is the assistance filling gaps in coverage or bringing some special expertise to the table? What are the other uses of lawyers’ time? Might they find better ways to address the sources rather than symptoms of the problems? Pro bono providers can also partner with well-established public interest organizations that are better equipped to engage in such evaluation. For example. We can afford to lose the Latin. representation is taken as a good in and of itself. A more strategic approach would incorporate criteria similar to those that public interest organizations often use in allocating resources and evaluating their efforts (Rhode 2008). Yet lawyers have a tendency to do just that. When attorneys talk about pro bono. As research on philanthropy demonstrates.” Washington Lawyer December 2006. “Publico” has dropped out of the discourse.” and what constitutes “merit” often depends on precisely the “social and political” judgments that Jacobs condemned lawyers for making (Jacobs 2008:10). But to present public service purely in those terms is to compromise altruistic impulses and societal objectives. 30–34. where long-term impact is hard to predict the best strategy may be to support the judgments of those highly regarded in the field. beyond the bottom line In today’s increasingly competitive legal market.

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At the same time. During my tenure. In 1989. I served as the Director of Pro Bono Affairs for the New York State Bar Association (“State Bar”). It is based on my particular experience. the State Bar transformed its definition of pro bono to expand the kinds of service recognized. I returned to a private practice devoted to appeals. That definition encompassed legal services to poor persons in civil matters or in criminal matters where government-funded . employment. Hon. housing. In my pro bono role. with such unmet legal needs falling into a variety of categories. With 74. This group was charged with the mission of devising a plan to increase pro bono participation. Sol Wachtler. After that experience. health. including appeals at no fee for persons of limited income and at a substantially reduced fee for nonprofits serving the needs of such persons. the results indicated that 86 percent of the civil legal needs of the poor were not being met. but this contribution is of a different type. I worked on many access to justice initiatives with organizations and lawyers throughout the state. I have done pro bono as set forth in the State Bar’s expanded definition. family and domestic. and in 1990. from 2002 to 2007. from large firms in Manhattan to small practices in upstate rural counties.13. the shifting definition of pro bono in new york state In the 1980s. appointed the Committee to Improve the Availability of Legal Services. then chief judge of the New York Court of Appeals. including consumer. this is the nation’s largest voluntary state bar association. the widening gap between the legal needs of the poor and the resources available to meet them inspired the New York State Bar Association to conduct a study. the committee issued a preliminary report. The philosophical and practical aspects of pro bono that I observed and experienced are the subject of this chapter. a final report. both of which advocated a mandatory 20-hour pro bono service requirement and espoused a definition of pro bono.000 members. and public benefits issues (New York State Bar Association 1990). For five years. bar politics and pro bono definitions The New York Experience cynthia feathers introduction This book contains many chapters animated by illuminating scholarly analysis and insight.

” By qualifying pro bono. That policy set forth an aspirational goal of 20 hours of pro bono service a year. 1). the report meant pro bono pursuant to the definitions adopted by the State Bar and the Administrative Board of the Courts—that is.268 private lawyers and the public interest counsel was not provided.762 out of 117. The State Bar’s leadership role was apparently reflective of the national norm. on the ground that adequate funding for access to justice is a societal burden that must be borne by the government. and legal services to nonprofit organizations primarily dedicated to addressing the needs of the poor (Committee to Improve the Availability of Legal Services 1990). but the committee recognized that a significant role could be played by volunteer attorneys (New York State Bar Association 1989). Whereas the organized bar had historically offered only meager support for pro bono practice. When the preliminary report discussing the possibility of mandatory pro bono was issued. to gauge the level of pro bono participation. random survey of 10 percent of the bar. voluntary. its House of Delegates. which called upon attorneys to practice in fields outside their expertise. The report was adopted by the State Bar’s policy-making body. That committee issued a report that opposed mandatory pro bono. bar associations had become pro bono’s most stalwart supporters. Forty-six percent of New York attorneys did “qualifying pro bono. or 11. The Chief Judge rejected the proposed mandatory requirement and called for the bar to increase pro bono service voluntarily (Wachtler 1991). In 1990. and the Presiding Justices of the four Appellate Divisions. The Administrative Board— comprised of the Chief Administrative Judge of the Courts for the State of New York. As the Chief Judge explained in public statements at the time. the State Bar created a Special Committee to Review the Proposed Plan for Mandatory Pro Bono. it was desirable to avoid a potentially divisive and time-consuming fight with the professional bar. and pro bono figured prominently in the activities of the professional bar (Boutcher in this volume). Finally. the State Bar also created a Department of Pro Bono Affairs and a President’s Committee on Access to Justice. voluntary service was more efficient than compulsory service. In 1997. the Administrative Board of the Courts adopted an almost identical policy. clients were better served by lawyers who were willingly on their side. In 2002. which would likely resist mandatory service. it adopted a voluntary pro bono policy that mirrored the three-part definition of pro bono set forth in the report to the Chief Judge. free legal services in civil matters or . and increased public funding of legal services programs was a better solution than mandatory pro bono (Sack 1990). activities to simplify the legal process or to improve or increase legal services to the poor. by the end of the millennium. vol. the State’s midlevel appellate courts—is consulted by the Chief Judge regarding the establishment of statewide standards and administrative policies. and also encouraged attorneys to contribute to organizations serving the needs of poor persons. the New York State Unified Court System (“Court System”) conducted an anonymous.620 New York attorneys (New York State Unified Court System 2004.

but did not address the legal needs of the poor. in many cases free representation was rendered to individuals who would not have traditionally qualified for such services based on income. At that time. Thirty percent of lawyers said they performed other kinds of public service not considered “qualifying pro bono.bar politics and pro bono definitions 269 in criminal matters where there was no government obligation to pay for representation. the President of the State Bar appointed an ad hoc group to create a new definition of pro bono. or a job. as individual lawyers poured forth in unprecedented numbers to provide legal assistance to more than 4. the legal community’s response was fast. or legal services to nonprofits seeking to address the legal needs of the poor. . Because of the nature and scope of the disaster. The sentiment resonated with many of the 275 members of the House of Delegates. that they were rendering generous service. and creative. Shortly thereafter. Further. In such discussions among lawyers and State Bar leaders. a business. comprehensive. The House voted in April 2004 to expand the definition of pro bono to capture the essential services that individual attorneys and bar associations regularly contribute to society for the public good. and that they should be applauded for their voluntary efforts. the president of the State Bar expressed concerns that the court report failed to give attorneys the credit they deserved for the broad range of public services they performed because it excluded from pro bono figures services that were not characterized as “qualifying pro bono. it was clear that one factor driving the debate was the surge in pro bono activities seen in the immediate aftermath of September 11.000 individuals and families who were affected by the disaster (Association of the Bar of the City of New York Bar Fund 2004). The response from lawyers who contacted the State Bar in some cases also reflected a “don’t tread on me” attitude toward the Court System. the average number of hours of service provided was 41. Those in need were represented on a pro bono basis by volunteer lawyers in such varied matters as administering estates and applying for death certificates. Among attorneys who did pro bono. the House emphasized that pro bono must remain voluntary (New York State Bar Association 2004). and immigration and deportation problems (2004). which they felt was criticizing them for not doing enough pro bono. I served on this group (Adcock 2005). to individuals who could not afford a lawyer.” such as providing free legal services to nonprofits that served the public in some way. 2001.” Many attorneys contacted State Bar leadership and the Department of Pro Bono Affairs to express their dismay at what they perceived as an intrusion by the Court System in deciding which public service did or did not qualify as pro bono. Immediately after the issuance of the report. activities to simplify the legal process or to improve or increase legal services to poor persons. dealing with the loss of a home. There was a fundamental sense that lawyers should do pro bono. Such complaints were expressed despite the fact that the “qualifying pro bono” label imposed was actually consistent with the State Bar’s own definition.

The response was swift and largely negative. but expanded the types of service that qualified as pro bono. but that concept was set aside in favor of the view that lawyers must use the expertise they uniquely possess to help achieve the goal of equal justice under the law. can be good community servants in nonlegal ways. many participants cited concerns that pro bono might eventually become mandatory and that such a change would adversely affect attorneys whose areas of expertise did not qualify them to render traditional pro bono . lawyers. At the House debates. Also discussed was the idea that coaching Little League or doing church volunteer work should count. the original draft language was revised to make clearer its intent: the 20-hour aspirational goal did not apply to the expanded types of service. like any other citizens. and that would in turn dilute the highest ideals of the profession (Adcock 2005). That group voiced the frequently made complaint in the debate: a warning that expanding the definition of pro bono could detract from the primacy of service to the poor who most urgently need assistance. but that has nothing to do with the traditional concept of pro bono publico embraced by our profession. the House of Delegates adopted the new definition on April 2. 2005. Of more than a dozen responses ultimately received. numerous committees. The draft was sent out for comment in November 2004 to all two dozen State Bar sections. in order to lend legitimacy to the end result (Schneyer 1992). because it would have meant that the modest goal of 20 hours per year would be divided between rendering services where they were most urgently needed and providing services through activities such as bar association participation. allowing lawyers to donate money instead of service to serve the poor. and local bar associations. by far the most detailed statement came from the State Bar’s Commercial and Federal Litigation Section. that concept was rejected as regressive. the ad hoc group produced a draft proposal that retained the 20-hour aspirational goal. Exactly one year after the State Bar voted to expand the definition of pro bono. but also donate money to programs serving the poor.270 private lawyers and the public interest The group discussed the possibility of espousing a policy that called for lawyers to render 20 hours of total service that encompassed both the core definition of pro bono service to the poor and a much more expansive definition of pro bono. After a few informal sessions. the process of redefining pro bono involved considering the opinions of many constituencies within a profession that has become highly differentiated. The essence of the original draft remained largely the same. In other words. As is perhaps often the case when a major bar association seeks to adopt new standards of professionalism. The underlying sentiment was that the State Bar Association was moving in the fences to make it easier to hit a home run. and they noted that the American Bar Association called for more than twice the New York State aspirational goal. The Commercial and Federal Litigation Section members also objected strenuously to what they perceived as a buy-out provision. Fortunately. and lawyers were supposed to not only do pro bono. After a lengthy and heated debate.

the initial call for an expanded definition reflected the desire to give credit to lawyers for all of the broad types of public service lawyers do.1 as part of its proposed Rules of Professional Conduct. Such concerns were stated despite repeated assurances by the Court System that pro bono would remain voluntary. Each lawyer also should provide financial support for such organizations to assist in providing legal services to persons of limited financial means. governmental or public service organizations. the legal system or the profession. Second. organizations seeking to secure or protect civil rights. Apparently. the notion was that if pro bono was not mandatory and a broad definition applied. government or public service organizations in matters in furtherance of their organizational purposes. or to not for profit. or 2. In addition to meeting the aspirational goals set forth above. it was the specter of mandatory pro bono that had spurred the initial definition of pro bono. rendering the required service would not prove onerous. except that the numbering was . mediator or neutral in court-annexed alternative dispute resolution). thus echoing Chief Judge Wachtler’s sentiment expressed in 1990 (Caher 2005). which stated: Each lawyer should aspire to provide at least 20 hours of pro bono services annually by providing legal services at no fee and without expectation of fee to (1) persons of limited financial means. or (3) organizations specifically designed to increase the availability of legal services to persons of limited financial means. or (2) not for profit. First. civil liberties or public rights.1 paralleled EC 2-34. The proposed Rule 6. by providing legal services without compensation at a substantially reduced compensation in aid or support of the judicial system (including services as an arbitrator. or 4. In addition to setting forth a definition of pro bono as an Ethical Consideration. a lawyer also should render public interest and pro bono legal service: 1. where the payment of standard legal fees would significantly deplete the recipient’s economic resources or would be otherwise inappropriate. not concerns about the imposition of mandatory pro bono obligations. in two ways. or 3. regardless of what an attorney’s interest or expertise might be. by providing legal services at a substantially reduced fee to persons of limited financial means. The expanded definition the State Bar adopted was contained in EC 2-34 of the New York Lawyer’s Code of Professional Responsibility. where legal services are designed primarily to address the legal and other basic needs of persons of limited financial means. by participating without compensation in activities for improving the law. This was an ironic turn of events. the State Bar developed a new Rule 6. by providing legal services at no fee or substantially reduced fees to individuals.bar politics and pro bono definitions 271 service.

1 commentary explained that persons of limited means were those who qualify for services under Legal Services Corporation guidelines. On December 17. Among other things proposed. Instead. in the aftermath of the definitional debate. the one for pro bono service was not. the State Bar Association submitted to the Administrative Board of the Courts its final report on proposed Rules of Professional Conduct. Although most of the rules the State Bar proposed were adopted.1. 2008. 2008. whereas the State Bar embraced an aspirational goal of 20 hours a year for persons of limited means and an unspecified amount of service for groups under the expanded definition. On February 1. The 50-hour goal was by far the most common number used. with the black-letter rule followed by extensive commentary.272 private lawyers and the public interest changed. lingering unease over the expanded definition had apparently played a role in the State Bar’s creation of a program that focuses solely on legal services to the poor. Both associations urged attorneys to give both services and money. Rule 6. the chief judge and the presiding justices of the Appellate Divisions announced that a new set of attorney conduct rules for New York had been adopted. given that the State . after the State Bar adopted its new policy. having been adopted by about half of the states. The rule simply provides that lawyers should do 20 hours of pro bono per year by representing poor persons. as well as those who had slightly more income. effective April 1. The Court System declined to do so. Some states set forth no number to guide attorneys. EC 2-34 and the pro bono policy of the Administrative Board of the Courts were inconsistent with each other. The most dramatic difference was that the ABA calls for attorneys to do 50 hours of pro bono a year. Further. 2009 (Office of Court Administration 2008). This was not surprising. They should also give money to groups providing legal services to such persons. and a final sentence noted that the professional obligation is not intended to be enforced through the disciplinary process. engaging in activities to simplify the legal process or to improve or increase legal services to poor persons. Therefore. an opening sentence stated that a lawyer has a professional obligation to render public interest and pro bono legal service.1. the proposed rules used the familiar restatement format of the American Bar Association (ABA) Model Rules. Long before the Court System adopted this traditional rule. The categories of service in the final State Bar definition were similar to those set forth in ABA Model Rule 6. but of those who do. or providing legal services to nonprofits to meet the needs of poor persons. according to ABA data (American Bar Association. State-by-State Pro Bono Service Rules). the president of the State Bar reached out to the chief judge in an attempt to persuade the Court System to adopt the same expanded pro bono definition. and in the end it had the last word. and that uncollected fees did not constitute pro bono. 20 hours is the lowest goal. with a substantial majority devoted to addressing the needs of the persons of limited means. including proposed Rule 6. the Court System essentially returned to the definition of pro bono espoused by the State Bar and the Court System before the sturm und drang of the debate.

bar politics and pro bono definitions 273 Bar’s new definition provoked such loud laments from those in the community who feared that the primacy of the poor was being diluted by an expansion aimed at counting every minute of public service by lawyers. In 2006. who used great creativity. talent. the sector that does the most pro bono. city attorneys from large law firms and public interest programs were describing the virtual bidding wars that occurred when they fought for the chance to handle high-profile pro bono cases that would demand exorbitant amounts of time. small. My own experience at the State Bar reflected the disparate nature of pro bono service within different sectors of the profession in the State of New York. the State Bar developed the Empire State Counsel program to recognize lawyers who provide free legal services under the first tier of the definition—that is. the participation level is much higher among very small and very large firms than among those in between. In other words. the program exalts and encourages core pro bono services in a generous amount to offset the expansive definition with the modest hourly goal. In other words. as well as at firms with 101 or more attorneys. a group of 100 dedicated pro bono leaders throughout the state. tenacity. serving the needs of persons of limited means by direct service or by service to groups helping them—and who give 50 hours of such service in a year and thereby meet the ABA aspirational goal. and optimism to try to persuade local lawyers to take difficult cases. making lawyers look and feel better was trumping the mission to serve those who needed help the most. in New York State. there are dramatic differences in how much pro bono service is rendered by attorneys in private practice. Studies have reflected the growth of pro bono in large firms generally. sitting slackjawed in amazement at the different universe being described were the upstate pro bono leaders. and money. and in 2005. The pro bono movement has had a significant impact on large-firm practice. In the meantime. ranging from 12 to 25 percent (New York State Unified Court System 2004. Law offices of more than 251 lawyers do three times more pro bono than smaller offices nationwide.versus large-firm participation Although a clearer sense of what pro bono encompasses in New York may be emerging. there was far less participation. Thus. At a meeting in New York City. Perhaps the most surreal and telling moment I encountered during the State Bar pro bono days was at a meeting of the Association’s Pro Bono Coordinators Network. according to detractors. vol. 1). lawyers at the top 100 firms averaged 50 hours . while facing chronic stress in a ceaseless struggle for funds needed for program survival. The Court System’s survey of 2002 activity revealed that there was approximately a 35-percent participation level as to meeting the 20-hour goal among lawyers at firms with ten or less attorneys. In between.

matrimonial. There are questions not only about using existing expertise versus learning new skills. but by competitive spirit. as indicated by The American Lawyer magazine’s “A-List” (Press & O’Connor 2008). and retain idealistic young lawyers who often find their pro bono assignments the most satisfying of their careers. . Law firms want to be among the most elite firms in the country. The value of pro bono to savvy firms comes not only in satisfying the competitive spirit. lawyers are ethically bound to give of their talents as well. It depends on the lawyers. Although solo practitioners may have to struggle to run a profitable practice. As many options as possible should be offered to lawyers so that they will feel comfortable rendering service that helps people in need. the legal community. A personal story illustrates the point. they may also have a sense of the pressing needs of the poor. expertise in landlord–tenant. Large firms may have not only more resources. Perhaps it is not wise to try to force lawyers to give in any set way. and more. Should they be trained in high-need areas or should they do pro bono assignments. However. firms cannot achieve the top ranks unless their pro bono numbers are strong. train. that draw upon their existing expertise? There is no single answer to that question. the pressing needs. There are issues not only about why lawyers give. but also a greater sense of noblesse oblige (Dinovizter & Garth in this volume). Because pro bono performance is one of the factors examined in ranking firms. Although the legal aid and pro bono programs throughout the state— which receive low amounts of government funding—are grateful for any gift they receive. rather than time. Each lawyer’s unique experience and skill can enrich the quality of services provided to poor persons and groups serving them. Not surprisingly. but also as a powerful tool to recruit. These lawyers may feel a pride and a gratitude toward their employer and a satisfaction in their profession that they would otherwise not experience. large firms are also impressive for their collective contribution. The remarkable impact New York City firms have made in important litigation affecting systemic reform is no less laudable because some of it is driven not by altruism. if available. larger firms have the resources to develop formalized programs and to hire full-time coordinators. but also about how they should do so. solo practitioners generally also report fairly high levels of participation (Dinovitzer & Garth in this volume). but also about whether it is acceptable to give money. After my State Bar stint. and other high-need areas of the law.274 private lawyers and the public interest per year (Boutcher in this volume). larger firms with programs to encourage pro bono generate more volunteer service. and the flexibility that comes from not needing to convince other partners of the desirability of rendering services that could erode the bottom line. After all. the pro bono programs available. There are likely a host of factors that account for the different participation levels. Although solo practitioners are to be lauded for their individual sacrifice in taking on pro bono cases. There are also issues regarding what is not covered in the expanded definition of pro bono.

