Private Lawyers and Public Interest

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
1
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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 Reections 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 Prot and Principle: The Private Public Interest Firm 183
scott l. cummings and ann southworth
vi contents
Chapter 10. Issues Entrepreneurs: Charisma, Charisma-Producing Events, and the Shaping of Pro Bono Practice in Large Law Firms 211
cynthia fuchs epstein
Chapter 11. The Role of Volunteer Lawyers in Challenging the Conditions of a Local Housing Crisis in Buffalo, NY 231
james clarke gocker
iv. the future of pro bono Chapter 12. Rethinking the Public in Lawyers Public Service: Strategic Philanthropy and the Bottom Line 251
deborah l. rhode
Chapter 13. Bar Politics and Pro Bono Denitions: The New York Experience 267
cynthia feathers
Chapter 14. Conating the Good with the Public Good: An Essay 279
john henry schlegel
Chapter 15. State, Market, Philanthropy, and Self-Help as Legal Services Delivery Mechanisms 295
richard l. abel
Index 309
list of tables and figures

tables 2.1 Law School Pro Bono and Public Service Programs 19901993 3.1 Pro Bono Narrative Constructs 3.2 Pro Bono Hours in Law SchoolOLS Regression 3.3 Beneted from Law School Pro BonoLogistic Regression 3.4 Endorsement of Mandatory Pro Bono in Law SchoolLogistic Regression 3.5 Integration of Pro Bono Experiences in Law SchoolOLS Regression 4.1 Item and Means for Community Orientation among Lawyers 4.2 Item and Means for Motivations among Lawyers 6.1 Pro Bono Hours by Practice Setting 6.2 Pro Bono Hours by Law School Tier, Race, and Gender 6.3 Pro Bono Hours by Importance of Pro Bono Hours to Job Choice, Engagement in Pro Bono during Law School, and Desire to Help Individuals 6.4 Tobit Model of Pro Bono Hours 6.5 OLS RegressionPredicting Importance of Pro Bono Opportunities in Job Choice 6.6 Four OLS Models of Job Satisfaction 7.1 Effects of Selected Organizational Characteristics on Large-Firm Pro Bono Participation, 19982005 15.1 Comparison of Delivery Mechanisms figures 5.1 Estimated Shares of Full-Time Equivalent Civil Legal Assistance Lawyers Provided through Civil Pro Bono Programs, LSC-funded Programs, and Legal Aid Societies Not Receiving LSC Funding: USA, 1996 5.2 Selected Sources of Subsidy for Civil Legal Assistance: Funding Received by LSC-Funded Organizations and Estimated Market Value of Pro Bono Service, in Millions of Dollars: USA, 2005 5.3 Civil Legal AssistanceEligible Population per Full-Time Equivalent Civil Legal Assistance Lawyer by Source, USA, 1997 7.1 Total Pro Bono Hours, 19982005 7.2 Average Hours of Pro Bono per Lawyer, 19982005
foreword
robert a. katzmann
Judge, U.S. Court of Appeals for the Second Circuit
In this stellar collection, Robert Granfield and Lynn Mather bring together scholars concerned about the role of pro bono in the legal professionits history, organization, strategies and structure. A great virtue of this volume is its range, its combination of empirical study and thoughtful inquiry, its fostering of discussion among differing perspectives. Anyone interested in pro bono lawyering will turn to Private Lawyers and the Public Interest as a valuable resource and guide. Several years ago, before joining the federal bench, I had the privilege of directing a project, The Law Firm and the Public Good,1 in which lawyers, who confront the pressures of everyday practice in large firms, sought to explore the responsibilities of large firms to the wider community. They sought to provide a blueprint for firms concerned with creating, developing, implementing, and evaluating pro bono programs. Although ethical obligations are sufficient to justify pro bono activity, our group recognized that moral appeals are not always enough. We argued that in fact pro bono work is in the firms enlightened self-interest. That is to say, pro bono lawyering can improve morale, sharpen a lawyers skills, facilitate firm recruitment, and enhance the humanistic traditions of law practice. 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. My experience on the federal appellate court has only reinforced my view that pro bono lawyering can vitally support the fair administration of justice. In many cases, pro bono lawyers have aided the Court, as well as their clients, in presenting worthy arguments that aid us in resolving cases. In one area of the law, immigration, only 40 per cent of immigrants, have legal representation. 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. Effective pro bono lawyering can make the difference as to whether or not an immigrant is allowed to stay in this country. Recognizing pro bonos role and the unmet legal needs of the immigrant poor, I have been working in the Second Circuit to promote such lawyering.2
1. Robert A. Katzmann (ed.), The Law Firm and the Public Good, (Brookings/ Governance, Washington, D.C., 1995) 2. Robert A. Katzmann, The Legal Profession and the Unmet Needs of the Immigrant Poor, xx1 The Georgetown Journal of Legal Ethics, 329, winter 2008.
x foreword
Professors Granfield and Mather and their colleagues further our understanding of pro bono lawyering by underscoring the importance of empirical investigation, not, as they write, rhetorical pieties and breast-beating calls for lawyers to be more generous. As they so aptly comment, [i]f we want to encourage private lawyers to give of their time to increase access to justice and promote the public goodand surely we dothen 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, we are indebted to the legal scholars, social scientists, and researchers in the fields of legal education and legal practice who have contributed to this stimulating volume.
preface and acknowledgments

Planning for this research project began in Spring 2007. With high hopes for the expansion of pro bono legal service by the private bar, 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. 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, 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. As a result of the financial crisis of the past year, this book now emerges in a vastly different context. 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 20092010 year, but at a reduced salary and an uncertain job future. Smaller law firms and solo practitioners, facing reduced workother than in bankruptcyfind it financially more difficult to waive or lower fees for clients who cannot afford their services. Yet, at the same time, the need for civil legal assistance has increased with housing foreclosures, increased unemployment, and associated family and social stress. These conditions have sharply increased the salience of pro bono legal service for the legal profession and for American society. There are a number of individuals and organizations that have contributed greatly to this project. First and foremost, we wish to thank all of the authors who wrote chapters for this book. 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. This is indeed a collaborative work. 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. We especially wish to thank Ellen Kausner, Baldy events coordinator, who expertly attended to every detail and always provided calm reassurance to us, the frazzled conference organizers, and Anne Gaulin, Baldy grants coordinator and long-time staff assistant, who provided valuable back-up and facilitated in numerous ways. We are also grateful for the excellent conference help and research assistance from Nicholle Dragone, Baldys graduate assistant. Others at the University at Buffalo also helped us plan the initial event and contributed to the production of the book. Ilene Fleischmann, vice dean for alumni, public relations, and communications at the University at Buffalo Law School, provided us with superb assistance in publicity to gain wider exposure
xii preface and acknowledgments
for our conference. Thanks as well go to Nils Olsen, former dean of University at Buffalo Law School, for his enthusiastic support of our conference. For their expert secretarial help, Lynn Mather wishes to thank Susan Martin, and Bob Granfield wishes to thank Diane Holfelner. In addition to the research focus of the conference, we collaborated with the local bar, particularly those lawyers in western New York who coordinate and support pro bono services on a daily basis. Our conference was co-sponsored with the Eighth Judicial District Pro Bono Committee and the Erie County Bar Association Volunteer Lawyers Project. We wish to thank Robert Elardo, Managing Attorney/CEO of the Erie Country Bar Association Volunteer Lawyers Project in Buffalo; Amanda Warner, Eighth Judicial District Pro Bono Coordinator; the Honorable Rose Sconiers; Kenneth Manning, Partner at Phillips Lytle LLP in Buffalo; Anthony Szczygiel, Professor and Co-director of Clinical Legal Education at the University at Buffalo; and the Honorable Sharon Townsend, New York State Supreme Court, Eighth Judicial District for participating in the planning and in the conference itself. Several conference participants were unable to contribute chapters to this volume but we are grateful for their participation in the conference and their contributions. In particular, Karen Mathis, past president of the American Bar Association, 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. Other participants at the conference included Susan Feathers, Peter Pitegoff, Lucie White, Chester G. Dann, and George Zimmerman. Three distinguished scholars of the legal professionMichael Kelly, Jonathan Nash, and Debra Schleefread the entire manuscript and offered critical reviews of the chapter drafts. Their careful and insightful comments strengthened each contribution and we greatly appreciate their help. Funding from the Law School Admission Council supported Bob Granfields research on mandatory pro bono in law schools and the LSACs contribution to this project is gratefully acknowledged. We also wish to thank Melody Herr, University of Michigan Press, for her very constructive, early reactions to our project, and Chris Collins, our editor at Oxford University Press, who patiently provided answers to our myriad questions and who has been an enormous supporter of the book. Other Oxford staff Jessica Picone, Jaimee Biggins, and Erica Woods Tuckerhave also been very responsive and helpful. Finally, we wish to thank our spouses, Marian Granfield and Mike Mather, for their continuing love and support.
contributors
richard l. abel Richard L. Abel is Connell Professor of Law Emeritus at UCLA Law School. He has written extensively about the legal profession and cause lawyering, and has coordinated and taught in the UCLA Public Interest Law Program. Professor Abels most recent books are Lawyers in the Dock: Learning from Lawyer Disciplinary Proceedings (2008); English Lawyers between Market and State: The Politics of Professionalism (2003); Speaking Respect, Respecting Speech (1998); and Politics by Other Means: Law in the Struggle against Apartheid, 19801994 (1995). cynthia adcock Cynthia Adcock is an assistant professor and the director of experiential learning, Charlotte School of Law. She is the author of A Handbook on Law School Pro Bono Programs, published by the Association of American Law Schools, where she was director of pro bono, 19992001. 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). steven a. boutcher Steven A. Boutcher is a PhD candidate in the Department of Sociology at the University of California, Irvine. 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. His other current research projects focus on the liberalization of international sodomy laws and the relationship between social movements and legal institutions. scott l. cummings Scott L. Cummings is a professor of law at UCLA Law School, where he teaches business associations, professional responsibility, and community economic development. He is also faculty chair of the Epstein Program in Public Interest Law and Policy. His scholarship focuses on the organization and practice of public interest law, and his articles have appeared in the Stanford Law Review, California Law Review, Duke Law Journal, and UCLA Law Review. ronit dinovitzer Ronit Dinovitzer is an assistant professor of sociology at the University of Toronto and a faculty fellow at the American Bar Foundation. Her research focuses
xiv contributors
on stratification in the legal profession and the social organization of lawyering. She is a member of the Executive Coordinating Committee for the After the JD project, the first national longitudinal study of law graduates in the United States. She also works on the sociology of crime and criminal justice. Her recent articles have appeared in Law and Society Review, Social Forces, and the British Journal of Criminology. 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. Past president of the American Sociological Association, she was honored in 2004 with the American Sociological Associations Jessie Bernard award for her pioneering work exploring womens exclusion from the professions. Among her books are Womans Place (1970), Women in Law (1981), Deceptive Distinctions (1988), The Part-Time Paradox (with Carroll Seron, Bonnie Oglensky, and Robert Saut) (1999), and Fighting for Time (edited with Arne Kalleberg) (2004). cynthia feathers Cynthia Feathers is an appellate attorney in Saratoga Springs, New York, and an adjunct professor of appellate practice at Albany Law School. Formerly, she was the director of pro bono affairs at the New York State Bar Association in Albany, New York. She has served at the Appeals and Opinions Bureau of the New York State Attorney Generals Office and at the Center for Appellate Litigation in Manhattan, a nonprofit organization representing indigent criminal defendants. bryant g. garth Bryant G. Garth is dean of Southwestern Law School in Los Angeles. He was previously the director of the American Bar Foundation, the independent research center established by the American Bar Association for the empirical study of law, legal institutions, and legal processes. Dean Garths research has focused on the legal profession, dispute resolution, globalization, and the rule of law. His recent books (with Yves Dezalay) include, Dealing in Virtue: International Commercial Arbitration and the Constitution of a Transnational Legal Order and The Internationalization of Palace Wars: Lawyers, Economists, and the Contest to Transform Latin American States (2002). james clarke gocker James Clarke Gocker is a PhD candidate in the Department of Sociology, University at Buffalo, State University of New York. His doctoral research examines the intersection of urban disinvestment processes, property discourses, and institutional change within local legal and political fields.
contributors xv
robert granfield Robert Granfield is professor and chair in the Department of Sociology, University at Buffalo, State University of New York. He is the author of four books, including Making Elite Lawyers: Visions of Law at Harvard and Beyond (1992), and over 50 scholarly articles and reviews in journals including Law and Society Review, Social Problems, Sociological Quarterly, Sociological Forum, and Buffalo Law Review. leslie c. levin Leslie C. Levin is a professor at University of Connecticut Law School, where she serves as the faculty pro bono coordinator. She has written extensively about lawyer discipline in the United States and abroad, and about the ethical decisionmaking of solo and small-firm lawyers. She has served on state bar and judicial committees relating to lawyers professional conduct, and as secretary to the Committee on Professional and Judicial Ethics of the Association of the Bar of the City of New York. lynn mather Lynn Mather is a professor of law and political science at the University at Buffalo Law School, State University of New York. She was director of the Baldy Center for Law and Social Policy at the University at Buffalo and also held the Nelson A. Rockefeller Chair in Government at Dartmouth College. Past president of the Law and Society Association, Mather has published numerous articles and three books: Divorce Lawyers at Work: Varieties of Professionalism in Practice (2001), Empirical Theories about Courts (1983), and Plea Bargaining or Trial? (1979). deborah l. rhode Deborah L. Rhode is the Ernest W. McFarland Professor of Law and the director of the Center on the Legal Profession at Stanford University. She is a former law clerk of Justice Thurgood Marshall, a former president of the Association of American Law Schools, a former chair of the American Bar Associations Commission on Women in the Profession, a founding director of Stanfords Center on Ethics, and a former trustee of Yale University. She is the author or coauthor of 20 books and over 200 articles, and is the nations most cited scholar on professional responsibility. rebecca sandefur Rebecca Sandefur is an assistant professor of sociology and (by courtesy) law at Stanford University. Her work lies at the intersection of the sociology of law and the sociology of inequality. 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, exploring the
xvi contributors
contributions of legal education, social background, educational debt, and legal labor-market conditions. john henry schlegel John Henry Schlegel is Roger and Karen Jones Faculty Scholar and Professor of Law at University at Buffalo Law School. He is well known for his writing on legal history, critical legal studies, and legal education, and especially for his book American Legal Realism and Empirical Social Science (1995). His current research examines law and economy in the United States since World War I, in Buffalo and more generally in the national economy of the time and in the context of 80 years of economic change. deborah a. schmedemann Deborah A. Schmedemann is a professor at William Mitchell College of Law, and served as a volunteer legal services lawyer in eastern Kentucky. Her study of pro bono includes surveys of over 1,000 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). She teaches legal research and writing, and has coauthored ten editions of two texts in that field, as well as contracts and employment law. Her pro bono work includes representing teenagers in foster care. ann southworth Ann Southworth is a professor of law at the University of California, Irvine School of Law. She has also taught at UCLA, Case Western Reserve, and Harvard. Her scholarship focuses on the legal profession, particularly lawyers who serve causestheir norms, professional identities, practices, organizations, and networks. Her book on advocates for conservative and libertarian causes, Lawyers of the Right: Professionalizing the Conservative Coalition, was published by University of Chicago Press in 2008. philip veliz Philip Veliz is a PhD candidate in the Department of Sociology at the University at Buffalo, State University of New York. His current research projects include alcohol use among young adults and youth sport in American society.
1. pro bono, the public good, 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 $1.2 billion settlement fund established to compensate heirs of Nazi victims whose assets were hidden by Swiss banks. Elsewhere, lawyers from Goodwin Procter filed a lawsuit on behalf of a class of homeless children to overcome hurdles to uninterrupted educational access. A team of 42 litigators and professional staff from Goodwin Procter participated in more than 30 separate depositions, resulting in sweeping changes in the policy for educating homeless children in Suffolk County and the rest of New York State. Attorneys at another law firm, Hunton & Williams, have served as counsel for asylum-seekers from Tibet and two African countries. At the New York law firm of Wilmer Cutler Pickering Hale & Dorr, lawyers have represented six detainees who were held for more than three years, without being charged with any crime, by the U.S. government at Guantanamo Bay. In 2004, lawyers at Hughes, Hubbard & Reed represented seven families of uniformed victims of the 9/11 World Trade Center attacks. Working with a team of economists, 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. This firm was just one of many that rushed to volunteer their legal services after 9/11.1 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. While working at the law firm of Hogan & Hartson, Roberts helped activists persuade the Supreme Court to issue a landmark 1996 ruling protecting people against discrimination because of their sexual orientation (Serrano 2005). In addition to these high-profile cases, 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, guardianship, asylum, immigration, AIDS discrimination, housing, and prisoners rights. Despite the wide diversity of legal cases reflected in this short list, there is a common feature that unites them all. The attorneys who worked on these cases and the law firms that employed them received no financial compensation for the services they delivered. That is, the legal help was performed pro bono publicofor the public good. Private lawyers nationwide now contribute significantly to help
1. See Dean (2005) for full details on the examples above.
2 private lawyers and the public interest
the disadvantaged with their legal problems and to promote social reform. Decades ago such legal assistance might have come from staff attorneys for specialized interest groups or from legal services attorneys. But by 1997, 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. Specifically, 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, economic, cultural, and political dimensions of pro bono legal work. 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, but not others, 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, what are the opportunities and limits of pro bono for increasing access to civil justice, especially for those who cannot afford legal counsel? This book, developed from a 2008 conference on pro bono sponsored by the Baldy Center for Law and Social Policy at the University at Buffalo, examines these and other questions. Through a collection of essays written by leading and emerging scholars in the field, the book examines the history, organization, strategies, and structure of pro bono lawyering. It also combines empirical research, historical analysis, and critical inquiry. Some of our authors are optimistic about the ability of the profession to realize the ideals of pro bono, while others are deeply skeptical. We believe that the dialogue that emerges from these chapters can help to focus attention on crucial issues and thereby inform debate. Most importantly, the book shows how pro bono legal work is shaped by external forces that go beyond the individual practitioner. Specifically, stratification of the profession, the history and politics of the bar, the economics of law firms, and communities of legal practice strongly affect the public service contributions of lawyers. Nevertheless, individual practitioners can, at times, make a difference. For example, they may exert significant influence through leadership in bar organizations or law firms, 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. But that recognition has been far stronger in theory than in practice. For every example of zealous advocacy on behalf of those who could not afford representation, there were countless others demonstrating the legal professions
pro bono, the public good, and the legal profession 3
indifference (Abel 1989). For example, 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, the American Bar Association (ABA) denounced it as a loss of professional independence, commercialization, and homogenization of lawyers in one indistinguishable crowdwith a commensurate diminution in status for elite practitioners tainted by association with their ambulance-chasing brethren (Auerbach 1976:46). Only after bitter conflicts and vigorous opposition from nonelite lawyers did the ABA finally approve these fees (Auerbach 1976). 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. Perhaps the most significant development during this period was Reginald Heber Smiths condemnation of the judicial system in his acclaimed book Justice and the Poor, published in 1919. In his study of legal services for the poor, Smitha Boston Brahmin lawyerfound that less than 10 percent of lawyers contributed support to legal aid, and that in some cities the proportion was only 2 or 3 percent (Rhode 2004:60). Smiths indictment of the justice system did not stem from a belief that the substance of the law itself was unjust or discriminatory but, rather, from a belief that the machinery of the law was flawed because the poor could not afford legal representation and, as a result of their poverty, were denied access to justice. According to Judith Maute, who has examined the history of pro bono legal representation, 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; it was not until the 1950s that pro bono referred specifically to uncompensated legal representation (Maute 2002:113). Conceptions of lawyers professional responsibility included such representation in the public interest. In 1953, 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 serviceno less a public service because it may incidentally be a means of livelihood (Pound 1953:5). 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). This eloquent statement about lawyers generosity with their services coincided with the bars opposition to federal funding of legal aid in the postwar period. Fearful of federal intervention as a threat to the autonomy of the legal profession, the ABA worked to improve their public image by exhorting practitioners to extend legal representation to all, regardless of clients ability to pay (Solomon 1992). It was not until 1983after the turbulent 1960s and the Watergate debacle of 1974that the bars ethical rules explicitly used the term pro bono in terms of a lawyers professional responsibility (Cummings 2004:4). The conflicts over those rules, discussed in greater detail in the next chapter, illustrate just how contested a concept pro bono historically has been. Although the ABAs 1969 Code of Professional Responsibility stated that all lawyers should find time to participate
in serving the disadvantaged (EC 225)2, successive efforts to strengthen this into a professional bar requirement have met with mixed success. The ABAs Model Rule 6.1, adopted in 1983, 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). A decade later, the bar revised Model Rule 6.1, 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. Since a number of the chapters that follow examine the meaning, history, or impact of Model Rule 6.1, we provide it here3:
ABA Model Rule 6.1 Voluntary Pro Bono Publico Service