I have a practice limited to civil and criminal appeals. One of the reasons I decided to return to private practice was an appeal I handled for free. my employer made skeptical comments about the work I did. conclusion There seems to be widespread acceptance of the general notion that lawyers should volunteer their services to make equal access to justice a reality. unlike many employers. the Association did not provide any time off to do pro bono. it did not make a parallel change in its policy regarding what pro bono service the full-time staff attorneys could render. I intentionally say that I handled it “for free. I was serving in my role as Pro Bono Affairs Director for the State Bar. pointedly questioning whether I had typed the brief myself. Moreover. Thanks to a nomination by the trial attorneys involved in the Julia BB. I was seeking the kind of coverage that had been a catalyst for my pro bono career and harbored the specific hope that I could spur other local appellate attorneys who never did pro bono to give it a try. even under the expanded definition. In the State 1. Translating that philosophy into concrete action remains a daunting challenge. When the Association expanded its definition of pro bono. in light of hand surgeries I had had.” because my clients were middle-income professionals. two trial attorneys—a family law and a criminal defense lawyer—had lost a long fight on behalf of sympathetic clients who had their parental rights to their youngest child severed because a local social services agency decided the child’s multiple. subtle bone fractures might be due to abuse.000-page record and write the 90-page brief. and one of the trial attorneys asked me if I would do the appeal for free.. Drawing upon my experience in the State Attorney General Appeals and Opinions Bureau and at the Center for Appellate Litigation in Manhattan. In a case given the confidential name Julia BB. not persons of limited means. not to a medical condition. . or whether it should be considered some other form of public service.bar politics and pro bono definitions 275 I returned to the world of appeals. At the time. despite vast evidence supporting the parents’ cause. I was later awarded a 2008 President’s Pro Bono Service Award from the State Bar Association. I just deemed the policy to allow for the pro bono work I did. so I used my free time to read the 7.1 My experience serves as a telling example of the kinds of obstacles pro bono leaders have to confront—a disconnect between lofty. case. A two-year struggle in Family Court had exhausted the parents’ resources. Finally. necessitating great administrative support on the job. so it is not clear that the representation should be deemed pro bono. There were many ironies to that experience. At my next evaluation. my requests for positive press in the Association’s primary membership news publication were denied. I said yes. abstract goals and the concrete programs and action needed—even in organizations that sincerely espouse pro bono principles.” rather than “pro bono.

and other settings to create programs that show attorney employees ways in which they can do pro bono and public service. Although the Court System has determined that pro bono should be narrowly defined. it is estimated than an additional 10 million additional annual hours of free legal assistance are required to meet those urgent needs (New York State Unified Court System 2004. all attorneys should do pro bono and donate to programs providing legal services to poor persons. where ethics professors could be encouraged to include informative discussions about pro bono obligations and about how volunteer opportunities can help new lawyers develop their skills. and mental exhaustion than counterparts in the public sector. in some cases. academia. and some causes futile. Similarly. The education could start in law schools. given current funding levels of legal services programs. Furthermore. The most vulnerable among us do deserve assistance to navigate a legal maze. stresses. Although many schools offer pro bono experiences. clarity. but some clients are difficult. However. the idea that all volunteer service will be deeply rewarding to private pro bono counsel and result in vindication of the rights of poor clients should be dispelled. If the State Bar definitional debate served any function. it was to stir thought and discussion about the importance of pro bono and public service by lawyers in addressing such needs. Providing information. A culture of pro bono should permeate our profession so that all lawyers accept as a given that such service is a vital part of what it means to participate in a calling that is meant to produce a more just society. are the ones most encouraged to render pro bono representation. private practitioners face greater professional and financial demands. corporations. Once admitted. Policies should be implemented so that court attorneys can draw upon their lawyerly acumen to render pro bono and public service in suitable ways that present no conflicts of interest. . and dignity is sometimes the best pro bono gift that can be bestowed. perhaps the State Bar and Court System should move beyond the definitional dissonance and sing in unison in educating local bar associations and lawyers about the new disciplinary rule and in promoting increased pro bono service and appropriate financial contributions. Admissions ceremonies offer another opportunity for the State Bar and the Court System to collaborate in communicating the pro bono message by emphasizing pro bono in every candidate’s interview and addressing the importance of pro bono service in every judge’s keynote speech. not surprisingly. academia. the Court System and State Bar should more aggressively and creatively encourage employers in the public sector. Drawing upon that experience. Attorneys in private practice have the greatest experience in providing direct services to individual clients and thus. 2). the challenge is to inspire students to continue to serve once admitted. it has done too little to promote suitable pro bono and public service opportunities for its own attorneys. vol. They should not shoulder the pro bono burden alone.276 private lawyers and the public interest of New York. or other law-related employment.

” in R. New York State Unified Court System (2004) “The Future of Pro Bono in New York.” April 3. John (2005) “Bar Group Expands Pro Bono Definition. State-by-State Pro Bono Service Rules. Office of Court Administration (2008) “New Attorney Rules of Professional Conduct Announced. citing to new Rules of Professional Conduct available at http://www.” and vol..gov/press/pr2008_7. Ithaca: Cornell University Press. Schneyer.” 19 Hofstra Law Review 739–744. Theodore (1992).gov/rules/jointappellate. cases cited Matter of Julia BB. lv den 9 NY 3d 815 (2007). “Professionalism as Politics: The Making of a Modern Legal Ethics Code. eds. Sol (1991) “Symposium on Mandatory Pro Bono: Introduction. “Report and Recommendations from the New York State Unified Court System’s Pro Bono Convocations. “Chief Judge Presses Lawyers on Legal Work for Poor. Aric and John O’Connor (2008) “Lessons of the AmLaw 100: Is the Golden Age Over?” The American Lawyer April 30.nycourts. 2008). Kevin (1990).shtml (accessed December 21.). 2005.” October. November 3. Committee to Improve the Availability of Legal Services (1990) “Final Report to Chief Judge of State of New York.” January. Caher.” report approved by the New York State Bar Association House of Delegates. Transformations in the American Legal Profession. (Saratoga County Dept. Sack.” New York Law Journal January 18.” ———(2004) “Report of the President’s Committee on Access to Justice Concerning Pro Bono and Actions of the NYSBA House of Delegates. Association of the Bar of the City of New York Bar Fund (2004) “Public Service in a Time of Crisis: A Report and Retrospective on the Legal Community’s Response to the Events of September 11.” New York Times May 2. http://www.” April 1990. org/legalservices. ———(2007) “Proposed Rules of Professional Conduct. 2001. ———(1990) “New York Legal Needs Study.probono/stateethicsrules. “Report on the 2002 Pro Bono Activities of the New York State Bar. New York Law Journal April 5. 2007).html (accessed December 21. 2008). nycourts. 2005. 2. of Social Services—Diana BB.” 31 Fordham Urban Law Journal 831–951 (2004).. American Bar Association.” vol. New York State Bar Association (1989) “Report of the Special Committee to Review Proposed Plan for Mandatory Pro Bono. 42 AD 3d 208 (September 3.abanet. 1990. Press. . reprinted in 19 Hofstra Law Review 755–883 (1991). 2008.bar politics and pro bono definitions 277 references Adcock.” http://www. Lawyers’ Ideals/Lawyers’ Practices. Thomas (2005) “New York State Bar Draws Fire with Proposal to Change Pro Bono Definition. 1. Nelson et al. Wachtler.

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an attempt to understand something—in this case an attempt better to understand the pro bono movement among the legal profession. conflating the good with the public good An Essay john henry schlegel 1 Essayer is French for “to try. 1. There are.” An essay.1 of the American Bar Association’s Model Rules of Professional Conduct to supply content to the entire traditional phrase pro bono publico. The efforts of the lawyers and scholars promoting pro bono practice seem to me to be as well meaning as those of any group one might possibly discover.” The public interest is anything but easy to capture. writing about pro bono. for the time being. Deborah Rhode. We can afford to lose the Latin. offers the following sensible thought: “When attorneys talk about pro bono. who taught me much about the public interest while pursuing a career devoted to seeking it. However. I would like to ignore the ABA’s rule and think critically about the proposition that the public good could possibly be self-evident. And yet. examining lawyer compliance with this rule. it is the appropriate standard of measurement.14. I suppose. I doubt that anyone knows precisely what is meant by the slippery term thus invoked from the Latin phrase meaning “for the good or benefit of the public or populace. they generally speak in shorthand. This piece is for Abbie Gorin. a snark even among legal terminology’s many such creatures. these efforts—now dating back at least 100 years—seem not to succeed (Rhode 2005). the public interest. This collection and the conference that gave birth to it have explored at least two of them—the structure of the legal profession and the structure of legal education. I wish briefly to explore a third: the absence of self-criticality in the standard presentation of one of the movement’s core concepts. explicitly relies on Rule 6. And for her purposes. and my devotion to reflexivity from my travels with Law and Society. is a trial. lots of reasons for the lack of success. but not the concept” (Rhode in this volume:263). and the movement’s supporters. Rhode. like many legal practitioners and scholars. ‘Publico’ has dropped out of the discourse. then. In the interest of full disclosure—probably an impossibility—the reader should know that my devotion to critique comes from my travels with Critical Legal Studies. .

clients. *** [M]any lawyers have included in their reports . *** . cases that generate fee awards that are not donated to legal aid. culled from papers in this collection and the talks that preceded them. Many lawyers. It appears less common for attorneys to mobilize their insights from a tenant-oriented perspective. or in attempting to fashion a new class of savvy and diligent investors capable of expropriating sustainable rates of profit from the low-income rental housing market. and work for well-endowed government and nonprofit institutions that does not address the needs of the poor or protect civil rights. . *** [T]he American Lawyer recently clarified its standard to exclude board service. it represented a coalition of community organizations seeking to block an initiative that would have allowed Wal-Mart to open a Supercenter store in Inglewood. (Rhode in this volume:253). such as bar association activities. favors for friends.280 private lawyers and the public interest Let me start with six examples. consider contributions to local government agencies and cultural institutions as public service. and want to retain some or all of the court-awarded fees that they eventually collect in pro bono cases to support their other non-paying work. In one prominent case. . though not necessarily the author. work that is of questionable public value. and cases where fees turn out to be uncollectible (Rhode in this volume:253). and family members. talk as if the public good were obvious: Chatten-Brown & Associates in Los Angeles handles land use and environmental protection with potentially broad public impact. California (Cummings & Southworth in this volume:199). Each presents a situation where some people. *** The insights that attorneys take away from their experience representing lowincome tenants are narrowly redeemed in private practice. whether in forewarning a potential investor client of the risks that adhere to the legal obligations of property ownership in marginal areas. however. using them to encourage landlords to live up to their broad legal obligations to maintain habitable conditions or to more mundane requirements to provide tenants with receipts for rental payments (Gocker in this volume:242). *** Small property-rights firms pursue positions on behalf of individual landowners that may conflict with the interests of large developers represented by big firms (Cummings & Southworth 2008).

However. or are drafted for matters that hold no interest. . When economic or social differences make it less likely that one side will be able to secure counsel. . the oppositions implicitly put forward: Good Coalition of community organizations Small property owners Tenants Work of public value Work that addresses the needs of the poor Unnamed personal preference Bad Wal-Mart Large developers Landlords Bar association activities Well-endowed governments A particular Catholic church In general. and she then doesn’t have time to work on pro bono projects that she really cares about” (Rhode in this volume:256–257 quoting Cameron 2007:2). At the very least. A typical illustration involved an associate who repeatedly received assignments such as drafting a letter to the Internal Revenue Service . This doesn’t seem to me to be wrong—after all. they take lots of time . the good work is work representing the little people of the world in their fights with the bigger people of the world. first. economic or social. Now. however. an activity undertaken in the public interest. it is a good thing for lawyers to equalize “access” to justice. on behalf of the Catholic Church that the supervising partner attended. . each as I have posed it is arguably a private interest. it is arguable that this ideology is mostly a justification for the protection of the interests of lawyers as a social class—or . by definition. and so dispose of this separable matter with a wave of the hand. since she cannot bill for them. than do those seen as worthy of the law’s special protection. First. What can we learn from these examples? Consider. such a basis for choice is literally only a matter of “pro bono. And notions of procedural fair play that are deep in the ideology of the rule of law suggest that both sides in a dispute deserve representation.” The value “publico” that Rhode reminds us should not be forgotten is an entirely separable matter. the activities seen as not worthy of the law’s special concern are undertaken by people who have more assets. as the chart shows. . These projects “drive her crazy. There are two problems with doing so.conflating the good with the public good 281 Many surveys find that attorneys are foreclosed from taking on matters that would offend the political sensibilities of firm leadership or major clients. one could of course decide that any activity implied by the ideology of the rule of law is.

that is the nature of an interest being public.. Nor should it be particularly solicitous of new retail investment. a justification for the protection of the interests of lawyers and their wealthy clients as a joint class (Hayek 1955. The effect on grocery stores is much less clear. City of New London). that the public ought. but somewhat. . except among the very mobile upper-middle class and those who comb newspaper supplements for bargains. Second is a more technical. Start with the first. 1915). (See. Hager 1999). Kelo v. I think the matter is not as wholly obvious as these examples seem to imply. not enormously. One cannot compare a public interest with a private interest without unfairly influencing the result by the sheer act of naming. The repeated failure of constitutional jurisprudence to scrupulously follow this rule is not a good reason to ignore it. There is some evidence that Wal-Mart causes a dampening of local wages. 2. though whether this is because of the actual level of wages or the virulently anti-union attitude of the firm is not clear. The public interest will almost always trump the private one. for individuals of the economic class of its employees. For such individuals this may be a significant psychic benefit as well. often leading to bankruptcy. on the part of pre-existing small retailers in the area. it is probably a good reason for following it in the way that questionable behavior always provides an object lesson for those seeking to behave well. when comparing interests one must compare them on the same plane. as a principle. financing alternatives. 1921). In what sense is the construction of a Wal-Mart Supercenter not in the public interest. other than the trivial one of anointing community groups opposing its construction as by definition instantiating the public? It is relatively well established that building a Wal-Mart causes serious losses. What is clear is that neither Wal-Mart nor the competitors it drives out of business pay wages to the great majority of their employees sufficient to support more than half of a family of four. perhaps less profound. especially clothing and toy retailers. Retail comes and goes with fashion. to me at least. and transportation opportunities and costs. Wal-Mart—through its absolutely relentless costcutting—reduces the price of both necessities (clothing and food) and modest discretionaries. As Roscoe Pound (1911–1912. I reach the forgoing conclusion from reading materials such as Bianco 2007. When one looks carefully at the question of where the public interest might lie in the six examples supplied. One would have to think long and hard before accepting the circular statement that what lawyers say is activity in the public interest is so because it is in their interest to say it is so. made clear over 90 years ago. Vedder & Cox 2007. of the public interest? It is not obvious. then. and Fishman 2006. Indeed. because grocery purchases are significantly location-dependent. embedded retail investment. objection. On the other hand. it stretches budgets. channeling Jhering (1913. protect old. e.282 private lawyers and the public interest worse.2 What. if we extend it to the defense of property as Hayek and his followers would have us do. Any statement about Wal-Mart inevitably brings forth strident objections from partisans of another view.g.