Every lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should aspire to render at least (50) hours of pro bono publico legal services per year. In fulfilling this responsibility, 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, religious, civic, community, governmental and educational organizations in matters which are designed primarily to address the needs of persons of limited means; and (b) provide any additional services through: (1) delivery of legal services at no fee or substantially reduced fee to individuals, groups or organizations seeking to secure or protect civil rights, civil liberties or public rights, or charitable, religious, civic, community, governmental and educational organizations in matters in furtherance of their organizational purposes, where the payment of standard legal fees would significantly deplete the organizations economic resources or would be otherwise inappropriate; (2) delivery of legal services at a substantially reduced fee to persons of limited means; or (3) participation in activities for improving the law, the legal system or the legal profession. In addition, a lawyer should voluntarily contribute financial support to organizations that provide legal services to persons of limited means.
2. See the Model Code Comparison on the ABA website: www.abanet.org/legalservices/ probono/rule61.html. 3. Model Rule 6.1 is on the ABA Standing Committee on Pro Bono & Public Service website: www.abanet.org/legalservices/probono/rule61.html.
Although the ABA added voluntary to the title of 6.1 and stopped short of requiring lawyers to report their pro bono work, numerous states, bar associations, and other organizations have developed strategies to increase lawyers pro bono engagement. These measures, outlined by Scott Cummings (2004) and Deborah Rhode (2005), have included state ethical rules and infrastructural support, resources from foundations such as Ford and Open Society, technological tools to match needy clients with willing lawyers, and organizational help from the Pro Bono Institute as well as the ABAs Center for Pro Bono. Social pressure and competition within the legal profession has also encouraged pro bono service. State and local bar associations currently offer annual awards for exemplary pro bono work, as do numerous individual law firms across the country. 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. Pro Bono in Practice Recent evidence suggests that pro bono service has indeed gained popularity within the profession, especially within large law firms. 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. 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, compared to 66 percent in 2004 (2009:1). This increase is consistent with recent reports from the Pro Bono Institute and The American Lawyer, both of which found an increase in pro bono hours and higher numbers of attorneys doing pro bono; these trends are discussed in greater detail in part two of this volume. Particular attention has been paid by the media to pro bono work done by large law firms. Created in 1993, the Law Firm Pro Bono Challenge is an initiative launched by the ABA and now operates under the aegis of the Pro Bono Institute. The Challenge involves law firms of 50 or more attorneys making a specific institutional commitment of 35 percent of their billable hours to pro bono and reporting the results each year. While there are no sanctions for not meeting their pro bono goals, many of the nations leading law firms are signatories to this challenge (www.probonoinst.org). A closer look at the data reveals that, despite overall pro bono participation of 73 percent in the ABA survey, 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). Differences in the number of hours provided as well as in rates of participation emerge across firms of different sizes and types, and across geographic areas. For example, when compared to attorneys practicing in law firms, solo legal practitioners who constitute 48 percent of all private lawyersreport by far the highest incidence of pro bono on behalf of indigent individuals or organizations assisting those of limited means. The fact that lawyers in solo practice or in very small
firms face significantly different economic and social pressures than those in large law firms is discussed by Leslie Levin in chapter 8. Geographic differences in lawyers public service contributions through pro bono are also seen across cities (Cummings 2004) and states (Sandefur 2007), and are explored further in chapter 7. The workplace context is thus crucial for understanding lawyers willingness to provide legal services at no cost or at reduced fees (Granfield 2007). Pro Bono in Law Schools Law schools, it has been suggested, should assume the burden of ethics education by instilling public service ideals in their students because todays 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, nor do these firms provide or encourage pro bono opportunities (Nelson 1988; Katzmann 1995). Numerous legal observers have bemoaned the erosion of the traditional ethical norms and professional obligations binding lawyers to the public good (Glendon 1994; Kronman 1993). As a partial outgrowth of this debate over legal ethics, in 1996, 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). In February 2005, the ABA strengthened this standard to make such law school efforts mandatory rather than aspirational. Law school deans have generally supported the abstract goal of promoting greater commitment to pro bono and public service among law students. In a survey conducted by the American Association of Law Schools (AALS) Commission on Pro Bono and Public Service Opportunities, 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). Some legal academics view pro bono requirements as a political strategy to counter the conservative trends of the 1980s; 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 prelaw school idealism and commitment to public service by redefining legal practice as a game that rewards cleverness and manipulation (Granfield & Koenig 1992; Mertz 2007). 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; Schleef 2006; Granfield 1992). Pro bono requirements in law school, proponents argue, would counter this trend and reinforce professional values oriented to the public good. As discussed in the next chapter, the majority of American law schools have indeed implemented some type of pro bono program, and several have adopted mandatory requirements. Pro bono policies at most schools were introduced without significant controversy. Debate within schools has tended to involve
concerns regarding logistical implementation rather than challenges to the general principle of pro bono programs. While anecdotal evidence supports the value of law school pro bono for graduates subsequent participation in pro bono work, only recently have empirical studies tested this assumption (cf. Rhode 2005 and Granfield 2007 with chapter 4 of this volume).
the state, pro bono, 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, then, as Stephen Parker argues, 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). 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. Doing pro bono publico is integral to being a lawyerit is not simply charity. Alternatively, if law is a private profession, then why should its practitioners be compelled to work for free? Others in private businessaccountants, druggists, grocers, taxi driversare not required to help the needy in order to continue to do their work. Lawyers are different, it is argued, because of their particular relation to the state (Katzmann 1995; Rhode 2005). The state allows the legal profession the autonomy to regulate itself in exchange for the professions commitment to serve the public interest. Providing pro bono service is one of the ways in which lawyers demonstrate that they are working for the public good. Attorneys have other ways of showing this as well, through their independence from clients (Gordon 1988) and their public service (Kronman 1993). Equal access to justice is unquestionably in the public interest. But even with increased pro bono from the bar, many individuals with pressing civil law problems are unable to secure legal assistance. The Legal Services Corporation (2007) reports that half of those seeking legal help are turned away for lack of resources, a figure that underestimates the need since many indigent individuals do not even know where to go for help. Now, in 2009, the need for legal help has increased dramatically due to the financial crisis. Problems of housing, employment, credit, 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). Since many legal aid groups rely on income from state-run programs that draw on interest from trust accountsInterest on Lawyers Trust Accounts (IOLTA) the decline in interest income has led to substantial cutbacks in legal aid staff throughout the country (www.iolta.org). Pro bono contributions from private lawyers are unlikely to make up for these sizable losses of funding.
As noted by one critic of the pro bono movement, the currently most popular means of meeting the legal needs of the poor, pro bono publico representation, has distracted us from another means, publicly subsidized legal services (Atkinson 2001:170; emphasis added). Indeed, 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). Not only did bar leaders revisit the status of pro bono in the professional rules, but a portion of the already reduced Legal Services Corporation budget was required by federal statute to be channeled through Private Attorney Involvement. When we think more broadly about the various ways in which legal services might be delivered, as Richard Abel does in chapter 15, then pro bono must be put in its context as one alternative to state funding. 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. Elsewhere, the state takes primary responsibility for legal representation of those of limited means. In Britain, for instance, indigents have had the right to counsel in civil cases since 1495 (Robertson 2001:108). Interestingly, however, political conflicts over legal aid have arisen there just as they have in the United States. As legal aid funding was unable to keep up with the demand, Britain instituted caps on funding and introduced other changes to reduce the costs for the state. Australia provides an interesting counterpoint to the experience in both countries. Although Australia had a government-funded legal aid program for all who could not afford representation, its rising costs were shifted from the federal to the state governments in the 1990s. Serious discussion began about the bars ethical responsibility at that time, and a large conference was held in 2000 entitled, For the Public Good: The First National Pro Bono Law Conference. Some observers protested that the government was trying to pass along its obligation for legal representation to the private bar, while others applauded the move as a realistic response to rising legal aid costs (Weisbrot 2001; Arup 2001). In 2002, the National Pro Bono Resource Centre was established in Australia to coordinate pro bono programs, to conduct research on pro bono, and to foster a pro bono culture (Thornton 2005:156). Like Australia, Canada has witnessed a significant rise in American-style pro bono legal services. While government funding for legal aid programs has remained fairly consistent over the years (Statistics Canada 2007/2008), pro bono in Canadian law firms has gathered steam as both a worthy undertaking and an essential part of a modern, cutting-edge practice (Lusky 2005). For a growing number of firms, taking a pro bono case is no longer an act of individual effort and conscience, but rather a structured policy that advances the firms business and public service interests. In 1996, Pro Bono Students of Canada (PBSC), the worlds only national pro bono student organization, formed to
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). As those in Australia and Canada are seeking to borrow ideas from the United States to develop a pro bono culture, U.S. advocates are looking for strategies to increase government funding of legal services in civil cases. History reminds us that at one time, indigents in criminal cases lacked legal representation, but that through changes in state and local practices, evolving ideas of justice, and successive constitutional litigation, the right to counsel for criminal defendants was finally established by the Supreme Court. 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, healthcare or child custody) would be a first step toward a constitutional right to civil counsel (Pastore 2009). Through this approach, public attitudes might also begin to shift to acknowledge the injusticenot to mention the social and economic costsresulting from a lack of adequate representation in cases of divorce, custody, housing, immigration, discrimination, and debt. The task of transforming American attitudes toward legal assistance in civil cases faces a number of challenges, howeverall of which have emerged in debates about pro bono. For one, the very concept of a legal need is contested. Who defines need other than the legal profession, 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. Pro bono solves that problem by having lawyers provide legal service to the poor out of their own pockets, so to speak, thus providing a check on self-interest. A similar issue arises over Americans aversion to civil litigation and the widespread belief, fostered by tort reform groups, that people should take responsibility for their own problems, rather than turning to law for solutions. If much civil litigation is frivolous then wouldnt it be better, it is argued, to have private lawyers decide which claims are meritorious rather than having government, through public funding, make such decisions. A final challenge, and the most difficult in any discussion of pro bono publico, is determining what kinds of legal representation are in fact in the public interest. Chapters 9, 12, and 14 each address this complicated issue. Popular debate over the meaning of publico emerged recently in the press after a speech by Chief Judge Dennis Jacobs of the U.S. Court of Appeals for the Second Circuit. In remarks to the Federalist Society, he questioned whether all pro bono activities are really in the public interest and answered, sometimes yes, and sometimes no (Jacobs 2008). 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.
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, as an occupational group, unanimously subscribe. Instead of a universal, one-size-fits-all, professionalism, there are varieties of professionalism within legal practice. Lawyers understand their professional roles and make decisions at work through their interactions with colleagues. 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. 2001:176). The particular conditions and culture of the workplace, the shared language and knowledge of ones legal work, and personal values and identities of colleagues all help to shape professionalism in practice. For example, investigation into the everyday decisions of divorce lawyers showed variation in professional norms according to personal identities, shared clienteles, common work organizations, and locales (Mather et al. 2001). Michael Kelly (2007) found similar variation in professional norms and values across the five law firms he studied, concluding that legal scholars should live and work with multiple ideas of profession (2007:323). Or, as Robert Nelson and David Trubek suggested, there are multiple and competing visions of what it means to be a professional (1992:182). While there may be some commonalities within the concept of legal professionalism, its meaning and experience in the everyday lives of lawyers is multivalent, richly textured, and locally contingent. Not surprisingly, the particular meaning and experience of pro bono in the lives of lawyers are similarly contingent. Not only are there variations in the amount of pro bono participation by lawyers across diverse workplace settings, but there are differences in the attitudes, motivations, and perceived benefits associated with performing pro bono service. Small firm attorneys and sole practitioners, for example, often view pro bono as a means for acquiring clients and as a way of enhancing their professional reputation (Granfield 2007). In addition, 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. Also, while many sole and small-firm attorneys perform pro bono, they tend to be less supportive of mandatory pro bono requirement proposals than are large-firm attorneys. Small-firm lawyers are also more likely to include reduced-fee services as part of low bono, whereas large-firm lawyers do not. Large law-firm attorneys, particularly those who are in the earlier stages of their careers, generally have little control over their work life and, as a result, frequently experience high levels of stress and alienation. Because of these work conditions, 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. In one study, lawyers reported engaging in pro bono work both to enhance their skills
and to benefit from workplace policies that count a portion of pro bono work toward billable hour expectations (Granfield 2007). Senior management at large firms see clear benefits from pro bono for its ability to attract and train young lawyers, and also to provide positive public visibility for the firm. 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. The norms, expectations, and motivations regarding the performance of pro bono for these lawyers are vastly different from those for lawyers in other workplace settings. In-house counsel often use nonlegal volunteer opportunities, instead of pro bono, 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). 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. The type of pro bono work undertaken within a law firm also reflects the social, economic, and even political context of the firm. Increasingly, pro bono activity is driven by the needs and limitations of the law firm, as opposed to the expressed needs of potential clients (Scheingold & Sarat 2004). Small law firms often do not have the capacity to accept certain pro bono cases, such as largescale impact litigation that might deplete valuable resources. In larger corporate law firms, lawyers are often restricted from taking certain pro bono cases for ideological reasons. 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. Sometimes pro bono work is directed away from controversial areas like abortion, consumer law, the death penalty, labor rights, environmental law, or gay and lesbian issues that might offend paying clients (Margulies 1999) or pose positional conflicts with perceived interests of the firms clients (Cummings 2004). Very often the most popular areas of pro bono work are those that pose the least potential for conflict, such as individual cases of family law or elderly or child services. 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. For example, although most lawyers (64 percent) said that legal services had to be free to be considered pro bono, 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). Recipients of pro bono service should be persons of limited means or not-for-profit organizations, according to most lawyers in the survey, but over one-quarter of the lawyers indicated that pro bono recipients could include government agencies or political candidates. The survey found that lawyers varied in their views of what kind of activities could qualify as pro bono work. For example, government attorneys were significantly more likely than other lawyers
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). In sum, 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 meaning of pro bono for individual lawyers, the profession itself, the clients served, and society as a whole is always contingent upon broad organizational, cultural, economic, and historical contexts. Indeed, the articles in this volume demonstrate that pro bono must be understood beyond affective motivation, rational action, and the selfless articulation of the public good. Individual values, law firm strategy, and conceptions of the public good are all embedded within a wider social context that produces, shapes, and constitutes pro bono service. As Andrew Boon and Avis Whyte (1999:190) write, to individualize it [pro bono] . . . would be to misunderstand the social, political and organizational context within which it operates. The current collection, focusing on civil legal assistance in the United States, thus explores the socially constructed nature of 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. Their methods of inquiry range from sophisticated statistical analyses and largescale surveys to historical investigations, personal interviews, participation observation, and case studies. The book is premised on the assumption that an understanding of pro bono legal service requires empirical investigation, not rhetorical pieties and breast-beating calls for lawyers to be more generous. If we want to encourage private lawyers to give of their time to increase access to justice and promote the public goodand surely we dothen we need to understand the conditions most likely to produce such behavior. 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, and principled commitment to public service. Readers may want to begin with any of these three sections depending on their primary interest. 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. Not all of the chapters fit neatly into one or another section, as some chapters explore more than one of these three general perspectives. But we have grouped them in this way in order to call attention to the quite
different explanations for pro bono legal work that emerge from thinking about attorneys as members of a profession, as self-interested businesspeople, or as principled public servants. Following the discussion and results of the empirical research on pro bono in the first three sections, the chapters in the last section of the volume interrogate the relationship between pro bono and access to justice. The authors here all raise explicitly normative perspectives, providing challenge and critique to the current pro bono movement and offering strategies and alternatives for reform. As editors, we readily acknowledge that this volume is hardly comprehensive and that it raises as many questions as it answers. 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 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, Cynthia Adcock provides a useful historical overview of the development of and changes within pro bono in the legal profession and in legal education. 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, the 1960s and 1970s era of causebased public service, and the 1980s and 1990s era of ethics-based public service. 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. In this way, Adcock shows how the professions 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, rather than simply reflecting the interests of individual lawyers to serve the public good. Drawing on her experience as the former director of pro bono for the American Association of Law Schools, Adcock also presents a detailed summary of the various pro bono programs that have been established by law schools beginning in the 1990s. Following Adcocks historical overview of pro bono in legal education, chapter 3 by Robert Granfield and Philip Veliz reports on an empirical study of mandatory pro bono at three separate law schools. Relying on responses to a comprehensive survey of lawyers who participated in mandatory pro bono during law school, the authors examine the relationship between professional identity and pro bono work. Granfield and Veliz distinguish between two groups of pro bono narratives: those that emphasize self-interested instrumental benefits (acquiring good lawyering skills), and those that emphasize the social benefits and contributions to others (lawyering for the good). 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. Without curricular integration, students found few opportunities to explore the role of pro bono in contributing to the greater good and focused
instead on the benefits they received for themselves. Consistent with Deborah Rhodes chapter later in the collection, the work of Granfield and Veliz suggests that bottom-line considerations seem to be the most powerful motivators of pro bono service. Noting this lack of integration of pro bono experiences within most law schools, 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 learningan approach that combines community service with academic work. Schmedemanns research explores pro bono by new lawyers as a form of professional volunteerism, relying on data gathered from 1,000 law students and lawyers. Informed by social science theories about volunteerism more generally, including the psychology of helping and the social context of volunteering, 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. Unlike earlier research by Rhode (2005) and Granfield (2007), which found little or no increased pro bono work by lawyers as a result of their mandatory pro bono experiences in law school, this study reports a significant increase in pro bono participation, most likely as a result of the particular approach of the law school program studied and its incentive-based character. 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. Such a finding has important implicationsespecially in light of the Carnegie Foundation report, Educating Lawyers: Preparation for the Profession of Law (Sullivan et al. 2007), discussed by Adcock in chapter 2. Part two of this book explores the economic and market-based factors that affect pro bono legal work, focusing especially on legal practice. In the opening chapter in this section, sociologist Rebecca Sandefur undertakes a critical analysis of the extent and sources of legal services for Americas poor. Sandefur argues that, as a matter of institutional design, American-style civil legal assistancea phrase she uses to contrast the American system of legal assistance for the poor with that in other countriesis market-reliant. A substantial amount of civil legal assistance emanates from the pro bono work of private lawyers, and, in terms of the total number of hours contributed, most of those hours come from attorneys in large law firms. As Sandefur reminds us, effectively, much pro bono labor is donated not by the lawyer who serves, but by the firm who pays that lawyer to do pro bono work (101). Sandefurs conceptualization of pro bono in a market context thus stands in stark contrast to Schmedemanns study in the previous chapter, which sees pro bono in terms of volunteerism. Rather than reflecting the noble intentions of individual practitioners, chapter 5 suggests that pro bono work is deeply rooted in and largely dependent on the marketplace, so much so that such work is potentially vulnerable to economic downturns such as the one we are now experiencing.
Like Sandefur, Ronit Dinovitzer and Bryant Garth in chapter 6 recognize lawyers self-interest in doing pro bono work. But they also see the disinterested nature of lawyers commitment to helping others with their legal needs. The authors combine these two perspectives by drawing on Pierre Bourdieus (1998) theory of habitus and exploring how the social field of lawyering is structured so as to reward disinterested behavior. Dinovitzer and Garth suggest that it serves elite lawyers to be generous and altruistic, as opposed to being egotistical. Using data from a nationwide survey of new lawyers, they test their hypotheses about pro bono participation, firm size, job satisfaction, and stratification of the legal profession. 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. Pro bono legal work, according to Dinovitzer and Garth, is largely indicative of a type of cultural capital that elite lawyers use to enhance their status, rather than merely reflecting a sense of individual altruism and selflessness on the part of a lawyer. Steven Boutchers research, reported in chapter 7, offers another account of the relationship between pro bono work and the economics of law firms. Using a neoinstitutional framework and data from The American Lawyers list of the top 200 law firms, Boutcher investigates the thesis that pro bono work has been increasingly institutionalized within large law-firm practice. Observing that pro bono is unevenly enacted within large law firms, he finds, for example, significant positive relationships between the level of pro bono work and firm size and profits per partner (see also Galanter & Palay 1995). While there is growing evidence of pro bonos institutionalization, this trend is only partial. Given the different communities of practice (Mather et al. 2001) and cultures of law firms (Kelly 2007) within the legal profession, it is essential to pay attention, as Boutcher does, to the fact that not all large firms act alike, including when it comes to participation in pro bono. The final chapter in part two, by Leslie Levin, focuses on small-firm lawyers and solo practitioners. 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. Yet solo practitioners in particular do a comparatively high amount of pro bono and, unlike their large-firm counterparts, have no organization to pay the bill. The hours they contribute all come directly out of their billable time and profits. In small-practice settings, many lawyers define pro bono work as reduced-feeor even freework for regular clients who simply can no longer pay their bills. Referred to as low bono, 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. An expert in legal ethics, Levin examines the history of the ABA Model Rule 6.1 and the ways in which this rule is viewed by solo and small-firm practitioners. Arguing that the rule reflects the large-firm view of pro bono (159), this chapter provides an important corrective to a field that tends to ignore the perspective of solo and
small-firm practitioners. Reinforcing the observations about professional hierarchy by Dinovitzer and Garth in chapter 6, Levin points out that the patterns of pro bono across firms are reflective of the distinct hemispheres within the bar (Heinz et al. 2005). In light of these differences, Levin considers how the definition of pro bono might be reformed to better recognize and appreciate the realities confronting these practices. Although Levin grounds her analysis in the economics of solo and small-firm law practice, she also examines the moral and ideological commitments that encourage lawyers to engage in pro bono. Thus, this chapter provides an excellent transition to the third section of the volume, 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. How does a culture of pro bono commitment emerge within a firm, 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, as David Wilkins (2004:1) frames it, 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. In chapter 9, 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. According to these authors, these hybrid firms assert a distinct public vision of market-driven lawyering, thus providing an alternative way for lawyers to pursue public ends through private means that challenges the conventional pro bono model (184). Drawing on a wide range of studies as well as their own original research, Cummings and Southworth think carefully about how private public interest firms both differ from and are similar to other types of legal practice. Defined by the authors (186) as for-profit legal practices structured around service to some vision of the public interest, 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. 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. At the same time, lawyers at these firms seek to move discussion about the bars commitment to public service by asking crucial questions about whether the firms core function is consistent with the public interest (204)questions that invoke central issues of legal professionalism. The next chapter in this section, by Cynthia Fuchs Epstein, 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. Drawing on new work on cultural analysis that examines how organizational cultures are informed by their pasts, chapter 10 explores the link between
legendary narratives of charismatic partners and the pro bono cultures within the prestigious law firms Epstein studied. Complementing Boutcher in chapter 7, Epsteins work has much to say about the processes of pro bonos institutionalization within large law firms. In this chapter, 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 firms commitment to pro bono legal work. Interestingly, she finds the impact of these historic figures in the narratives of service that emerge in personal interviews with practicing lawyers in these firms. Indeed, as Epstein argues, 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. In chapter 11, 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. Focusing on one-shot pro bono cases in which an attorney sees and represents a client for a single court appearance, Gocker examines the relationship between organized pro bono and legal professionalism. Relying on extensive court observations of pro bono attorneys and their clients as well as in-depth interviews with pro bono attorneys, 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. The norm of client advocacy, for example, 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. Gockers analysis of the challenges to legal professionalism experienced by the housing court lawyers, and of the solutions they devise to provide reasonable outcomes within a highly constrained sociolegal context, echo the findings of other researchers who have studied attorneys representing one-shot clients in high-volume courts, such as criminal defense (Blumberg 1969), legal services (Hosticka 1979), or divorce courts (Mather et al. 2001). Like the attorneys working in these other areas, the private lawyers representing poor tenants on a pro bono basis frequently become disillusioned with the alternatives available and see their clients as unappreciative, causing some to abandon their participation in pro bono work altogether. By giving readers a glimpse of the sometimes depressing everyday details of pro bono legal practice, chapter 11 reminds us that public interest work looks different when viewed up close rather than from afar, where it is usually bathed in abstractions about the public good. Thus, Gockers work provides a fitting gateway to the final section of this book on the future of pro bono. 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. Should a lawyering for the good ethic serve as the foundation for
pro bono work instead of a pro bono commitment that is contingent on the marketdriven, bottom-line ideology of legal practice? If so, 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, and what has this definition meant for lawyers who participate in pro bono work? Finally, 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 bars 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. In other words, 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, Rhode nevertheless believes that ethical concerns need to take precedence over the economic rationales for pro bono service; otherwise the public service initiatives of wellmeaning lawyers may end up falling far short of their targets. Building on her influential book (Rhode 2005), Rhode argues in this chapter that because the bottom-line motivations for pro bono are now so dominant, rarely do attorneys or the firms they work for assess what may be the most pressing legal needs of a community. 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. For the most part, pro bono is done with the interests of the lawyer, the firm, and the profession in mind, leaving little room to contemplate pro bono from the perspective of the individual or community served. Rhode challenges law firms to move beyond bottom-line pro bono and engage instead in strategic philanthropythat is, to identify pro bono priorities and select cases on that basis, to strive to maximize participation in (and the quality of) pro bono service delivery, and to evaluate the effectiveness of their pro bono initiatives. Cynthia Feathers also provides critique of the current system, 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). In chapter 13, Feathers details the political tension within the New York State Bar over proposed pro bono requirements and the changing definitions of pro bono service. Members of the NYSBA, according to Feathers, were conflicted over which constituencies best represent the public that should be served through pro bono efforts. During the time that Feathers directed the Department of Pro Bono Affairs, she presided over an expansion of the meaning of pro bono within the NYSBA. Ironically, despite producing new enthusiasm for pro bono among a broad constituency of lawyers across the state, the expansion of the meaning of pro bono led lawyers, especially in large law firms, to take the most high-profile cases while ignoring the more difficult and less glamorous pro bono cases.
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. Although the critiques come from very different perspectives, together they provide a sobering balance to earnest pleas for greater altruism on the part of lawyers. We include these two chapters not to end the book on a discouraging note, 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. In chapter 14, John Henry Schlegel puts the question of what constitutes the public in the phrase pro bono publico front and center in his inquiry. Influenced by empirical work on the legal profession and especially by the insights of critical legal studies, Schlegel interrogates six examples of pro bono service cited by authors in earlier chapters of this collection. He breaks down the six cases into ostensibly good versus bad sides, and observes that pro bono service is typically enlisted on the good side to fight larger, more powerful interests on the bad side who have legal representation. Schlegels 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). Indeed, the entire enterprise of identifying the public interest is fraught with difficulty, he argues, 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. The final chapter, by Richard Abel, presents a very different kind of critique, one that is deeply rooted in comparative study of legal professions (see, e.g., Abel 1989 and 2003). Conceptualizing legal services as simply one of a larger set of social services that includes health care, policing, national security, education, and aid to the poor, Abel prompts us to consider how these services have been delivered over time within the United States and across different countries. He posits four different mechanisms of service deliverystate, market, philanthropy, and self-helpand suggests that the current rise in pro bono (philanthropy) is directly related to the decline in support from the state for civil legal services. Offering tentative hypotheses about the relative strengths and weaknesses of different types of delivery systems, 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.
references
Abel, Richard (1989) American Lawyers. New York: Oxford University Press. (2003) English Lawyers between Market and State: The Politics of Professionalism. Oxford: Oxford University Press.

American Association of Law Schools Commission on Pro Bono and Public Service Opportunities in Law Schools (1998) Learning to Serve: A Summary of the Findings and Recommendations of the AALS Commission on Pro Bono and Public Service Opportunities, http://www.aals.org/probono/report.html. American Bar Association Standing Committee on Pro Bono and Public Service (2009) Supporting Justice II: A Report on the Pro Bono Work of Americas Lawyers, ABA website. http://www.abaprobono.org/report2.pdf Arup, Christopher (2001), Pro Bono in the Post-professional Spectrum of Legal Services, 19 Law in Context 190213. Atkinson, Robert (2001) A Social-Democratic Critique of Pro Bono Publico Representation of the Poor: The Good as the Enemy of the Best, 9 American University Journal of Gender, Social Policy and Law 129170. Auerbach, Jerold S. (1976) Unequal Justice: Lawyers and Social Change in Modern America. New York: Oxford University Press. Blumberg, Abraham (1969) The Practice of Law as a Confidence Game, 1 Law and Society Review 1539. Boon, Andrew and Avis Whyte (1999) Charity and Cheating Begins at Home: The Aetiology o the New Culture of Pro Bono Publico, 2 Legal Ethics 169191. Bourdieu, Pierre (1998) Practical Reason: On the Theory of Action. Cambridge, United Kingdom: Polity Press. Chemerinsky, Erwin (2008) Not a Self-Serving Activity National Law Journal October 27, 2008. Cummings, Scott (2004) The Politics of Pro Bono, 52 UCLA Law Review 1149. Dean, William (2005) Pro Bono Digest, New York Law Journal May 6 2005, http:// www.nylj.com/nylawyer/probono/news/05/050605b.html. Eckholm, Erik (2009) Interest Rate Drop Has Dire Results for Legal Aid Groups New York Times January 19, 2009. Erichson, Howard M. (2004) Doing Good, Doing Well, 57 Vanderbilt Law Review 20872125. Flacks, Richard (1988) Making History: The American Left and the American Mind. New York: Columbia University Press. Galanter, Marc and Thomas Palay (1995) Public Service Implications of Evolving Law Firm Size and Structure, in Robert Katzmann, ed., The Law Firm and the Public Good. Washington, DC: Brookings Institution Press. Glendon, Mary Ann (1994) A Nation under Lawyers. New York: Farrar, Straus and Giroux. Gordon, Robert (1988) The Independence of Lawyers, 68 Boston University Law Review 183. Granfield, Robert (1992) Making Elite Lawyers: Visions of Law at Harvard and Beyond. New York: Routledge. (2007) The Meaning of Pro Bono: Institutional Variations in Professional Obligations among Lawyers, 41 Law and Society Review 113146. Granfield, Robert and Thomas Koenig (1992) The Fate of Elite Idealism: Accommodation and Ideological Work at Harvard Law School, 39 Social Problems 315331. Hackett, Susan (2002) Inside Out: An Examination of Demographic Trends in the In-House Profession, 44 Arizona Law Review 609619. Heinz, John P. et al. (2005) Urban Lawyers: The New Social Structure of the Bar. Chicago: University of Chicago Press. Hosticka, Carl J. (1979) We Dont Care What Happened; We Only Care about What is Going to Happen: LawyerClient Negotiations of Reality 26 Social Problems 599610.
Jacobs, Dennis (2008) Pro Bono for Fun and Prot, Speech to Federalist Society for Law and Public Policy Studies, October 6, http://www.fed-soc.org/publications/pubID.1178/ pub_detail.asp. Katzmann, Robert A. (1995) Themes in Context, in R. A. Katzmann, ed., The Law Firm and the Public Good. Washington, DC: Brookings Institution. Kelly, Michael (2007) Lives of Lawyers Revisited: Transformation and Resilience in the Organization of Practice. Ann Arbor: University of Michigan Press. Kritzer, Herbert (1991) Abel and the Professional Project: The Institutional Analysis of the Legal Profession, 3 Law and Social Inquiry 529552. Kronman, Anthony T. (1993) The Lost Lawyer. Cambridge, MA: Belknap Press. Larson, Magali Safatti (1977) The Rise of Professionalism. Berkeley, CA: University of California Press. Legal Services Corporation (2007) Documenting the Justice Gap in America, report of the Legal Services Corporation, Washington DC: www.lsc.gov. Lusky, Suzanna (2005) Pro Bono Goes Mainstream, The Canadian Lawyer, May 2005. Margulies, Peter (1999) Multiple Commitments or Monolithic Clients: Positional Conflicts or Interest and Mission of the Legal Service Lawyer, 67 Fordham Law Review 23392375. Mather, Lynn et al. (2001) Divorce Lawyers at Work: Varieties of Professionalism in Practice. New York: Oxford University Press. Maute, Judith (2002) Changing Conceptions of Lawyers Pro Bono Responsibilities: From Chance Noblesse Oblige to Stated Expectations, 77 Tulane Law Review 91162. Mertz, Elizabeth (2007) The Language of Law School: Learning to Think Like a Lawyer. New York: Oxford University Press. Morsch, Thomas (2003) Discovering Transactional Pro Bono, 72 University of Missouri at Kansas City Law Review 423432. Nelson, Robert L. (1988) Partners with Power: The Social Transformation of the Large Law Firm. Chicago: University of Chicago Press. Nelson, Robert L. and David M. Trubek (1992) Arenas of Professionalism: The Professional Ideologies of Lawyers in Context, in R. Nelson et al., eds., Lawyers Ideals/Lawyers Practices: Transformation in the American Legal Profession. Ithaca, NY: Cornell University Press. Parker, Stephen (2001) Why Lawyers Should Do Pro Bono Work, 19 Law in Context 520. Pastore, Clare (2009) Rescuing Legal Aid, Los Angeles Times February 23, 2009. Pound, Roscoe (1953) The Lawyer from Antiquity to Modern Times. St. Paul, MN: West Publishing Company. Pro Bono Students of Canada (2008) http://www.probonostudents.ca/en/about/history. Rhode, Deborah (1999) Cultures of Commitment: Pro Bono for Lawyers and Law Students, 67 Fordham Law Review 24152447. (2004) Access to Justice. New York: Oxford University Press. (2005) Pro Bono in Principle and in Practice. Stanford: Stanford University Press. Robertson, Donald (2001) Pro Bono as a Professional Legacy, 19 Law in Context 97126. Sandefur, Rebecca (2007) Lawyers Pro Bono Service and American-Style Civil Legal Assistance, 41 Law and Society Review 79112. Scheingold, Stuart and Austin Sarat (2004) Something to Believe In: Politics, Professionalism, and Cause Lawyering. Stanford: Stanford University Press. Schleef, Debra (2006) Managing Elites: Professional Socialization in Law and Business Schools. Lantham: Rowman and Littlefield Publishers.

Serrano, Richard (2005) Roberts Donated Help to Gay Rights Case, New York Times August 4, 2005. Smith, Reginald Heber (1919) Justice for the Poor. New York: Carnegie Foundation. Solomon, Rayman L. (1992) Five Crises or One: The Concept of Legal Professionalism, 19251960 in R. Nelson et al., eds., Lawyers Ideals/Lawyers Practices: Transformation in the American Legal Profession. Ithaca, NY: Cornell University Press. Statistics Canada (2007) www.statcan.gc.ca. Stover, Robert (1989) Making It and Breaking It: The Fate of Public Interest Commitment During Law School. Urbana, IL: University of Illinois Press. Sullivan, William et al. (2007) Educating Lawyers: Preparation for the Practice of Law. San Francisco: Jossey-Bass. Thornton, Margaret (2005) The Australian Legal Profession: Toward a National Identity, In W. L. F. Felstiner, ed., Reorganisation and Resistance: Legal Professions Confront a Changing World. Portland, OR: Hart Publishing. Walpin, Gerald and William Francis Kuntz (2008) In Defense of a Judge, National Law Journal November 24, 2008. Weisbrot, David (2001) Introduction to Report of the National Pro Bono Task Force and Recommended Action Plan 19 Law in Context 214227. Wilkins, David B. (2004) Doing Well by Doing Good? The Role of Public Service in the Careers of Black Corporate Lawyers, 41 Houston Law Review 191.
part i
professional socialization through the bar and legal education
2. shaped by educational, professional, 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, led by Dean John Kramer, instituted a pro bono graduation requirement of 20 hours. But law student pro bono service is much older. Law students have provided free legal assistance to the poor for over 100 years, very often for no credit or pay. The first recorded volunteer law student group dedicated to helping the poor was a law club at the University of Pennsylvania, which created a legal aid dispensary in 1893 (Reed 1928:217). Modern legal education was less than 20 years old. Today, there are at least 152 law schools with a formal pro bono program.2 These programs take a variety of shapes and sizes, are located in a variety of administrative and curricular programs, and involve a varying percentage of the student body. Despite their differences, 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. But are these programs effective? In her chapter in this volume, Rhode reminds us of the continued paucity of pro bono service on the part of the private bar. Given that law school pro bono programs have existed now for over 20 years (and clinical education for much longer), why is the bar not better at meeting the legal needs of the poor? Sure, there are a number of factors that contribute to the failure of the bar to provide pro bono service. But if, as it appears, law school
1. A formal law school pro bono program is defined as an administratively supported program that provides opportunities for law students to engage in unpaid, noncredit lawrelated assistance to underrepresented individuals or causes. For an introduction to law school pro bono programs, see Adcock 2001. 2. This number is as of October 2007. In addition, another eight law schools require every student to participate in a clinic participationmost of which provide free legal services to the poorprior to graduation. The University of the District of Columbia also requires clinic but is counted in the 152.
pro bono programs are not making significant headway in increasing lawyer pro bono service after all these years, one cannot help but ask, 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. 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. That is, the flow of expressed concern for the poor within the legal academy has been directly tied to the existence of real or perceived crisescrises of social unrest, of pedagogical need, and of public confidence in lawyers. Law student pro bono service was perceived as the solution to these crises. The shape of such service was a different matter. 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. Change required pressureinternal, external, or both. The result has been a mixture of motives for supporting pro bono service: the desires to serve, to teach, and to appease. The energy created by crises cannot be sustained. When there is a sustained crisis, such as that of the unmet legal needs of the poor, fatigue settles in. Purpose and focus can be lost. 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, which form the structure of this essay: (1) community-based service (pre World War II), (2) cause-based service (1960s and 70s), and (3) ethics-based service (19802005). As for 2005 forward, this fourth era of pro bono service is yet to be written. So far, it offers great challenges but also great hope. As explored in the conclusion of this essay, recent research offers insight for those law schools committed to increased pro bono service, and provides a direction that should prove fruitful toward an integrated pro bono curriculum.
the era of community-based public service (preworld war ii)

Lawyers Seek Respect In the colonial days, lawyers were greatly distrusted. This distrust stemmed primarily from two sources: (1) the role lawyers had played in the persecution suffered by the colonists back in England, and (2) the fear that lawyers would stir up disputes and social disharmony in the struggling new world (Rhode 2004:48). At least one colony, Virginia, prohibited lawyers from practicing for a fee (Kaufman 1992:4); several colonies prohibited lawyers from appearing in court
shaped by educational, professional, and social crises 27
(Smith 1924:6). With these types of constraints, it was almost impossible to make a living practicing law. The provision of free or reduced-fee legal services was more the rule than the exception. As this country grew, its legal needs expanded, and lawyers became a necessary . . . well, annoyance. With their work tolerated and with minimal qualification requirements, the number of lawyers rose. Until the early 1900s, there was little regulation of lawyers, except in the one area about which the public was most concernedlawyers fees. Even as prominent lawyers emerged as great leaders, the distrust of the commercial motives of all lawyers persisted. In 1878, a group of 100 elite lawyers from 21 states, seeking greater control over an unregulated profession full of shysters, gathered in New York (New York Times 1908). To uphold professional standards, they formed a trade association called the American Bar Association (ABA). The first professional standards were promulgated in 1887 by the state of Alabama. The goals of the Alabama Code of Ethics were to articulate clear standards of professional conduct, to reinforce traditional professional ethos, and to deter behavior that bar leaders deemed unacceptable (Maute 2002:107). In 1908, the ABA incorporated much of the Alabama Code into its own, creating the first set of ABA model ethical standardsthe ABA Canons of Ethics. The ABA Canons heavily promoted professionalism over commercialism, even evoking an image in its Preamble of the future of the Republic resting on the shoulders of lawyers. 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. Fees were not to be set too highbut neither were they to be set too low, underbidding the competition. With a nod to service to the poor, it was recognized that a clients poverty might require a reduced fee or even none at all. But explicit emphasis was placed on special and kindly consideration of the [t]he reasonable requests [for assistance] of brother lawyers, and of their widows and orphans without ample means. . . . In short, lawyers should take care of their own. In addition, Canon 27 prohibited solicitation of businessbe it through advertisements or personal communicationsnot warranted by personal relations. Such behavior was deemed unprofessional and intolerable. In Canon 28, it was further deemed unprofessional for a lawyer to volunteer advice to bring a lawsuit, except in the rare cases where ties of blood, relationship or trust make it his duty to do so. Consequently, 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. With these restrictions on underbidding, solicitation, and litigation, it was unclear whether a lawyer could offer to provide free or reduced-rate legal services to a stranger (Maute 2002:113). Not until the 1930s did the ABA reassure lawyers that providing free legal services to the poor was not ethically objectionable,
and that it served a very worthwhile purpose and should be encouraged (ABA Opinion 191, 1939; Opinion 148, 1935). Criminal matters were treated differently. The Canons stressed a lawyers duties to the court, which included the duty to represent a poor criminal defendant when asked to do so by the court. The concern reflected here, however, was less about the defendant and more about the courts inherent power to require service without compensation. Though court appointments were rare (Rhode 2004:5153), some lawyers scoffed. 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. When the Canons were adopted, America was overwhelming rural, and the legal needs of the poor went largely unnoticed, except within ones own small community. However, community life in America was about to radically change. Law Students Respond to Community Crisis In 1875, Christopher Columbus Langdell, as Dean of Harvard Law School, introduced the case-dialogue method of training lawyers. Langdells teaching philosophy was that law was a science and that all one needed to know to be a lawyer was contained in printed books, namely court opinions (Frank 1947:1304). This new method of teaching law had no place for teaching skills. The fate of learning law by apprenticeship, already falling out of favor, was sealed. By the early 1900s, the population of this country was booming, with waves of immigrants arriving and settling in the urban centers. America for the first time was becoming more urban than rural, and she was not ready. The plight of the poor was horrid. Progressive lawyers and philosophers feared social upheaval (Luban 1988:723727). A few private charities provided legal aid to some of the poormainly immigrants (like themselves) trying to eke out a living and other deserving individuals, such as children. (Rhode 2004:5859). Law students, however, saw legal aid as an opportunity for service and for learning. Following the example of the students at the University of Pennsylvania in the nineteenth century, students on some law school campuses formed independent legal aid dispensaries. The most successful of these early pro bono student projects was the Harvard Legal Aid Bureau created by students in 1913 (Bradway 1930b:175). Its stated purposes were first, to help members of the community who are too poor to hire a regular attorney in those cases where they need a lawyers services, and, second, to give students the practical education that comes from the experience of handling real cases (Dudley 1931:692). Members of the faculty did not supervise the students work but were available for consultation. The Harvard legal aid model was replicated at George Washington University, 1914; Yale, 1915; and Tennessee, 1916 (Reed 1928:fn 3). Lawyers needed more persuasion. However generous they were in their own communities, lawyers were not generous with their support of legal aid
(Rhode 2004:5960). In 1919, the bar was shamed for ignoring the legal needs of the poor. Funded by the Carnegie Foundation, Reginald Heber Smith published the landmark book, Justice and the Poor, a lengthy study that revealed a pervasive denial of justice for the poor. Its Foreword issued a call to lawyers: [T]he highest obligation of government is to secure justice for those who, because they are poor and weak and friendless, find it hard to maintain their own rights. This book shows that we have not been performing that duty very satisfactorily, and that we ought to bestir ourselves to do better. . . . 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. But we cannot confine ourselves to that criticism much longer; it is time to set our own house in order. . . . (Smith 1924:xv) The ABA got the message. At its annual meeting in 1920, the Association held a symposium on legal aid work, and the next year it added the Special Committee on Legal Aid Work. By 1924, 36 bar associations had taken action in furtherance of legal aid work (Smith 1924:xii). The National Bar Association (NBA) also emphasized legal aid. In 1940, when the number of African-American lawyers barely exceeded 1,000 nationwide, the NBA was a leader in pro bono service, striving to establish free legal clinics in all cities with a colored population of 5,000 or more (National Bar Association). Clinical Education Fills Legal Education Void and Builds on Student Pro Bono Some faculty and deans vocally opposed the Langdellian model of legal education. These legal realists believed that students must learn about law as a means to an end rather than as an end itself; accordingly, they promoted the teaching of lawyering skills and professional values (Barry et al. 2005:9). They seized the curricular opportunities offered by the legal aid and legal dispensary models, and began to experiment. The earliest experimentation occurred in 1904, when the University of Denver College of Law created a legal aid dispensary, through which students received credit for providing legal aid. The Dispensary had a full-time director, who was a trial lawyer and not a full faculty member.3 The experiment was abandoned six years later because of its expense (Reed 1928:217). John Bradway, a professor at the University of Southern California Law School, was intrigued by the idea of bringing the legal aid office into the law school. His first effort, in 1928, was to create a six-week experimental clinical program (Bradway 1929:173). Bradway then moved to Duke University School of
3. Howard Rosenberg, Professor, Sturm College of Law, email message to author, June 17, 2008.
Law, where, in 1931, he created the first full-fledged in-house clinical program. His goal was to improve legal education in the United States, with objectives in the field of practical training and public service (Blaze 1997:945). By 1939, students at approximately 17 law schools were engaged in legal aid, whether through a legal aid society (for credit or for no credit), a studentoperated legal aid dispensary (no credit), or a law school legal aid clinic (for credit) (Bradway 1939:181). Some schools made clinic (either in-house or external) mandatory. Northwestern University School of Law (using an externship model) was the earliest to do so in 1919 (Wigmore 1926:130). By 1929, the University of Minnesota (externship model) and Southern California (in-house model) also had mandatory clinic (Bradway 1930b:173). This early clinical movement was interrupted by World War II and lost momentum (Grossman 1974:169). 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 professionand for good reason. Lawyers were deemed untrustworthy, whether or not this was based in reality. Perhaps this personal concern accounts for why the ABAs first code of ethics showed little concern about those who could not afford legal services. How to charge clients for services ethically was a primary concern, and not whether clients should be charged. In fact, the regulations did much more to limit access to lawyers than to expand access for those in need. It took public shaming before the bar would take any responsibility for ensuring justice for the poor. Law students preceded the bar in responding to the obvious legal needs of the time. Adopting a model from the medical field, these eager and creative students set up legal dispensaries for the poor. Unencumbered by prohibitions on the practice of law, law students literally practiced law, without pay or credit, on the poor. 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. Their focus was on the educational need of students to learn by doing. And while these professors were certainly concerned for the poor, a significant reason for choosing the poor as clients was to avoid unwelcomed competition with the bar (Bradway 1932:908). 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, they would increase their responsiveness to the legal needs of the poor. However, the facts were discouraging. Only a small percentage of the poor were being served, and these clients were generally from the immediate communities of the lawyers. Also, even as in-house clinics were being established, some were closing because of financial expense.
the era of cause-based public service (1960s and 70s)

External Money Takes Clinical Education to the Next Level In 1959, the Association of American Law Schools (AALS) Committee on Legal Aid Clinics identified 35 law schools maintaining legal aid clinics and related facilities.4 Only 15 of these clinics gave academic credit. The remaining 20 were what today we would call pro bono projects. With this data, the Committee concluded that the work of the legal aid clinics in member schools is very little integrated into the law school curriculum (AALS 1959:121122). However, this state of affairs within legal education would soon change thanks to outside funding. In the late 1950s, the Ford Foundation was deeply involved in addressing the problems of juvenile delinquency and urban poverty. In 1958, William Pincus, a program officer at the Ford Foundation, and Emery Brownell, the executive director of the National Legal Aid Association, developed a vision of involving law schools in the fight. To accomplish the vision, the Ford Foundation made significant funding available for clinical legal education through the National Council on Legal Clinics, created in 1959. 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. By 1965, this project had provided $800,000 to 19 law schools for poverty law clinics (Davis 2007:1396). Additional funding became available to law schools in 1965: through Title IX of the Higher Education Act, 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). By this time, the National Council on Legal Clinics had evolved into the Council on Legal Education for Professional Responsibility (CLEPR) (Ogilvy & Seibel 2007:78). 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), 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). As the name suggests, CLEPRs emphasis was on professional responsibility education; its tool was support for clinical programs. In a survey conducted in 1968 and 1969, 86 law schools reported having a legal aid program. Twenty-nine of these were funded, at least in part, by the OEO (Klein 1969:2729). One-half of these programs (43) provided no academic credit.
4. In a 1957 survey on legal aid clinics sent to all AALS law schools, 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).
These programs were categorized as law school funnel programs, through which student volunteers were sent to existing legal aid organizations (Klein 1969:410). From 1959 to 1978, the Ford Foundation provided nearly $13 million to more than 100 law schools for clinical education (Davis 2007:13961397). From 1978 to 1997, Title IX provided grants of over $87 million to law schools (Joy 2003:41). This infusion of money dramatically increased the number of attorneys assisting the poor. In 1967, there were 300 federally funded legal aid programs; in 1971, there were 934 (Eldred & Schoenherr 19931994:370). During this period, the nature of the work of poverty lawyers changed. Now specialists, these lawyers not only represented individuals but also began representing causes (such as advocacy for farmworkers), and played key roles in shaping federal, state, and local legislation for the poor. Legal aid lawyers brought over 200 cases before the Supreme Court and won most of the decisions that reached the meritsincluding landmark cases establishing the right to due process for recipients of federal benefits (Rhode 2004:63). As an expanding area of practice, poverty law was embraced by law schools not only in the clinic but also in the classroom. And as the focus of legal aid lawyers changed, so did that of poverty law professors. Civil rights efforts shifted to efforts for economic justice, 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. Implicit in the very notion of poverty law was the social and political agenda of ending poverty. (Davis 2007:1391, 1399) The ABA Construes Pro Bono Service as Professional Responsibility The legal profession was also undergoing big changes in the 1960s and 70s. The practice of law looked little like it did in 1908, when its Canons of Ethics were written. With the call in the 1960s for social relevance and responsibility (Barry et al. 2005:11) and a new era of federal legislation defined by the civil rights movement and the War on Poverty, the Bar realized that lawyer passivity was no longer appropriate (Maute 2002:126). Accordingly, the ABA engaged in a complete overhaul of the Canons of Ethics, which resulted in the 1969 Model Code of Professional Responsibility. The Model Code introduced mandatory disciplinary rules, which included prohibitions on advertising and group legal servicesboth of which were helpful to affordable access to justice. To help counter the unfortunate effect of these prohibitions, the ABA, for the first time, directly expressed concern for the poor and strongly urged every lawyer to help in serving the poor. It suggested an affirmative professional responsibility of service, stating in Ethical Consideration 225: 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. The basic responsibility for
providing legal services for those unable to pay ultimately rests upon the individual lawyer, and personal involvement in the problems of the disadvantaged can be one of the most rewarding experiences in the life of a lawyer. Every lawyer, regardless of professional prominence or professional workload, should find time to participate in serving the disadvantaged. (Footnotes omitted) Lengthy footnotes reinforced the need for public service by lawyers and emphasized its rewards. However, with such service cast as an Ethical Consideration (which extolled the aspirational role of the lawyer in society), it was clear that there would be no repercussions for failure to live up to this basic responsibility. By 1972, all but three states had adopted the Code, though not necessarily in its entirety (Maute 2002:126). Even so, not much had changed in the bars response to the poor. In 1972, 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 goodthe public interest (Kaufman 1992:15).5 The study asserted that public interest or pro bono work should be a duty for all lawyers, and linked this duty to the monopoly lawyers hold on legal services. In 1975, the ABA passed a resolution that for the first time defined a lawyers pro bono responsibility. Known as the Montreal Resolution, it resolved that it is the basic professional responsibility of each lawyer engaged in the practice of law to provide public interest legal services. . . . These services were identified as poverty law, civil rights law, public rights law, charitable organization representation, and administration of justice. In 1977, the committee that sponsored the Montreal Resolution, the Special Committee on Public Interest Practice, issued a report on implementation, 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). Despite this significant national activity, lawyers on the local level still were engaged in little or no pro bono (Lardent 1990:89). The ABA Turns to Law Schools to Teach Ethics and Professionalism Prior to the 1970s, ethics instruction took place in law schools primarily, if at all, through co-curricular activities such as lecture series by distinguished judges and lawyers. 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 1992:3536). Watergate ended the debate.
5. The study was The Lawyer, the Public and Professional Responsibility by F. Raymond Marks.
The Watergate scandal involved many lawyers, including President Richard Nixon, a Duke Law graduate. For the bar, it was the proverbial straw that broke the camels back. In response to this latest crisis of image, the ABA amended its standards for law school accreditation in 1974 to require instruction in the duties and responsibilities of the legal profession, including the history, goals, and responsibility of the bar and its Code of Professional Responsibility in Law schools. Law schools were now required to provide ethics instruction, though any amount would do. Many schools did little (Rhode 1992:39). Watergate also made it unavoidably obvious that the Model Code had made little difference in the behavior of lawyers. In 1977, the ABA created the Special Commission on Professional Standards, chaired by Robert Kutak, to review the Code and to make recommendations addressing all facets of legal ethics (Maute 2002:129). Pro bono service was a hot-button issue within the Kutak Commission. The debate centered on whether such service should be mandatory and, if so, whether it should be quantified. Kutak supported mandatory pro bono. 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, or make an equivalent financial contribution (Kaufman 1992:16). When word of this proposed language leaked out, there was significant resistance from the bar. The next draft required an unspecified amount of unpaid pro bono legal service, generically identified means by which it could be satisfied, and called for an annual service report (Maute 2002:133). The mandatory debate intensified, 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 19931994:385). In the final version of Rule 6.1, included in the Model Rules of Professional Conduct enacted in 1983, shall had been changed to should and the reporting requirement had been dropped (Kaufman 1992:16): A lawyer should render public interest legal service. 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, by service in activities for improving the law, the legal system or the legal profession, and by financial support for organizations that provide legal services to persons of limited means. Even as the new Model Rules were promulgated, there was a growing concern that lawyer professionalism was on the decline. Lawyers were taking the rules more seriously, but tended to look at nothing but the rules (ABA Commission on Professionalism 1986:7). Some considered it a time of crisis. In 1984, the ABA responded by creating a Commission on Professionalism. The primary question presented to the Commission was what, if anything, can be done to improve both the reality and the perception of lawyer professionalism (ABA Commission 1986:3). Reminiscent of prior responses, one recommendation
was to [i]ncrease the participation of lawyers in pro bono activities and help lawyers recognize their obligation to participate. The focus this time would include law schools. Noting that law professors sometimes sent the wrong signals to students regarding the value of pro bono, 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 (4749). In July 1986, the ABA House of Delegates endorsed the Commissions report, rededicating itself to the pursuit of principle over profit and professionalism over commercialism (Moore 1987:774). Summary of the Era of Cause-Based Public Service In the 1960s and 70s, the legal profession was experiencing as much upheaval as the general American populace. The negative reputation of lawyers grew, even as the number of lawyers helping the poor increased. Poverty law and clinical education gained new respect within the academy. What was the impact of this era on the development of law school pro bono? In the positive column, the injection of money for clinical education transformed the Langdellian landscape forever. It not only increased for-credit clinical opportunities, but also increased law schoolsupported pro bono efforts. In addition, the changes in the ABAs 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. In the negative column, the immense resources that were brought to bear for clinical education were external to law schools. Clinical education had emerged rapidly and was dependent on this government and foundation support. Law schools grew comfortable with this model of external funding for clinics. When funding began to recede, as discussed above, many law schools did not pick up the tab. The vision of the role of clinics in law schools was blurry. The term was used to refer to in-house clinics, externships, and pro bono projects. The continuum of costs for these various types did not favor in-house clinics, setting up a battlefield for a shrinking share of institutional funding. The second era of law student pro bono service began with CLEPR emphasizing professional responsibility education through clinical education. The era ended with the bar calling upon law schools to serve as pro bono clearinghousesa far cry from direct involvement of law schools in the work of poverty law. At least the bar had become more transparent about its self-interest in pro bono service, oras Rhode discusses in her chapter for this volumeabout the business case for pro bono.
the era of ethics-based public service (1980s2005)