But. . for the higher the minimum quality. without them housing will be unavailable. But that is not the question here. what we face is a separate. Can tenants be maliciously destructive? Surely. without them investments will fail. being incapable of categorical generalization. but this is in its own separate. It is at least possible to believe that local developers will be more concerned with a community than will out-of-town developers. what is being talked about when discussing the public interest. though acting on the basis of such a hunch raises the question of whether the commerce clause is an example of the public interest. Here. And I doubt whether anyone can figure out whether small property owner holdouts or large property owner thuggishness is a greater problem for local communities. Probably in some cases it is one. have a hard time identifying where the public interest might lie as between tenants and landlords. at least were that community to deal squarely with the increase in the taxation of nonrental property owners that would likely be a part of such a system. However. however. but surely are not to be lauded in the name of acting in the public interest. Can landlords be maliciously rapacious? Of course. The clear short-run benefit to tenants from raising the quality of their housing for the duration of a lease.conflating the good with the public good 283 A community might choose to preserve its old shopping quarter or not. Tenants need landlords. But the question of large developers as against small property owners raises no such concerns. as a general matter. Landlords need tenants. small property owners and large developers. neither question is one of public interest. I find it unduly presumptuous to assert that one or the other of these interests is obviously so much more important that it should prevail as the public interest. tenants and landlords. seems to me to be less complicated. To call this a public interest simply because it is a matter of the mobilization of political will is to stretch matters quite a bit. The third case. to confuse publico with polis. I suppose that were a community to choose to both raise the minimum quality of housing and also design a system that made it no more difficult for poor people to secure housing. That is. Short of such a utopia. These are concerns that lawyers might find it worth fighting for. then. The second case. I. the higher will be the rent because both the capital costs and the taxable value will be the higher. I can see the proposition that excluding low-wage employers from the community might be an activity that served a public interest in providing adequate income to all citizens. at least. Even then. such a choice would clearly be in the public interest. the issue becomes clouded. is more difficult analytically. I was once a tenant’s lawyer. and in other cases the other. nongeneralizable interest. I know where my heart is. equally public interest in providing low-cost goods to all citizens. there would be the countervailing. The only possible question of public interest is the minimum quality of the housing available in a community. Were the wage matter reasonably clear. nongeneralizable interest of particular communities with particular objectives at particular times. of course.

most of it on public assistance questions. But to found those legislative preferences on the assumption. Can such organizations. or the Women’s Christian Temperance Union. supporting a vibrant civil society is most probably a matter of the public interest. The same is true of tolerating low-quality housing for the purpose of allowing a landlord to make a few more mortgage payments. of course. The fifth pairing. here again. Indeed. So. the choice between bar association activities and other work of public value. it seems to me that the need to make the government “well endowed” and low-income people “poor” suggests just this conclusion. But again. is not exactly a public interest. a possibility that I have ruled out. just as would be the case with Rotary clubs.284 private lawyers and the public interest should there even be such. One might say the same thing of the federal government. alone or in concert. concern for the circumstances in which low-income people find themselves seems a matter of plain humane concern for others. This is as easy a question as that of landlords and tenants is hard. and state level. have a meretricious effect on civic life? Without question. Yet surely bar associations ought to be considered part of a vibrant civil society. I live in the Buffalo. other than by fiat. As between these two it seems to me impossible to identify a superior interest. But in the general case. the Town of Amherst. Polish veterans’ associations. is well endowed. but suspiciously profligate. but no one asked me. a prerogative of participants in political life. Then comes fourth. Surely here the phrase “well-endowed” is doing a lot of work. Again. as it were. Perhaps my suburban town. but in general. government here is best described as poor. To legislate a preference is.” as against “low income. else there would be no need to pretermit the question by loading the dice. New York area. So. however good it may be for the tenants. though perhaps no more than “poor. I know where my heart is. In a well-run society. YMCAs. which I suspect is usually made. Concern for government is likewise a matter of providing support for political life.” Now. garden clubs. Planned Parenthood. a lawyer’s following his or her heart with free legal services is probably a good thing. but not likely to be a specially lauded thing. Activity by lawyers that supports such entities is of equal value when weighed against any other unnamed work of public value. that participation in political life is self-interested whereas concern for low-income people is not. I must again reiterate that American Bar Association fiat is anything but decisive here. I would like to even things up by simply discussing government generally as against low-income people generally. at the local. the Humane Society. this is not the relevant question. county. I am not particularly enamored of bar associations in any role other than as purveyors of continuing legal education. the League of Women Voters. the needs of the poor as against those of a well-endowed government. not landlord–tenant matters. I worked in Legal Services for five years. is to ignore the tangles of human motivation that novelists have long (and often only . is as difficult a comparison to unravel as bar association activity is easy.

Thus. Religious organizations are a classic part of civil society. It usually descries deviations from the law on the books that are discovered through research into the law in action. 2005) and the other more historical or interpretative (see. 2001). again. The earliest empirical work on the legal profession dates back to efforts by Charles E. leave the onlookers fulminating angrily. This work is the antecedent of scholarship now understood to be in the Law and Society tradition. wreck havoc. everyone knows that. broadly conceived. objecting to my style of slash-and-burn intellectual agriculture—my tendency to appear on the scene as the avenging angel. Heinz et al. generally work in the law-in-the-books and law-in-action mode that is associated with Roscoe Pound (1910). before driving my analysis further. and. Let me start by explaining the intellectual influences that I identified at the outset that have informed these comments. Mather 2003 and Garth & Sterling 1998. valued as such. Being an employee is the pits. Supporting them is in the public interest. In the late 1970s two other strands of work began to appear. One strand is more quantitative (Heinz & Laumann 1982. such is not the question.conflating the good with the public good 285 partially successfully) attempted to unravel. And so we have come to the last example. Both might be seen to have participated in an understanding of professional behavior best captured by Magali Sarfatti Larson’s The Rise of Professionalism: A Sociological Analysis (1977). Much scholarship has followed his quite detailed survey. For overviews of the history of the Law and Society movement see. but taken as the general case. are suffused with the notion 3. like the Poundian-influenced work.g. personal preference as against service to a particular church—an example of self-interestedness. Again. but both. but to benefit the profession. Clark and Emma Corstvet (1938) and Karl Llewellyn (see Twining 1973:349–350) in the 1930s on the legal needs of middle-class persons. if ever there were one. e. a book that argued that norms of professional behavior are largely instituted not to benefit the public. Your good editors. all three bodies of work. This work tends to accept the proposition that norms of professional behavior are instituted to benefit the public. whether reformist in tone or not. my work done. ..3 The first major work on the legal profession by a person plausibly identified as a part of that tradition is Hurst’s The Growth of American Law: The Law-Makers (1950). Mather et al. the public interest is hardly self-evident. shaking heads bewilderedly or laughing uproariously—have asked several pointed questions in the interest of their readers. Schneyer 1989. are anything but pleased with the findings that confirm Larson’s argument. Still. Some random preference of a particular hardworking 30-plus-year-old law firm associate may be crucial the further welfare of civil society. such a preference is anything but likely to be world-shaking. Abel 1989.

both for labeling certain behavior as publicly regarding so as to protect it from criticism as self-regarding. Kennedy 1982. More or less implicit in my interrogation of examples from the standard pro bono discourse presented earlier are three observations. and for labeling behavior as private in order to protect it from governmental regulatory intervention (Horwitz 1982. rule of law. Scholars associated with CLS never turned the movement’s deconstructive critique on the use of the language of publicness in support of otherwise subordinated interests—the implicit message of the pro bono project. then it would be better to use those resources only after recognizing that the notion of the equal playing field is often deployed as a way of legitimating the monopoly on representation that the profession has acquired. The group of scholars associated with Critical Legal Studies (CLS) were also influenced by Larson’s work. and scales of justice demand that unrepresented people have the benefit of counsel. If this is the case. if not outrage. I have passed over arguments in defense of pro bono activity in terms of equalizing the playing field—that notions of fair play. it seems to me best to recognize that an unwillingness to critique vigorously one’s own deeply held beliefs will only make them seriously vulnerable to such critique when offered by others. First. Because I believe that doing so is important for advancing both the project of critique and that of pro bono. However. Their authors may thus not unreasonably be seen as supporters of the pro bono project. it seems to me that there will never be enough lawyers earning the upper-middle class incomes that draw individuals to the profession sufficient to supplement on a pro bono basis the work of legal aid and legal services lawyers so as permit the profession to deliver legal services to all of the disadvantaged. in the first part of this essay I have extended the CLS critique to make that connection explicitly—to interrogate the deployment of pro bono publico on behalf of other than elite interests. if they cannot afford lawyer services. I have no particular objection to our society’s providing free legal services to the relatively disadvantaged.286 private lawyers and the public interest that in a well-run world lawyer behavior would be otherwise. Several of these scholars criticized professional norms for serving the interests of both elites and the profession. Doing so will. pro bono advocates. indeed to all individuals and groups. Klare 1982). the conclusion drawn from this rhetorical criticism was directed toward demonstrating that such manipulation was for the protection of various dominant societal interests. None have yet suggested that it is a bad idea and should be scrapped. Still. and so is in the interest of “lawyers as a social class” (Larson 1977). A nearby body of CLS work spent much time deconstructing the way law deployed the distinction between public and private spheres of action. Again. Simon 1984). not poor people (Kairys 1982. I am sure. Such a recognition might suggest that the idea of an equal playing field could comfortably be jettisoned while questions of legitimation fall humbly by the wayside. . if only zeitgeistlichly. annoy.

Greenhorns are less likely to know how to proceed with a foreclosure action. if not eliminate (Piven & Cloward 1971). Consider the many individuals now facing foreclosure. Another reason for tossing this idea of an equal playing field overboard. and derivative from the nature of bureaucratic law practice. No one wants to be one of the patients on whom a surgeon learns the craft.conflating the good with the public good 287 Second. Counsel who are relatively more experienced in foreclosures face all of these considerations and one more. Surely this is the case in law as well. Consideration might also go to the question of whether a contemplated effort at representation is more likely to be directed at showing a personal commitment to a cause than to any individual defendant. after all. Providing counsel who will find it difficult to alter the normal run of the essentially bureaucratic legal practice that is central to the twenty-first century is wasteful of a scarce resource. And this is not even to mention the obvious conflicts of interest. and obviously an undertaking that will mostly redound to the legitimization of those structures of oppression that the pro bono project’s partisans seem most determined to reduce. It is silly to expect such counsel to risk losing existing clients because of those clients’ dissatisfaction over “their” attorney’s representing mortgagors. the employees and families of creditors’ lawyers need to eat too. for the lawyer and nonlawyer bureaucrats who regularly people the foreclosure system are likely to use the cases presented by new counsel as a means of disciplining the greenhorn into the established ways in which going along allows getting along. Poor but passable counsel is often worse for clients than no counsel at all. that will curtail the possible extent of specialist representation. everyone wants an experienced professional. one might best consider the question of the likelihood that the provision of such services will make an economic or social difference—that the structure of the rules of law and of its practice makes it plausible to believe that the presence of counsel will make a significant difference in outcomes. . before volunteering. whether limited to one or extending to many possible mortgagees. before providing pro bono legal services to any group in society. should existing clients not object. This possibility for pro bono representation was helpfully drawn to my attention by an anonymous outside reader. and so are more likely to offend crucial judicial officers to the detriment of their clients. And so here a discussion of the public interest needs to confront two alternatives.4 The lawyers who could best provide representation in foreclosures are the already experienced counsel who represent mortgagees. is the troubling intersection of the quality of service rendered and the self-interest of those rendering it. On the other side of the aisle sits the audience that 4. Thus. Third. an inexperienced counsel might think more than twice about whether his or her efforts will be of insignificant help to potential clients while providing a thin veneer of due process to the foreclosure system. neither of which is particularly attractive.

Thus. consider again “the good. property—and that. and at the least law’s central concern for money is vaguely relevant to the needs of this portion of the populace. such as might claim the attention of lawyers seeking to act pro bono publico. Conflicts run deep. modestly experienced counsel might reflect on how hard it will be to resist the urge to make only the safest arguments for clients represented or to avoid pushing hard for the best possible negotiated settlement. all-encompassing notion. I also hope to have demonstrated the kind of analysis that is required even to begin to determine a public interest. should there be one. Charles Reich (1964) to the contrary notwithstanding. here self-interest needs to be considered. In American culture. Still. “good” is a warm. By having isolated many possible public interests in these six examples. it is possible to say that ice cream is good.” Both of these terms bring forth deep conflicts of meaning in particular circumstances. We may argue about whether something is good. uncontentious matter. it does not seem that the “new property” has supplanted or even begun to reach parity with the old. why is it that pro bono activities should be directed toward the poor and/or marginalized. For example. Given the law’s concern and the extraordinary cost of attention to persons. and politics that ought to demonstrate that identifying the good is not done easily. morals. but here differences of opinion are tolerated.288 private lawyers and the public interest will watch the actions of relatively more experienced counsel—mortgagees! Steady business is of great attractiveness for any lawyer. religion. There is a long history in ethics. would benefit many clients. All attorneys worthy of the name are experts in rationalization of actions taken and not taken. if brought to light. is quite a different thing. I hope to have identified the kinds of problems that inhere in treating as self-evident propositions about where the public interest may lie. So. there is more work for me to do here. The problem presented by this temptation— that of trimming sails in the hope of a favorable wind—cannot be dealt with simply by invoking notions of professional responsibility. It is significantly more difficult to say that the provision of ice cream is in the public interest. at least for some large portion of the population.” What this concept means is hardly an obvious. I need to dig further into questions of both “good” and “public. And then there is the problem of overlooking patterns of misbehavior by individual mortgagees that. The cost of legal services has been recognized as a barrier for the working and middle classes since Clark and Corstvet and Llewellyn’s work in the mid-1930s (see also Reginald Heber Smith 1919). and thus the possible exercise of the coercive power of the state. but not potential employers. as shown by Cynthia Feathers’ 800 hours of appellate work . Before volunteering. but is especially tempting in the early middle of a career when the drag of working hard day after day just to make ends meet becomes overwhelming. the default beneficiary of the pro bono movement’s protection is not obvious. So. rather than the working and middle classes? Given that most of law is about money—that is. Let me recap the discussion thus far. Implicating the public.

formal or otherwise. After all. most often “private” has the same valence. This ought to be apparent from the common confusion between polis and publico. as I hope I have shown earlier. a proposition that none of the pro bono project’s partisans is likely to assent to. but in prosecution seemingly is not. the attempt to shoehorn the poor into the law’s care—as I quite enjoyed doing in the late sixties and early seventies—might be a less plausible activity than it is a fun one. or its current dysphemism. At the least. as Granfield’s (2007) data seem to indicate. for others.conflating the good with the public good 289 (Feathers in this volume).1 tries to do. If there simply is no stable referent to either “good” or “public. however these might differ from those of the publicus. Etymology suggests that the former has its roots in the Greek word for city (state). or maybe only free male adult people. the valence shifts depending on the subject. even in a representative democracy.” For some people. but rather to emphasize that establishing such an interest is a contentious activity that. Thus. however difficult it is for state actors to recognize the distinction—much less however difficult it is for advocates of popular (or unpopular) interests to recognize that they are not ipso facto identifying the state’s interest. Here. whereas lowering the cost of legal services for homebuyers is not? If nothing else homeowners are an actual majority of the public and so have a good claim that their interest is properly that of the public. Nor can inequality. one might suspect that it would be precisely the reverse. The common usage asserting that the state has been captured by “the special interests” makes this reasonably clear. but only the interest adopted by the state—at least unless one is prepared to accept as irrebuttable the assumption of the equality of representation for all implicit in some notions of democracy and/or the rule of law. then by definition there cannot be a public interest in any circumstance where some members of the public do not recognize it. it is not obvious why. For example. Deep conflicts such as these cannot be made to go away by fiat as the ABA’s rule 6. Next return to “public. Indeed. whereas the latter is from the Latin word for the people. provide an unproblematic baseline for identifying the public interest.” then identifying the public interest becomes extraordinarily difficult. it ought to be obvious that the outcome of the political process doesn’t define the public interest. And conflicts run deep on many questions about the public interest. is not the people. most often “public” means good. oppression. working in criminal defense is seen by some lawyers to be in the public interest. simply can’t be done by labeling. Why is protection of poor renters in the public interest. probably meaning the adult people. it is one on which the profession could be of two minds. after all. I wish to make clear that I should not be taken to assert that there cannot be a public interest. The focus in subsection (a) of the rule on service to “persons of . noted earlier. For many. The state. at least unless one seriously believes that existing elites will joyously jump into the tumbrels. criminal law is allegedly designed to express the values of the polis. if “public” is to be taken seriously as publico.

legislation only marks the relative strength of opinion among representatives at some remove from. And no employee of a lawyer would want it seen otherwise. So. if any. barriers to the pro bono project. After all. given the history of claims about the decline of professionalism at the bar in nineteenth. the claim of professional obligation is a quite obvious legal formalism. Though my preference is simply to expunge “public” and “private” from our vocabulary and instead recognize that there are only diverse interests seeking formal attention from various socially (which is also to say legally) organized entities. none of my cautions should be taken to be. one might be careful before invoking professional obligation at all (Kronman 1993). and with significantly different interests than. of course. Indeed. these disputes are about just what such professional responsibility. it is the failure of the pro bono project’s partisans to mount a sustained argument in defense of their particular understanding of the public good that I am trying to call attention to above. And in any case. I believe. of fully defended taste. suspect as such by anyone with a legal education. lawyers are long practiced in the art of undermining legislative fiat—and why not. These panegyrics to the professional responsibility that are an integral part of a life in the law usually were accompanied by the excoriation of these shabby interlopers for conceiving of law as little but a trade (Carlin 1966). and so have based my critique above on the proposition. I do recognize that most people wish to load the question of valorization of interests with their strategically favorite term. why should anyone care? Just this. they may be pigheaded or even ideologically blinded.290 private lawyers and the public interest limited means” or organizations that help such persons is by its terms undercut by the provision of subsection (b) approving of other services. As a species. but could be compromised. If so. Most calls for increased professionalism have been none-too subtle-complaints about new members of the trade who were déclassé. at least until wages were safely secured. lawyers are not particularly dumb. Still. ethnically or socially or religiously (Auerbach 1976).and early twentieth–century America. Resolution of the underlying disputes over the good and the public interest is not likely to be aided by the invocation of an abstracted professional responsibility or by mandatory pro bono requirements in law school. when looked at critically. while the qualifying phrase “a substantial majority“ in subsection (a) is the tombstone marking a dispute that could not be resolved. After all. knowing full well that it would be impossible to obtain universal agreement and yet proceeding with the argument anyway. Thus. establishing the public interest is a matter of suggesting relevant criteria and arguing about their application. requires. though. that the public interest is an answer and not a question. The losers in such battles have no particular reason not to try to fight another day in another forum or simply to ignore or undermine the legislative action. or are intended as. those represented. the conclusion reached at the end of a activity of judgment. Now. . So.