By the 1970s, the new cadre of federally-funded poverty lawyers had made great strides in effecting change to help poor people. But this success came at a
pricea backlash from governmental entities who wondered why the government was paying lawyers to sue it. Several governors were outspoken critics of federally funded legal services for the poor, most notably then-Governor of California Ronald Reagan. In search of greater political insulation for legal aid to the poor, both Congress and President Nixon conceived of a separate corporation to receive funds from Congress that would be distributed to local legal services programs. In 1974, President Nixon signed into law a bill that created the Legal Services Corporation (LSC). The law prohibited LSC grantees from lobbying, organizing, or engaging in other political activities, but their representation work continued to expand (National Legal Aid & Defender Association). This expansion ended with the election of Ronald Reagan as President in 1980. Openly hostile to federally funded legal services, Reagan immediately sought the elimination of LSC. Though he was not successful in this campaign, he was successful at crippling the Corporation: in 1982, the budget of LSC was slashed from $321 million to $241 million. Just one year later, as described by the Washington Council of Lawyers, 61 LSC-funded programs reported a loss of 30 percent of their staff attorneys, among them many of the most experienced attorneys. Moreover, LSC reported a 25 percent decline in the number of legal services offices operating nationwide. And the campaign against LSC was not over. In 1985, 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 19931994:370371). In the academic realm, the status of poverty law as a discipline was in steep decline. The heady days of the 1960s, with the development of poverty law treatises and law journals, were a distant memory. Critical legal theory, suspicious of the instrumental value in producing social change, had taken hold. Poverty law professors were feeling beleaguered (Erlanger & Lessard 1993:200). The shrinking government support of legal services for the poor created a crisis for which the legal community was not prepareda crisis that continues to today. Response by the bar and law schools to this crisis of the growing unmet legal needs of the poor has come in waves. 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. With involvement came real-world education on the unmet legal needs of the poor. A new movement was born, one of private attorneys dedicated to pro bono service. The ABA created the Private Attorney Involvement Project (now the Center for Pro Bono) to assist these attorneys. The number of pro bono programs increased from approximately 80 in 1980 to over 500 in 1989 (Lardent 1989:2). Law students responded as well. At many schools, they launched on-campus funding campaigns to provide grants . . . to underwrite costs to participate in
summer internships in legal services programs and to provide fellowships for post-graduate research projects (Caudell-Feagan 1992:11). Some of these studentrun groupstypically called public interest law organizations or student-funded fellowshipsformed projects dedicated to student pro bono service, either providing direct assistance to clients or serving as a pro bono clearinghouse. The first student pro bono project was formed in 1982 by a group of University of Minnesota law students. Reminiscent of the Harvard Legal Aid Bureau of the early 1900s, these students created a nonprofit called the Minnesota Justice Foundation to oversee volunteer placements of law students (Minnesota Justice Foundation).6 As the number of public interest and pro bono student groups increased, so did interest in a coordinated national effort to centralize resources and provide national support for existing programs. In 1986, members from 15 student-run public interest organizations convened at Harvard Law School and created the National Association for Public Interest Law (NAPIL).7 NAPILs 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). An early NAPIL platform was mandatory pro bono for law students. During the same period, faculty members at Harvard Law expressed frustration with the legal academys growing resistance to the subject of poverty law and expressed a need for support. An idea for a consortium on poverty law was floated. With funding from the Ford Foundation, the Interuniversity Consortium on Poverty Law was formed in 1988. Its purpose was to mobilize, 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 Consortium first included Harvard, the University of CaliforniaLos Angeles, and Wisconsin, but quickly expanded to include ten other law schools (Davis 2007:1403). The Consortium pursued two efforts: the Information Exchange and the Project Group. The Project Group brought together faculty who had innovative projects that connected scholarship, teaching, and advocacy for the poor (Erlanger & Lessard 1993:199200). Two of these projects were at Loyola University, New Orleans, and the University of Maryland. In 1986, the faculty at Loyola University in New Orleans adopted the first poverty law course graduation requirement. Rooted in the schools Jesuit mission (Erlanger & Lessard 1993:fn 18), the required course was designed with four goals: to develop student awareness about poor populations and their legal needs . . . ; to give students personal experience with poverty in their community; to educate students about current social policies and programs affecting the
6. MJF is still going strong today, with chapters at all four Minnesota law schools including William Mitchell, as described by Deborah Schmedemann in this volume. 7. NAPIL is now Equal Justice Works (www.equaljusticeworks.org).
poor; and to teach the students about ways that they, as lawyers, could address the problem of poverty. It combined class work with direct contact with the poor through site visits (Erlanger & Lessard 1993:206).8 The program was a model for a bold new beginning for the discipline of poverty law in law schools (Failinger 2007:1173). In Maryland, the Advisory Council to Maryland Legal Services Corporation, chaired by Representative Benjamin Cardin, was studying the plight of the poor. In 1987, it released a report with recommendations for addressing the legal needs of the poor, two of which were directed to law schools: (1) require a clinical experience providing legal services to the poor for graduation from law school, and (2) develop educational approaches which inculcate the professional value of responsibility to serve the poor and underrepresented of the state. The State General Assembly designated funds for law schools to implement the recommendation. The faculty at the University of Maryland considered a variety of approaches, including required clinic or pro bono (Bezdek 1992:129130). They settled on a more integrated approacha required Legal Theory and Practice course linking theory in first-year courses to practical experiences with actual clients.9 The Second Wave Response: Birth of the Law School Pro Bono Movement (19861993) In 1989, mandatory pro bono programs were under consideration in North Dakota, Maryland, Arizona, New York, and Hawaii (Lardent 1989:7). No state bar, however, adopted mandatory pro bono. The debate moved to law schools. Professional responsibility was required, so why not pro bono service? In 1986, Tulane University Law School inducted a new dean, John Kramer, a former antipoverty lawyer. In his first interview as Dean, Kramer expressed a desire to require students to engage in community service (Johnson 2006:56). This desire was fulfilled in 1987, when he proposed, and the faculty passed, a pro bono graduation requirement of 20 hours of law-related public service (Kramer 1990). This action made Tulane not only the first American law school to impose a pro bono graduation requirement, but also the first to have a formal, institution-wide pro bono program. Tulanes action turned up the heat on the law school pro bono debate. Some schools followed Tulane, adopting a mandatory pro bono program. Some followed the model of Loyola and Maryland, adopting a curriculum-based mandatory service program. Others developed a voluntary pro bono program.
8. The requirement was later expanded to include other options for meeting the requirementincluding pro bono service. 9. Today, such courses are one way in which students can meet what is called the Cardin requirement. Students can also meet it by completing a public interest clinic or other faculty-taught experiential course.
In April 1989, Florida State University School of Law became the first school to follow in Tulanes footsteps when the faculty voted to require pro bono of all students. This result marked the first successful student movement for mandatory pro bono. Sounding a familiar theme, 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). The requirement was cast as a tool for teaching professional responsibility (Huizinga 1989:14). Just one month later, the faculty at the University of Pennsylvania Law School, a participant in the Interuniversity Consortium on Poverty Law, adopted a pro bono requirement of 70 hours. The central purpose was curricularan augmentation of the professional responsibility requirement.10 Indeed, the mandatory programs were heralded as an innovative curricular integration of actual pro bono work (Caudell-Feagan 1990:2). But at some schools, the faculty was clearly not going to embrace mandatory pro bono. The University of South Carolina School of Law (USC) was one such school; the faculty did, however, want to foster the service ethic of the profession. To this end, the law school pursued and obtained an Interest on Lawyers Trust Accounts (IOLTA) grant from the SC Bar Foundation in 1989, becoming the first law school to institute a formal voluntary pro bono program (Robinson 1991:960962). Similarly, New York University School of Law received a New York State IOLA11 grant to start a pro bono program. Called Pro Bono Students New York (PBS NY), the program was voluntary, better funded than the USC program and more ambitious. Within a year, PBS NY expanded to a statewide network of 15 law school offices (Chaifetz 1993:17031704). Just two years later, it became a national network called Pro Bono Students America (PBSA). Student support for mandatory pro bono was gaining momentum nationally. In 1990, a new national student organization emergedLaw Students for Pro Bono (LSPB). With students from 100 of the 175 existing law schools, 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. Opining on the movement, 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, in that it could mean that students have
10. Memorandum from Howard Lesnick, Professor, Penn Law, 1 (May 22, 1989) (on file with author). 11. The New York State Bar has an Interest on Lawyer Account Fund instead of the typical Interest on Lawyers Trust Accounts Fund, resulting in the frequent joke about there being no Trust in New York.
come out of their long snooze and are taking the first tentative steps back to the idealism that seized them in the early60s. Similarly, the ABA Law Student Division passed a resolution supporting pro bono graduation requirements. In 1990 and 1991, students at four law schools acted ahead of their faculties and created their own school-wide pro bono programs. Students formed Georgetown Outreach at Georgetown University Law Center (ABA 1991a:1), the Pro Bono Recognition Program at Santa Clara (Santa Clara Law School), Saving Our Society at Chicago-Kent School of Law,12 and Seek Justice at Whittier College of Law (ABA 1991a:46). The programs at Santa Clara and Chicago-Kent were, and still are, administered through the schools career services offices. 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), and was later moved into the career services office. Georgetown created an administratively supported formal pro bono program in 1995, joining the PBSA national network of offices established in 1993. In 1991, the ABA Young Lawyers Division passed a resolution calling upon the ABA to encourage law schools to establish pro bono graduation requirements.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 Divisions resolution. Thirty-seven deans reported that their schools had pro bono programs, 30 of which were elective. According to the data provided, however, about half of these programs were externships or clinics. Other programs listed seemed to be student groups doing pro bono. The deans were overwhelmingly opposed to the resolution, including the deans at Tulane and Pennsylvania. 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). From 1990 to 1993, 15 law schools created formal pro bono or public service programs,14 a pro bono program boom not seen since (see Table 2.1).
12. Michelle Vodnik, email to author, March 27, 2008. 13. Memorandum from Jeff Smith, Chair, Public Interest Task Force Committee at Northeastern University School of Law to all faculty, 1 (Sept. 3, 1992) (on file with author). 14. Law school pro bono programs are categorized as (1) mandatory public service (with a pro bono option), (2) mandatory pro bono programs, and (3) voluntary pro bono programs. 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. There are two models of voluntary pro bono programs: (1) those characterized primarily by a referral system with a coordinator, and (2) those characterized primarily by administrative support for student group projects (Adcock 2001:13). The former often includes some student groups. The later emphasizes the importance of student organizing (which requires student initiation, student implementation and group self-perpetuation) without sacrificing law school administrative support (Schoenherr et al.:7).
table 2.1 law school pro bono and public service programs 19901993 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, 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, NYU created Pro Bono Students (PBS). The program was run through the schools Root-Tilden-Snow Scholarship Program (SCLPSR & NAPIL 1991:1012). It expanded statewide and then nationally, becoming Pro Bono Students America. With a different vision of a voluntary program, Fordham Law created the Public Interest Resource Center. It became the first pro bono program to be designed primarily as a clearinghouse for student-initiated pro bono and community service programs. PIRC began with 3 group projects and in 2008 had 21. The faculty considered implementing a pro bono graduation requirement, but were concerned about the availability of quality experiences. Instead, they adopted a Public Interest Law Perspective requirement (SCLPSR & NAPIL 1991:28). Students can meet the requirement by taking a clinic; taking a qualifying course (Rights of the Poor, Racism and American Law, or Disability Law) and doing 20 hours pro bono; or doing 40 hours of pro bono service (Touro Law Center). The dean proposed and the faculty adopted a 20-hour pro bono requirement (SCLPSR & NAPIL 1991, 36). The dean proposed and the faculty adopted a 30-hour pro bono requirement. Wanting to emphasize that the new pro bono program was an academic one, Duke made the coordinator position a part-time contract faculty position. Faculty adopted a 40-hour pro bono requirement, the result of a process begun by a student proposal.1 An ad hoc faculty/student committee proposed and the faculty adopted a pro bono requirement of 30 hours, replacing an existing voluntary program run by the Student Bar Associations Pro Bono Committee. Following the riots after the verdicts in the Rodney King case, a group of concerned students and faculty sought a way for the law school to help their community. The faculty adopted a mandatory program, which can be met with two public interest externship credits or 40 hours of pro bono (Loyola Law School).
Continued
table 2.1 law school pro bono and public service programs 19901993 (contd) 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, Indianapolis Loyola, 1993 Chicago Rutgers, 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, which the faculty adopted (University of Hawaii). The program was housed in the associate deans office and run with the assistance of a newly created position of pro bono coordinator on the student PILF boarda new staffing model. Though voluntary, the program sought pledges from students to complete 35 hours of pro bono, consistent with the Los Angeles County Bar Associations pro bono policy.2 After debating for almost two years a task force proposal for a mandatory program, with ample opportunity for student feedback, 3 the faculty adopted the Public Interest Requirement. It can be met by completing a full-time public interest co-op (11 weeks at 35 hours per week); taking a law school clinic; performing 30 hours of pro bono work; or doing a public interest independent study (Equal Justice Works). The Law School hired a pro bono coordinator and placed her in the Office of Career Services. 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.4 Pro Bono Students went national in 1993, becoming Pro Bono Students America, and its first regional office was here. 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.5
Memorandum from The Public Interest Activities Committee to the Faculty, 1 (September 17, 1991) (on le with author). Karen Lash, email to author, June 13, 2008. 3 Jeff Smith, Coop Director of External Relations/Co-Director of Public Interest Advising, email to author, March 4, 2008. 4 Jonna MacDougall, email to author, March 31, 2008. 5 Eve Klothen, assistant dean for Pro Bono and Public Interest Programs, RutgersCamden School of Law, July 24, 2008.
2
The Third Wave Response: Law Schools Are Pushed to Do More By 1994, the development of new law school pro bono programs had slowed dramatically. Only one voluntary program came on-line in 1994, a PBSA regional office at Nova Southeastern University. At some schools, there was a stalemate. At the University of Virginia, in 1992, the Student Bar Association (SBA) Public Service Committee presented the Dean with A Proposal for a Public Service Program, recommending a graduation requirement of 20 hours of law-related public service. The proposal was not passed by the faculty. A formal, voluntary pro bono program was not adopted by the faculty until 1999.15 In 1993, five Brooklyn Law School students published a note in support of mandatory pro bono service, recommending a multi-option approach to provide maximum flexibility (Calderon 1993). The Law School did not create a formal pro bono program until after 2001. In 1995, the SBA at the New England School of Law called for the creation of a compulsory or aspirational pro bono standard. A Task Force on Co-Curricular Opportunities was formed. Its report recommended that the school not adopt a mandatory pro bono/public interest requirement at this time. Finally, in 2000, the faculty created a Center for Law and Social Responsibility, which includes a Public Service Project (Engler 2001:137). Unlike the development of law school pro bono programs, the problems for the Legal Services Corporation had not slowed. Though President Clinton was supportive of a well-funded legal services program, 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 new leadership of Congress was committed to the elimination of LSC. They failed, 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). As a result, the need for pro bono lawyers only increased in the 1990s. Another crisis faced the profession that would add fuel to the law school pro bono enginethe reemergence of the crisis of professionalism. Once again, lawyers, judges, and law professors were ringing the alarm. 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 Betrayed Profession by Sol Linowitz, and The Lost Lawyer: Failing Ideals of the Legal Profession by Anthony Kronman. These authors all painted a picture of cherished ideals ground to dust by the millstones of modernization (Luban & Millemann 1995:33).
15. Kimberly Emery, Assistant Dean for Pro Bono and Public Interest, University of Virginia School of Law, June 5, 2008.
The pressure mounted on law schools to do more to meet these crises. Pressure and assistance were provided by three organizations: Pro Bono Students America, the ABA and the AALS. Pro Bono Students America. As noted above, in 1993, Pro Bono Students New York went national and became Pro Bono Students America (PBSA). The stated goals of PBSA were to offer students the opportunity to do volunteer legal work, to provide a means of assisting students in their career choices, to teach students the value of public interest work and encourage a pro bono ethic, and to help underserved communities and organizations (Chaifetz 1993:1704). PBSA created regional centers at seven law schools, each with a director charged with supporting pro bono efforts at law schools in their region. The network was the first through which law school pro bono coordinators could organize. Its primary product was its web-based national database of both paid and unpaid public service opportunities. By 1997, PBSA reported having 75 law schools as members (PBSA 1997:1). The American Bar Association. In 1993, the ABA took two significant steps to increase pro bono service by lawyers. First, it amended Rule 6.1 of the Professional Rules of Professional Conduct, 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. The service is to be substantially devoted to persons of limited means or to organizations that address the needs of persons of limited means. Also in 1993, the ABA passed a resolution that strongly encouraged law schools to develop pro bono programs. 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. 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. In this case, 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. (Baillie and Bernstein-Baker 1994:7475) In 1996, the ABA institutionalized this resolution. 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. About this same time, the ABAs Center for Pro Bono increased the time and resources it dedicated to assisting law schools in starting or improving pro bono programs.16
16. Gregory McConnell, then-Director, ABA Center for Pro Bono, letter to author, Feb. 18, 2000.
The Association of American Law Schools. In 1998, Deborah Rhode, Professor at Stanford Law School, became the President of the AALS. The theme for her year was the professional responsibility of professional schools. In her speech to the AALS House of Representatives, Rhode connected the then-current professionalism crusade with the pervasive discontent with legal practiceboth within and outside the Bar. She chastised the legal academy for ignoring the problem and for marginalizing instruction on professionalism, professional responsibility, and pro bono in the curriculum. As to pro bono, she argued that legal educators must do more to foster a culture of commitment to public service among future practitioners (AALS 1998:166168). 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. In its report, Learning to Serve, the Commission noted disappointingly low participation of law students in pro bono. 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. (AALS Commission 2007:7) The Commission members also created a Section of AALS dedicated to Pro Bono and Public Service Opportunities. They secured funding for a two-year Pro Bono Project and hired a director to assist law schools in implementing its recommendations.17 During the term of the project, the director visited 90 law schools, encouraging faculty and administrators to create or expand pro bono programs and gathering best practices. By the end of the project, 100 law schools were identified as having a formal, administratively supported pro bono program offering a variety of volunteer opportunities: 14 had a pro bono requirement; 12 had a public service requirement; and one had a community service requirement. Another 73 schools had formal voluntary programs (Adcock 2001:13). Summary of the Era of Ethics-Based Public Service In the hundred years from 1883 to 1983, there was a major shift in the perceived role of law student pro bono. On the eve of the death knell of apprenticeships, pro bono service began as the sole way for university students to gain real-world lawyering experiencefirst for no credit and then for credit through clinical courses. Clinical education sought to meld the teaching of skills with teaching
17. The author served as Director of the AALS Pro Bono Project for the duration of the grant, 19992001.
about the unmet legal needs of the poor in their communities and the professions ethical responsibility to meet those needs. With the call in the 1980s and 90s for law schools to do more to instill the value of pro bono within law students, the faculty at some schools responded in the way that seemed logicalthe teaching of the ethic of pro bono would be part of the teaching of professional responsibility and of teaching about the justice system. Faculties with this perspective either integrated pro bono into the required curriculum or developed a separate mandatory program. Faculty at other schools, however, thought quite differently. Far from viewing pro bono as a curricular component, many faculty members viewed pro bono service as purely voluntary charity. Under this perspective, volunteering was a value that could not, or should not, be taught. These criticsignoring the role of curriculum requirementswere often heard to proclaim that mandatory pro bono is an oxymoron, and that such requirements impose ideological conformity with the politically correct (Kelleher 1993:966). It did not help that while the ABA pressured law schools to create pro bono programs, it promulgated no accreditation standards regarding such programs. Thus, the teaching of the pro bono ethic was not required, did not have to be done by faculty, and did not have to have dedicated resources. Most faculties gave little thought to the relationship of pro bono programs and clinical courses. By the 1980s, external funding for poverty law projects had dried up. Poverty lawyers within law schools were preoccupied with their battles to secure faculty status and an institutional home for clinical education. What thought was given to the relationship of pro bono programs and clinical courses was often negative. 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. Pro bono programs could serve many of the same clients as clinics and were much cheaper because they could be run by nonfaculty. This tension is evidenced in a public statement by NAPIL in its push for mandatory pro bono programs, stressing that these pro bono programs should supplement, not diminish, the clinical programs (Legal Times 1990). As the number of pro bono programs increased, their distance from the curriculum only grew. A common perception by many law students and faculty was that pro bono was for the do-gooders, the public interest students. Indeed, at more than a few law schools, there was a loss of distinction between pro bono service and public interest careers, often with the latter swallowing the former. 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. Its start is marked in 2005 by the ABAs adoption of Accreditation Standard
302(b)(2), requiring law schools to offer substantial opportunities for student participation in pro bono activities. The move of pro bono opportunities from the should encourage section of Standard 302 to the required curriculum section is an extraordinary step, long in coming. Now, every law school must consider whether they meet the standard. The application and enforcement of the standard is yet to be determined. But, in its first interpretation of the standard, 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 schools overall program of pro bono opportunities so long as lawrelated noncredit bearing initiatives are also part of that program (ABA Standing Committee on Pro Bono and Public Service). This era is already being shaped by crises: the high cost of a legal education and the growing criticism of how law schools are educatingor not educating law students to be lawyers. The recommended responses to these crises hold promise for improving the success of law school pro bono efforts. The crisis of legal education instruction is described in two recent reports that assess the current outcomes of legal educationEducating Lawyers: Preparation for the Profession of Law, published by the Carnegie Foundation, and Best Practices for Legal Education: a Vision and a Road Map, published by the Clinical Legal Educators Association (CLEA). Both reports conclude that the typical law school curriculum teaches students how to think like a lawyer but not how to be a lawyer. Specifically, law schools are giving only casual attention to teaching students how to use legal thinking in the complexity of actual law practice, and fail to complement the focus on skill in legal analyses with effective support for developing ethical and social skills (Sullivan 2007:188). Ethical skills include the understanding of why and how to engage in pro bono service. 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. 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 counterforcesboth inside and outside the academy that devalue pro bono service. Recent research provides helpful information for evaluating this assumption. Deborah Rhode surveyed graduates of several schools with voluntary and mandatory pro bono programs. She discovered that there was no correlation between whether pro bono was voluntary or mandatory at a graduates law school and whether that graduate actually engaged in pro bono service. Experiences mattered; but the direction of their impact depended on whether law school influences were positive or negative. Positive experiences can occur in programs that are voluntary or mandatory, for credit or not for credit. Mandatory programs have an advantage not only because more students have pro bono experiences, but also because they convey a message that the institution views pro bono service as important. Credit-bearing
clinical experiences can be as effective as, if not more effective than, pro bono experiences (Rhode 2005:156160). Ultimately, Rhodes research reveals that positive pro bono experiences require resourcesmonetary resources but also institutional resources, such as visible support and promotion by faculty. They also require that the value of pro bono service . . . be reflected and reinforced throughout the law school experience in both curricular coverage and resource priorities (165). Granfield surveyed graduates from three law schools with mandatory pro bono programs. His findings were consistent with those of Rhode. Graduates generally found their law school pro bono experiences to be valuable, but there was no significant increase in pro bono involvement by these attorneys than by those coming from voluntary programs (Granfield 2007:1411). The lawyers were critical of the lack of integration of their pro bono experiences into other law school activities, particularly their classes. . . . (1405). Granfield concludes that [f]or the law school pro bono movement to have an impact, the pro bono experiences of law students must be better integrated into the general law school curriculum (1412). Schmedemanns research (presented in this volume) into the outcomes of her schools 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. The features of the program that correlated with increased pro bono participation after graduation proved to include discussion of broad social issues, and reflections on ones reactions (82). A possible conclusion, Schmedemann suggests, is that serious discussion and reflections may encourage the impulse to help those in need. Such hard thinking is characteristic of curriculum-based service to the poor, such as externship and inhouse clinical experiences. 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. Law schools must teach the value of pro bono service and its complexities as they teach other skills and values. Students must engage the text, which is the fieldwork. Thus, pro bono service must be a part of the curriculum. This conclusion is supported by the recommendations of the Carnegie and CLEA reports: law schools should integrate, throughout the three years of education, legal doctrine and analysis, practical skills training, and the exploration and assumption of the identity and values of the profession (Sullivan 2007:191, 194; Stuckey 2007:89). In 2007, 152 law schools had formal pro bono programs. Of these schools, 19 had a pro bono requirement; 6 had a public service requirement (with a pro bono option); 4 had a community service requirement (with a pro bono option); and 123 had a voluntary program. These numbers represent an overwhelming majority of law schools, but few of these programs had any ties to the curriculum. If law schools are serious about producing graduates who will take on the crisis of access to justice, they cannot let this moment of change in legal education go
by without significant adjustment in pro bono education. 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, or to appease those who would engage in public service in any case. Rather, pro bono service must be taught as part of the professional responsibility and identity curriculum. The concept is not new, but it is ripe: integrate! A law schools pro bono program should be a pro bono curriculum. This curriculum should (1) engage students throughout all three years of law school; (2) include classroom components, experiential learning components, and co-curricular components; and (3) progressively build as the students obtain a clearer understanding of their identity and purpose as lawyers. Substantively, the curriculum should teach students about the obstacles that prevent justice for all, the lawyers responsibility to address these obstacles, the range of benefits pro bono service brings, and the steps each student can take to find their best pro bono fit.
references
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Granfield, Robert (2007) Institutionalizing Public Service in Law School: Results on the Impact of Mandatory Pro Bono Programs, 54 Buffalo Law Review 13551412. Grossman, George S. (1974) Clinical Legal Education: History and Diagnosis, 26 Journal of Legal Education 162193. Huizinga, Anne (1989) Law Students Learn from Hands-On Pro Bono Experiences, PBI Exchange Summer 1989. Johnson, Jane (2006) A Beautiful Mind: Remembrance of John Kramer, 81 Tulane Law Review 116. Joy, Peter (2003) The Law School Clinic as a Model Ethical Law Office, 30 William Mitchell Law Review 3550. Kaufman, Dennis A. (1992) Pro Bono: The Evolution of a Professional Ethos, PBI Exchange Summer 1992. Kelleher, Karen E. (1993) The Availability Crisis in Legal Services: A Turning Point for the Profession, 6 Georgetown Journal of Legal Ethics 953976. Klein, Jewel (1969) Law School Legal Aid Programs: A Survey. Kramer, John (1990) Mandatory Pro Bono at Tulane Law School in Pro Bono at Law Schools: New Solutions to Old Problems, The NAPIL Connection (Supplement). Lardent, Esther (1989) Conference on Access to Justice in the 1990s: Pro Bono in the 1990s, unpublished paper. (1990) Mandatory Pro Bono in Civil Cases: The Wrong Answer to the Right Question, 49 Maryland Law Review 78102. Legal Times (1990) Mandatory Pro Bono Sought for Law Schools, October 29. Loyola Law School, Los Angeles (no date) Pro Bono Student Handbook, http://intranet. lls.edu/publicinterestlaw/probono/handbook.html (accessed December 15, 2008). Luban, David (1988) The Noblesse Oblige Tradition in the Practice of Law, 41 Vanderbilt Law Review 717740. Luban, David and Michael Millemann (1995) Good Judgment: Ethics Teaching in Dark Times, 9 Georgetown Journal of Legal Ethics 3188. Maute, Judith (2002) Changing Conceptions of Lawyers Pro Bono Responsibilities: From Chance Noblesse Oblige to Stated Expectations, 77 Tulane Law Review 91162. Minnesota Justice Foundation (no date) History, http://www.mnjusticefoundation. nonprotofce.com/index.asp?Type=B_BASIC&SEC={AD8CBEA-F981-42C4-A752685C8CDA0D92} (accessed December 15, 2008). Moore, Nancy (1987) Professionalism Reconsidered, 774 American Bar Foundation Research Journal 773790. National Association of Public Interest Law (1989) NAPIL Connection (July). National Bar Association (no date) The NBA Perspective, http://www.nationalbar.org/ about/index.shtml (accessed December 15, 2008). National Legal Aid & Defender Association (no date) History of Civil Legal Aid, http:// www.nlada.org/About/About_HistoryCivil#lsc (accessed December 15, 2008). Ogilvy, J. P. and Robert Seibel (2007) Externship Demographics Redux, CUA Columbus School of Law Legal Studies Research Paper No. 2007-13, http://ssrn.com/ abstract=1077551. Pro Bono Students America (1997) PBSA Focuses on Future Growth, 4 PBSA Network News no. 1 (Spring). Reed, Alfred Z. (1928) Present-Day Law Schools in the United States and Canada. Rhode, Deborah (1992) Ethics by the Pervasive Method, 42 Journal of Legal Education 3156. (2004) Access to Justice. Oxford: Oxford University Press.

(2005) Pro Bono in Principle and in Practice. Stanford: Stanford University Press. Robinson, Pamela D. (1991) Insurmountable Opportunities or Innovative Choices: The Pro Bono Experience at the University of South Carolina School of Law, 42 South Carolina Law Review 959972. Santa Clara Law School (no date) Pro Bono Recognition Program, http://www.scu. edu/law/careers/pro-bono-recognition-program.cfm (accessed December 15, 2008). Schoenherr, Thomas J., Thomas M. Quinn, and Roslyn Myers (no date) The Fordham Model: Student Initiated Projects for the Public Interest, unpublished manuscript. Smith, Reginald Heber (1924) Justice and the Poor, 3rd ed., New York: Carnegie Foundation. Stuckey, Roy (2007) Best Practices for Legal Education. Columbia, SC: Clinical Legal Education Association. Sullivan, William et al. (2007) Educating Lawyers: Preparation for the Practice of Law. San Francisco: Jossey-Bass. Touro Law Center (no date) Public Interest Requirement, http://tourolaw.edu/PopUp. asp?pg=/tlc_net/student_services/registrar/degree_requirements/pop/Public_ Interest_Requirement.asp (accessed December 15, 2008). University of Hawaii, William S. Richardson School of Law (no date) Law Student Public Service Program, http://www.hawaii.edu/law/site-content/special-programscommunity-service/uhelp/overview/pro-bono/index.html (accessed December 15, 2008). Washington Post (1990) Law Students Pro Bono Backlash, October 28. Wigmore (1926) The Legal Clinic: What It Does for the Law Student, 124 Annals of the American Academy 130.
3. 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, 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. The institutionalization of law school public service represents one of the most significant recent changes to have occurred in American legal education (Dolovich 2002; Adcock in this volume). Although there is some variation in the organizational structure and logistics of law school public service initiatives, it is hard to find anyone who opposes these programs, at least in principle (Rhode 2005). Yet despite these institutional developments, there has been little systematic study of how participants of mandatory pro bono programs assess the value of their experience. While there has been much speculation of the impact of pro bono experiences on law students and lawyers with regard to skill-building, personal transformations in perspectives on justice, engagement in pro bono work, and even political ideology (Davis 2004), 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. Furthermore, 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. This chapter explores how pro bono work in law school is experienced by law students, 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; Stover 1989; Granfield 1992). 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. In his study of law school socialization, Stover (1989) found that students conceptions of justice
1. Funding for this research was provided by the Law School Admission Council. The authors wish to thank Scott Cummings, Bryant Garth, Clarke Gocker, Mike Farrell, Tom Koenig, and Lynn Mather for their comments on earlier versions of this chapter.
move from a broad, substantive view to one based primarily upon procedural rules and regulations. Law students often enter law school with broad conceptions of justice but eventually learn to define justice procedurally, and make little or no connection between justice and other substantive issues such as gender, race, social class, equality, or poverty (Treuthart 2002). Given the nature of legal education, 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, 2006; Stover 1989).
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, especially to marginalized social groups, as well as the value of pro bono service to individual lawyers and their workplaces (Rhode 2005). The commitment to an ideology of civic professionalism, which purportedly inspires lawyers to make contributions to the public good, has served an important legitimizing function within the legal profession (Scheingold & Sarat 2004). Pro bono legal work rose out of claims that lawyers have an ethical obligation to engage in public service (Atkinson 2001). From this perspective, 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 a perspective is consistent with Webers notion of the professional calling, 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 underlying normativity associated with the former adheres to the bars historical legitimation of its professional status by formalizing lawyers special responsibility to serve as servants of the public good (Atkinson 2001). 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). 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; Garth 2004). Much of the rhetoric associated with law school pro bono involves normative claims associated with lawyering for the good.2 Such programs are believed to cultivate a commitment to pro bono as a professional ideal so as to enhance an attorneys propensity to engage in public service. Pro bono programs in law schools, while diverse, seek to build a commitment to pro bono and public service
2. This term is derived from Menkel-Meadow (1998), who uses it as a generic term to describe lawyers who seek to do good and are concerned about broader social justice issues.
good lawyering and lawyering for the good 55
by sensitizing professionals to worlds that they usually ignore (Kramer 1991:1). 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, helps law graduates sustain a commitment to pro bono throughout their legal careers, exposes students to fundamental issues of justice in society, and provides valuable real-life, law in action experiences that will alert law students and young lawyers to the ethical conflicts that are endemic in legal practice. On the other hand, an emphasis on professionalism is evident through the opportunities that pro bono provides for building good lawyering traits of greater expertise, reputation, and human capital for individual lawyers and the firms that employ them. Pro bono work is often seen as providing a range of practical benefits such as applied training, hands-on experience with clients, and exposure to valuable career information and the development of professional networks and contacts (Epstein 2002). Through pro bono work, law students and lawyers can develop the proficiencies of a good lawyer, including such things as the capacities to communicate with diverse audiences, build skills, and increase ones understanding of the legal system. It is unlikely, however, that these two narratives of pro bonogood lawyering and lawyering for the goodcoexist with equal intensity among lawyers. Research on identity formation, for instance, suggests that one narrative of pro bono most likely takes precedence over the other. Identities exist in a hierarchy of salience, allowing one identity to prevail over another (Stryker 1968). The core of an identity is the categorization of the self as an occupant of a role, and the incorporation into the self of the meanings associated with that role and its performance (Stets & Burke 2000). The very categories by which individuals construct identities are largely a by-product of discursive elaboration. Narratives of the self are used within daily life as a means of creating or sustaining identity (Gergen 1998). The narratives associated with any role, however, do not express themselves uniformly. Rather, the narratives of roles are organized in varying ways, 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. Thus, while pro bono may be part of the professional identity narrative for many lawyers, how pro bono is defined and enacted depends on the broader social context (Granfield 2007a; Granfield 2007b) as well as on the salience and meaning that pro bono has to individual lawyers. Recent research on law school socialization points to how the meaning of pro bono work takes shape in law school. Law students develop narratives of public service and pro bono that include taking on such cases only when time and resources permit, as opposed to viewing such work as an end in itself (Schleef 2006). Students effectively learn to compartmentalize their private and public roles by separating their normal work from their pro bono commitments. Law students emerging public service ideologies may amount to little more than rhetoric, because there is scant attention given to discussions of public service or
of pro bono obligations during law school. 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. 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. Additionally, the chapter explores the professional identity narratives of pro bono work during law school. Specifically, do new lawyers define their law school pro bono experiences primarily in terms of instrumental benefits associated with good lawyering, 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, that is, lawyering for the good? This chapter concludes with a discussion of some challenges associated with law school pro bono programs, especially in relation to the integration of these experiences into the general law school curriculum.
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). A survey was administered to graduates from three law schools that implemented mandatory pro bono requirements during the 1990s. Data were collected on a number of variables pertaining to graduates law school pro bono participation, including the number of hours of pro bono service in law school and in their current practice, the types of pro bono activities undertaken, their attitudes about the performance of pro bono, and their attitudes regarding their required law school service; data were also collected for demographics such as firm size, gender, ethnicity, current income, and marital status. The schools selected for this study vary by location, ranking, and the number of pro bono hours each law student is required to complete. One school is located in the northeastern part of the United States and is considered a top-ten law school. A second law school is located in the western part of the United States and is ranked in the first quartile of law schools. The third school is located in one of the southern states and has a tier three ranking. Three graduation classes from each school were selected for comparison purposes: the last graduating class at the law school without a mandatory requirement, the first graduating class with a mandatory requirement, and a more recent graduating class of lawyers who had participated in mandatory pro bono. In this article, these law schools will be designated as Northern Law School, Southern Law School, and Western Law School.
All of the law schools selected to participate in this study have well-established public service programs. According to the Northern Law Schools website, this school is absolutely committed to public service. 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 workas part of our graduates careers, in whatever field they pursue. 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. At the Southern Law School, the development of high ethical standards is considered an important part of a lawyers education, and commitment to service is part of the schools mission. According to the dean of this school, pro bono service allows our students an opportunity not only to try out their legal skills, but also to help those who need it the most. . . . Being a lawyer is a privilege, not a right, and this reminds students of their obligation to give back to the community. In all three cases, the pro bono requirement emphasizes serving poor and marginalized communities.3 Participants in this study were contacted through local commercial mailing companies contracted by the alumni office at each school. Using this strategy, mailings were sent to approximately 2,000 potential respondents. A number of mailings were returned without delivery, and the respondent names were subsequently deleted from the sample. This reduced the pool of potential participants to approximately 1,600, of which 474 completed and returned surveys, yielding a response rate of about 30 percent. Forty percent of the sample indicated they presently work in large private large law firms. Of the remaining respondents, 13 percent are sole practitioners, 17 percent are employed in small firms, 18 percent are located in medium-sized firms, and 12 percent practice as in-house counsel.4 The sample contained slightly more females than males, a significantly higher number of white lawyers than nonwhites, and an average age of 35.5
3. Although all schools emphasize servicing poor and marginalized communities, in actuality, many respondents were allowed to participate in a wide variety of pro bono activities including conducting research for faculty members or nonprofit organizations. Consequently, not all pro bono was directed at serving marginalized populations. 4. This sample compares favorably to other large surveys of lawyers. In the Heinz et al. study (2005), data collected from a representative sample of lawyers in Chicago provided the following breakdown: 14 percent solo, 14 percent small firm, 10 percent mediumsized firm, 10 percent in-house counsel, and 29 percent large firms. Similarly, the After the JD study (Dinovitzer et al. 2004), a random sample of nearly 4,000 lawyers nationwide, produced the following distribution: 5 percent solo, 25 percent small firms, 13 percent medium firms, 28 percent large firms. 5. Only those respondents who participated in mandatory pro bono during law school are included in the analysis.
In order to develop the constructs of good lawyering and lawyering for the good, a series of items were analyzed through principal component factor analysis.6 The questionnaire also included items that sought to ascertain respondent satisfaction with various components of the requirementsupervision, opportunities to learn about legal practice, level of responsibility, and integration of pro bono learning into other law school classes. General demographic information including gender, race, age, marital status, political orientation, religious affiliation, and income was also collected. 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.
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. Another 22 percent report having completed their law school pro bono obligation through legal writing and research activities, primarily in association with faculty who were working on pro bono issues and cases. Several other respondents, nearly 20 percent, report having engaged in case work with supervising lawyers in the areas of labor, family, 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. These lawyers report engaging in pro bono activities across a wide array of substantive areas. The largest group of respondents, nearly 15 percent, worked in the general area of poverty law. In most cases this entailed conducting intakes and interviews at legal service centers. Respondents also indicate that their pro bono work occurred in the areas of housing, criminal law, education, and family law. 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. In fact, according to the respondents, less
6. Principal component factor analysis is a method of combining two or more correlated variables into one factor or construct. See Table 3.1 for a listing of the survey items used to create the constructs, description of constructs, and corresponding Cronbach alpha coefficients. The alpha coefficient is a standardized measurement assessing the reliability of a constructed scale. By convention, alphas above .60 are indicative of reliable measurement scales.
table 3.1 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 pro bono/public service experiences in law school made me more concerned with social justice. My law school pro bono/public service experiences made me more aware of the legal needs of the poor. Doing pro bono in law school made me more committed to doing pro bono/public service as a practicing attorney. 36% 64% 51% 49% I acquired valuable legal skills doing pro bono/public service during law school. 43% 57% Agree 33% 67% 50% 50% I developed useful professional contacts through my law school pro bono/public service experiences. 67% 33% Good Lawyering Disagree My pro bono/public service was helpful in gaining an understanding of how the legal system works. Agree
37%
63%
Items used to construct Lawyering for the Good. Cronbachs Alpha = .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).
Items used to construct Good Lawyering. Cronbachs Alpha = .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).
than half of their pro bono work was provided for individuals who they considered poor and indigent. 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. For instance, as Table 3.1 demonstrates, nearly twothirds of respondents report that their mandatory pro bono was helpful in gaining a practical understanding of how the legal system works, and nearly 60 percent indicate that they acquired valuable legal skills through their pro bono obligation. Nearly, 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, 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. 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. Several of these respondents commented at length on the value of their law school pro bono experiences. As one respondent explained, the pro bono experience gave me an opportunity to get into court, file pleadings and develop skills of interviewing people and investigation of facts underlying litigation. Some specifically identified the benefit of the pro bono experience as lying in learning skills that they eventually found useful in practice. For example, one respondent noted, the skills and knowledge I received have been transferable to my pro bono work as an attorney. Another attorney commented, 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. Some respondents emphasized that their pro bono experiences provided better legal training than their classroom instruction. One lawyer wrote that her pro bono work was much more helpful than the typical classroom experience. Law is essentially about people, their problems, or their goals. This is often lost in the sterile environment of the classroom. 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. Most states strongly recommend participation in pro bono work, so this is good training for bar purposes. It was a good way to learn about how non-profit legal entities work. 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. Even respondents who were not initially enthusiastic about their law schools pro bono requirement nevertheless gained important lessons from the experience. As one lawyer commented, I was not excited about the requirement when I found out about it but once I was actually working, I really enjoyed it. It was a very positive experience for me. Despite the large number of comments about the value of mandatory pro bono to promote good lawyering skills, several respondents did express values
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. Id 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 didnt 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: Im 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 schools definition of pro bono is too narrow in many cases. Often one persons 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 isnt 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.
Pro bono isnt 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 ( =.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 ( = .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 practicethat is, gaining an understanding of the legal system, acquiring useful legal skills, and developing professional contacts, as opposed to the more substantive traits
table 3.2 pro bono hours in law schoolols regression Model 1 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. *** .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 ones 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 bonologistic 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
table 3.4 endorsement of mandatory pro bono in law schoollogistic 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
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 ( =.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 ( =.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.
table 3.5 integration of pro bono experiences in law schoolols regression Model 1 Intercept 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 L.S. Lawyering for the Good* Elite L.S. R-Square n = 202
* p < .05, ** p< .01, *** p < .001 See Table 3.2 for variable coding
Model 2 Sig. *** .003 .124 .179 .027 .109 .014 .073 .611 .213 .145 .646 .331 .167 SE .290 .196 .147 .012 .154 .222 .197 .004 .060 .044 .385 .078 .056 Sig. ***
SE .277 .193 .149 .012 .154 .223 .199 .004 .038 .026 .213
.004 .099 .163 .028 .069 .004 .089 .313 .005 .068 .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. While both narratives are in evidence in a respondents emerging professional identity, they do not exist with the same intensity. For some respondents, pro bono work is primarily meaningful for the instrumental opportunities to develop skills, a better understanding of how the legal system operates, and useful professional contacts. For others, 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. As these data demonstrate, the narrative of good lawyering appears to have greater salience among respondents. In addition, most respondents indicate being generally satisfied with the various components of their pro bono programs, including the quality of supervision at pro bono locations, the range of pro bono opportunities, the types of pro bono
assignments, opportunities to learn about legal practice, the level of responsibility, opportunities for client contact, the number of required hours, and the ease of the process. However, respondents were significantly more dissatisfied with the lack of integration of their pro bono experiences into the classroom. 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. The lack of integration of a respondents pro bono experience into the classroom may represent one of the greatest challenges of these programs, especially for those who are oriented toward broader conceptions of justice (Adcock in this volume). Without greater integration into the classroom experience, 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. These data suggest that it is the good lawyering narrative that is most validated during law school and, potentially, beyond. Although this might be one of the goals of mandatory pro bono, 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. Also, by failing to engage students in classroom reflection about their pro bono experiences, programs deny students opportunities to participate in critical discussions of the value of pro bono service for promoting the public good. For instance, 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, economic development, 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, including the bureaucracy of firm practice as well as the demographics of the client base, 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, 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. Most respondents identified some limitations associated with requiring pro bono work; these do not appear to result from a general lack of interest in performing a public service in law school. The respondents who participated in mandatory pro bono programs valued the opportunity for direct contact with clients, appreciated the opportunity to employ their newly acquired legal talents, and derived a sense of satisfaction that comes from helping people in need.
Only a minority reacted negatively to their pro bono experiences. In terms of the socialization of law students, opportunities to develop good lawyering skills are extremely important to legal education. This point was made a number of years ago in the 1992 MacCrate Report. 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). Despite its call to take up the values question in legal education, the report attended more to the issue of narrowing the skill-based gap between law school and legal practice. Since its publication, work on fundamental values has generated far less attention than . . . work on fundamental skills (Pearce 2003:583). The mandatory pro bono experiences reported by the attorneys in this study would seem to reflect, in part, the emphasis of the MacCrate Report. Respondents did believe they derived experiential skill-based benefits from engaging in pro bono legal services during law school. Many spoke directly about the impact of this experience on developing skills in working with people, in litigation experience, in interviewing, and in drafting documents. This emphasis on promoting skills through pro bono programs has not been lost on the law schools. 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. This message is consistent with the view that pro bono serves as a way to enhance legal skills in practice. In this regard, 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). Acquiring the mastery of lawyering skills cannot take place solely in the classroom. Pro bono graduation requirements take note of this by giving students opportunities to assist organizations in representing clients, thereby introducing them to the techniques of client interviewing, counseling, and advocacy in a real-world setting. However, although there are certain pedagogical benefits to gaining skills through pro bono, 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, especially if such potential outcomes are given less purchase in law school. 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. Such an emphasis on skills training associated with pro bono may potentially usurp the professional commitment to serve underrepresented populations. The value of pro bono becomes not one associated with a commitment to the greater good but, instead, a technically rational one that emphasizes the value of pro bono for the individual lawyer or for his or her workplace. Although it is certainly
the case that many of the lawyers, especially graduates of the elite law school, 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, how this experience benefited them personally or professionally was not immediately apparent, and neither was it addressed when these respondents were in law school. Perhaps this is why law students develop reasonable narratives of pro bono (Schleef 2006). If pro bono comes to be defined primarily in ways that benefit individual lawyers or their workplaces, then it is not surprising that lawyers will accept pro bono principally on their terms. Such an emphasis may also encourage lawyers to pursue more conventional, one-shot pro bono strategies that help build skills that are translatable to their regular cases, 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). Indeed, 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. However, such an outcome may need to be channeled, nurtured, and supported more broadly in order to facilitate a more expansive view of justice (Davis 2004). Ironically, 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. For example, medical students often do internships and residencies in inner-city hospitals where they provide services to the poor. However, in most of these cases, the poor are simply medical cases for the young physician to learn medical procedures. The purpose is to build skills, not necessarily to learn that there is a large segment of society that has limited access to health care and that physicians might have an ethical responsibility to redistribute medical services downward. In fact, 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. As Rhode (in this volume) argues, presenting public service purely in terms of skill or individual reputation may lead to an erosion of the normative impulses of pro bono and, potentially compromises its broader societal objectives. 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, perhaps signifying to the respondents as law students and now as lawyers that these issues are not important in the long run. Finally, these findings are consistent with general conclusions regarding the social structure of the legal profession (Heinz et al. 2005). Lawyers visions of pro bono ideals and practice are not uniformly distributed across the profession (Granfield 2007a). Distinct communities of practice produce variations in lawyers identities and consciousnesses (Mather et al. 2001). In this study, graduates
held significantly different attitudes about pro bono in law school and in practice according to the law school they attended. Elite law school graduates were motivated primarily by a noblesse oblige ethic of contributing to the greater good (Garth 2004). By contrast, nonelite lawyers viewed pro bono in more instrumental ways, mostly as a means to acquire useful skills and enhance their careers. Perhaps then, as Dinovitzer and Garth (in this volume) demonstrate, 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.
references
Abbott, Andrew (1983) Professional Ethics, 88 American Journal of Sociology 855885. Abel, Richard (2002) What Does It Mean to Practice Law in the Interests of Justice? Choosing, Nurturing, Training, and Placing Public Interest Law Students, 70 Fordham Law Review 15631571. Atkinson, 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, 9 American University Journal of Gender, Social Policy and the Law 129170. Cummings, Scott (2004) The Politics of Pro Bono, 52 UCLA Law Review 1149. Davis, Martha (2004) Access and Justice: The Transformative Potential of Pro Bono Work, 73 Fordham Law Review 903925. Dinovitzer, Ronit et al. (2004) After the JD: First Results of a National Study of Legal Careers. American Bar Foundation and NALP, Chicago: American Bar Foundation. Dolovich, Susan (2002) What Does It Mean to Practice Law In the Interests of Justice? Ethical Lawyering and the Possibility of Integrity, 70 Fordham Law Review 16291687. Epstein, Cynthia F. (2002) Stricture and Structure: The Social and Cultural Context of Pro Bono in Wall Street Firms, 70 Fordham Law Review 16891698. Garth, Bryant (2004) Noblesse Oblige as an Alternative Career Strategy, 41 Houston Law Review 93111. Gergen, Kenneth (1998) Narrative, Moral Identity and Historical Consciousness: a Social Constructionist Account, unpublished manuscript. Granfield, Robert (1992) Making Elite Lawyers: Visions of Law at Harvard and Beyond. New York: Routledge. (2006) The Pedagogy of Public Service: Assessing the Impact of Mandatory Law School Pro Bono on Young Lawyers, report prepared for the Law School Admission Council, Newtown, PA. (2007a) The Meaning of Pro Bono: Institutional Variations in Professional Obligations among Lawyers, 41 Law and Society Review 113146. (2007b) Institutionalizing Public Service in Law School: Results on the Impact of Mandatory Pro Bono, 54 Buffalo Law Review 13551412. Heinz, John, Edward Laumann, Robert Nelson, and Rebecca Sandefur (2005) Urban Lawyers: The New Social Structure of the Bar. Chicago: University of Chicago Press. Katzmann, Robert (1995) The Law Firm and the Public Good. Washington, DC: Brookings Institute.

Kramer, John (1991) Mandatory Pro Bono at Tulane Law School, National Association for Public Interest Law Connection Close-up, September 30, 12. Mather, Lynn et al. (2001) Divorce Lawyers at Work: Varieties of Professionalism in Practice. New York: Oxford University Press. Menkel-Meadow, Carrie (1998) The Causes of Cause Lawyering: Toward an Understanding of the Commitment of Social Justice Lawyers, in Austin Sarat and Stuart Scheingold, eds., Cause Lawyering: Political Commitment and Professional Responsibility. New York: Oxford University Press. Pearce, Russell (2003) MacCrates Missed Opportunity: The MacCrate Reports Failure to Advance Professional Values, 23 Pace Law Review 575597. Rhode, Deborah (1992) Ethics by the Pervasive Method, 42 Journal of Legal Education 3156. (2000) The Pro Bono Responsibilities of Lawyers and Law Students, 27 William Mitchell Law Review 12011215. (2004) Access to Justice. New York: Oxford University Press. (2005) Pro Bono in Principle and in Practice: Public Service and the Professions. Stanford: Stanford University Press. Scheingold, Stuart and Austin Sarat (2004) Something to Believe In: Politics, Professionalism, and Cause Lawyering. Stanford: Stanford University Press. Schleef, Debra (1999) Empty Ethics and Reasonable Responsibility: Vocabularies of Motive among Law and Business Students, 22 Law and Social Inquiry 619650. (2006) Managing Elites: Professional Socialization in Law and Business Schools. Lantham: Rowman and Littlefield Publishers. Southworth, Ann (2005) Conservative Lawyers and the Contest over the Meaning of Public Interest Law, 52 UCLA Law Review 12231278. Spaulding, Norman (1998) The Prophet and the Bureaucrat: Positional Conflicts in Service of Pro Bono Publico, 50 Stanford Law Review 13951434. Stets, Jan and Peter Burke (2000) Identity Theory and Social Identity Theory, 63 Social Psychology Quarterly 224237. Stover, Robert (1989) Making It and Breaking It: The Fate of Public Interest Commitment during Law School. Urbana, IL: University of Illinois Press. Stryker, Sheldon (1968) Identity Salience and Role Performance, 4 Journal of Marriage and the Family 558564. Treuthart, Mary Pat (2002) Weaving a Tapestry: Providing Context Through ServiceLearning, 38 Gonzaga Law Review 215235. White, Lucie (2000) Pro Bono or Partnership: Rethinking Lawyers Public Service Obligations for a New Millennium, 50 Journal of Legal Education 134146. Wilkins, David (2004) Doing Well by Doing Good? The Role of Public Service in the Careers of Black Corporate Lawyers, 41 Houston Law Review 1191.
4. priming for pro bono