Richard L. New York: Penguin Press. Jerome E.” 47 Yale Law Journal 1272–1293. references Abel. Auerbach. This is the story of the Little Engine That Could. New York: Russell Sage Foundation. becoming significantly more reflexively self-critical might help one understand why the pro bono project has proven to be so difficult to execute. Cameron. Quoted by Rhodes in this volume. Stanford Law School. If so. any more than they might not be persuaded by bits of legal formalism designed to settle important substantive disagreements. New York: Oxford University Press.” presented at Private Lawyers and the Public Interest: The Evolving Role of Pro Bono in the Legal Profession. Feathers. Survey. Jerold S. and Rhode and those underlying the research of Boutcher. (1976) Unequal Justice: Lawyers and Social Change in Modern America. New York: Oxford University Press.A. I do think that my cautions suggest a possible explanation for the story implicit in many of the chapters in this volume. It also might suggest that the old country advice “Work for the best. hope for the better. And so they try harder each time. So. and Schmedemann. the strategy of trying harder is not likely to be effective. If I am right. . the attempt to gain an even partial understanding (probably all humans can ever do) is the point of writing an essay. Garth. Fishman. as I tried to make clear at the outset. Scott and Ann Southworth (2008) “Pro Bono and Cause Lawyering: Exploring the Realities of Pro Bono Practice for Social Change.L. New York: Doubleday Business. and Emma Corstvet (1938) “The Lawyer and the Public: An A. lawyers might not be persuaded by that argument. Bianco. April 24–26. I believe that now over 75 years of research into the law in action demonstrates that law follows culture. then something quite similar is likely to be the case with that part of culture that is lawyers’ understanding of the good or the public interest. Bryant and Joyce Sterling (1998) “From Legal Realism to Law and Society: Reshaping Law for the Last Stages of the Social Activist State. Thus. November 16. Susan (2007) unpublished paper. In any case.S. And. for example those of Adcock. their failure to jump on the pro bono bandwagon might be somewhat more understandable. Carlin. University at Buffalo. Charles E. Pro bono partisans keep pressing forward. (1989) American Lawyers. culture modifies law. but never quite reach the lawyer behavior that they wish to see. Charles (2006) The Wal-Mart Effect: How the World’s Most Powerful Company Really Works—And How It Is Transforming the American Economy. (1966) Lawyer’s Ethics: A Survey of the New York City Bar. Clark.conflating the good with the public good 291 Smelling a problem within an argument that assumes it to be obvious where the public interest may lie. Anthony (2007) Wal-Mart: The Bully of Bentonville: How the High Cost of Everyday Low Prices is Hurting America. Cummings.” 32 Law and Society Review 409–471. Granfield. be happy with the good” could be a plausible attitude with which to approach this worthy project. and if not.

Washington. Lalor. Cairo: National Bank of Egypt. New York: Oxford University Press. Schneyer. Maiman (2001) Divorce Lawyers at Work: Varieties of Professionlism in Practice. ——(1921) “The Theory of Social Interests. trans.292 private lawyers and the public interest Granfield. Lynn (2003) “Reflections on the Reach of Law (and Society) Post 9/11: An American Superhero?. (1999) The Rule of Law: A Lexicon for Policy Makers. New York: Pantheon Books. Anthony T. Isaac Huseck. and Richard J. DC: Mansfield Center for Pacific Affairs.” 44 American Law Review 12–36. Boston: Little. Lynn M. Karl (1992) “The Public–Private Distinction in Law. Morton J. John P. Pound. Theodore (1989) “Professionalism as Bar Politics: The Making of the Model Rules of Professional Conduct. John J. Charles (1964) “The New Property. (1982) The Politics of Law: A Progressive Critique. Rudolph von (1913) Law as a Means to an End. New York: Pantheon. Rhode.” 37 Law and Society Review 263–282. and Edward O. Mather. (1977) The Rise of Professionalism: A Sociological Analysis.” 36 Stanford Law Review 469–508. Reich. (1982) “Visions of Practice in Legal Thought. David. CA: University of California Press. 489–516. (1993) The Lost Lawyer: Failing Ideals of the Legal Profession. Kennedy.” 15 Papers and Proceedings of the American Sociological Society 16–45. MA: Belknap Press of Harvard University. Fredrick von (1955) The Political Ideal of the Rule of Law. ——(1915) The Struggle for Law. Kairys. James Willard (1950) The Growth of American Law: The Law-Makers. Horwitz. Craig A. Hager. Cloward (1971) Regulating the Poor: The Functions of Public Welfare. Cambridge. Laumann (1982) Chicago Lawyers: The Social Structure of the Bar. Chicago: Callaghan & Company.” 130 University of Pennsylvania Law Review 1423–1428. McEwan. Klare. (2005) Urban Lawyers: The New Social Structure of the Bar. Deborah (2005) Pro Bono in Principle and in Practice: Public Service and the Professions. Heinz. S. . Frances Fox and Richard A. Barry M. Hurst. Larson.” 73 Yale Law Journal 773–787. New York: Russell Sage Foundation. Jhering. Boston: Boston Book Company. trans. Chicago: University of Chicago Press. (1982) “The History of the Public Private Distinction. William L.” 130 University of Pennsylvania Law Review 1358–1422. ed. Mather. John P et al. Brown.” 54 Buffalo Law Review 1355–1412. Kronman. Stanford.. M. Heinz. 25: 140–68. Robert (2007) “Institutionalizing Public Service in Law School: Results on the Impact of Mandatory Pro Bono Programs.” Harvard Law Review 24: 591–619. ——(1911–1912) “The Scope and Purpose of Sociological Jurisprudence. Berkeley. Hayek. Roscoe (1910) “The Law on the Books and the Law in Action. Piven.” 14 Law and Social Inquiry 677–737. Duncan (1982) “The Stages of the Decline of the Public/Private Distinction.” 130 University of Pennsylvania Law Review 1347–1357. Simon. CA: Stanford University Press.

conflating the good with the public good 293 Smith. Vedder. Twining. Norman. and the Economy. Workers. cases cited Kelo v. . with Particular Reference to Legal Aid Work in the United States. William (1973) Karl Llewellyn and the Realist Movement. Richard and Wendell Cos (2007) The Wal-Mart Revolution: How Big-Box Stores Benefit Consumers. City of New London. Reginald Heber (1919) Justice and the Poor: A Study of the Present Denial of Justice to the Poor and of the Agencies Making More Equal Their Position before the Law. OK: University of Oklahoma Press. New York: Scribner’s Sons. 469 (2005).S. 545 U. DC: AEI Press. Washington.

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unemployment compensation. The British welfare state marginalized charity. In the United States two decades later. judges could assign “dock briefs. compounded by a taxpayer revolt. These generalizations apply equally to legal services. the boast expressed a tectonic shift in attitudes toward the state. assuming the obligation to end poverty or at least ameliorate its most conspicuous hardships. Ethno-religious immigrant organizations and good government progressives created municipal legal aid schemes in the larger cities. especially in cities with large Catholic populations) (Katz 1982. Medicare and Medicaid severely undermined doctors’ feeling of responsibility to treat patients unable to pay. and self-help as legal services delivery mechanisms richard l . poor houses. but these often denied representation in bankruptcy (under pressure from chambers of commerce advocating on behalf of creditors) and divorce (in response to churches. charity hospitals. In England.15. possibly comparable to earlier “great transformations.” requiring any barrister who happened to be in . transportation. philanthropy. driven in part by the fiscal crisis of the state. Governments that had begun to offer free primary and secondary education in the nineteenth century extended this to the university and added food. housing. But his program differed little from Tony Blair’s “New” Labor or its contemporary socialist and social democratic counterparts throughout continental Europe. The only thing unusual about Clinton’s proposal was that he was a Democrat rather than a Republican. enormously increasing the variety and quality of what can be enjoyed. market. Almost simultaneously. The hegemony of the state—which seemed inevitable after World War II—may turn out to be little more than a brief interlude between the dominance of market and philanthropy before World War II and again today. health care. Prior to the twentieth century. In societies with little or no division of labor. child care. and pensions. Charity supplemented this in a highly piecemeal fashion. Before the mid–twentieth century. this provoked a conservative backlash. Whether or not he succeeded. state. culture and recreation. people produce most of the goods and services they consume (and barter for the rest). foundling homes. communication. abel Bill Clinton is famous (or notorious) for promising to end welfare as we know it. the primary method for redistributing goods and services to those who could not buy them was philanthropy: soup kitchens. Abel 1985). The Great Depression and World War II changed all that. however. The market transforms this arrangement. the market delivered legal services to businesses and middle-class and wealthy individuals.” to use Polanyi’s phrase (1944).

and Australia. the Poor Persons Procedure provided solicitors in civil cases. Reagan managed to cap the federal budget. In the past. if not as rapidly. In 1965. the recipients are social change organizations or the clients of cause lawyers. This trend has been far less pronounced in the civil law world—perhaps because of the different roles of lawyers in adversarial and inquisitorial systems. citizens’ divergent attitudes toward the state. the providers typically are the largest commercial firms. which threatened the morale of troops in World War II and rapidly increased after the war. Furthermore. Connecticut) and to representation when charged with felonies (Gideon v. the focus of this volume. The convergence of all these developments produced an astronomical growth of legal aid. and the disparity may well grow. however. Lawyers have always rendered some services for little or no fee. Large firms in other common law countries—notably England.S. the quantity of pro bono services (measured by lawyer hours) now exceeds that delivered by the Legal Services Corporation (Sandefur in this volume). Categorical exclusions by the Legal Services Corporation—precisely the kind of politicization of law for which the “free world” used to condemn communist countries—have left an increasing proportion of needy clients without representation (Brennan Center 2000). Canada. especially the church. Hamlin). Now. Canada. and the motives are a combination of political commitment. and efforts to recruit recent law graduates (Cummings 2004). the providers typically were solo and small-firm practitioners. Lochner 1975). There have been similar reductions in legal aid budgets in many other countries. and Australia—have also expanded their pro bono activities. The legal profession resisted both market forces (competition from outsiders and among insiders) and state intervention (salaried legal aid in the United Kingdom. it had reached $300 million. state payments to private practitioners in the United States). however. The U. and the greater role of other civil society institutions. by contrast. Civil legal aid expanded in mid-century partly in response to divorce. the Netherlands. total national expenditure on civil legal aid in the United States was $5 million. Lyndon Johnson’s War on Poverty included federal funding for legal services almost as an afterthought. which has remained at approximately the same level for nearly 30 years: a two-thirds cut in real dollars.296 private lawyers and the public interest court to defend an indigent accused. . and the motive was the expectation of future paying work (Levin in this volume. But Reagan’s antipathy toward legal aid (which had sued him repeatedly during his tenure as governor of California) led him to seek to eliminate federal funding (Adcock in this volume). including those with the strongest programs: England. the recipients were acquaintances of influential referral sources (or deadbeats). When this failed. status competition. Supreme Court recognized a constitutional right of poor people to the waiver of filing fees in divorce cases (Boddie v. is the concomitant rise of pro bono legal services. The most stunning contemporary development. just 15 years later. Wainwright) and then most misdemeanors (Argersinger v. the Scandinavian countries. At the end of the Carter administration.

Supply and demand are most closely correlated in societies with little division of labor. The quality of state services (e. private schools) varies enormously. public schools) tends to be relatively uniform (if often low). A political poster first published in the 1970s showed children climbing on a schoolyard jungle gym. World War II was fought through universal (male) military service. by contrast. however. and self-help as legal services delivery mechanisms 297 This essay seeks to do three things: (1) contrast four mechanisms (state. and outnumbered in Iraq by private contractors (Miller 2007). the configuration can change very rapidly.. age-mates). New York City schools. But despite its seeming inevitability.g. the market. others vividly confirm that “a little learning is a dangerous thing. Advocates of gun ownership argue that it democratizes self-defense (but only for those willing and able to buy and use guns). raising $15. Police purport “to serve and to protect” all (as the motto on their patrol cars proclaims in many American cities). The four mechanisms differ significantly across many variables. a disproportionate number of which come from poorer communities. individuals relied on their own arms or those of the groups to which they belonged (kinsfolk.g. Consider the classic sociological distinction between universalism and particularism. Private security forces serve the privileged few. Priest).g. only some mechanisms are even imaginable (vividly illustrating Gramsci’s concept of hegemony). Private security guards exceed public police in the United States. people produce only what they need (but have few reserves in times of scarcity). (2) speculate about reasons for the shifts over time among these delivery systems. Some autodidacts shame experts. not only responds to demand by increasing supply but often must create demand for its services and products (e. . turned to parent auctions. criminalizing such behavior as vigilantism.1 offers an overview of the four mechanisms. the juxtaposition of which suggests a number of insights. and self-help) for delivering a wide variety of services (including legal services). They must respond to every call. philanthropy. market. Just a half-century later.. a gifted program on the Upper West Side took in $245.” Public services and charity are almost always overwhelmed by demand. sometimes this is constitutionally mandated (Serrano v. The quality of educational services delivered by the market (e. designer water. The state claimed a monopoly of force. co-residents.000 (Medina 2008). the United States military is all-volunteer. and (3) offer some preliminary hunches and hypotheses about the relative strengths and weakness of the different legal services delivery systems. personal trainers. faced with a budget cut of $180 million. the latest cell phone). and there is growing enthusiasm for self-help (both individual gun ownership and collective action by militias).000 (depending on school size). Consider personal security. Before the emergence of the state. male and female. where self-help is the norm..” That inversion of priorities seems just as inconceivable today.000 to $150. At any given historical moment. philanthropy. Table 15. Hummers.state. with the caption: “It will be a great day when our schools get all the money they need and the Air Force has to hold a bake sale to buy a bomber. market. cosmetic surgery.

g. informal websites. legal websites. militias Volunteers (sheriff’s deputies. private Free education. Home schooling. autodidacts loans. paralegals . Nuclear family nonproductive extended-stay hospitals and care (both by undocumented neighbors (children. Head Start Private schools. libraries based scholarships Health care Public hospitals. vouchers. needprogram. vigilantism. single-disease alternative medicine). foundations. gangs. Judicare. court-appointed Private lawyers charging by the hour Public interest law firms. tutors. books and ombudsmen. nursing homes. health care. veterans’ benefits. panhandling. book publishers literacy programs.table 15. military health care of diagnostics. prison fringe benefit.1 comparison of delivery mechanisms Good or service National security Policing State Armed forces (conscription) Police Market Volunteer armies. litigation pro bono legal software. shelters. legal forms. appended to workplace disabled) programs Income Negative income tax. regulatory agencies. Self-doctoring (including Medicaid. elderly. direct advertising free clinics. ERs. clans. elective surgery. or task. Employment. welfare. home day Extended family. gun ownership. security devices (window bars. mercenaries Private security. after-school workers). government loans. diet. Charity. house and car alarms) Education Public schools. legal insurance. contingent-fees. school nurses. e. Savings maintenance social security. activist judges lenders. YMCA. exercise prescription medicine sector care (family) Care for the Nurseries. unemployment savings family compensation Law Legal aid. Home health care. unbundling clinics. gated communities Philanthropy Aristocratic armies. locks. lawyers. Pro se litigants. rehab.. NYC-Guardian Angels) Self-help Self-defense Self-defense. Medicare/ Health insurance as employment Charitable hospitals. investment.

or self-help (because of profit and market imperfections. and the market confers choice in proportion to disposable income (and knowledge). earmarks). free lunches at schools). Collective bonds among philanthropic providers tend to be most intense (out of a sense of mission and self-sacrifice). The market’s invisible hand purports to be self-regulating.” The range of earnings in both the state and philanthropic sectors is tightly compressed. and self-help does so by means of ability and initiative. and self-help as legal services delivery mechanisms 299 As Veblen (1925) argued. where CEO-to-worker pay ratios now exceed 400:1. through pork.” as they have in the National Rifle Association). not choice—scavenging food in refuse containers. whereas state and philanthropy do so by creating queues (and defining “desert”). or housing and medical care in other countries. sleeping in doorways). while elevating the donor’s moral standing above that of the recipient. The state offers consumers the greatest security. including monopoly rents). the services it delivers often cost more than those provided by the state. and self-help. those working for philanthropies typically do worse on both dimensions but may derive what Jerry Brown called “psychic rewards. but its failures have once again been exposed by the subprime-induced financial crisis. Ever fewer people can afford to buy medical care or legal services. The market rations by means of price. self-help offers the most. while letting the rest go without. Although the market boasts of its efficiency. Philanthropy consigns recipients to the whims (and resources) of benefactors. which deprives some recipients through bias or lack of clout and over-rewards others (e. the market. Self-helpers are extreme individualists (though they may unite in defense of “autonomy. Self-help offers the greatest security when it is the norm (in subsistence economies) but the least when it is the exception (those relegated to selfsufficiency by necessity.g. Philanthropy and self-help are effectively unregulated. The earnings of providers vary most in the market. philanthropy. The current recession is wreaking havoc on foundations and their recipients. State and philanthropy offer recipients the least choice. at least where the good or service is a right: legal representation for those accused of crimes. they decrease in strength among state employees (who may become apathetic time-servers) and even further among alienated market employees (who compete for raises and bonuses or just to keep their jobs).. State employees enjoy job security and fringe benefits but earn relatively little. The market offers security to those who can afford its commodities. Self-help purports to be egalitarian. Decisions about what services to deliver to whom are most centralized when the state provides them and are progressively decentralized by philanthropy. market. . Rapidly growing income inequality profoundly distorts market delivery of goods and services.state. compared to the range in the market. State activities are regulated by (often inefficient) bureaucracies and are ultimately responsive to politics. increasing pressure on the other three alternatives. Charitable and (to a lesser extent) state services can stigmatize recipients (food stamps at supermarket check-out counters. market consumption typically elevates the consumer’s status (especially above that of the producer). philanthropy.