The Impact of Law School on Pro Bono Participation in Practice
deborah a. 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 obstaclesit is effortful, it is work and work performed on an unpaid basis, it is time consuming, and it involves interactions with strangers. . . . [S]ome volunteers engage in work that is clearly trying (Clary et al. 1996:485486). These observations fit legal pro bono publico well; pro bono work is, indeed, effortful, unpaid, time-consuming, and sometimes, if not often, trying (Gocker in this volume). This chapter discusses the influence that one major element of the legal professionlaw schoolmay have on new lawyers decisions to engage in pro bono. The chapter draws on the social science literature on volunteerism and community service learning and presents findings from surveys of over 1,000 lawyers and law students. More specifically, 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. Pro-social in this paper means an orientation toward assisting people in ones community, and such attitudes include, for example, empathy and compassion. The findings reveal that both affect a lawyers decision to pursue pro bono work in practice. The chapter concludes with recommendations for law schools seeking to prime their students to perform pro bono.
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. Many thanks to the following, each of whom made this chapter possible: the participants in the Baldy Center conference that gave rise to this bookin particular Robert Granfield and Lynn Mather; my colleagues (deans included) at William Mitchell College of Law; the Minnesota Justice Foundation; the Minnesota Center for Survey Research; the Minnesota Office of Higher Education, which funded the research; and Professor Ronald Anderson of the University of Minnesota. On a personal level, my deepest thanks go to my family, whose lives and values have driven my interest in figuring out why people help each other.
of limited means or to clients seeking to advance the public interest (Cummings 2004:4). For many lawyers, providing free services to people of limited means is the more important of the two, and understandably so. Low-income households experience two to three important legal needs per year; there are 6,681 lowincome people for every legal aid attorney, compared to 525 people per attorney for the general population (Legal Services Corporation 2005:11,16). Pro bono increasingly plays a critical role in the provision of civil legal assistance to Americas poor (Sandefur 2007 and in this volume). At the same time, a lawyers involvement in law reform activities may effectuate systemic change more effectively and efficiently than individual representation. The American Bar Association (ABA) has considered, indeed fiercely debated, pro bono several times during the past 40 years (Maute 2002:91). To date, its model rules have not gone so far as to require pro bono, but each revision has inched a bit closer to a mandate (ABA 2008; see Granfield and Mather in this volume for text of Model Rule 6.1). As of the ABAs April 2007 survey, 43 states had rules or policies based on Model Rule 6.1. Twenty states had adopted the 50-hour standard; fewer than ten called for a financial contribution. Six states required or provided for voluntary reporting, and seven afforded Continuing Legal Education (CLE) credit for pro bono work (ABA 2008). In view of the ABA and state standards, 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. Urban Lawyers: The New Social Structure of the Bar reports the results of a 19941995 wide-ranging study of Chicago lawyers in various types of practice (Heinz et al. 2005). Respondents spent varying amounts of time per month on pro bono work, depending on their practice settings, from none for corporate counsel and government lawyers to 3.5 hours per month for solo practitioners (131). When asked whether lawyers should be required to perform or fund pro bono, 35 percent of the Chicago lawyers agreed with the idea, 15 percent were undecided, and 50 percent disagreed (188). Deborah Rhodes study, reported in her 2005 book, Pro Bono in Principle and in Practice, obtained data regarding pro bono participation in 2000 from 844 lawyers who had graduated from one of six elite law schools, or received a major pro bono award or worked for a firm that received that award, or worked at one of the countrys largest firms (Rhode 2005). The average number of pro bono hours per year for the respondents was 70heavily skewed by the 230-plus hours of award winners, and estimated by Rhode to be three times that of the bar as a whole, based on media and bar reports (128). Rhode concluded that the average for the bar as a whole is less than half an hour a week (1). Two-fifths of the respondents were satisfied with the amount of time they spent performing pro bono; a quarter were neutral; a third were dissatisfied (143).
priming for pro bono 75
Similarly, Robert Granfields 2004 survey focused on several graduating classes from three law schools around the country (Granfield 2007a). Approximately 70 percent of the respondents performed at least some pro bono in their current job (1381, 1382) with an average total of 69 hours per year (1384). The After the JD study, 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 81 percent of lawyers in very large firms who engaged in some pro bono performed a median of 45 hours per year; at the other end, the 18 percent of government lawyers who engaged in some pro bono performed a median of 10 hours per year (NALP & ABF 2004:35, 37). The respondents were asked about their satisfaction with various facets of their jobs, with opportunities for pro bono ranking 15th out of 16 facets (49). Less than one-fifth wanted more opportunities for pro bono work (35). In August 2005, the American Bar Association (ABA) Standing Committee on Pro Bono and Public Service released Supporting Justice: A Report on the Pro Bono Work of Americas Lawyers, based on a 2004 survey of 1,100 lawyers selected to form a representative sample of lawyers in private practice, corporate counsel, government, and academic settings in the United States (ABA 2005). Tracking the ABA Model Rule 6.1, the survey differentiated tier one pro bonofree legal services to people of limited means or organizations serving the poorfrom tier two pro bono, such as free services to other entities and reduced-rate services. The survey revealed that 66 percent of the respondents performed tier one pro bono, an additional 18 percent performed tier two pro bono, an additional 2 percent did other work meeting the lawyers personal definition of pro bono, and 14 percent did no pro bono work in the past year. Respondents performed, on average, 39 hours of tier one and 38 hours of tier two work (1113). 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 ABA followed up with a survey conducted in 2008 (ABA 2009). That survey found that 73 percent of the lawyers provided some type of tier one pro bono. Lawyers in private practice participated at a higher rate (81 percent) than lawyers in corporate (43 percent) and government (30 percent) settings (10). The average number of tier one hours performed during the preceding year was 41 (55 when looking only at attorneys performing tier one work) (1213). One-third of the respondents reported performing nontier one pro bono, and one-fifth reported doing no pro bono in the preceding year (vii). Taken together, these studies document a gap between the Model Rules 50-hour aspiration and actual practice. Although the average number of hours may be encouragingfor example, 69 in Granfields study and 77 in the ABA reportmany lawyers do no pro bono work at all. Hence the question in this study: can law school foster participation in pro bono among new lawyers?
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. First, this study was built on the premise that pro bono is the legal professions version of volunteering. To social scientists, volunteering covers a wide range of activities understood along four dimensions: choice (from free will to obligation), remuneration (from none to low pay), structure (from formal to informal), and intended beneficiaries (from strangers to oneself along with others) (Cnaan et al. 1996). Legal pro bono is free, provided within the structure of the legal system, and performed for the benefit of a complete stranger. The interesting issue as to legal pro bono is the matter of choice, that is, how to encourage lawyers to perform pro bono. Over the past four decades, research on volunteering has been multidisciplinary. For many researchers, volunteering is a complex, multifaceted phenomenon (Smith 1994). Social psychologists see volunteering as a distinctive form of prosocial action, in which the volunteer chooses, without prior obligation or commitment, to help others; seeks out an opportunity to do so; serves over an extended period of time; and expends considerable time and effort doing so (Omoto & Snyder 2002:847). One model of the antecedents to volunteering includes dispositional variables, such as pro-social personality (a combination of other-oriented empathy and helpfulness), religiosity and other belief systems, and motives. In addition, ones willingness to volunteer is affected by age, income, and education; situational factors and social pressure; and attributes of the volunteer organization, such as its reputation (Penner 2002; Penner & Finkelstein 1998). Other researchers have similarly found that demographics, prior experiences, personality differences, resources and skills, motivations, identity concerns, expectations, and existing social support affect participation rates (Omoto & Snyder 2002). Sociologists see volunteering as an activity in which time is freely given to benefit another person, group, or organization, and as one in a cluster of helpgiving activities (Wilson 2000:215). Wilson (2003) recently identified three theories of volunteering behavior. The human resources theory focuses on time, education, and income (Wilson 2003:14661467). The social context theory focuses on social contacts within ones family, neighborhood, and psychological communities, that is, people to whom one feels a sense of attachment (14671468). According to the socialization theory, volunteerism is a learned social norm, which, when activated, leads to assuming the role of a volunteer; socializing agents include parents, schools, and religious organizations, which support as well as teach the value of volunteering (1466). Recently, economists attention has focused on the benefits volunteers and donors consider as they seek to maximize their utility. For example, Cappellari and Turati (2004) recently documented that volunteers may be intrinsically
motivated, seeking no reward but the activity itself; extrinsically motivated, seeking other compensation; or both. Freeman (1997), taking a rather different approach, determined that volunteering is not, actually, voluntary behavior. Rather, the key to why people volunteer is that they are asked and feel social pressure to participate. Relying on the data from Independent Sector surveys, Hodgkinson (1995) identified the impact of childhood experiences, such as participating in a youth group, and adult experiences of active membership in religious and community organizations. 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, it is in ones power to improve the welfare of others, and social problems can be overcome with volunteer time and effort. That is, other-oriented people volunteer (Hodgkinson 1995:3640). Along the same lines, Littlepage and colleagues, studying award-winning volunteers, identified public service motivation as a correlate of volunteering (Littlepage et al. 2005). A second premise of this study is that law school pro bono is legal educations version of community service learning. Research into community service learning provides insights into civic engagement, a general concept that encompasses public service in various disciplines and professions (Battistoni 2002). In brief, community service learning combines community service with academic study of a related field, in part to foster students positive attitudes toward community service and ongoing involvement in their communities (Eyler & Giles 1999; Eyler et al. 1997; Furco 2003). Researchers have identified a wide range of personal, social, academic, and career outcomes for students participating in community service learning (Eyler et al. 2003). Eyler and colleagues, comparing students who did and did not participate in service learning, identified four clusters of positive outcomes associated with community service learning: personal values, citizenship skills, citizenship confidence, and perceptions of social justice (Eyler et al. 1997). Sax, Astin, and colleagues have studied participants in student learning over time and documented growth in their commitment to helping others and participating in community activism, as well as their development of a sense of empowermentthat is, the view that individuals can change society (Astin et al. 1999; Sax & Astin 1997).
research design
The data used in this chapter were wide-ranging. Law students, new lawyers, and experienced lawyers participated in the study. This research involved both qualitative and quantitative methods, including focus groups, surveys, and extended interviews. Most of the findings reported here derive from surveys, with features aimed at obtaining reliable and meaningful data: anonymity, voluntariness, objectivity
in phrasing of questions, reasonable time spans to be recalled, use of well-developed questions from previous research, and selection of respondent pools so as to avoid bias. The statistical analysis presented in the findings section identifies factors that correlate with the performance of pro bono legal work. The Main Survey of New Lawyers The main survey involved William Mitchell College of Law graduates from the years 2001 to 2004. These graduates could receive recognition for performing 50 or more hours of public service during law school. Through the colleges Law School Public Service Program (LSPSP), students had many volunteer placements from which to choose. They could, for example, help low-income people fill out their tax forms, interview women seeking protection from abusive spouses, or perform legal research for advocacy groups in areas such as disability and environmental law, all under the tutelage of a supervising lawyer. One of the studys major purposes was to assess the impact of the LSPSP on new lawyers participation in pro bono. The pool of respondents consisted of just over 1,100 graduates; 420 individuals returned surveys for a response rate of 39 percent. The respondents were employed in a wide variety of practice settings: 27 percent in small firms (up to 25 lawyers); 20 percent in a government setting, including judicial clerkship, legal services, public defender, and other government law offices; 16 percent in large firms (over 25 lawyers); 13 percent in a law-related position (e.g., tax accountant); 6 percent in corporate legal staff; 6 percent in a solo firm; and 8 percent in other settings, including not working. Sixty percent of the respondents were female, 40 percent male. Roughly one in five were born before 1965; the remainder were born between 1965 and 1980. As for political ideology, the respondents depicted themselves as follows: 25 percent conservative, 27 percent middle-ofthe-road, and 47 percent liberal. Respondents were asked to report their pro bono participation in hours per year. To qualify, the work had to be done for no fee or a substantially reduced fee; work for which the respondent intended to but did not collect a fee did not qualify as pro bono. The survey was distributed in May of 2006, and all 420 surveys were returned by July of that year. Respondents were asked to report the number of hours of pro bono they performed in 2005 and the pro bono hours they projected for 2006.2 Moreover, respondents were asked to categorize their hours based on the categories reflected in Model Rule 6.1 and the ABAs study. Category A encompassed legal services to people of limited means and legal services to organizations that
2. The survey encompassed two years because pro bono participation may vary from year to year. The 2006 data captured more than the lawyers intentions: roughly half of 2006 had passed when the respondents filled out the questionnaire, and many lawyers carefully plan their future commitments such as pro bono.
address the needs of the poor. Category B encompassed legal services to organizations seeking to secure or protect civil rights, civil liberties, or public rights; legal services to other charitable, religious, civic, community, governmental, or educational organizations; and activities to improve the law, the legal system, or the legal profession. In the following discussion, access is used when referring to Category A pro bono activities, civic for Category B activities, and combined for the total of the respondents access and civic pro bono hours.3 Three additional surveys were used for this research. This chapter refers to the results of these surveys for comparative datafor example, law students versus new lawyers attributions regarding the cause of poverty. Experienced Lawyers Seventy-five lawyers teaching as adjunct professors in the colleges extensive skills program completed a questionnaire covering their experience with pro bono. This pool was roughly 40 percent female, 60 percent male. Sixty percent were born before 1965, the remainder between 1966 and 1981. Their years of legal experience varied: 20 percent had 5 to 9 years, 45 percent had 10 to 19 years, 28 percent had 20 to 29 years, and 7 percent had 30 to 37 years of experience. 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.4 This pool was 58 percent female, 42 percent male. First-Year (IL) Students Three hundred and twenty-five first-year students filled out a questionnaire, in the spring, about discussion of pro bono in their first-year courses. This pool was 55 percent female, 45 percent male.
general results
Sociologists Janoski, Musick, 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. As described above, this study explores two separate dimensions of a lawyers 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. The main survey revealed that, for William Mitchell alumni, participation in a pro bono program
3. If there is no designation for access or civic, the correlation is for combined pro bono. 4. Students in this class had not yet discussed pro bono in class.
during law school was significantly correlated with pro bono participation in a lawyers current practice. Additionally, attitudinal dispositions related to prosocial values correlated with pro bono involvement in practice. Each of these findings is discussed in greater detail below. Participation in a Pro Bono Program Law schools are in an interesting position: they can require, significantly influence, gently encourage, or merely permit students to engage in some type of law-related service (Adcock in this volume). 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. Although this study cannot answer that question, it does explore how individuals responded to a particular type of pro bono program. A key factor associated with volunteering is that most people want to control their own decisions and actions.In general, 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). For example, 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; the intentions of students who would have volunteered anyway were little affected by a requirement to serve (Stukas et al. 1999). An alternative to requiring service is providing an incentive to serve. An incentive, especially if it is substantial enough, may draw some people to volunteer (the price effect); however, for volunteers who are intrinsically motivated, 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, if a person who volunteers because she believes that she is a helpful person is provided extrinsic rewards for volunteering, she may volunteer less in the future because her self-image as an altruistic person has been undermined (Wilson & Musick 1999). This effect is worrisome because intrinsically motivated people volunteer more than extrinsically motivated people. The American Bar Associations accreditation standard now requires a law school to offer substantial opportunities for . . . student participation in pro bono activities (ABA 20072008). Law school pro bono programs are quite varied (Association of American Law Schools Pro Bono Project 2001; Adcock in this volume). Participation in law school pro bono programs is far from universal. According to the 2007 Law School Survey of Student Engagement, reporting data from a survey of 27,000 law students, about 17 percent of first-year students, 37 percent of second-year students, and 55 percent of third-year students engaged in pro bono or volunteer work (Center for Postsecondary Research 2007). Rhodes and Granfields research examined the impact of mandatory pro bono programs. Rhode surveyed graduates at two schools with mandatory pro
bono programs, two with well-supported voluntary programs, and two without pro bono programs (Rhode 2005). One out of five graduates indicated that law school had raised their interest in pro bono; one out of five reported that law school dampened their interest in pro bono (156). Additionally, there was no statistically significant correlation between a law schools program type and pro bono hours in a lawyers early practice years (Rhode 2005:159160). Similarly, Granfield, in his study of graduates from three law schools with mandatory programs, found limited effects of these programs (Granfield 2007a). Many respondents indicated that the pro bono program opened their eyes to poverty, heightened their understanding of the legal system, and improved their legal skills. Additionally, half of the respondents indicated that their law school pro bono affected their commitment to pro bono in practice (13781379). However, 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 (13811386). Nonmandatory pro bono programs can be designed in several ways (Loder 2001). For example, a law school could simply afford students options for lawrelated volunteering. Alternatively, a law school could provide incentives to participate. 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, including a transcript designation. Service may be through a clinic or through a volunteer placement offered through the Minnesota Justice Foundation (MJF), which coordinates volunteer placements for all four Minnesota law schools. MJF has contacts with over one hundred organizations, and students may develop their own placements with the assistance of MJF. In recent years, about half of each graduating class has earned the 50-hour recognition, with some students performing many more hours than required. In exploring the impact of William Mitchells public service program, the main survey adds to Rhodes and Granfields work in several ways. First, the program is incentive-based rather than mandatory. Furthermore, all respondents attended the same law school during the same several-year period, so differences from one school to another are not present. Rather, the focus can be narrowly drawn; the comparison is between students who did and did not participate in the public service program. Finally, the lawyers who participated in the survey practiced in many different settings. Of the new lawyers who participated in the main survey, 35 percent earned the 50-hour recognition, 39 percent did some volunteer work through MJF, and 40 percent took a clinic course. In general, students viewed their experiences positively. Clinic courses have long been well regarded by students; 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). Participation in William Mitchells optional pro bono program as students correlated with pro bono participation by the new lawyers. Some features of their
law school experiences correlated with combined pro bono, some with access pro bono, and some with civic pro bono activities.5 Fifty-hour participation correlated with combined, in particular civic, pro bono in practice.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. Moreover, any amount of volunteering through MJF was significantly related to combined and civic pro bono.7 Those who volunteered through MJF had higher rates of pro bono participation in practice. Interestingly, several factors of an MJF placement were associated with a lawyers current pro bono participation: courtroom representation,8 participation in a discussion of broad social issues,9 and reflection on ones reactions.10 Finally, taking a clinic course correlated with access pro bono.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. Pro-social Attitudes Law school in general, that is, apart from a pro bono program, may significantly influence a lawyers pro bono participation (Hoffmann 2007). 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. 1995:72). These organizations can make their members aware of others needs; suggest realistic, concrete ways to address those needs; lead members to construct situation-specific norms by internalizing justice and compassion; and reveal that those in need depend on others. These associations may increase members circles of people with whom they psychologically identify, thus developing the sense of we-ness that is a central determinant of helping (7273). These effects of associational ties can be seen as deflecting the tendency to denigrate those who need help, an attitude that greatly dampens the impulse to help. Research has suggested that when a person in need is viewed negatively or held to be responsible for his problems, the needy person may not be deemed worthy
5. As discussed earlier, access pro bono refers to work representing poor and otherwise disadvantaged clients, civic pro bono refers to work performed for organizations dedicated to social reform, and combined pro bono is the sum of access and civic pro bono. 6. Combined: 2005 F = 5.671, p <.02; 2006 F = 6.597, p <.02. Civic: 2005 F = 4.951, p <.03; 2006 F = 5.363, p <.03. 7. Combined: 2006 F = 5.624, p <.02. Civic: 2006 F = 4.958, p <.03. 8. Combined: 2005 F = 11.103, p <.01; 2006 F = 9.808, p <.01. Civic: 2005 F = 9.401, p <.01; 2006 F = 9.469, p <.01. 9. Access: 2005 F = 2.881, p <.04; 2006 F = 3.654, p <.02. 10. Civic: 2005 F = 3.012, p <.04; 2006 F = 2.827, p <.05. 11. 2005 F = 9.095, p <.01; 2006 F = 8.252, p <.01.
of assistance (Feather 1992; Andrew & Velasquez). This just-world perspective can be very powerful in influencing pro bono work, such that when a client continues to engage in behavior that the lawyer does not understand or evaluates negatively, willingness to engage in pro bono will likely decline (Gocker in this volume; Rhode 2005:5859; Delaney & Russell 2005:24). One way to minimize this derogation is to prompt the helper, the potential pro bono lawyer, to understand and appreciate the perspective of the person in need (Batson 1998:290). To explore the impact of such views, the present study examined the effects of various pro-social attitudes on pro bono practice. Attributions Regarding Social Problems. Benard Weiner has identified two stances toward the poor: conservatives see poverty as controllable by individuals and choose not to help; 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). Thus, one is much more likely to help when the person in need is understood to be innocentthat is, as not having caused his problemthan when the person in need is seen as causing his own problem. Implicit in this causation principle is equity: a positively valued outcome, such as wealth, should follow positively valued behavior, such as hard work; a negatively valued outcome, such as poverty, should follow negatively valued behavior, such as laziness; mixing positive behavior with a negative outcome or vice versa produces inequity (Feather 1992). This suggests that attributing the cause of poverty or social problems to social factors, rather than individuals, and favoring social, rather than individual, change would produce higher rates of pro bono participation in practice. Research on pro bono confirms these general findings on the attribution of blame regarding social problems. Rhode found that political commitment correlated with the number of pro bono hours the respondents in her study performed (Rhode 2005:130). Similarly, Granfield found a statistically significant correlation between intensity of political beliefs and pro bono hours, as well as a correlation between political stance and pro bono hours, with liberals performing more pro bono than conservatives (Granfield 2007b). In the main study for this chapter, the political stance of new lawyers correlated with combined and access pro bono; liberals participated more than conservatives.12 Lawyers who attribute poverty to social causes had higher rates of participation in access pro bono,13 than those with individual-based explanations of poverty. New lawyers who believe that social problems are best solved through institutional change reported higher levels of pro bono participation,
12. Combined: 2005 F = 2.418, p <.04. Access: 2005 F = 3.488, p <.01; 2006 F = 4.968, p <.01. 13. Access: 2006 F = 4.154, p <.05.
84 private lawyers and the public interest table 4.1 item and means for community orientation among lawyers Survey Item Empathy: Most of the time, I am able to view events from different peoples perspectives. Self-efficacy: I feel that I can have a positive impact on society. Community awareness: I have a good understanding of the issues faced by my community. Compassion: I seldom think about the welfare of those I dont know personally. Self-sacrifice: Doing well financially is definitely more important to me than doing good deeds. Attraction to policy-making: The give-and-take of public policy making doesnt appeal to me. Mean 4.03 3.98 3.36 3.27 2.81 2.63
especially access pro bono, than those who believe that problems are solved by changing individuals.14 Community Orientation. Research indicates that an orientation toward other people is a trait shared by volunteers and involved citizens. Hodgkinson (1995) identified several viewpoints within a broader construct of other-orientation that characterized volunteers. Littlepage and colleagues (2005) found that volunteers possess public service and other pro-social attitudes (Perry 1996). Scholars researching the impact of community service learning have focused on various dimensions of citizenship confidence and social justice (Eyler at al. 1997; Moeley et al. 2002). In the current study, the survey questions measuring community orientation drew on measures developed in the field of community service learning and public service. Six questions in the survey assessed a lawyers connection to other people. The questions and the means from the main survey, on a scale of 1 to 5 (the last three questions were reverse-coded), are reported in Table 4.1. Only the community awareness measure correlated with pro bono participation. Those lawyers who believed they had a good understanding of their communitys problems reported higher levels of participation in pro bono, especially civic pro bono.15 Motivations. Social scientists from various disciplines have examined how a potential volunteer values a volunteer opportunity. Several of the major studies of
14. Combined: 2005 F = 4.340, p <.04; 2006 F = 4.955, p <.03. Access: 2005 F = 4.036, p <.05; 2006 F = 11.440, p <.01. 15. Combined: 2005 F = 5.500, p <.01; 2006 F = 3.906, p <.01. Civic: 2005 F = 4.809, p <.01; 2006 F = 3.360, p <.02.
legal pro bono have explored this topic. Lawyers participating in the ABA study identified a combined sense of professional responsibility and . . . personal satisfaction derived from providing the service as their major motivators of pro bono, followed by a recognition and understanding of the needs of the poor (ABA 2005:17). Rhode found that the most powerful influences were a sense of satisfaction and obligation, together with the professional benefits or costs associated with pro bono work (Rhode 2005:136). Granfield found that lawyers engaged in pro bono largely for instrumental reasons, such as enhancing skills (large firms) and career advancement (solo practitioners). Depending on the lawyers practice setting, commitment to the community also mattered (Granfield 2007b:131135). The current study explored pro bono motivations from the perspective of the social psychology literature on volunteering. The functional approach to explaining volunteerism posits that different people may perform the same task for different reasons (Clary et al. 1998). Working from a major wide-ranging survey about volunteering, Clary and colleagues developed the Volunteer Functions Inventory, which taps into six major motivations: values, enhancement, understanding, career, social, and protective (Clary et al. 1996; Clary & Snyder 1999). Among the general population, the most powerful motivation is values; then enhancement, social, and understanding; then career and protective (Clary et al. 1996:492). Four of the six motivations predict volunteering: values, career, social, and understanding (Clary et al. 1996:501). The questions used in the main survey were based on six Clary questions, amended to refer to pro bono. The values question was changed in a second way: to add references to principles and groups of people. A leading researcher in the altruismegoism debate about the essential nature of helping has suggested exploration of two additional pro-social motives: principlism, that is, upholding a moral principle, and collectivism, that is, benefiting a group (Batson 1998:302 303). The questions and the means from the main survey on a scale of 1 to 5 are presented in Table 4.2. Two motivations pertinent to a pro-social orientation correlated with pro bono participation. Supporting a cause, principle, or group (values) correlated with combined pro bono, especially access pro bono.16 Seeing pro bono as a way to gain a new perspective (understanding) correlated with access pro bono.17 In addition, seeking a career advantage (career) was associated with combined pro bono,18 and following the lead of people close to the lawyer (social) was associated with access pro bono.19
16. Combined: 2006 F = 2.991, p <.02. Access: 2006 F = 5.585, p <.01. 17. 2006 F = 3.270, p <.02. 18. 2006 F = 2.738, p <.03. 19. 2005 F = 5.915, p <.01; 2006 F = 3.573, p <.01.
86 private lawyers and the public interest table 4.2 item and means for motivations among lawyers Survey Item Values: Through pro bono work, I can do something for a cause, principle, or group of people that matters to me. Enhancement: Pro bono work helps me feel better about myself. Understanding: Pro bono work allows me to gain a new perspective on things. Career: Pro bono work will help me succeed in my career. Social: Others with whom I am close place a high value on pro bono or volunteer work. Protective: Pro bono work helps me deal with my personal problems. Mean 3.87 3.62 3.53 2.63 2.37 1.63
Similarity to Pro Bono Clients. Legal pro bono, especially service to people of limited means, entails a relationship of trust between the lawyer and the client; this relationship requires the lawyer to deeply understand the client and the clients situation. This understanding may be aided or impeded by the lawyers sense of similarity or dissimilarity to the client. Thus, a lawyers sense of similarity to her clients should correlate with pro bono participation. 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. The degree of similarity perceived by the lawyer correlated with access pro bono.20 Lawyers who saw themselves as similar to their clients were more likely to engage in access pro bono. On the other hand, lawyers who saw little similarity were more likely to engage in civic pro bono.21 Evolution in Attitudes. It is a fair question whether the attitudes discussed here can or do change during law school. The new lawyers were asked to what extent they grew, during law school, in their capacity to contribute to the welfare of their community. The answers correlated with all forms of pro bono participation, with growth leading to participation in pro bono.22 Comparisons of the responses to some of the questions across the various respondent groups suggest that these attitudes may evolve during law school, as well as in practice. The law students enrolled in the professional responsibility class answered the two attribution questions. A larger percentage of law students than new lawyers adhered to the social-causes attribution and the social-solution attributions, that is, the attributions that correlated with participation in pro bono. In the largest
20. Access: 2006 F = 3.464, p <.01. Civic: 2005 F = 3.042, p <.02. 21. 2005 F = 3.042, p <.02. 22. Combined: 2005 F=4.824, p <.01; 2006 F=4.448, p <.01. Access: 2006 F=4.505, p <.01. Civic: 2005 F=3.641, p <.02; 2006 F=3.445, p <.02. Roughly 7 percent chose not at all, one-quarter chose a little bit, and two-thirds chose somewhat or to a great extent.
gap, two-thirds of students held the social-solutions attribution, compared to half of the new lawyers. The first-year law students answered the community orientation questions. New lawyers rated themselves higher than did the students on awareness of needs in ones community, the only community orientation factor that correlated with pro bono participation. Three groups answered the motivations questions: first-year students, new lawyers, and experienced lawyers. For all three groups, values and understanding, the two pro-social motivations, ranked in the top three motivations for pro bono; for all groups, values ranked first. To explore the values motivation more, the respondents identified the group, cause, or principle they valued. The responses covered many social concerns: commonly chosen groups were battered women, children, immigrants, and the poor; commonly chosen causes were civil liberties and environmental protection; commonly chosen principles were equality and fairness. For all three respondent groups, roughly 20 percent of the responses were categorized as causes. But the relative proportions of groups and principles varied: 73 percent of law students, 65 percent of new lawyers, and 54 percent of experienced lawyers listed groups; 9 percent of law students, 13 percent of new lawyers, and 29 percent of experienced lawyers listed principles. Taken together, the results reported here suggest that pro-social attitude development, as well as participation in a pro bono program, can contribute to the new lawyers participation in pro bono in early practice.
discussion and implications

This study, like all research, has certain limitations. While the number of respondents was high, they were all connected, directly or indirectly, to one law school. The surveys were all snapshots; this was not a longitudinal study. From a theoretical perspective, the most striking insight gleaned from the results is that lawyers are much like nonlawyers when it comes to volunteering and service to community. The findings reveal the impact of both participation in service and socialization into pro-social attitudes. If the lawyers experiences are within their control, they may well continue to participate. 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, motivations grounded in values and a desire to gain new perspectives, and awareness of community needs. Thus, lawyers training and profession provide tools for helping not available to nonlawyers, but their impulse to help is the same. Furthermore, the results offer insight into key questions about how law school may prime new lawyers to perform pro bono. First, can an incentive-based law school pro bono program influence participation in pro bono in practice?
Participation in William Mitchells program did increase the rate of pro bono involvement in practice. Any amount of law-related volunteering during law school increased pro bono participation in practice, as did participation in a clinic. These results confirm the value of participation in a pro bono program, especially when participation is optional. 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. Second, 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. Community service learning is built on integration of the service into a course to assure this processing. Not surprisingly, 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. The MJF program was extracurricular and optional, yet it still increased pro bono participation in practice. This may be because at least some placements involved opportunities for law students to process their experiences. Two features of MJF placements that correlated with pro bono in practice were reflection on ones reactions and discussion of broad social issues. Note that the processing included both the personal (reflection on ones reactions) and the political (discussion of social issues). Third, within but also outside a pro bono program, are there themes that law school should emphasize to prime new lawyers to perform pro bono? Based on the data from this study, the following attitudes correlated positively with pro bono participation: a liberal political stance; the views that poverty results from social causes and that a change in social institutions is the solution to social problems; an awareness of the needs of ones community; motivation to engage in pro bono to have a positive impact on a social cause and to achieve new perspectives; and the perception of ones own similarity to pro bono clients. Therefore, one clear, practical implication of this study is to teach law students about the situations of people in need in the students community. Unfortunately, students may not desire this education. In both the main survey and the PR survey, respondents were asked to identify several types of training or other support they would like from a pro bono program; only one out of ten chose education or information about the lives of pro bono clients. This suggests that new lawyers are unlikely to seek out such information for themselves, making the need to provide this education in law school all the more critical. Options abound: reading or hearing stories, visiting the neighborhoods where pro bono clients live and work, reading nonlegal studies of the pro bono clients concerns, volunteering through a nonlegal program, engaging in a simulation of poverty or physical disability or language barriers, and so on. This instruction, and indeed all elements of a pro bono program, should avoid downplaying civic pro bono. From the standpoint of preparing law students for pro bono in practice, there are differences between access and civic pro bono.
Volunteering through MJF correlated with civic pro bono, whereas taking a clinic correlated with access pro bono. Attributing poverty to social causes and favoring social solutions correlated with access pro bono, community awareness with civic pro bono. Most intriguing, new lawyers who saw themselves as similar to their clients performed access pro bono, whereas new lawyers who saw themselves as dissimilar to pro bono clients performed civic pro bono. Perhaps the latter sought some distance from pro bono clients for personal reasons, or perhaps they saw the value of work on a policy level or through an organization. Representing one child in foster care is critical to that child; working on a committee seeking change in the foster care system is of broader impact. Both types of pro bono matter; both can contribute to the welfare of ones community; both should be considered in devising an academic program that includes pro bono elements. Some students may come to law school not only novices in the law but also inexperienced in the challenges some in our society face. One such first-year student, when asked to identify a cause, principle, or group of value, wrote: I dont have one, but if I did I might volunteer. One hopes that by the end of law school, his answer to that question would approximate that of a classmate: Principle: that all people deserve a voice in the legal system. Group: all underprivileged people. Cause: equality.
references
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part ii
economic perspectives on pro bono in legal practice
5. lawyers pro bono service and market-reliant legal aid

rebecca l . sandefur
introduction 1
In the United States, many services that facilitate peoples participation in our common life are provided through markets or, for those who cannot afford market rates, through a combination of public and private sources of labor and of public and charitable fundingso many that this model of provision might be termed American-style. For example, transitional housing for people moving out of homelessness and into stable housing is provided in this way (Barrow & Zimmer 1999), as is the distribution of surplus food to hungry people (Barrett 2002), as is temporary accommodation and counseling for women seeking safety from battering partners (Roberts & White 2007; see generally Abel in this volume; Katz 1996:283334, 2001; Marwell 2004). Among many other services provided in this way are subsidized civil legal services, or civil legal assistance. 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. One aspect that contrasts with many other Western welfare states is the United Statess limitation of legal aid to those designated as poor, currently a bit less than 17 percent of the population (Houseman & Perle 2003; Regan 1999; U.S. Bureau of the Census 2007; see generally Abel 1985). Other countries extend subsidy for civil legal services much farther up the income distribution, well into the middle classes in some cases (Paterson 1991; Regan 1999; Zemans 1996). A second aspect is U.S. legal aids typically American structure, revealed in Figure 5.1. The structure of U.S. civil legal assistance is like that of a threelegged stool, resting on the work of three distinct groups of lawyers: those funded by the federal Legal Services Corporation (LSC), those working in legal aid societies that do not receive LSC funding, and those who volunteer in organized
1. Research was supported in part by Stanford University. I thank Jane K. Ohgami and Patricia Seo for research assistance. Earlier versions of this paper were presented at the Baldy Center Conference on Private Lawyering in the Public Interest, April 2008, Buffalo, NY, and the Annual Meetings of the Law and Society Association, May 2008, Montreal, Quebec. I am grateful to Steve Boutcher, Jeanne Charn, Scott Cummings, Bob Granfield, Lynn Mather, and participants at both conferences for helpful comments and thoughtprovoking conversations.

Civil pro bono programs
Legal aid society staff
LSC staff
figure 5.1 estimated shares of full-time equivalent civil legal assistance lawyers provided through civil pro bono programs, lsc-funded programs, and legal aid societies not receiving lsc funding: usa, 1996 Source: Computed from Sandefur (2007:8385)
pro bono programs that exist expressly to provide poor people free or reduced-fee assistance with their civil legal problems (Sandefur 2007). Roughly 50 million Americans are eligible to receive civil legal aid services, and surveys suggest that, in any given year, 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). Yet despite this evidence of considerable need or demand, little information is available about the American legal aid system that exists to meet that need or demand. What data do exist suggest that in 1997the only year for which national data on organized civil pro bono programs are availablelawyers 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). When measured in money rather than person-hours, private contributions to American-style civil legal assistance are also revealed as substantial. Figure 5.2 presents one perspective. The two left bars of the graph report the monies received in 2005 by legal aid organizations that were funded, in whole or in part, by the federal Legal Services Corporation. The LSC is the centerpiece of Americanstyle civil legal assistance. It does not provide services itself, 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; Johnson 1999; Kilwein 1999). As the left two bars of the figure reveal, although the LSC funds many legal aid organizations, the majority of the money received by those organizations does not come from the LSC. Instead, that money represents a mix of state and local government and private sources of funding. In 2005, the LSC distributed around $331 million to its grantees, an amount on the order of $58 million less than the funds LSC grantees received from other sources (Legal Services Corporation 2006).
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.) Value of pro bono services (est.)
figure 5.2 selected sources of subsidy for civil legal assistance: funding received by lsc-funded organizations and estimated market value of pro bono service, in millions of dollars: usa, 2005 Source: Compiled by the author from American Bar Association (2004, 2008), Legal Services Corporation (2006), U.S. Bureau of the Census (2004, 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. The first estimate evaluates lawyers pro bono as hypothetical lost revenue. 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. In a sense, this estimate of pro bonos value reflects the market value of the lawyer who is donating his or her time. 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 measure estimates the market value of the services pro bono clients receive.2 Estimating pro bonos
2. The estimates of pro bonos value are computed by calculating average receipts to the legal services industry per lawyer, and multiplying that quantity by the estimated number of full-time equivalent (FTE) lawyers participating in organized civil pro bono programs. For 1997, Sandefur (2007:97 and n. 17) estimates that lawyers pro bono service provided about 2,900 FTE civil legal aid lawyers, a number about 0.3 percent the size of the total lawyer population that year. In 2005, 0.3 percent of the lawyer population would have been around 3,312 attorneys (computed from ABA 2004, 2008). The first measure of lost receipts averages across private-practice lawyers providing services to all kinds of clientsbusinesses, government, and individuals. 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. Both measures of pro bonos value may overestimate the monetary contribution of lawyers working in organized civil pro bono programs, because some lawyers who were listed as program volunteers may never have actually provided any clients with services

16000 14000 12000 10000 8000 6000 4000 2000 0 LSC LSC and other legal aid societies LSC, other legal aid societies and pro bono
figure 5.3 civil legal assistanceeligible population per full-time equivalent civil legal assistance lawyer by source, usa, 1997 (a) Provided by LSC funding, (b) provided by LSC-funded and other legal aid societies, (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, close to twice the amount of money appropriated by Congress for civil legal aid. The legal services purchased by individuals are usually much less expensive than those purchased by organizations (Heinz et al. 2005:159164), so estimating pro bonos value as donated services places its contribution at a substantially lower level, around $246 million. However, 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. Lawyers donated labor makes a notable difference in the amount of legal aid available relative to need, as revealed in Figure 5.3. The measure used here indexes need by the size of the population eligible for subsidized service. The measure is inexact for a number of reasons, 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; see generally Economides et al. 1986). However, despite its imprecision, the need measure has the advantage of a long history, having been developed in the early days of the Office of Economic Opportunity Legal Services Program, the forerunner of the contemporary LSC (Johnson 1999). In 1996, the LSC funded roughly one
(see, e.g., Maute & Hill 2003). Data for revenues from the private practice of law come from the Service Annual Survey (U.S. Bureau of the Census 2007: Table 6.1). Information about the share of total revenues collected from clients who are individuals comes from the 2002 Economic Census (U.S. Bureau of the Census 2004:Table 3).
full-time equivalent (FTE) attorney for every 14,000 people in the country eligible for that lawyers services (Sandefur 2007:83). A whole parallel world of legal aid exists among organizations that do not receive any funding from the Legal Services Corporation, including many law school clinics, legal aid societies that provide services that the LSC is not permitted to fund, and societies that could not get or did not want LSC funding. Once an estimate of the number of lawyers working in these organizations is incorporated, the ratio of FTE legal aid lawyers to eligible clients drops to 1 such attorney for about every 7,000 eligible people (Sandefur 2007:84). 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, e.g., Gocker in this volume). 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 or so eligible people nationally (Sandefur 2007:85). One could produce alternative estimates of the relative value and contribution of different sources of funding and labor for civil legal assistance, 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. Given the extent of reliance on pro bono, factors that affect the supply of pro bono labor can thus, by extension, affect the supply of civil legal assistance. 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.
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, with individual programs themselves often partnerships between public and private entities (for a description of some of these models, see Cummings 2004). For example, the now-defunct Oklahoma City Volunteer Lawyer Center (VLCenter) was a partnership of an ecumenical church group, a handful of individual churches, a few local business and civic groups, a local law school, and the local LSC-funded legal aid office (Maute and Hill 2003:395, n. 113). At a downtown church, the VLCenter ran six Saturday clinics during the 20012002 school year. Pro bono clients, prescreened for conflicts of interest with individual volunteer lawyers,3 could come in for appointments that included
3. Conflicts of interest can emerge when a pro bono client has a problem that involves one of the volunteer lawyers actual paying clients, or when a pro bono clients problem pits him or her against the same kinds of clients that a lawyer serves for pay (see below, pp. 103104).
advice and might lead to representation (Maute & Hill 2003:401404). Originally, the focus of the clinics work was to be pro se divorce, but the founders changed this focus to consumer counseling. The shift in the content of services to be provided occurred not in response to an assessment of local legal need, 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, n. 119). 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. One of the most important groups of organizations controlling the supply of volunteer labor is multilawyer private-practice law firms. The pro bono work that contributes to organized civil legal assistance is not, in fact, primarily an activity of individual lawyers: it is also substantially an activity of lawyer-employing organizations (Boutcher in this volume; Cummings 2004). 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, but this is not the case. Twenty-five years ago, as today, much of the pro bono that came out of the private-practice bar was produced by lawyers in larger firms, and much was donated not by individual lawyers, but by the law firms in which they worked. 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). Twenty-five years ago, in 1984, 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, which at that time were firms with more than 20 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). No contemporary national survey exists that reports on pro bono work for the whole American legal profession, but an excellent source of information about young American lawyers activities is the After the JD study (AJD). The AJD is a
4. Information about lawyers pro bono service in 1984 comes from the National Survey of Lawyers Career Satisfaction, a nationally representative survey of American attorneys in that year (Hirsch 1993). It collected surveys from 2,967 lawyers, achieving a response rate of 76.9 percent in a stratified random sample (Hirsch 1993: Table 4). The questions about pro bono did not distinguish criminal from civil pro bono, but lawyers were asked about what fields of law they worked in. In order to get an estimate of specifically civil pro bono work, I restrict the analysis to respondents who reported little or no work in criminal law (see Sandefur 2007:97). 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). Estimates are weighted to correct for differential sampling probabilities (Hirsch 1993:Table 5).
nationally representative sample of lawyers who became eligible to practice law around the year 2000 (Dinovitzer et al. 2004; see also Dinovitzer & Garth in this volume).5 The AJD asked these young lawyers to report the total hours of pro bono work they performed during the last twelve months, but did not ask for any information about where those hours were served. A majority of young lawyers in private practice reported doing some kind of pro bono service (Dinovitzer et al. 2004:Table 4.3), and, as was the case in the 1980s, a substantial amount of this service came from lawyers in the largest firms. Of the total pro bono hours contributed by young private-practice lawyers in 2002, almost threequarters (72 percent) came from lawyers working in firms of more than 20 lawyers. Large firms today are much larger than they were a quarter century ago, and these big firms provide a lot of volunteer labor. Among respondents to the AJD, 49 percent of total pro bono hours served by private practice lawyers came from lawyers in firms with more than 250 attorneys. The organizations in which lawyers work were 25 years ago and are today playing an important role in subsidizing their lawyers donated time. Effectively, much pro bono labor is donated not by the lawyer who serves, but by the firm that pays that lawyer to do pro bono work. In 1984, 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. That is, the lawyer reported that these hours were worked as part of [her] job, that is [her] firm . . . 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, but the lawyer didby the firm. One sees a similar pattern among contemporary young lawyers. Respondents to the After the JD survey were asked whether their total pro bono hours were billable time (fully compensated), non-billable time (uncompensated) or a combination of billable and non-billable time (partly compensated). Among lawyers in firms of more than 100 attorneys, 36 percent of young attorneys who did pro bono work reported that all of that work was done on billable time, so that the lawyer was paid by his or her firm for all of the volunteer labor produced. Among lawyers in smaller firms, about 17 percent of attorneys who did pro bono work reported that all of that work was on the clock (see Feathers and Levin, both in this volume, for illuminating discussions of how attorneys in smaller firms bear the costs of their own public service work.) The AJD survey does not provide information about where lawyers served their pro bono time. However, given other research (Boutcher in this volume; Cummings 2004), one can surmise that many of the hours currently donated to the organized pro bono
5. The After the JD survey is the first longitudinal survey of American lawyers. The data I use in this chapter come from the first wave of the survey, conducted in 2003. The 3,905 individuals in the main national survey represent a response rate of 71 percent (Dinovitzer et al. 2004:90); estimates are weighted to correct for differential sampling probabilities.
programs that provide civil legal aid come from lawyers working in large law firms. 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. Law Firm Interests and Lawyers Service Since organizations are substantially subsidizing lawyers volunteer behavior, they will likely play an important role in deciding how much labor will be provided and to what purposes that labor will be devoted. Among other things, law firms are businesses that sell services in a market (Abel 1989). Therefore, organizations that employ lawyers to provide legal services have a number of interests that might be expected to affect their lawyers volunteer behavior. The analysis that follows is not meant to exhaust the possible market interests at play, but to highlight three important ones and to suggest some of their potential consequences; I then focus my empirical analysis on one. 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. An important perspective on professional occupations such as law understands them as being crucially different from other lines of work. In this classical vision of professionalism, professionals put their clients needs and the public interest ahead of their own bottom line (Parsons 1968, 1969). Lawyers, in particular, 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, as well as their own clients personal interests (Rhode 2004, 2005, and in this volume). 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. 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. 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. As other chapters in this volume show, individual lawyers reasons for doing pro bono work reflect many different values, 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, Granfield & Veliz in this volume, and Schmedemann in this volume). But no persons values are expressed in a vacuum. 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). Three kinds of market interests shape the context in which lawyers do pro bono work. One interest is a wish on the part of the organizations that employ lawyersfor example, law firms, offices of internal counsel, and government
agenciesto recruit able lawyers and, if those lawyers are inexperienced, to find ways to train them. Another market interest, especially among organizations that get their revenues from the private market for legal services, is in business creation. Law firms want to maintain their relationships with existing clients and often to cultivate relationships with new clients. Finally, law firms have a basic interest in persistence, in continuing as viable economic entities. This is perhaps an obvious point, but it has an important consequence. 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. A limit exists on the amount of pro bono that will be subsidized. Organizations that employ lawyers usually want to attract and retain good ones. Part of how they try to achieve this is through offering rewardspay, opportunities for promotion, sushi and massages (Browning 2007; Galanter & Palay 1991; Phillips 2001)but they may also offer opportunities to do particular kinds of work, such as work that allows young lawyers to live out value commitments by serving causes that are important to them, or to engage early in tasks they would not otherwise see until after several years of large firm practice, such as appearing in court to litigate. Newly minted lawyers also often lack experience in the practice of law. Few law schools require clinical legal education, and little of law schools core curriculum is related to the practicalities of doing lawyers work. Pro bono work affords opportunities for young lawyers to receive basic training, to do hands-on client service and court and tribunal work, and to have control of a case from start to finish (Cummings 2004; Daniels & Martin 2009). 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. Law firms interest in business creation creates two concerns that may affect their lawyers pro bono participation. First, it is clear that law firms select pro bono projects with an eye to avoiding those that might antagonize existing or potential clients.6 This concern is as old as legal aid under capitalism, and reflects a desire to prevent positional conflicts of interest (Smith 1919). Such conflicts emerge when a lawyer or a firm serves classes of clients whose group interests are opposedfor example, credit card companies and consumer debtors, or landlords and tenants. Positional conflicts likely have greater impact on the types of legal services provided to the indigent than on the amount of such services. 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 2004:116121; Spaulding 1998:1414, 1418). As one partner in a large firm reported apropos of positional
6. Law firms also use their participation in pro bono programs as a marketing tool with potential clients (Daniels & Martin 2009:1316).
conflicts and selecting between potential pro bono projects, We [the firm] know what side our bread is buttered on, and we stay there (Spaulding 1998:1409). If a local legal services market is fairly diversified, the aggregated positional conflicts faced by local law firms may not restrict the range of civil-law troubles that pro bono can serve: one firms positional conflicts could be compensated for by anothers lack of conflicts in the same area of law. However, if a local market is dominated by clients from a particular industry (for example, banking or energy), then the supply of legal services for poor people facing problems with businesses in those industries (for example, problems with credit cards or utility bills or service) may be highly restricted, because law firms may be unwilling to participate in pro bono projects that target the industries that pay their bills. To my knowledge, no empirical research has assessed the quantitative impact of positional conflicts on the types or amount of pro bono services provided. Second, some evidence suggests that lawyers pro bono service activity is sensitive to their concerns about encroachment onto their turf by other occupations. All professional occupations, including law, act collectively to restrict the supply of services by restricting their production (Abbott 1988; Abel 1989; Larson 1977; Weeden 2001). An important means through which this is achieved in the legal profession is lawyers legal monopoly on the provision of legal services (Abel 1989). The legal profession does not restrict supply only for selfish reasons; it is also concerned about the public interest. The profession wants to maintain a basic level of quality in legal services and to protect the public from unqualified or unscrupulous practitioners. At the same time, it also wants to maintain a high price for the services it provides (Abbott 1988; Abel 1989; Friedson 1994). Providing free work can, perhaps seemingly paradoxically, be a way to help lawyers keep control of the supply of legal services. If poor people go unserved by lawyers, other occupationsdocument preparers, estate planners, financial advisors, social workers, paralegalscan step in to provide services at fee levels . . . that poor people can afford (Sandefur 2007:88). Indeed, 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.g., Greenwell v. The State Bar of Nevada). In response to these concerns, state legislatures have considered, and sometimes approved, what amounts to the practice of law by nonlawyers for specific, limited issuesfor example, certain matters involving immigration (e.g., Moore 2004:1113). In response to these challenges, state legal professions have encouraged lawyers to do pro bono work both in the service of justice and in defense of professional boundaries (e.g., Nevada Lawyer 2005). 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). This finding suggests that pro bono service is today, as it has
long been, one way . . . to reduce demand for less expensive service providers (Rhode 2005:97). Defending the boundaries of the profession is a long-term project (Abbott 1988; Abel 1989). In the short term, individual law firms must also make a sustainable living, producing profits sufficient to compensate partners and pay salaries for associates and other employed staff such as secretaries and paralegals. The costs of doing business likely place a limit on the amount of service any law firm or individual lawyer can afford to donate. The specific values of these costs and of the related limits are neither natural nor self-evident. Many factorssuch as regional or national norms about how high partner profits or associate starting salaries should be, as well as a firms bottom lineshape the amount of pro bono that any lawyer or law firm will be willing to do. The relationship between revenues and public service is not some kind of economic law, but it is a clear and powerful regularity. When revenues per lawyer are higher in a legal services market, the lawyers there produce more pro bono service, and when revenues are lower they produce less. The data available are not sufficient to demonstrate a causal link, but they do constitute compelling evidence that the amount of available legal aid is linked to conditions in legal services markets, and that American-style civil legal assistance is consequently market-reliant. 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, and an investigation of market-to-market differences in the average hours of pro bono produced by young lawyers. 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 source of pro bono data was a 1997 survey of organized civil pro bono programs across the United States, which provided information about pro bono participation in 40 states (Center for Pro Bono 1998). This information was linked to information about state legal professions concerns surrounding unauthorized practice, state professions attempts to encourage lawyers pro bono service, and revenues in state legal services markets (Sandefur 2007). In multivariate models that assessed the relative contributions of these different factors to cross-state variation in lawyers service, I found that market conditionsrevenues per lawyer in the state and whether or not the state profession perceived threats from other occupations unauthorized practice of lawexplained more than half of all that the models could explain about variation across states in pro bono participation.7
7. The most elaborate model of pro bono participation across states explained about two-thirds of the total variance (R2 =.65). The level of legal aid funding in each state and
Market conditions explained more about variation across states in pro bono than did the size of state legal professions, legal aid funding, the content of state professional ethical codes dictating norms about pro bono service, and state professions other aspirational attempts to encourage pro bono service.8 For the average state in the study, an increase of one standard deviation in receipts to the legal services industry per lawyer (about $24,000) 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. In comparison with state legal professions that did not perceive a threat of unauthorized practice, the average state legal profession that did evidenced 7 percentage points more participation in organized civil pro bono programs (Sandefur 2007:101). Across states, lawyers participation in organized civil pro bono programs was strongly related to conditions in legal services markets. The second analysis draws on the After the JD study, and looks at pro bono work by individual lawyers. Here, 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. 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, such as the state of Oklahoma (Dinovitzer et al. 2004). I modeled two different measures of young lawyers pro bono work: whether a lawyer did any pro bono work at all, and, among lawyers who did pro bono work, the average number of hours that they served. 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.e., that the firm rather than the lawyer made the donation), and the revenues per worker in the legal services market in which he or she worked.9
the size of the state legal professions accounted for 9 percent of variation across states in lawyers pro bono participation rates, while information about revenues and concerns about unauthorized practice accounted for an additional 39 percent of the variance, or 55 percent (=.39/.65) of the variance explained by the most elaborate model (Sandefur 2007: Table 3). 8. Concrete and specific attempts to recruit lawyers into pro bono servicefor example, a statewide pro bono organization working with specific law firms to secure their attorneys participation in organized pro bono programswere associated with higher rates of pro bono participation. However, 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 2007:8993, Table 3). 9. 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.e., the private practice of law) per employee in that industry for the specific market (e.g., New York City, Minneapolis, or the state of Oklahoma). These regression models were computed using weights to correct for stratified sampling. In the After the JD study, information about law
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 serviceincluding that service that contributes to civil legal assistanceis linked to conditions in legal services markets. This relationship obtains, in part, because a lawyers individual service is reliant upon his or her organizations 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.
been to understand something of how these institutional arrangements work, and to identify some of the vulnerabilities they createnot 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 ones goals. If ones goal is substantial volunteer activity by the private practice bar, then the glass looks half full. An enormous number of lawyersperhaps as many as 200,000participate 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, ones 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 Congresss 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
stipends, veterans 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 workfor example, these lawyers are not permitted to litigate for welfare reformit has much less scope to directly restrict pro bono lawyering. However, whether pro bonos 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 playersbusinesses 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 satisfyingdrive 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 countriesfor example, Canada, England and Wales, and Australiahave 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
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 areas 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 Statess 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 Statess 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 needidentified through intelligence-gatheringand 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
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.
references
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cases cited Greenwell v. State Bar of Nevada, 108 Nevada 602 (1992).
6. pro bono as an elite strategy in early lawyer careers

ronit dinovitzer and bryant g. garth
introduction
The conventional argument for pro bono legal serviceheard from the organized bar and scholars alikeis that lawyers have a moral obligation to perform such service. Pointing to the large unmet need for legal services, 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). 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; Sossin 2008). In other words, in order to sustain the legitimacy of the bars monopoly, lawyers must demonstrate a commitment to access to justice for disadvantaged individuals. From this vantage point, the goal is to encourage more lawyers to provide more pro bono services. In contrast, a second literature recognizes pro bono as one aspect of market promotion (see Lochner 1975). This view posits pro bono work as a kind of loss leader. Pro bono introduces clients to the potential advantages that come from legal services, and at the same time it helps to sustain a network of referral business. This is most trenchantly highlighted in Richard Abels (1988) work which demonstrates how legal aid in England and in the United States helped to build the demand for legal services. And it is equally demonstrated by the fact that the movement to document the unmet legal needs of ordinary Americans through systematic surveys (e.g., 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. Blankenberg 1999). Rather than focusing solely on the demand-side for pro bono legal services, 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. These two general approacheslegitimacy and demand creationcan be assimilated into a Bourdieusian perspective on the legal profession. This perspective is especially relevant to exploring the dynamics of semi-autonomous fields such as lawspaces of competition involving players who compete according to the rules of the game of the field. Of particular interest according to this perspective is the social construction of the rules of the game within a
particular field, the kinds of capital that are valued in the field, and the behavior of those who compete for success. The voluminous literature on pro bono, which assiduously proclaims the goodness of those who do pro bono work, serves to build the field while re-enacting and supporting the behavior that the field encourages and rewards (see review in Rhode 2005). Pierre Bourdieus 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. In contrast to the legal professions largely promotional and selfless view of pro bono, Bourdieu indicates that actors may invest in such disinterested activity while doing so in accordance with their interests (83). As a result, activity in a particular field may be at the same time interested (as opposed to disinterested) and altruistic. Within a Bourdieusian framework, then, one does not merely counterpose altruism to selfishness. Indeed, participation in some realms of social life requires actors to engage in what are apparently gratuitous, unprofitable, and altruistic acts, 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 (7677, 83). This orientation implies that the actor has a conscious or unconscious stake in the game, and a feel for what might advance his or her position within the game. Yet if actors engage in disinterested activity, it is not because they necessarily expect any reward in doing somuch less a financial oneor because there is any rational cost-benefit calculation on their part. Rather, by participating in a field (such as law) where value is accorded to disinterested acts, agents internalize the importance, value, and expectation of engaging in these activities, and do not question their merit (Bourdieu 1998:77). This behavior, oriented toward the rules of the game of the field, is what Bourdieu (1977) refers to as habitus. In Bourdieus (1998:87) terms, [i]n well-constituted societies of honor, there may be disinterested habitus, and the habitus-field relationship is such that, in the form of spontaneity or passion, in the mode of it is stronger than me, disinterested acts can be carried out. There are those who passionately conform to what honor dictates with no expectation of reward. Such well-meaning lawyers are easy to locate in the world of pro bono legal services. It is not that all behavior is pure, however; [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, virtue, disinterestedness, there are subtle, camouflaged interests . . . (87). 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. Again, in Bourdieus (1998:88) terms, [i]f disinterestedness is sociologically possible, it can be so only through the encounter between habitus predisposed to disinterestedness and the universes in which disinterestedness is rewarded. Bourdieu observed this behavior empirically, finding that individuals indeed acted according to the norm of disinterestedness fostered within the field. He further noted that
pro bono as an elite strategy in early lawyer careers 117
[b]y getting into line with the official norm, they managed to add profits provided by conformity with the universal to profits that an interested strategy provides (89). Thus, by conforming to the norm of disinterestedness, these individuals actually gained more economic reward than they would have if they had failed to act in a disinterested fashion. It might therefore be hypothesized that in certain fields it is better to seem disinterested, as generous and altruistic rather than egotistical (89). In this chapter, we wish to draw on this theoretical perspective to better understand pro bono work in the legal field. First, as suggested in the preceding paragraphs, the legal field tends to be structured in order to reward those who work to sustain the legitimacy of the field as a whole. That means, to simplify a point that we will not develop here, 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; Gordon 2008). The rewards for altruism may be material or symbolic. 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. Second, drawing on more general applications of Bourdieus theory to the sociology of law, 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). They and their law firms, for example, compete to gain recognition for pro bono activity and public service (e.g., Cummings 2004). Third, the rank and file of the profession typically do not have quite the same orientation to those ideals, because ordinary practitioners have to survive and make a living. They need in the first place to build a demand for their services. They are judged within the profession as a whole, however, according to a definition of pro bono that makes more sense in legitimating legal services to large corporate entities. Fourth, the division of labor within the legal field tends to reinforce social advantage and disadvantage (Heinz & Laumann 1982). 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). Elite status is confirmed in part because of the enactment of legal virtueand the apparent distance it provides from the pure commerce of providing legal services. It is not just a matter, then, of seeing what the incentives are for pro bono in different legal environments. Of course, as scholars have shown, 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; Boutcher in this volume). Similarly, 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, even though it still provides
services to individuals who cannot afford them (Levin in this volume; Lochner 1975; Seron 1996). The data we describe below certainly confirm these general findings. Following our Bourdieusian approach, the further questions we wish to explore involve who invests in pro bono, whether it is rewarded (or whether there is evidence of such rewards early in careers), and how that investment may relate to structures of hierarchy in the profession and society as a whole. These questions can be loosely formulated into the following hypotheses: 1. Lawyers in larger corporate law firms, and elite lawyers more generally, will be more likely to do pro bono work; 2. Those from higher socioeconomic backgrounds or their proxy, elite schools, will express an orientation that predisposes them to pro bono service; 3. Pro bono is a career strategy that is rewarded materially and symbolically. Although prior work has provided us with the context from which to explore these hypotheses, none of this work has been able to systematically address them. 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.
the after the jd study