For both the state and the market. the emotional investment may be all the greater (Booth 1999). and self-help. Armies and police replaced self-defense. If the work is paid poorly or not at all. allowing consumption to grow in quantity. Philanthropy often delivers services through amateur or inexperienced providers (sometimes more caring but often less expert). other than personal satisfaction.300 private lawyers and the public interest Both state and market purport to guarantee quality: the state through regulation. and now state contraction in favor of the market. aristocratic. Philanthropic work often is episodic—a prelude before beginning a career or a coda after completing it (although Weber argued that honoratiores should behave altruistically throughout their lives (1978)). engagement may be lower. each good and service will have a distinctive configuration of delivery mechanisms. religious. Adam Smith explained—and applauded—the first transition. work typically constitutes a career—a lifetime commitment with different combinations of security and increasing material and psychic rewards. self-production of each good and service identified in the table declined dramatically (while never disappearing). for that reason. philanthropy. Medicare and Medicaid did the same for elderly and indigent Americans. Fire departments replaced insurance companies. we can identify a common sequence through three phases: a transition from selfhelp to the market (supplemented by philanthropy). Work for oneself is a calling whose rewards are wholly intrinsic. university-trained physicians replaced self-doctoring by means of home remedies. and variety. Through this transition. residence. and temporarily unemployed. At any given historical moment. quality. and interstate highways. Transportation was subsidized: urban mass transit. Charity—by the wealthy. For youths. internships exemplify what Erik Erikson (1959) identified as a psychologically valuable moratorium between demanding stints of higher education and work—a time to experiment with activities. disabled. For the elderly. schools replaced families as cultural transmitters. Cities established hospitals. The state maintained the incomes of the poor. or civic-minded—responded to the frequent instances of market failure. the market by means of competition. intercity rail. and institutions replaced families in caring for and supporting dependents. Specialized production increases efficiency. All of this was much . Despite sectoral differences in the proportions of services delivered by each mechanism and the pace at which this changes. The English National Health Service offered free health care to all. volunteering may ease the transition from full-time work to retirement while augmenting the network of kin and acquaintances created over a lifetime. from self-help to the market. and acquaintances. then state displacement of both market and philanthropy. Free public education was extended upward to the university (anticipated by the GI Bill of Rights) and downward to preschool (Head Start). There are no standards for self-help. During the second great transition—beginning in the late nineteenth century and accelerating greatly after World War II—the state displaced both the market (socialist production) and philanthropy (social democratic redistribution). elderly.

garbage collection.. As legal professions secured a monopoly over representation in court and over certain lucrative transactions (such as conveying real property or distributing decedents’ estates). Municipal mass transit (bus and rail) is supplemented by or sold to private enterprise and shunned by car drivers: less than 1 percent of the population uses mass transit to get to work (Thrun & Levandowski 2009). Private police have long outnumbered public police in the United States.state. which few national leaders other than Hugo Chávez and Evo Morales still see as a model. and water have been privatized. they sold their services in a protected market. food provision. voiced in the 1970s by Ivan Illich (1977) and reinforced by environmentalist pressures for selfsufficiency (e. and self-help as legal services delivery mechanisms 301 more pronounced in Europe than in the United States. severely eroding the willingness of taxpayers to finance them. fed by staggering concentrations of wealth and encouraged by generous American tax laws. they are increasingly dependent on private contractors. military forces in Iraq. public hospitals) while expanding others (prisons) often by relying on private entrepreneurs. and conservative politicians want medical savings accounts to replace public insurance. assisted and encouraged by government vouchers as well as the deteriorating quality of public schools (completing a vicious circle).g. The state has contracted out many other services: custodialwork. “actually existing socialism” survives only in North Korea and Cuba. Faith in the state’s capacity to deliver goods and services has been deliberately undermined. electricity. Transitions among the four mechanisms delivering legal services exhibit similar patterns. which mythologized frontier self-sufficiency and strongly distrusted the state. who are more numerous than U. Previously public utilities such as gas. the elderly are more reliant on private pensions and savings. And reaction against the dependence inherent in the division of labor has been growing for decades. Although no one proposes to eliminate national armed forces. philanthropy. A growing proportion of the population supplements public health care with private insurance. We are now experiencing a third transition. mental hospitals. in food and energy production and transportation). As social security fails to keep pace with inflation. Private enterprise pays for street maintenance through Business Improvement Districts. and alumni donations. Underfunded public schools depend on money and labor contributed by parents. Free market ideology is hegemonic. only some of whom have the necessary time and cultural capital.S. More parents are turning to private schools. Philanthropy—often faith-based in the United States—is thriving. The state has closed many custodial institutions (orphanages. After the fall of the Berlin Wall. rapidly rising tuition for teaching. market. In societies with relatively undifferentiated legal systems— Africa offered many examples until recently—people negotiated and litigated for themselves (supported by kin and other collectivities) (Abel 1969). extracting rents that created both a sense of obligation to represent some indigent clients and the . Public universities are increasingly dependent on external funding for research.

political orientations. Self-help is the obverse: laypersons are intensely familiar with their own problems and the institutions they confront but ignorant of the law. Pro se litigants tend to be fiercely individualistic (to the dismay of judges) but find it virtually impossible to organize politically. Large-firm pro bono programs are influenced by financial concerns (and hence may contract during recessions). The state assumed some of this burden after World War II (although it never displaced the market for legal services to the extent that it did for health care and education). and finally to self-help. Now that state legal aid budgets have been declining in real dollar terms for decades. The state is the least independent legal services provider. turnover—spawned by low pay and status. like the Open Society Institute and Ford. 1. we urgently need to compare the strengths and weaknesses of the four delivery mechanisms. Pitkin?”) Big firms hire graduates with the best academic credentials. Ever since Nixon signed the Legal Services Corporation Act in 1973. abortion. Charitable donations are constrained by federal tax laws (which limit lobbying) and the priorities of foundation trustees (who tend to privilege innovation and avoid long-term commitments). solo and small-firm practitioners serving small businesses and nonwealthy individuals).g. whereas a distressingly large proportion of solo and smallfirm practitioners are incompetent (Abel 2008). Centralization decreases from state-controlled legal aid (where Congress intrusively limits LSC spending). and selfhelp mechanisms have been expanding. The quality of legal aid lawyers varies more narrowly around the middle. often. with the relevant law and legal institutions). as well as by conflicts .g. philanthropic. Large-firm pro bono lawyers have high generalized legal expertise but little familiarity with the clients’ particular problems (or. the pet causes of law firm partners. challenges to welfare reform).g. Although they specialize in the distinctive problems of their poor clients. or consumer class actions) or causes (e. Centralization allows the state to target resources (e. who also oppose budget cuts and categorical exclusions (Abel 2003). to the poor through means tests) but also lets it deny services to politically unpopular or powerless clients (e. and tentative set of hypotheses. 2. Expertise is most variable when delivered by the market: you get what you pay for. 3. incomplete. Congress has imposed increasing restrictions on federally funded legal aid (Brennan Center 2000). Mr. and the career anxieties of associates (who invest most of the time). The following is an unsystematic. the undocumented.. and pro bono by relatively few large firms). frustration with routine work and limited prospects for career advancement— deprives legal aid of accumulated expertise. Political independence. keeping only the few who perform exceptionally well. to the market (megafirms and boutiques serving large businesses and wealthy individuals.. Judicare makes it harder for the state to control the large number of private lawyers it reimburses.. through philanthropy (dominated by a few large foundations.302 private lawyers and the public interest financial ability to do so. while market. (A famous New Yorker cartoon showed a lawyer behind his desk asking a client: “How much justice can you afford.

Pro se litigants may have fools for their clients. Accident victims may negotiate their tort claims alone. often having little direct contact with those clients. Because large firms . market. but the relationship is intimate. discrimination. Solo practitioners and small firms tend to do the same kinds of work for paying and pro bono clients (some of the latter being just routine clients who fail to pay).. The satisfaction of those who stay tends to rise over time. education. 6. immigration. and see Cummings & Southworth in this volume). Solo and smallfirm lawyers develop routines that reduce effort but increase boredom. often impersonal relationships with a mass of poor walk-in clients (frequently referred by equally anonymous former clients). The neediest are often the least capable. Clientele: identity. Motivation and career incentives. 4. welfare benefits. Pro bono lawyers tend to be very enthusiastic (since rewards are intrinsic). earn increased material rewards. The client relationship ends with the case and rarely leads to another. parents of special-needs children. but litigation is too daunting. producing each firm’s mix of substantive areas and the kinds of personal injury clients contingent-fee lawyers accept. Substantive areas. Self-help and legal aid deal exclusively with personal plight matters: crime.g. debt. By contrast. Legal aid lawyers have transitory. philanthropy. seek to mobilize or offer their services to others. Large-firm partners (though not associates) have ongoing. but many burn out from the repetition and lack of a career structure (other than becoming an administrator)— and some leave for the money and prestige of the private sector. The market responds to the profit motive. These benefits (and demands) make pro bono less attractive. housing. Individuals engaging in self-help are most autonomous. bankruptcy. and deepen relationships with clients. Referrals usually come from within their own networks: old school ties and club memberships. and unmediated by a referral source. Legal aid lawyers often begin their jobs with a strong ideological commitment. and may impede. A few committed lawyers leave their large firms to pursue public interest work full-time. these lawyers generally lack the financial security to invest much time in nonpaying work. source. divorce. Self-help tends to be a one-shot effort. permanent. Although this may endow pro bono with the attraction of variety. large firms rely on public interest lawyers to refer pro bono cases. often intimate. former associates who became house counsel. and satisfied clients. 5. as lawyers acquire greater responsibility. and wages. but fee-generating work may take priority because pro bono activities typically distract from. employment. career advancement.state. e. relationships with their wealthy individual and corporate clients. and self-help as legal services delivery mechanisms 303 of interest with fee-paying work (both actual and positional) (Shapiro 2002. with no accumulation of experience (although some pro se litigants with chronic problems. Pro se litigants are most strongly motivated by self-interest (often desperation) but can easily be discouraged by the difficulty and unfamiliarity of the task. while recidivist criminals and prisoners serving long sentences may gain lots of experience as jailhouse lawyers). Hence their pro bono activities often are financially motivated. relationship.

their pro bono work usually is unrelated to their private practice.304 private lawyers and the public interest deal exclusively with commercial matters. whereas most English lawyers (rightly) hoped state legal aid payments would expand their market. and often racial minorities. Constituencies. most legal professions prohibited advertising and price-cutting (if they did not manage to suppress all intraprofessional competition). But such blatant self-interest increasingly embarrasses the upper echelons of the profession. For the latter. 2000). tends to be proactive and largely transactional. negotiation. Until the 1970s.” Only the state can mount a national program targeting the neediest and endow them with a right to representation. pro bono work tends to focus on large-scale litigation. There is some evidence that minorities also do more pro bono work (Dinovitzer & Garth in this volume. especially appellate test cases. Supreme Court’s ideal of “equal justice under law. Because none of the four delivery mechanisms alone can begin to satisfy the unmet need for legal services. the apex. 8. Because of the complexity of litigation (outside the small claims court). . drafting. The base of the private practice hierarchy resembles legal aid. Lempert et al. we need to identify theoretically and test empirically the distinctive strengths and weaknesses of each in order to determine the optimal mix. Legal aid focuses almost exclusively on reactive litigation. so the other three mechanisms can only supplement legal aid. Today. and administrative agencies. The (often successful) efforts by legal services lawyers in the 1960s and 1970s to engage in law reform (and to a lesser extent organizing) produced a political backlash.) Just as private arbitration only supplements public courts. Most American lawyers (wrongly) feared losing work to salaried legal aid lawyers (and barred them from handling personal injury cases for that reason). whereas prisoners filing collateral attacks or challenging conditions of confinement are poorly educated men. The state must take primary responsibility. The legal profession traditionally was united in opposing self-help. notoriously declared that pro bono and law student volunteers could adequately replace legal aid. Women and minorities are overrepresented in legal aid. Edwin Meese. We can no more rely on bake sales to ensure justice than to guarantee security. (Reagan’s first Attorney General. Only the state can provide services that are sufficiently reliable (regardless of business cycles) and equal (undistorted by private biases) to enable the legal system to aspire to the U. which quickly becomes routine (Katz 1982). Strategies. Large-firm partners are disproportionately white men. Demographics. however. I would hypothesize that pro se civil litigants are relatively well educated. 7. self-help is reactive and largely limited to uncontested matters. which resulted in numerous restrictions on what LSC-funded offices can do.S. 9. bar associations lobbied for expansive definitions of the lawyers’ monopoly and vigorously prosecuted “unauthorized practice of law” (Rhode 1981). the professional legal elite strongly advocates both legal aid and pro bono (as forms of legitimation).

critics stoked public resentment of “supplier-induced demand” and bloated payments to “fat cat” Queen’s Counsel. garage bands. education. and culture (e. food. philanthropy. pottery). We accept.. its recipients lack political clout (compare voter support for legal aid with that for universal programs such as American Social Security or the English National Health Service). housing. or divorces funded by selling the marital residence). Compared with illness or natural disasters. transportation. And the profit motive can create perverse incentives: to inflate damages (by ordering unnecessary medical procedures for personal injury victims) or do too much work (running up the meter or padding hours) or too little (settling low to maximize the hourly payoff of a contingent fee). Professions emerge by distorting markets. indeed encourage. Reducing these imperfections could greatly improve access to justice (although all labor markets are sticky. which may be transferable to other activities and emulated by other people. and prisons.state. But though the organized English profession often forestalled budget cuts. avoidable outcomes of misconduct or improvidence. Because legal aid (for these reasons) always is even less adequately funded than other starved state services. law also seems more political than medicine or schooling—especially to the politicians whose decisions legal aid lawyers challenge. We should drastically contract or even eliminate the monopolies lawyers enjoy (although we would then need to regulate the quality of the lay substitutes). home improvement. low levels of pay and reimbursement produce representation whose quality is often deficient (although some lawyers practice at the very highest levels). education.g. Because legal aid is means-tested. Decades of “tort reform” propaganda have successfully stigmatized tort victims and their lawyers. In England. Self-help increases the producer’s overall sense of competence. The pervasiveness of lawyer jokes both evidences and reproduces the unpopularity of their butts (Galanter 2005. Self-help constitutes the largest untapped reservoir of legal services. market. Markets also motivate producers to educate consumers about their needs and seek third-party funding (state or private insurance) for those unable to pay. Because principal and agent are . Abel 2007). gardening. which reimburses private practitioners for representing poorer clients. especially those where training is long and costly). law seems less essential than the other services the state funds (however inadequately): health care. police. Markets have the greatest capacity to respond to fluctuating consumer demand. because it is produced by sweat equity with little or no opportunity costs. auto maintenance. limiting the number and identity of suppliers and restricting intraprofessional competition. As a remedy. and self-help as legal services delivery mechanisms 305 But where will we find the political will to pay for these services? To the electorate. distribution of estates. do-it-yourself health care. But markets work only for consumers with disposable income or cases that generate a corpus lawyers can share (as in contingent fees for personal injury claims. the Law Society and the Bar Council became surrogate pressure groups for legal aid. many legal problems appear voluntary: the moral hazards of the undeserving poor.

. Erikson. 57 Journal of Legal Education 130–142. New York: Oxford University Press. Only private lawyers could have mounted the necessary multi-year challenge to the Bush administration’s open-ended detention of hundreds in Guantanamo Bay. Brennan Center (2000) Restricting Legal Services: How Congress Left the Poor with Only Half a Lawyer.306 private lawyers and the public interest identical. when Charles “Cully” Simpson. Oxford: Oxford University Press. references Abel. But because of the episodic nature of pro bono services. Erik (1959) Identity and the Life Cycle. and a career commitment to the public interest must intermediate between clients and pro bono lawyers and orchestrate and oversee their work. Better understanding of the strengths and weaknesses of these four delivery systems would let them complement each other. Wayne (1999) For the Love of It: Amateuring and its Rivals. and efforts to increase self-help carry substantial risks because of the complete lack of quality control. attacked pro bono lawyers for doing this and urged their corporate clients to fire the firms subsidizing it. Indeed. Scott (2004) “The Politics of Pro Bono. But despite Americans’ attachment to the frontier myth of self-sufficiency. New York: International Universities Press. which would not otherwise be available to poor or unpopular clients. ——(1985) “Law without Politics: Legal Aid under Advanced Capitalism.” 17 American Journal of Comparative Law 573–626. the enormous advantages (and hence growth) of the division of labor severely limit the legal services individuals can perform for themselves. there are no agency problems. Chicago: University of Chicago Press. and the tension between philanthropy and the firm’s bottom line. Philanthropy taps the talents (and resources) of lawyers and firms.” 52 UCLA Law Review 1–149. Booth. Richard (1969) “Customary Laws of Wrongs in Kenya: An Essay in Research Method.” 32 UCLA Law Review 474–642. advancing our painfully slow progress toward equal justice under law. Assistant Secretary of Defense for Detainee Affairs. fulltime cause lawyers with stable funding. the mismatch between legal needs and expertise. ——(2008) Lawyers in the Dock: Learning from Attorney Disciplinary Proceedings. ongoing relations with clients. he so clearly transgressed professional norms that he quickly was forced to resign. Cummings. ——(2007) review of Galanter (2005). Philanthropic activities enjoy vastly greater insulation from political interference compared with state services. while those lawyers get the opportunity to embody and express the profession’s highest ideals. Volunteers can even invoke First Amendment protections. New York: Brennan Center for Justice. ——(2003) English Lawyers between Market and State: The Politics of Professionalism.

Chambers. Rhode.” New York Times May 3. Doesn’t Include Security Firms. Wainwright. (2002) Tangled Loyalties: Conflict of Interest in Legal Practice. Illich. B9. Lochner. 2007. Adams (2000) “Michigan’s Minority Graduates in Practice: The River Runs through Law School. Polanyi. MI: University of Michigan Press. Hamlin. Berkeley: University of California Press. Higher than Reported Earlier. Marc (2005) Lowering the Bar: Lawyer Jokes and Legal Culture. Thorstein (1925) The Theory of the Leisure Class: An Economic Study of Institutions.” 25 Law and Social Inquiry 395–506. 2009. Veblen. 335 (1963) Serrano v.S. 2008. cases cited Argersinger v. Miller.” Los Angeles Times July 4.S. NJ: Rutgers University Press. A17. Katz. (1981) “Policing the Professional Monopoly: A Constitutional and Empirical Analysis of Unauthorized Practice Prohibitions. Jack (1982) Poor People’s Lawyers in Transition.” New York Times January 3. 372 U. London: George Allen & Unwin. Jennifer (2008) “Bids for Botox? Auctions Go Deep to Aid Schools. Susan P. 407 U. Thrun. Max (1978) Economy and Society: An Outline of Interpretive Sociology. WI: University of Wisconsin Press.. 401 U. Madison. Philip (1975) “The No-Fee and Low-Fee Legal Practice of Private Attorneys. philanthropy. 25 (1972) Boddie v. Lempert. and self-help as legal services delivery mechanisms 307 Galanter. Karl (1944) The Great Transformation: The Political and Economic Origins of Our Time.S. Sebastian and Anthony Levandowski (2009) “Four Ways for Detroit to Save Itself.3d 584 (1971) . Medina. Ivan (1977) Disabling Professions. T. 371 (1971) Gideon v. Connecticut.state. New York: Farrar & Rinehart. Deborah L.” 34 Stanford Law Review 1–112. market. New Brunswick. and Terry K. Weber. London: Marion Boyars. Shapiro. Richard O. 5 Cal. David L. Priest. Christian (2007) “Contractors Outnumber Troops in Iraq—The Figure.” 9 Law and Society Review 431–473. Ann Arbor.

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delivery of legal services in. 100–102. Andrew professional identity. 27 Law Firm Pro Bono Challenge. 57n4. 139. 301 lawyer jokes. 220 Volunteer Lawyers Project. 32–34. Richard. 46–47 Canon of Ethics. 13. 196 foundation. 34 contingent fee criticism. 108 AIDS discrimination practice by public interest lawyers. 5 Law Student Division’s resolution on pro bono graduation requirement. 40 legal education and pro bono service. 7. 155–56 survey of pro bono activities. 32–33 Adcock.1 Montreal Resolution. 102.index AALS. 6 Model Code of Professional Responsibility. 53 Adcock. 118 elite strategy of pro bono service in early lawyer careers. 174 Standing Committee on Pro Bono and Public Service. 159. 3–4. 305 market for legal services. Cynthia federal funding for legal aid. 157 restrictions on supply of professional services. 74. 115 “pro bono publico. See also Model Rule 6. 137 Commission on Professionalism. 11 Young Lawyers Division. 29 Special Commission on Professional Standards. See American Association of Law Schools (AALS) ABA (American Bar Association) Accreditation Standard. 4. 95 empirical research on legal profession. 36 1930s actions on legal aid. 95. 104–5 Abel. 101n5 Dinovitzer. 138. 75 Access pro bono. 75. Ronit. 12. 157 institutionalization of law school public service. 269–70 African-American lawyers. 5. 102 market promotion as aspect of pro bono service. 302 growth in large law firms.” differences in understanding of. 187 impact of pro bono service on law students. 34. 25–52. 40 Abbott. 5. 157–59 ethics education. 106–7 Age of lawyers who perform pro bono service. 217 . 44 mandatory law school pro bono service. 32–34 Model Rules of Professional Conduct. 82–89 Access to justice. 161–62 Aid to Families with Dependent Children. 118–26 rates of pro bono service. 54. 252–53. 33 Private Attorney Involvement Project. 32 Center for Pro Bono. 36. 302 Kenya. See Black lawyers After the JD (AJD) study. 211 restrictions on supply of professional services. 104–5 ABF (American Bar Foundation). 295–307 class distribution of legal aid services. 285 expertise variations among providers of pro bono service. Thomas. 34 Standing Committee on Delivery of Legal Services. 27. 3 debates on pro bono service. 3. 296 history of law student pro bono service. 295 domestic violence shelter resources. 11–12. 33–35 founding of. 105. 29. 19. 53 judicare.

Schoenherr. Andrew & Avis Whyte. Tony. 254 Alliance for Justice. 159 Arnold. Arthur S. 191. Robert K. C.1. Robert. 300 Bottom line and pro bono service. Margaret Martin. 1. 54 ATLA. Marilyn. 156. Brown v. Linda Sax &. 189. 260–61 APBCo (Association of Pro Bono Counsel). George. Leon I. 282n2 Billable hours in competition with pro bono hours. Grand Bratton. 190–91. Hamlin. 38 Rule 6. Elinor. Thurman. 194–95 Bernabei & Katz. Merton &. 75 American Civil Liberties Union. 251–52 Battistoni. 144 Alfisi. 220 American Immigration Lawyers Association Citizenship Day. Daniel. 173 Andreoni. 160 Behar. Erhard. 1. & Laura Beth Nielsen nonprofit public interest advocacy. 218–19 Baltagi. 120–25 Blair. See After the JD (AJD) Alabama Code of Ethics. R. 221–22 Aron. 29. Catherine R. 137 Argersinger v. 144n7 Bank of America. 220 Attorney of the Morning program. 27 disposition of fees in pro bono cases by large law firms. 115–17 American Association of Justice.310 index AJD.. Wharton & Garrison. 212 Barrett. 12. 200–201 rates of pro bono service. Claire & Manuel Velasquez.. 190. 251 Andrew. 203n22 Baldy Center for Law and Social Policy. 95 Barrow. Badi H. 158 Berger. & Richard A. 199 See also Contingent fees Auerbach. 191 public interest practices in law firms. Sam. 139. 186. See ABA American Bar Foundation (ABF). 200 Boddie v. 149 Black lawyers Paul. M. Weiss. 252 Bar associations’ role in increasing pro bono participation. 188–89 public service careers of. Christopher B. 8. & Francois Nielsen.. 8. 222 Altruistic and “disinterested” motivations for pro bono service. 3. 115 Blau. Connecticut. 193n12 Bloom. 27 Albiston. 95 Barry. Barbara. 2 Ball. Adolph A. 221 Arnold & Porter. 295 Blankenberg.. 77 Asylum cases. 77 Baumgartner. 33 goal of pro bono service. 188 Bernabei. Richard M.. 191. 218 Berle. 195 Bezdek. 191n11 Alderson. Anne. 83 Aneiro. 185. 251–66 . 290 Australia.. Alexander. Edward. 216 Atkinson. Heberlein &. 31 pro bono service and legal education. A. Katz &. Sameer M. Wayne. 45 American Bar Association. 14–15. Peter M. 6 legal aid clinics in law schools. 137 Astin. Lynn. 173–75 Barber. 8 Ashar. 191. 296 Boon. Nan. 221 Bocarsly Emden Cowan Esmail & Arndt LLP. 296 Arizona mandatory pro bono service. 193 Association of Pro Bono Counsel (APBCo). 38 Bianco. Debra S. Michael. Christopher. 173 American Association of Law Schools (AALS) ethics education. Anthony. 147–48 Berlin. 173 Attica Prison riot. Jerold. James. T. Rifkind.. 201 fee-shifting statutes as contributing to growth of private public interest firms. 195–97 Board of Education. 109 Bagenstos. Sue & Ritz Zimmer. 191 Arup. 142 Blom.. 172 Booth. 32 Batson. Kathryn. 220–21 private public interest law firms. 231–48 Attorneys’ fees ABA Canon of Ethics.

Jerome. Thomas. 270 Cialdini. 296. 30–35 Center for Law and Social Policy. Gil. 219–20 Brown v. 31 Browning.index 311 Bouman. 254 Catholic lawyers excluded from Wall Street firms. Lewis S. 137 Charisma and pro bono practice in large law firms. 262–63 Britain. James J. David. 100. Representative Benjamin. 2 housing crisis.. 110 Burke. 37. 166 Christensen. 185 Civil Rights Attorney’s Fees Awards Act. President George W. Jeanne & Jeff Selbin Office of Economic Opportunity (OEO). 28–30 Brady. 306 Business creation and pro bono programs. 136 empirical studies of large law firms. 216–17. 103 Caher. 109 Cappellari. 271 Calderon. 31 Chatten-Brown & Carstens. See England and Great Britain Bronstad. 172. 43 California private attorney general fee provision. 74. 155. 252. Marielena. 298 Child custody representation. 100 Chicago-Kent School of Law’s Saving Our Society program. 204 Chicago Miner. 290 Carlyle. 217. 222 Center for Pro Bono. 301 Chemerinsky.. Paul Ruggiere &. Hugo. 8. Lynnley. 189. 55 Bush. Paul. New York Baldy Center for Law and Social Policy. 231–48 Bureau of Justice Statistics. 302 Charn. 158 Bradway. Erwin and “public interest” debates. President Jimmy. Barlow F. Susan. 218 Cary. 15. John. San Francisco Cameron. 251 Citadel case. 282 Civic pro bono. 224 Lawyers’ Committee for Human Rights. 213 Carnegie Foundation Educating Lawyers. Steven A... 220 Lawyers Constitutional Defense Committee. 212 fee-shifting provisions of Civil Rights Act of 1964. 212 Caudell-Feagan. 259. 82–89 Civil rights and liberties American Civil Liberties Union. Robert B. 221 Brownell. Debra analysis of pro bono service. 213 Boutcher.. 257 Bourdieu. 222 Marolis & McTernan. 190 Carlin. 38n9 Carle. E. 126. Pierre. 105. Board of Education. Barnhill & Galland. 257 Canada’s legal aid practices. 260 Chevron.. 199 pro bono service study. 39 Cause-based public service. 189. Lorenzo. 5. 9 Chen. Via. Emery. 253 Brooklyn Law School. 42 See also Los Angeles. 302 Brest. restrictions on.. John S. 36. 29 Carpanzano. 38 Cardin requirement. 190 Southern California’s pro bono and public service programs. 222 City of New London. 103 Buffalo. 211–30 Charitable donations. 188 . 40 Child care. impact of. 183 professional goal of pro bono service. Kelo v. 15.. 47 Justice and the Poor. 144 Brennan Center. John. 190 Civil Rights movement of 1950s and 1960s. 199 Chavez. 115 Church volunteer work. 135–53 organized pro bono services by large law firms. 115–18. 107. 161–62 Carter. Susan D. 187. 142n4 professional identity. 76 Cardin. 190 large law firms’ pro bono dockets.. Amanda. 198 Lawyers’ Committee for Civil Rights under Law. 43 Brosnahan.

159 “Conscience constituents. 76–89 Community-based public service. 31 Client relationship in pro bono service. 296 Connecticut Rule 6.. 295 Cloward. 189n4 Norris firm. Cynthia L. 3 Cooper. 279. 285.. 6 . 303 Clinical legal education and student pro bono service. Gil. Frances Fox Piven &. 193 Council on Foreign Relations. 222 Columbia University Law School Private Public Interest and Plaintiff’s Firm Guide. Richard A. 193–94 pro bono and public service programs. 213. 199 Contingent fees as contributing to growth in plaintiffs’ firms. Christine. S. 41 Commercial law. 166 Cox. 25–52 Clinical Legal Educators’ Association (CLEA). 43.” 187–88 Court-appointed counsel for indigent criminal defendants. 190 Civil Rights movement of 1950s and 1960s. 198–99 private public interest law firms’ dockets as influenced by large law firms’ positional conflicts. 172 Community orientation and pro bono service. 234 conflicts of interest and organized civil pro bono programs. 189 public interest lawyers’ practice. 3. 287 Cnaan. 219 Clary. 28 appointed counsel for indigent defendants. 188 Connecticut. 76 Coal mine disaster. 47 Cleary Gottleib. Wendell. 31 “Country lawyer.. 167. 47 Clinton. 282n2 Credit availability as contributing to growth in plaintiffs’ firms. 218–19 CLEPR (Council on Legal Education for Professional Responsibility). 99n3. 288 Coumarelos.. E. 85 CLEA (Clinical Legal Educators’ Association). 158 Criminal matters ABA Canon of Ethics. Charles E. 279–93 Critical Legal Studies (CLS). 5 cause lawyers. need for. 73. 167 Corstvet. 103 differences in pro bono movements. Todd. 285. 109 Council for Public Interest Law. 9 Consumer protection counseling by organized pro bono programs. 288 Clark. 193 Community Legal Resource Network. 148 geographic differences in pro bono contributions. 100 large law firms’ pro bono dockets. 212 Clark. 25–52 Critical analysis of pro bono service. 84 Community service learning and pro bono service. 193. 189 introduction of. 26–30 Conflicts of interest organized civil pro bono programs and.312 index Civil rights and liberties (cont.) public interest lawyers’ practice. Scott bar’s ethical rules. 203–4 clinic model for pro bono programs. 239–43. Herbert. 156. Boddie v. 193–94.” 225 Consortium on Legal Services and the Public. 103–4. 80.1. 227 Cummings. 198–99 Congress of Industrial Organizations. 186. 189 Crider. 286 Culture of commitment. 196 Civil Rights Attorney’s Fees Awards Act. Emma. 109 Constitutional right to civil counsel. 198 public interest lawyers. 193 Crises and law student pro bono service.. 196 Traber & Vorhees. 218 Council on Legal Education for Professional Responsibility (CLEPR). Ram A. President Bill.

54 Dipasquale. 252 Davis. 298 Eldred. 196 Economides. 303 Dobbin. 11 nonprofit practice and growth of private public interest firms. Schoenherr clinical education funding. 117 recruiting rewards of law firms. 295–307 Democratic Party reform movement. 183. 158 public good. 115–34 After the JD study. Yves & Bryant G. 103 Darly. 139. 157. Sutton &. Scott. 216–17 Debevoise & Plimpton. 83 Delivery mechanisms for legal service. 221 Dezalay. 32. 142 Doe v. 160 institutionalization of pro bono service. 296 study of Los Angeles law firms.index 313 growth in pro bono service. 30. 41 Early lawyer careers and elite strategy of pro bono practice in. 220 Department of Justice. resources for. 298 Eisenberg. 251 Empathy in housing client cases. Garth on pro bono service as legitimizing system. Frank. Albert. Susan. 298 Discovery practices as contributing to growth in plaintiffs’ firms. 252–53 redefining pro bono service. 261 Educational services. Unocal. William J. Martha. Cynthia. Lovely. 115–34 Eckholm. 163–64.” 157. 258 Disabled care. 191 organized civil pro bono programs. 157 professional goal of pro bono service. 231. 95–179. 53 Dean. 214 Dinovitzer. 107 private public interest law firm. Eli Whitney. Tilford E. 34 Elite strategy of pro bono practice. Kim & Majella O’Leary. 183–84. 183. 131 Divorce organized pro bono programs and. 160 New York experience. 95 Dudley. 189 professional identity. 267–77 “pro bono publico. Ronit. Tigran W. 165 Debevoise. 204 Dolovich. 175 solo and small firm practice. 100 pro bono services by divorce lawyers. 239–43 . 189 Disinterested acts. 16. 34. 168–71. 116–17 Division of labor in legal field. 73–74 Curran. 135–36. 214 Edelman. 57n4. Stephen & Joanne Martin Chicago lawyers’ pro bono service study. 8. 101n5 benefits to law firm of pro bono service. 187. 32 Economic perspectives. 257 recognition for pro bono services. 109 Curriculum-based public service. Erik. 167 DiMaggio. 100–102. 156–57 Delaney. 148 plaintiffs’ bar’s growth.. 304 institutionalization of pro bono service. 103. 196 Elder care.. 109 Daniels. 100 recruiting rewards of law firms. Martha & Scott Russell “just-world” perspective. 117. John R. 280 public interest organizations. 140 demographic analysis of pro bono service providers. 32 mandatory pro bono service debate. 188 volunteerism and pro bono service. 225. 226 Death row clients represented. & Thomas J. 138. 216–17 Definitions of pro bono. 7 Economic justice. 115–34 Elster. 141.” differences in understanding of.. 117 Dhillon. 137–38 in elite law firms. Nancy. Barbara. 255 limitations on pro bono service. John M. 99–100. Paul J. 28 Duke University Law School. 15. 254 El Centro practice.. 46–49 Currie. 53 Domestic violence shelters. Jon. 183–209 “pro bono publico.

217 Fordham’s pro bono and public service programs. 193–94. Kai. 213. 80 Fried Frank. Erik. 183. Peter. Eliot and pricing of professional services. 196. 302 and clinical education. 251–307 . 41 Foreign countries’ legal aid systems. 302 Eyler.. 139 legal profession. 83 Feathers. New York. 95 Ford Foundation centralization of pro bono service. 213n8 Environmental Defense Fund. 218–19 Frumkin. 76 First Amendment protections. Shannon. T. 35–46 Experience level of pro bono lawyers. 193. 37–38 Ethics-based public service. Andrew.314 index Empirical research housing crisis in Buffalo. 43 English National Health Service. 231 Erikson. 194 Faulkner. 300. 95. Gary Alan. 105–7 private public interest law firm. 9 Fine. Howard & Gabrielle Lessard. 109 Forger. N. 221 Florida State University School of Law. 3 Erie County Bar Association. 77 Future of pro bono service. history of empirical research on. Richard B.. Cynthia Fuchs benefits to law firm of pro bono service. 254. 77 Frey. Henry J. 109–10 market promotion as aspect of pro bono service. 104 Friendly.. Joseph. 222 Feather. 135–36 Employment discrimination fee-shifting statutes as contributing to growth of private public interest firms. Adam King &. 188 professionalism and pro bono service. 31–32 Interuniversity Consortium on Poverty Law. 213n8 Finkelstein. Russell. 285–86 legal services markets and pro bono services. 295 legal aid system in. 190 large law firms’ pro bono dockets. 77 Failinger. & Lorenzo Goette. 306 Flom. 39 Food distribution to hungry through public and private funding and labor sources. 288–89 Federal Communications Commission. 8. 18. 221 Federalist Society and “public interest” debates. 137 Erichson. 199 England and Great Britain British welfare state. 267–77. Jerome and method of teaching law. Marcia. 37 Milbank. Penner &. 12–13. 252. 199 Epstein. 258–59. 222 Erlanger. Janet & Dwight E. 73–92. 217 Fortas. 198 by public interest lawyers. 28 Freeman. 142–50 law school’s impact on pro bono service in practice. 141 institutionalization of pro bono in large law firms. 16–17. Cynthia. 224 Environmental law practice large law firms’ pro bono dockets. 305 Entrepreneurs of pro bono work. 135–36 institutionalization generally. 115 Engler. 55 Equal Justice Conference. Howard M. 214 charisma and shaping of pro bono service in large law firms. Marie A. 300 Erikson. Abe. 221 Frank. 198 public interest lawyers’ practice. 211–30 private public interest firms. 231–48 influences for pro bono service. 262 Furco. Louis A... 193–96 pro bono service generally. Bruno S. 140. 12. 38 “Family values” causes of private public interest law firms. Albert as chairman of. Alexander. Giles. 287–88 Expertise variations among providers of pro bono service. 212n7 Friedson.

306 . 300 Gideon v. 80 Good lawyering and pro bono service. 117 professional identity. Mary Ann law school pro bono service. 40 Pro Bono Institute. David. 1–22 law school’s effect on public service commitment. 221. 187 growth in large law firms. 220 Garth. 136. 53–72 Goodwin Procter and homeless children’s educational access. Bruno Frey &. 255 introduction to book. 251 Gay rights activists and pro bono advice. 222–23 Government. 262 GI Bill of Rights. William Lloyd. William.index 315 Gaetke. 6 A Nation under Lawyers. Jay. 13–14. Robert M. 140 demographic analysis of pro bono service providers. 73. Wainwright. 191 Gorin. 279n1 Gould. 17. 183. 77 Glass ceiling.. 1 Gender equity large law firms’ cause. 144 Greshin. James Clarke housing crisis in Buffalo. 165. Eugene R. 223 Great Britain. See England and Great Britain Great Depression. 188n2 pro bono service as legitimizing system. 254 Gamson. 85–86. 53 institutionalization of pro bono service. Dwight E. 231–48 public good. 214 Garrison. 53–72. 217 Glendon. 83 criminal defense work. 160 Guantanamo Bay detainees represented. 115–34 institutionalization of pro bono service. 158 Groves. Benjamin. Jon. 75. 211 empirical studies of large law firms. Lloyd K. 103 retirement transition. volunteer legal service as. 297 Granfield. 304 elite strategy in early lawyer careers. New York. Wendell Phillips. 220–21 Garrison. 1 Gordon. 254 pro bono service study. 197. 204. 40 Georgetown University Law Center Georgetown Outreach. 221 private public interest law firms’ cause. 296 Giles. 220 Garrison. 146–47. 132. 259–62 Gocker. Antonio.. 304 Geographic differences in pro bono service. 7 public interest law. 1. William H... 43 Goal-setting for pro bono service. 137–38 Gertner. 172. 295 Greene. 99 Goette. See State Government funding of legal aid. and lawyers as officers of the court. 139. 150. 187 lawyer jokes. 54 Gauthier. 80–81. 148 prestige of pro bono service. benefits to law firm of pro bono service. Bryant G. 6. Robert attributions regarding social problems. 136. 305 recruiting rewards of law firms. 280 volunteerism. 6–7 mandatory pro bono service in law schools. 149–50 George Washington University. 28 Georgetown Outreach. Abbie. 15. 108 Government immunity restrictions as contributing to growth in plaintiffs’ firms. 194 Gender patterns in pro bono service. 232 Granovetter. Lorenzo. 120–21. 102 Galanter. Mark. 289 impact of pro bono service on law students. Janet Eyler &. Robert attorney’s relation to state. 189 Gramsci. 10–11. 102 motivations for pro bono service. 159. 142n4 golden age of civic professionalism. 105–6. Marc analysis of pro bono service. 213.

Morton J. Harry. Ronald L. Hubbard & Reed representing families of uniformed victims of 9/11 attacks. 258 Hoffmann. 168. Paul Brest &. Chicago lawyers’ pro bono service study. 28 Harvard Legal Aid Bureau. John P. 282 Head Start. 1 Hurley. Joel F. Barry M. Wayne. 200 self-help. 96. 259 Higginbotham. 300 Health care services. 233n2 Harvey. Fowler. 217 Hadsell & Stormer. 189 empirical research on legal profession. Cheng. Clyde. 252. 74 division of labor in legal field. 144 Huge. 95.. 108 restrictions on federal legal services programs. 285 growth in large law firms. organized pro bono programs in large law firms. Frederick von. 136 mandatory pro bono. 254 Hoffman. 191 Housing cases Buffalo. 132. Susan and in-house counsels’ pro bono service. James Willard. Edward. Hal. 194–96.. 231–48 funding and labor sources. 97–98n2 Hirsch. 166 Hurst. 160. A. 262 Hawaii mandatory pro bono service. 160 Heinz. 193 Harrington.316 index Haberman. 99–100 value of pro bono service. 220 Habitability cases. Michael. 189 Hill. 261 Halpern. 203 practice context of lawyers who perform pro bono service. 259. 258–61 Harvard Law School case-dialogue method of training lawyers. 77 Hoffman. T. 286 House Un-American Activities Committee. Alan W. Maute & Oklahoma City Volunteer Lawyer Center. 296 Handler. 161 prestige of pro bono service. Argersinger v. 183. 70 Hewlett Foundation. 255–56. Virginia A. 189 institutionalization of pro bono service. Judith L. 285 .. 1 Human rights cases. 193–94 student pro bono programs. 221–22 Hamilton. 282 Hall. Martin L. 159 private public interest law firm. Elizabeth. 37 Harvey. 82 Hogan & Hartson’s advice to gay rights activists. 187. 138 Legal Services Corporation. Brent. M. 139. 217 Hallman. 203–4 Hager. 1 Holocaust survivors represented.. 283–84 public interest lawyers’ practice.. See Civil rights and liberties Humes. crisis. 198 New York City housing court. 218–19 Hamlin. 196. 303 Hsiao. 188 Houseman. 117.. Susie. 238 “Habitus”. Baumgartner. New York. 193. 222 Hughes. 220 Horwitz. John. 28 Interuniversity Consortium on Poverty Law. 137 Hunton & Williams representing asylum seekers. 255. Lawrence. Charles. 139–40. 234–35 public interest. 139 Hodgkinson. 120–25 Hobson. 37 Private Public Interest and Plaintiff’s Firm Guide. 11 Hadley. Morris. Ben. David. 183. 225 Harris. Lynn Wooford. 188n2 social structure of legal profession. 186. Leon. 95 large law firms’ pro bono dockets. & R. class distribution of legal aid services. 298 Heberlein. 42 Hayek. 116 Hackett. 38 pro bono and public service programs. 100n4 Hispanic lawyers’ rates of pro bono service.

Jewel and legal aid programs in law schools. Rudoph von. Elton F. Jack. John. 98 Johnson. 188 Interuniversity Consortium on Poverty Law. 110 International Longshore & Warehouse Union. 220–21 Jhering. 9. President John. John Legal Services Corporation. 104 Income maintenance. 256 Kansas Rule 6. 162 Kelo v. Jr. 82 Jacobs. Judith S. Ronald on institutionalization. Adam & Gary Alan Fine. 304 Katz. 64–68 Interest on Lawyer Account Fund (IOLA). 231–32. 37 IOLA. 173 asylum cases. 42 Indirect services. 25. 213n8 King. 212n7.. 251 legal professionalism in context of day-in-court workplace. 159 Immigration American Immigration Lawyers Association Citizenship Day. 1. 108 Pittsburgh public interest law firms. 38 Johnson. Dennis A. 167 services by nonlawyers. Ashby. 159 Katz. 34 Montreal Resolution. 282 Kennedy. Carlyn. Ivan. mandatory pro bono service. 79 Jepperson. President Lyndon. Robert Granfield & law school’s effect on public service commitment. 220 Kilwein. 220 Klare. 238 poverty law practice analysis. Michael “multiple ideas of profession”. 194–95 reactive litigation. City of New London. 296 Jones. 31–32 Koenig. 286 Kamin. 295 Katzmann. 37 In-house counsel’s pro bono service. 10 small firm study. 302 “just-world” perspective. 263 Janoski. 128–31 Johnson. 254 Kolker. disinterested behavior. 156. Debra S. 38.1. 221. 222 Kennedy. 140–41 Jewish lawyers excluded from Wall Street firms. 164. 83 Justus. 166. 54 . 39n11 Interest on Lawyers’ Trust Accounts (IOLTA). 220 Isomorphism. 226 Illich. Karen E. Bobby. Jr.. 183 Kaufman. 235 private public interest law firms. 107–8. 301 Illinois Supreme Court Rule 756(f). 135–53 Integration of pro bono service and law school curriculum. 160. 253 Kramer. Mitchell. Duncan.index 317 Identity politics. David. Martin Luther. 195 King. 260 Judicare programs. Dennis. 26 Kaye... 33 prohibition on fees for legal practice. 96. 200 Kelly Carmody & Associates. 110. 46 Kelly. 287 Information Exchange. & Jonathan Lippman. Jane. 6 motivations for pro bono service. Thomas. 161n5 Inexperienced pro bono counsel. 214 Issues entrepreneurs. See Interest on Lawyers’ Trust Accounts (IOLTA) Iran-Contra scandal. 282 Job setting satisfaction of lawyers. 195. 202. 211–30 Jackson. 286 Klein. Karl. 286 Kennedy. 7. 11 Institutionalization of pro bono in large law firms. 212n7. Robert. 298 Indiana University’s pro bono and public service programs. 191. Thomas. Earl. 160 Kairys. 162 Kelleher. See Interest on Lawyer Account Fund (IOLA) IOLTA.. 216 pro bono services. 6. 69. 212 large law firms with pro bono practices. Jolie L.

135–53. 36. 149 Legal aid services decreases in. 214 Lawyers’ Committee for Civil Rights under Law. 188 Langdell. 160 history of pro bono service. 136 Law Firm Pro Bono Challenge. 155 job satisfaction of lawyers in. Kyungmook. 38 Large law firms amount of pro bono service in. 7–8 and pro bono service.. 5 Law School Consortium Project. 107–8. John P. 6 The Lost Lawyer. 9 Kutak. Donald D. 189 Kronman.” 187 Lawyering for the good and pro bono service. 127 Lancaster. 189 empirical research on legal profession. 285 lawyers as social class. 109 Legal service delivery mechanisms. 254. 140. Esther benefits to law firm of pro bono service. Michelle. 34. 286 restrictions on supply of professional services. 125–26 charisma and pro bono practice in. 156. 168. 53–72. 128–31 motivation for pro bono service. 95–113 See also Legal Services Corporation (LSC) Legal Aid Society’s Servant of Justice Award. 5 Larson. 193n12 Law schools. 211–30 disposition of fees collected in pro bono cases. 137 commercialization of large law firms. Gerald Walpin & and “public interest” debates. 104 Lash. 187 service-to-society ethos. Christopher Columbus. 6–7 integration of pro bono service. 43 mandatory professional obligations.. Magali Sarfatti empirical research on legal profession. Herbert. 202 Kritzer. 194–95. 222 Lawyers Guild. 25–92 “Lawyer-aristocrats. 295–307 . 138–39 priming for pro bono service. 25–52 mandatory pro bono service. 285 institutionalization of pro bono service. 258 Lash. 217. 201 institutionalization of pro bono in. 147 law school pro bono service. 224 Lawyers’ Committee for Human Rights. Robert and Special Commission on Professional Standards. 28 Lardent. Peter D. 185 Lee. 258 Laumann. Mark H. 290 public office service by lawyers. 100–105. Edward O. 146 Landlord-tenant cases. 191. 211 Kuntz. 167. 273–75 popularity of pro bono service in. 33. See Housing cases Landon. Karen. 73–92 professional socialization through. 211. Sherer &.. Elizabeth.318 index Kransberger. 158 Labor law and public interest lawyers’ practice. 197 Lawyers’ Alliance. attorney’s relation to state. Anthony T. 48–49. 193 Lamont. 117. 119–20. Heinz & division of labor in legal field. 235 LDF (National Association for the Advancement of Colored People Legal Defense and Education Fund). William Francis. 53–72. M. Ryon. 10–11 New York bar’s redefinition of pro bono service. 220 Lawyers Constitutional Defense Committee. 184. David. 216–17. 117. 225 Lazerson. 7 attorney’s responsibility to serve marginalized groups. 64–71 history of student pro bono service. 221 Legal needs survey.

187–88. 220 Lend-Lese Administration. New Orleans. Raymond F. John R. 221 Martin. differences in approach ot pro bono work. 10 Mansbridge. 136 Erie County. David. L. Fried & Burch. Feinberg. 118. 141 Los Angeles Chatten-Brown & Carstens. 138. 108–9. 188 Margolis & McTernan. 43. 183. 201 Louisville’s pro bono and public service programs. 285. 219 restrictions on cases handled by. & Harvey L. 302 eligibility guidelines used in definition of pro bono service. 251 Lessard. Thurgood. 159. 69 Malpractice insurance and pro bono service. Frank.. Howard Erlanger &. 8 Raven. 157. 189 Liman. Molotch. 184. Allan & Peggy Payne and selfless action. 188. 233n2 “Loose coupling” of policies and practices. 217 large law firms’ pro bono service as reinforcing program. 296 solo and small firm pro bono service. 252 Margolis. 37 LSC. 37–38 Levandowski. 296 Loder. 28. 41 Loyola University. 6. 53–72 opposition to. 198 need for legal assistance. Alexander. 295–307 Market-reliant legal aid and pro bono service. 166–67 Loyola. Gabrielle. 217 Logan. 103 . efforts to save.. 220 Linowitz. 200 Marks. 7 number of people eligible for services funded by. 8 MacCrate Report. Karl. Philip R. Judith S. 147 service-to-society ethos. 159. 43 commercialization of large law firms. 41 “Low bono” service. Leslie C. 211 Lippman. 270 Llewellyn. 110 creation of. 251–52 Logan. 156. 163 loss-leader marketing of pro bono service. Arthur L. Kaye &. 43 survey of legal needs. 163n6 support for. 156n2. 160 Martin. 252 Lusky.index 319 Legal Services Corporation (LSC) coordination of legal services. Adam. 218 Lerner. 199 O’Melveny & Myers. Anthony. 203. Jonathan. 183. 10. 100 recruiting rewards of law firms. Ben. 155n1 Private Attorney Involvement. Los Angeles’ pro bono and public service programs. 226. loss-leader marketing of pro bono service. Sol attorney’s responsibility to serve marginalized groups. 162 Liptak. 155–79 Liability insurance’s contribution to growth in plaintiffs’ firms. 262 Little League coaching as pro bono. 195. 301 Levin. 36 cuts in support for. Stephen Daniels & Chicago lawyers’ pro bono service study. 42 Loyola.. 15. 38. See Legal Services Corporation (LSC) Luban. 137 The Betrayed Profession. 190 Luks. Sebastian Thrun &. 188 Margulies. New York study. 174 Mandatory pro bono service Code of Professional Responsibility.. 110 Legal Services for Children. Peter. Reed E. 296 Forger. 118. 196 Marks. 4 and law school pro bono service. Melvin J. 187 Marshall. 157. 11 Market as delivery mechanism for legal service. Jane. C. Chicago’s pro bono and public service programs. 95–113.. Robert. 288 Lochner. Joanne. Suzanna on Canada’s practice.

168–71 Modell. 115. 104 Moore. 251 Mukasey. Robert D. 157. Christian. John Wilson &. 295. 214 history of pro bono service. 10. 74 Alabama Code of Ethics. Logan &. 159 Milbank. 214 Minnesota Justice Foundation.. 33 Moore. T.1 generally. ABA debates on pro bono service. 17. 43. 3. Jennifer. 300 as model. C. 222 McTernan. 4–5 large law firms’ institutionalization of pro bono service. 156. 34 Oklahoma City Volunteer Lawyer Center. 81 Missouri’s pro bono service. 75. 219 McLaughlin. & Brian Rowan. 79–80 NALP (National Association for Law Placement). 35 Moorhead. Robert K. Richard & Pascoe Pleasence and legal needs surveys.1. 254 Miller. 172 divorce lawyers. 193–94 National Association for Legal Career Professionals (NALP). 109 Musick. 300 Medicare.320 index Marwell and domestic violence shelter resources. Siobhan. Michael. 70.. Sol Linowitz & and service-to-society ethos. 261 Morsch. 190 McFadden. 137–38 . Judith L. 10 study of legal profession. 55–56 National Association for Law Placement (NALP). 212–14 Mertz. 136. 127 Morales. John R. 211 McCarthy. Thomas and in-house counsels’ pro bono service. 15. 115 Montreal Resolution. 166 mandatory pro bono service. 99–100 value of pro bono service. Tweed. 32–33. 162 Molotch. 236–37 for pro bono service. 37 Narratives of professional identity.. 188 Medicaid. Michael. 6 Meyer. 163 introduction to book. 37. John. 75. 303 for volunteer service generally. 95 Maryland analysis of pro bono service. 162 Model Rule 6. Marc. 10–11. Harvey L. Evo. 304 Menkel-Meadow. 38 Mather.. 217–18 Milbank. & Richard Rothschild. 146 meaning of pro bono. 183 small and solo firms’ pro bono practice. Martin. John D. 301 Morrison & Foerster. Albert. 285 Maute. 203 “communities of practice”. Hadley & McCloy. Joe. 297 Meese. 115. 54. 148 Michigan Rule 6. John E. Dennis C.. 215 McDermott. Andrew. 85–87. 137. Jennifer. 157 Model Code drafts. Edwin. Wright. 295. 11 Motivations for Attorney in Morning program. Lynn cash flow in small and solo firms. 162 Legal Services corporation’s Child Custody Representation Project. Elizabeth. 217–18 Millemann. Carrie. 137–38 NAPIL (National Association for Public Interest Law). 219–20 Morrissey. 297 Mills. 1–22 professionalism through collegial control. 193–94 NALP (National Association for Legal Career Professionals). Nancy and mandatory pro bono service debate. 110 Medina. 219 Mulherin’s legal needs surveys. 109 Moral obligation for pro bono service. 254 Merton. 187–88. 233n2 Monopoly in legal services as reason for pro bono service. 87 Mueller. 252–53 as narrow construction of “pro bono publico”. 97–98n2 Mayer. 141. 84–85. 27 expectations for pro bono service. John W.

10 public interest practices in law firms. 217–19. 41 Nielsen. 199 O’Connor. 144 Nielsen. 158. & Robert Seibel and Council on Legal Education for Professional Responsibility (CLEPR). commercialization of large law firms. 142n4 growth in large law firms.index 321 National Association for Public Interest Law (NAPIL). 193n12 Northwestern University School of Law. 76 Open Society Institute. 218 mandatory pro bono service. 38. Green. Mancur. Catherine R.P. Robert L. 136. 201 Omoto. 223 New York Public Library. 158 New York City schools. 187 recruiting rewards of law firms. Christine and institutionalization of pro bono service in law firms. 255. 185 National Bar Association’s 1940s’ pro bono service. 191n11 Nixon. 142. 117. 30 Nova Southeastern University. 147–48 growth in large law firms. 214 Nonprofit public interest organizations and private public interest law firms. 193. 195 North Dakota and mandatory pro bono service. 216 National security. 274 Office of Economic Opportunity (OEO). 139. 302 Noblesse oblige and pro bono service. 17–18 Norris. 36. Higginbotham & Associates. 13. 39. 126. John. 193n12 Organized civil pro bono programs. Kim Economides &. 188 National Legal Aid & Defender Association. 9 rankings of law firms and pro bono achievements. 254 Oliver. Majella. President Richard. Laura Beth. 5 National Lawyers Guild. 38 Northeastern United States law firms’ rate of pro bono service. Francois. Samuel. 213–30 Commission on Government Integrity. 226 bar politics and pro bono definitions. 29 National Council on Legal Clinics. 183–209 Normative perspectives on pro bono service. 186. 220–21 New England School of Law. 42 Northeastern University’s Law School Consortium Project. 267–77 charisma and large law firms’ pro bono practice. 186. 103 . 298 National Urban League. 302 Law School Consortium Project. 159. Albiston & nonprofit public interest advocacy. Arthur Alderson &. 214 Oliner. 31 National Science Foundation. 34.. 232 New Approaches to Access to Legal Services. 217 New York University School of Law. 31 Ogilvy. Aric Press &. Harris. 36 National Legal Aid Association. 37 National Association for the Advancement of Colored People Legal Defense and Education Fund (LDF). 254 O’Melveny & Myers. 260 New Deal years. 150. 149 pro bono and public service programs. Pearl & Samuel Oliner. 43 Obama. 297 New York Legal Aid Society. 99–111 Palay. 31 Oklahoma City Volunteer Lawyer Center. 211 empirical studies of large law firms. J. 212. 191 public interest practices in law firms. 43 New York Association of the Bar of the City of. 191. 31 National Law Journal “public interest” debates. 217. 189. 141 Olson. Thomas analysis of pro bono service. 6 professionalism. President Barack. 254 Oliner. 99–100 O’Leary. Schmidt. Allen M. 220 Nelson. Pearl Oliner &. 139 law school pro bono service.

297 Pro Bono Challenge. 149 isomorphism. 267–77 “public interest.. Alan and class distribution of legal aid services. 109 Plimpton. William. 297 Private security forces. 196–204 pro bono practice in. 214 mandatory pro bono. Richard Moorhead & and legal needs surveys. Schmidt. 158n3 social movement activism and pro bono service. Robert Porter. Clare and constitutional right to civil counsel. 297 Priorities in pro bono service. Damon Jeremy and recruiting rewards of law firms. 296 Pope. 139 sociological neoinstitutionalism. 110 Patterson. 189. Paul. 186–92 ideology of lawyers in. 9 Paterson. 7 Parsons. 298 Poor Persons Procedure. 252 PBS NY (Pro Bono Students New York). 203 New Deal era government recruitment of lawyers excluded from elite law firms.. 8–9 Peace Corps. 8 Private public interest firms. 295 Police abuse cases and fee-shifting statutes. 137 MacCrate Report. 95 New York State Bar’s experience with pro bono programs. 195 Porter. 137 Perkins. 279–93 Pro Bono Students America. 128–31 Press. 184–86 design. 95 Legal Services Corporation. 3. Karl. 200–204 case selection. Serrano v. Houseman & class distribution of legal aid services. 157. 197 marketplace of ideals. 252–53. 137. Russell history of Model Rule 6. 200–204 Private schools. 274 Priest. 44 Pro Bono Students New York (PBS NY). Wharton & Garrison. Pascoe. Aaron. 212n7 Pearce. 219 Paul. 76 Pepper Hamilton. 220–21 Payne. 259–62 Prisoners’ rights cases. 103 Pincus. 217 Perle. 159 Pro Bono Institute. 187 Penner. Carl. Louis A. 32. Stephen. Francis T. institutional theory. 165n7 Pleasence. 216 Polanyi.. Roscoe. 190 Policing services. 193 “Persons of limited means.1. Aric. Allan Luks & and selfless action. Linda E. Alan W. 231–48 legal aid systems and. 201–2 “Pro bono publico” defined. 108 Personal injury law and public interest lawyers’ practice. Sr. 141 Power track satisfaction of lawyers. 195 Philanthropy as delivery mechanism for legal service. 282 Poverty law history of pro bono service.322 index Parker. 219 Patterson & Belknap. P. 189. Rod. 39 . 197–200 definitions. 221 Pound. 69 public service as volunteering on behalf of nonpaying clients. 287 “Planned” pro bono. 221 Private Attorney Involvement. Talcott and legal professionalism. 95. Cloward. 5. Weiss. Harris. 253. 196. Higginbotham & Associates. Rifkind. 193–96 development. 295–307 Phillips. Green. Frances Fox & Richard A. 213 professional value of pro bono service. 31 Piven.” 168–69 Philadelphia firm of Norris. 96. 211 Pastore. 102. 284–85 Powell. 183–209 attorneys’ fees of. & Marcia Finkelstein. 183.. Peggy. 39 PBSC (Pro Bono Students of Canada). 35–38 housing crisis addressed by volunteer lawyers. 257 Porter. Walter W.

36. 33–35 institutionalization of law school public service. 103. 155 Reagan. 193–94 Public accommodations cases. 11 moral obligation for pro bono service. Talcott and. 296. 219 Raymond. Eliot. 190. 137 attributions regarding social problems. 187 Parsons. 157 pro bono service study. 305 Race patterns in pro bono service. Brian. White and domestic violence shelter resources. Chief Justice John. pro bono service as reaction to. 102. Charles. 156n2. Nate. 26 culture of commitment. 172. 148 . 212.” differences in understanding of. Anthony. 83 bottom line and strategic philanthropy. Francis and class distribution of legal aid services. 238 Project Group. Meyer &. 211 pro bono service and. 9–10 pro bono in interest of. 165–66. Donald and Britain’s practice. 261 Renaud. David. Barbara Paul. John W. 257 Roosevelt. 165 Rhode. 170.index 323 Pro Bono Students of Canada (PBSC). 203–4 Roberts. advice to gay rights activists. 183. 217 Rifkind. 148 ethics education. 252 Rothschild. 251–66 charities providing legal aid to poor. 198 presidency of AALS. Deborah attorney’s responsibility to serve marginalized groups. 159. 220 “Righteous” cases. 47–48 law school’s effect on public service commitment. 120–21 private public interest law firms’ causes. 183. pro bono service as. Tricia. 115 motivations for pro bono service. Richard. 28 colonial days of legal service. 213 decline in pro bono service. 28 Regan. 194 Romero. 304 Recruiting lawyers and pro bono service programs. Albert R. 187 golden age of civic professionalism. 18. 162. 251–66 nonlawyers’ legal services. 54–56 social construction of. 190 “Public interest. 174 Reed. President Ronald. Simon. 217 Rockefeller family. 186 recruitment strategy. 218 Roe v. Wade. 231–33. 85–86. & Barbara W. 37 Property rights law. 189 Professionalism civic professionalism. 74.. 104–5 nonprofit advocacy groups. 288 Renaissance of Idealism. 214 Products liability’s contribution to growth in plaintiffs’ firms. 141. 183–248 “pro bono publico” defined. 8 Robinson. 279 public interest practices in law firms. Alfred Z. 201 strategies for increasing pro bono service. 54. 194 Raven. 53 law school pro bono service. 95 Roberts. 201 Reduced-fee pro bono service. 222 Rockefeller Foundation. 251–66 Queen’s Counsel. 191. 45 “pro bono publico. 202–3 PSLawNet. 252–53. 80–81 “public” interest. Robert. 138. 1 Robertson. 10–12 workplace setting context of. 7 limitations on pro bono service. 279–93 strategic philanthropy and bottom line. 256 Rowan. 6. 8–9 ProBono Net. 219–20 Rosenhan.” 279–93 Public interest law See also Private public interest firms “Public” service debate over meaning of. 5 unauthorized practice of law efforts. 95 Reich. President Franklin Delano. 45. 304 Richardson.

Jeanne Charn & and Office of Economic Opportunity (OEO). 187. 211. William. 238 Seibel. 201–2 Ruebhausen. 156 study of New York City lawyers. 70 Schlegel.. 221 . 6 law students’ narratives of pro bono. 285 Schoenherr. 77 Scheingold. 221 Skadden fellowships. Robert. 286 Simpson. 34 Scott. Stuart agendas of private public interest law firms. Richard A. 187 economies of private public interest law firms. Blau &. J. 234–35 practice context of pro bono service. Governor George. 102 Schneyer. 187 Shapiro. 161–62. Theodore.. 95–113 piecemeal provision of pro bono service. Sergeant. 297 Settlement practices as contributing to growth in plaintiffs’ firms. 196 Saunders. Anat. 54 law school’s effect on public service commitment. 258 Saute. 54. 42 Ryan. Rebecca empirical analysis of pro bono service. 31 Self-help as delivery mechanism for legal service. 262 Simon. 32 mandatory pro bono service debate. 257 Section 8 housing cases. 83 Russell Sage Foundation. Linda & Alexander Astin. 198. 160 Sack. 185. Slate. 183. Charles “Cully. 216 Ruggiere. Jeff. Paul. 149 Shriver.. 191. 172 Russell. 54. 138 poor as recipients of pro bono service. Priest. Debra impact of law school on pro bono service. 199 cause lawyering. 135. Meagher & Flom. 197. 73–92. 74. 11. 190 Rubin. Robert. 195–97. 213–30 Legal Aid Society of. 254–55. Deborah A. Newark’s pro bono and public service programs. Kevin. 14. Peter D. Peter M. Bruce. Carroll loss-leader marketing of pro bono service..324 index Rubenstein. 270. 193. David L.. 187 Santa Clara Law School’s Pro Bono Recognition Program. Alana N. 185. Arps. 268 Salience hierarchy. 222–23 Sherer. 183.” 306 Simpson Thatcher. 183 New York City housing court. & Kyungmook Lee. 55 Same-sex marriage. Martha Delaney & and “just-world” perspective. 199 cause lawyering. 196 Schleef. 295–307 Seron. Tigran W. 218 Skadden. 223 Sax. Austin agendas of private public interest law firms. John Henry. W. Susan P. 219 Sandburg. 40 Sarat. 216–17 Rutgers. 118.. 6 market-reliant legal aid. 11. 136 solo and small firm lawyers. 193 civic professionalism. Scott.P. Richard. 236 Shearman & Sterling. 279–93 Schmedemann. 19. 140 Secret. 212n7 Sievers. 163 Serrano v. Thomas J. 189 Shapiro. 160 Sandefur. 221 San Francisco charisma and large law firms’ pro bono practice. 31 Selbin.. 187 economics of private public interest law firms. 14. Eldred & clinical education funding. 184. Ogilvy & and Council on Legal Education for Professional Responsibility (CLEPR). 142 Schoenherr. 195 civic professionalism.. Brenda. Paul. Oscar. William B. 296 geographic differences in pro bono service.

Erwin. Arthur. 222 Sterling Professorships. 148 Sossin. William. 204 Southern California’s pro bono and public service programs. 165 “Substantially reduced fee” pro bono service. 203 Stotland. Robert impact of pro bono service on law students. Arthur L. 198 professional calling. Mark.. Janet. analysis of pro bono service in. 162 Thatcher. Harlan and commercialization of large law firms. 6 Strategic philanthropy. 142 Teles. Lorne. 29 Snyder. 108 Texas. and commercialization of large law firms. New York. Adam. 147–48 Stone. Jan & Debra Burke and professional identity. 10–12 Social justice and pro bono service. 305 Social value substance satisfaction of lawyers. 26–27 conflicts of interest and legal aid. Steve. 54 Social Security. 3. 103–4. 254 Social construction of legal professionalism. 239 Spaulding. 76. 273–75 pro bono as public service work. 256 Stover. 241–42 Small law firms. 188 statistics of pro bono service. Elizabeth. Thomas. 150. 117–18 New York bar’s redefinition of pro bono service. 140–42 loose coupling. 15. Rayman L. Reginald Heber colonial days of legal practice. Jeff. 85. 105–7 Sterling. 214 Stone. Brent. Dan. 233–48 job satisfaction of lawyers in. 55 Stevenson. 222 Stets. 212 Smith. 115 South Central Farmers. Ann private public interest law firms. & Frank Dobbin. conflicts of interest and organized civil pro bono programs. 141 Solicitation of business by lawyers. 155–79 housing crisis in Buffalo. 16. 200. John. 251–66 Stryker. 42 Southern Methodist University’s pro bono and public service programs. 5–6. 188 rate of pro bono service in. 80 Stull. 231. 155–79 housing crisis in Buffalo. Norman W. 128–31 loss-leader marketing of pro bono service. 7 as delivery mechanism for legal service. New York. 117–18 New York bar’s redefinition of pro bono service. Sheldon and professional identity. 233–48 job satisfaction of. John R. 119–20 Smigel. William. 40n13 Smith. 48 Sutton. 233. 288 Justice and the Poor. Gerald. 170–71 Sullivan. 128–31 Sociological Institutionalism. 233n2 Stormer. 27 Solo law firms. 54 State attorney’s relation to. 274–75 pro bono as public service work. 295–307 State differences in pro bono service rates. 55 Stuckey. 216 Stinchombe. Roy. 103 cost of legal services as barrier. 80. 15–16.. 119–20 Solomon. 41 Southworth. 53–54 law school’s effect on public service commitment. 156. 218 . 256 Stevenson. Michael E. 183–209 pro bono and legal professionalism. 128–31 loss-leader marketing of pro bono service.index 325 Slumlord caricature and volunteer lawyers’ pro bono service in housing cases. 300 Smith. 222 Stern. 48 Stukas. 262 Temporary Assistance for Needy Families.

231 Vodnik.. 193 professionalism. 28 University of Virginia. 217 Twining. 194–95.. William. 76 Tweed. 190–91 public interest law firms. Margaret. 199–200 United Nations delegate. 160. 29–30. David commercialization of large law firms. Michelle. 41 Value of pro bono service. 37–38 Law School Consortium Project. Claire Andrew &. 10 public interest goals of lawyers. 38 Turati.. 25. 190 Title IX attorneys’ fees provisions. 142–43. 196 Treuthart. 257 Vorhees. 40n12 Vojdik. 104–6. 188n3 United States Strategic Bombing Survey. 30 first student pro bono project.326 index The American Lawyer. 198 Wachtler. Cyrus. 195n19. 285 Unauthorized practice of law’s relation to pro bono service. 99. 174 Union affiliation by private public interest law firms. 218–19 University at Buffalo’s Baldy Center for Law and Social Policy. 217 Volunteer Lawyers Project (VLP). 224 Tulane University Law School. Sol. 296 Wales’ legal aid system. 211 Wal-Mart. Mary Pat. Senator Robert F. 280–82 . 31–32 Touro Law Center’s pro bono and public service programs. 13–14. 147 government actors as public interest law targets. Harrison. 301 Title II. Manuel. 37 University of New York’s Law School Consortium Project. 223 Virginia prohibition on fees for legal practice. 255. 193n12 University of Minnesota externship model. Valerie. Traber &. 219 United States. Richard. 218 Veblen. Sebastian & Anthony Levandowski. 29 University of Maryland. 189 Thornton. 232 Truman. 222 Volunteer Lawyers AIDS Project. 202. 83 Valparaiso’s pro bono and public service programs. 53–72. 108–9 law school’s impact on pro bono participation in practice. 25. 185n1 University of Tennessee legal aid program. 194–95. Doe v. Yates v. 2 University of Denver College of Law’s legal aid dispensary. 159 VLP (Volunteer Lawyers Project). 39 University of South Carolina. Robert Granfield & and mandatory pro bono service in law schools. Thorstein. 97–98 Vance. 195n19. 109–10 Wall Street firms.1. 190 funding for legal aid clinics. Philip. 193n12 University of Pennsylvania. 204 Velasquez. 73–93 Volunteers of Legal Services. 26 Rule 6.. 196 Voting rights cases and large law firms’ pro bono dockets. 282n2 Veliz. 43 Unocal. 102 Vielmetti. Bruce. 274 Third Circuit Court of Appeals. Gilberto. President Harry. 214 Vongsawad. 54 Trubek. 304 Unbundled service provisions to increase pro bono service. 5. Gideon v. 159 Vietnam War. 39 University of Southern California Law School. 28. 8 Thrun. 219–20 Tuesday Night Clinic. 220 Wainwright. Brandon. 41 Traber & Vorhees. 299 Vedder. 194–95. 231 Volunteerism government funding of legal services distinguished. 267–68 Wagner.

1 Wilson. Sue Barrow &.. 193. 78–92 Williams. 72. 33–35 Weber. 95 Zucker. 215. 300 Wu. representation of families of uniformed victims of. James D. 212. 141 Whistleblower cases. 188n3 Yeazell. Burton A. 161 Women lawyers’ rates of pro bono service. 12. and domestic violence shelter resources. Bernard. 128–31 Workplace context for pro bono service. 183 Whittier College of Law’s Seek Justice program. Kim. 9 War on Poverty. Frederick H. 172 Wilkins. Gerald & William Francis Kuntz and “public interest” debates. 160 Wisconsin analysis of pro bono service. 185 Weisbrot.. Westphal &. 95 Zimmer. 104 Weiner. 76. 262 William Mitchell College of Law. 222 Welfare reform and restrictions on Legal Services Corporation (LSC)-funded lawyers. 212n7. 144n7 Yale Law School. 256–57. Cristin. Zajac. 1 World Trade Center attacks. Stephen C. Avis. Mayer N. 141 Zald. Bernard. Ping X. 141 . 258 Zemans. Edward J. 95 White. 300 professional calling. Lynne G. 28. 222 WASP establishment. David. Ritz. Max.. 189 Zajac. 212.. John. 296 Warren. 120–25 Work substance satisfaction of lawyers.. 1 World War II. 254. 54 Weeden. 79–80 Winston & Strawn. & Edward J. 222 Westphal. 6 World Bank. Andrew Boon &. 156. 196 White. 162 judicare program. 223–24 Yates v.. 200–201. 215 Zeisler. 166 lawyers’ pro bono contributions.index 327 Walpin. United States. David. Lucie. 83 Weisbrod. James D. 109 West Virginia coal mine disaster.. 40 Whyte. Barbara W. Henry. 72. 211 Watergate and ethics education. 217 World Jewish Restitution Organization. 8 Weisburg. Mary. 295. 251 Wilmer Cutler Pickering Hale and Dorr representing detainees.