This chapter relies on the first wave of data from the After the JD (AJD) study, a national longitudinal survey of law graduates (Dinovitzer et al. 2004). 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. The sampling design used a two-stage process. In the first stage, the nation was divided into 18 strata by region and size of the new lawyer population. Each stratum was then divided into primary sampling units (PSU), with each unit comprised of a metropolitan area, a portion of a state outside large metropolitan areas, or an entire state, and one PSU was chosen within each stratum. The PSUs included all four major markets, those with more than 2,000 new lawyers (Chicago, Los Angeles, New York, and Washington, DC); five of the nine large markets, those with between 750 and 2,000 new lawyers (Boston, Atlanta, Houston, Minneapolis, San Francisco); and nine of the remaining, smaller markets (CT, NJ remainder, FL remainder, TN, OK, IN, St. Louis, UT, OR). In the second stage, individuals were sampled from each of the PSUs at rates that would, combined, generalize to the national population. In addition, the study included an oversample of 1,465 new lawyers from minority groups (Black, Hispanic, and Asian American). For purposes of the present analysis, we analyze data from the sample that combines the nationally representative sample of lawyers and the oversample of minority lawyers. These responses were weighted according to their appearance in the particular geographic region from which they were sampled.
The final sample included 9,192 lawyers in the 18 PSUs. Data collection was based on a mail questionnaire initially fielded in May 2002, with nonrespondents followed up by mail and phone (with the telephone survey using a somewhat abridged version of the mail questionnaire). Unfortunately, about 20 percent of sample members could not be located, and another 8 percent were not eligible for the study; but of the original sample members who were located and who met the criteria for inclusion in the study, 71 percent responded either to the mail questionnaire or to a telephone interview, for a total of 4,538 valid responses. Analysis We begin by offering an overview of the patterns of pro bono work in the AJD sample. Table 6.1 outlines the distribution of pro bono by practice settings. It is not surprising to find that across the profession, lawyers working in legal services and nonprofits report the highest average hours of pro bono work (261 hours and 80 hours, respectively), though the data suggest that some of these respondents count their regular work hours as pro bono work. Among those working in private law firms, the highest number of pro bono hoursas expectedis found among those working in the largest firms of over 251 lawyers, with about 70 percent of these lawyers engaging in some pro bono work. In these largest corporate law firms, lawyers performed an average of 73 hours of pro bono work in a 12-month period, which is a full 26 hours more than the
table 6.1 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 79.60% 56.00% 47.10% 62.50% 69.80% 16.90% 23.10% 21.30% 41.40% 50.50% 46.90% 20.40% 44.00% 52.90% 37.50% 30.20% 83.10% 76.90% 78.70% 58.60% 49.50% 53.10%
Solo Private firm 220 Private firm 21100 Private firm 101250 Private firm 251+ Government Legal services or PD Public interest Nonprofit or education Business Other
46.58 30.29 29.39 47.29 73.27 20.21 261.15 28.51 80.18 21.32 10
30 20 16 25 40 10 20 20 30 20 10
amount of pro bono work in the settings with the next highest averages (firms of 101250 lawyers and solo practice). In private law firms we find that pro bono hours decline as firm size declines, though it flattens out among the smaller and larger firms of between 2 and 100 lawyers. Another constituency that reports fairly high levels of pro bono is solo practitioners, with almost 80 percent of these lawyers reporting that they do some pro bono work, and with the average solo practitioner engaging in 47 hours of pro bono service over 12 months. As researchers have noted for some time, the nature of pro bono work for solo practitioners is quite different from that in corporate firms (Cummings 2004; Lochner 1975), but the AJD data do not differentiate across types of pro bono work. Because the pressure to provide pro bono services is focused on lawyers in private practice (Boutcher in this volume; Cummings 2004), and because some lawyers in the public sector do not differentiate between their regular work and pro bono work, or are limited in their ability to provide pro bono services (e.g., lawyers for government), the remainder of our analyses will focus on AJD lawyers who are working in solo practice and in private law firms. This narrowing of our focus will allow us to hold private practice setting constant, and to better explore who invests in pro bono and how that investment may relate to patterns of stratification in the profession. We begin by considering the relationship between law schools and pro bono service. As we have shown elsewhere, there is a strong relationship between law school eliteness and the settings within which lawyers work, with graduates of the countrys most elite law schools obtaining positions in large corporate law firms (Dinovitzer & Garth 2007). Our prior analyses also indicated that the rank ordering of law schools is step-graded, with status indicators such as parental occupational prestige, working in a corporate law firm, and salary declining monotonically with law school rank. This pattern of stratification follows almost perfectly through into the arena of pro bono service. As indicated in Table 6.2, 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.S. News category of tier three graduates; the anomaly is that graduates of U.S. News fourth tier law schools engage in more pro bono work than their counterparts from schools ranked 41st to 100th. 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. Alternatively, some may argue that this anomaly may be the result of market forces; fourth tier graduates may be relying on pro bono to account for unpaid client bills or to build up their client base, or perhaps they are not getting as much responsibility and client work as they would like in law firm settings. The patterns of pro bono work by gender and race reveal some expected and some surprising patterns (Table 6.2): African American respondents engage in the most pro bono work per year (66 hours) and Hispanics (for no apparent reason) the least (37 hours), whereas women on average engage in about 4 more
hours of pro bono work per year than men (48 vs. 44 hours). Because practice settings are such strong determinants of participation in pro bono work, we also stratified the race and gender results by practice settings. The data indicate that Black lawyers on average engage in more pro bono service, but only in particular settings; in larger law firms (and especially in the largest law firms), 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), but in small and solo practice the averages are much more similar. Stratifying by firm size also demonstrates that Hispanic lawyers report some of the highest pro bono hours in the largest law firms (76 hours), but that Hispanic respondents working outside of the largest firms report lower pro bono hours than the average lawyer. Thus the earlier finding of lower pro bono hours among Hispanic respondents seems to be due, in large part, to the settings within which they work. We speculate that the higher rates of pro bono for Black lawyers, especially in large law firms, may derive from a greater commitment to helping others; alternatively, it may be that Black lawyers do not expect to be staying in these settings, and are gaining the skills and experience necessary to move elsewhere. The data for women, on the other hand, are much more
table 6.2 pro bono hours by law school tier, race, 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 110 Ranked 1120 Ranked 2140 Ranked 41100 Tier 3 Tier 4 race Black Hispanic Asian White gender Female Male
89.58 59.33 45.71 37.17 31.42 41.3 65.7 36.91 51.06 45.22 48.25 43.58
50 40 20 20 20 20 30 20 30 20 25 20
71.00% 68.30% 57.80% 60.60% 55.40% 54.70% 71.40% 50.30% 51.90% 61.00% 60.70% 59.80%
29.00% 31.70% 42.20% 39.40% 44.60% 45.30% 28.60% 49.70% 48.10% 39.00% 39.30% 40.20%
consistent, with women reporting higher hours compared to men in all settings except for solo practice. The patterns we identify above highlight a stratification in pro bono service, with graduates of more elite law schools and corporate lawyers in the largest firms more likely to engage in pro bono work. These patterns are closely related to, and in part derive from, different orientations and dispositions toward engaging in pro bono work. As we show in Table 6.3, 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 98.5 pro bono hours per year. In contrast, lawyers who rated pro bono as not at all important in their choice of first job reported an average of 34.5 pro bono hours. 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, with prior pro bono experience resulting in about 14 more hours of pro bono service per year. Finally, 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. The results in Table 6.3 indicate that although the average pro bono hours are almost identical regardless of their desire to help individuals, 67 percent of respondents who indicated a desire to help individuals engaged in some pro bono work compared to 52.5 percent of those whose desire to help individuals was rated as irrelevant.
table 6.3 pro bono hours by importance of pro bono hours to job choice, engagement in pro bono during law school, 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 34.49 98.53 40.32 54.2 48.04 48.73 51.4% 93.1% 55.4% 71.3% 52.5% 67.14%
Multivariate Models The findings thus far provide a glimpse into the potential relationships between pro bono and the stratification of legal services. 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. We begin with an analysis of the determinants of pro bono service. Respondents in the AJD survey were asked to report the number of pro bono hours they performed during the last 12 months; almost 40 percent reported that they performed no pro bono hours in this time period. As a result, the variable for pro bono hours is left censored, with a large proportion of 0 responses. In order to adjust for this censoring, we employ a Tobit regression. 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. Finally, because there were a number of outliers (n = 8) in the respondents reports of pro bono hours, we top-coded pro bono at 400 hours. We approach our analysis with a series of nested models, adding the explanatory variables in stages. In the first model we control only for demographic characteristics (gender, race, and fathers occupational status); the second model introduces dummy variables for law school eliteness (relying on rankings published in the U.S. News and World Report, 2003) and law school grade-point average (GPA); the third model introduces variables for work hours and law firm size; 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. These include a dummy variable representing whether respondents were engaged with pro bono work while in law school; 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); a variable that represents whether a respondents law firm allows him or her to count pro bono hours as billable time; and an interaction term that represents top-ten law graduates who work in the largest law firms. 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, but rather is also produced by a particular orientation that is found among a subset of lawyersin this case, elite law school graduates working in large law firms. The results are presented in Table 6.4. The first model shows that despite the bivariate relationship seen earlier between race, gender, and pro bono hours, in the multivariate context we find only a weak significant effect for Hispanic respondents, who engage in fewer pro bono hours. The second model, as expected, shows a positive and significant effect for top-ten and top-twenty law school graduates, who engage in significantly more pro bono hours than graduates of fourth tier law schools. We also find a strong positive and significant effect for law school GPA, with higher GPAs corresponding to an increase in pro bono service. In this model, which
124 private lawyers and the public interest table 6.4 tobit model of pro bono hours (Model 1) Male (Model 2) (Model 3) (Model 4)
3.966 3.547 4.351 2.784 (5.774) (5.764) (6.282) (5.793) Black 30.73 33.00 32.59 28.25 (18.59) (18.24) (17.34) (16.54) Hispanic 18.59 16.16 17.15* 17.43* (9.810) (9.642) (7.614) (7.869) Asian 10.30 14.44 16.35 15.02 (9.850) (11.01) (10.61) (9.709) Fathers occupational status 0.157 0.0393 0.105 0.130 (0.221) (0.214) (0.207) (0.181) law school rank (excluded category is schools ranked 41 or lower) Top ten law school 34.22 20.65 11.25 (16.80) (18.65) (14.80) Top 1120 law school 14.24 10.05 7.730 (8.181) (7.379) (7.546) Top 2140 law school 0.580 2.127 0.161 (7.629) (7.962) (6.934) Law School GPA 34.43*** 26.69** 23.40** (7.303) (7.473) (7.715) Work Hours 0.463 0.461 (0.298) (0.242) practice setting (excluded category is solo & small firm) Private firm 21100 17.72** 13.14** (5.004) (4.368) Private firm 101250 9.843 5.991 (10.36) (8.890) Private firm 251+ 23.68* 19.24 (10.17) (9.953) Law school pro bono work 23.09** (6.718) Desire to help individuals 7.128** (2.186) Pro bono hours as billable 40.49*** (8.675) Top Ten*firm 251+ 37.14 (19.68) Constant 3.996 109.5** 101.5* 131.3** (13.80) (33.02) (38.06) (39.74)
(Model 1) Constant Observations 70.88*** (7.798) 1266
(Model 2) 68.49*** (7.139) 1266
(Model 3) 66.40*** (6.497) 1266
(Model 4) 63.87*** (5.983) 1266
Standard errors in parentheses p < 0.10, * p < 0.05, ** p < 0.01, *** p < 0.001
controls for practice settings and GPA, we find a positive and significant (though weak) effect for Black respondents, who engage in significantly more pro bono hours than their white counterparts. The third model introduces practice settings. As expected, 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, those working in medium firms of 21100 lawyers engage in significantly less pro bono than their solo and small firm counterparts. The fourth and final model introduces the range of mechanisms that might help to further contextualize the relationship between social position, dispositions, and pro bono hours. We find strong evidence that the trajectories that lead people to the most prestigious positions are strongly related to pro bono work, and that these trajectories are set quite early in lawyers careers. First, we find that the more strongly respondents identify helping individuals as an important goal in their decision to attend law school, the more pro bono hours they perform. This finding is in keeping with prior research (Granfield 1992; Erlanger et al. 1996) that identifies a relationship between an initial commitment to public interest and the likelihood that law graduates will pursue public interest jobs. 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. 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, we also find that law firm programs themselves are important facilitators of pro bono workrespondents 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. Therefore, although an orientation to pro bono service is an important predictor of taking up this work, we do find evidence that, independent of this orientation, external programs that facilitate pro bono work are an important part of the story. Finally, we consider the effect of the interaction term representing top-ten law graduates working in the largest corporate law firms, which is positive and significant (p <.10). This interaction effect suggests that pro bono service is not merely the result of working in large corporate law firms, where the average
pro bono hours are higher than in other settings. 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, with elite law graduates bestowed with the role of noblesse oblige. To this point, we have considered the structural positions and dispositions that relate to engaging in pro bono work. Yet to fully flesh out Bourdieus perspective, we need to also document whether the orientations and dispositions toward pro bono work themselves reflect and reinforce the hierarchy of the profession. As Bourdieu (1998) notes, dispositionsin this case attitudes toward pro bonoboth reflect and legitimate social differentiation. The AJD survey asked respondents to rate the importance of pro bono work in their job choice. 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. Confirming Granfields (2007) analysis of support for mandatory pro bono programs, we find a strong gender effect, with men significantly less likely than women to give high ratings to pro bono opportunities. With respect to our hypotheses, the results we present in Table 6.5 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, independent of characteristics such as race and gender. These results suggest that for elite law graduates, an orientation to service is inculcated before they even enter the labor force. 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, compared to 23 percent of fourth tier graduates. 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), elite law graduates carry these orientations with them into their job preferences and into their legal careers. Taken together, our findings describe a system whereby an orientation toward pro bono service is especially inculcated, promoted, and nurtured in particular law schools, with these elite graduates going on to work in the countrys most prestigious and high-paying corporate law firms. These firms themselves continue to promote noblesse oblige by allowing their associates to count their pro bono hours as part of their billable hours, and as a result the elite law graduates continue to engage in pro bono work while at the same time serving business.
pro bono and its rewards

An important part of our account is that pro bono service is not an end in itself. Engaging in pro bono work is part of the game of new lawyer careers, with
table 6.5 ols regressionpredicting importance of pro bono opportunities in job choice B Male Black Hispanic Asian Fathers occupational status 0.678*** (0.102) 0.308 (0.222) 0.653* (0.235) 0.032 (0.126) 0.006 (0.004)
law school rank (excluded category is tier 4) Top ten law school 0.795** (0.243) Top 1120 law school 0.403* (0.184) Top 2140 law school 0.075 (0.185) Top 41100 law school 0.059 (0.169) Tier 3 law school 0.0008 (0.167) Constant 2.841*** (0.231) Observations 2615 0.073 R2
pro bono service functioning to provide far more than free legal services to those who could not otherwise afford them. We hypothesize that for some lawyers in private practice, engaging in pro bono service allows them to provide a moral meaning (cf. Lamont 2000) to their work in corporate law firms, with pro bono providing symbolic capital in the form of moral justification. For others, we expect that pro bono service can provide a more tangible form of capital, with pro bono serving as a form of training, giving new lawyers opportunities to meet with clients and go to courtopportunities that would not otherwise be available to junior associates in large law firms. And for others, pro bono may help to build stature and connections that lead to material and other career rewards over time.
Either way, we posit that pro bono work is often translated into other forms of capital, and analyzing these transformations can allow us to better understand the value of disinterestedness in new lawyer careers. We explore these hypotheses by examining the relationship between pro bono work and four forms of job satisfaction, which we have described elsewhere (Dinovitzer & Garth 2007). The first form represents job setting satisfaction, consolidating ratings of recognition received at work, relationships with colleagues, control over the work, and job security. The second form is work substance satisfaction, which reflects the intrinsic interest of the work, including ratings of satisfaction with the substantive area of respondents work and opportunities for building skills. The third form, social value satisfaction, concerns the reported relationship between work and broader social issues (workplace diversity, opportunities for pro bono work, and the social value of the work). The fourth form, power track satisfaction, is comprised of two items: satisfaction with compensation levels and satisfaction with opportunities for advancement. We again rely on the subsample of lawyers working in private practice to estimate four separate models of job satisfactionone each for satisfaction with job setting, substance of work, the social index, and the power track; the results are displayed in Table 6.6. 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, and lawyers working in the nations largest cities are less satisfied than those working elsewhere. On the other hand, we find that graduates of top-ten law schools are more satisfied with their job setting compared to graduates of fourth tier law schools, as are graduates of top-20, top-40, and top-100 law schools. Our main interest, however, is in examining the relationship between pro bono work and job satisfaction. In this model, and in the subsequent three, we rely on two variables for pro bono work because of the skewed nature of this variable. We include a dichotomous variable to reflect the large proportion of individuals who do not engage in any pro bono work, and we include a continuous variable to measure the effect of the actual number of pro bono hours worked. The results indicate diverging effects for these two variables: we find a significant positive effect for respondents who perform any pro bono work, indicating that doing some pro bono work compared to none significantly increases satisfaction with job settings. In contrast, the variable representing the number of pro bono hours is negative and significant, indicating that as pro bono hours increase, satisfaction with job settings decreases. These diverging effects present an interesting paradox: although engaging in pro bono work as a general matter increases satisfaction, working more pro bono hours actually counters this positive effect. We return to this point below. The second model predicts satisfaction with substance of work. Here we find a significant and positive effect for GPA, with satisfaction increasing alongside GPA.
table 6.6 four ols models of job satisfaction Setting Substance Social Index Power Track 0.469** (0.160) 0.0633 (0.301) 0.00809 (0.00798) 1.793*** (0.287) 0.573 (0.367) 0.722 (0.393) 0.623* (0.266) 0.217 (0.405) 0.111 (0.386) 0.687 (0.330) 0.0192* (0.00786) 0.0275 (0.369) 0.275 (0.550) 0.455 (0.393) 0.000103 (0.00119) 0.394* (0.156) 1.369 (1.251) Continued
Male
0.636 0.347 (0.480) (0.296) White 1.221 0.723 (1.050) (0.499) Fathers occupational status 0.0173 0.00869 (0.0159) (0.00789) Law school GPA 1.597 1.063* (0.921) (0.467) law school rank (excluded category is tier 4) Top ten law school 3.343*** 0.843 (0.843) (0.592) Top 1120 law school 2.141* 0.482 (0.871) (0.637) Top 2140 law school 3.430* 0.951 (1.623) (0.536) Top 41100 law school 1.973* 0.618 (0.701) (0.520) Tier 3 law school 1.982 0.472 (1.271) (0.591) Major metro area
0.411 (0.247) 1.071* (0.380) 0.00251 (0.00678) 0.0754 (0.379) 0.00921 (0.811) 0.00869 (0.578) 0.667 (0.493) 0.0105 (0.542) 0.467 (0.484)
1.782* 1.203* 1.271*** (0.722) (0.520) (0.220) Work hours 0.0346 0.0360* 0.00990 (0.0236) (0.0167) (0.00944) practice setting (excluded category is solo & small firm) Private firm 21100 2.034 1.028 1.995*** (1.048) (0.702) (0.423) Private firm 101250 4.027*** 1.451 2.078*** (0.961) (0.710) (0.446) Private firm 251+ 3.688*** 1.362* 1.500** (0.766) (0.592) (0.475) Pro bono hours 0.0120* 0.00690* 0.00445 (0.00461) (0.00311) (0.00305) Any pro bono 1.700** 0.748* 1.556** (0.485) (0.351) (0.416) Constant 23.49*** 14.71*** 11.15*** (2.530) (2.367) (1.130)
130 private lawyers and the public interest table 6.6 four ols models of job satisfaction (contd) Setting Substance Social Index Power Track 1267 0.103
Observations R2
1204 0.070
1290 0.047
1181 0.156
The law school effects are mostly not present in this model, except for the positive and significant (p <.10) effect for graduates of top-40 law schools. We continue to find a negative effect for working in large cities and a surprisingly positive effect for work hours, and we again find that working in the largest law firms decreases satisfaction. The two pro bono variables display similar effects as before: engaging in some pro bono versus none increases satisfaction with the job setting, but the increase in pro bono hours decreases this form of job satisfaction. The model for satisfaction with the social index suggests that white respondents are more satisfied with this aspect of their job, but we continue to find negative effects for those working in large cities and large law firmsthough this time we find a negative effect for those working in medium-sized firms as well. Since the dependent variable in this analysis is satisfaction with the social value of work, the effects of pro bono do not diverge in this model. We find that engaging in any pro bono work compared to none significantly increases satisfaction with the social index, and although the variable for pro bono hours is positive, the effect is not significant. The final model considers satisfaction with the power trackthat is, satisfaction with compensation and opportunities for advancement. As expected, men are more satisfied than women with this aspect of their position. Satisfaction with the power track also increases along with GPA, with graduation from a top-20 and top-40 law school, and with increased work hours; satisfaction again decreases for those working in large cities. 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, whereas the number of pro bono hours does not have a significant relationship with this form of satisfaction. Taken together, the four models of job satisfaction are instructive: engaging in some pro bono work (compared to none) provides a sense of satisfaction for respondents, regardless of how we measure satisfaction. But the models for setting and substance satisfaction suggest a more complex story: in both models, engaging in more pro bono hours significantly decreased satisfaction. The diverging effects of pro bono suggest that pro bono provides a symbolic goodit is not how much pro bono one does but the fact of doing it that provides lawyers
with job satisfaction. In this way, pro bono seems to provide a veneer of doing good for lawyers working in private practice, a form of symbolic capital that new lawyers can draw on to assuage their (dis)satisfaction with their new careers. 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, which includes ratings of satisfaction with training and with the substantive area of work. Therefore, pro bono may be providing a form of training and engagement with substantive issues that new lawyers may not otherwise have access to, and which allows them to make sense of their own careers and their workplaces. This engagement may be making palatable an otherwise unpleasant status quo in the work lives of young associates. Law firms do not give associates enough interesting and challenging work, with the result that associates rely on pro bono work to fulfill their intellectual needs as well as their demands for more practical training. Success in law firms, however, depends on an interaction between pro bono and serving paying clients. Too much pro bono may signal a lack of work from paying clients (or the partners who control access to them), or it may signal a perceived lack of fit with the business of the law firm that bodes poorly for the future. Yet some amount of pro bono is consistent withand even necessary forthe fast track in the game of the legal profession, and the best players know just how much to do.
discussion and conclusions

Following a Bourdieusian approach, this article seeks to situate pro bono work within the broader legal field and to recognize that pro bono work, as an altruistic act, may carry with it a particular social and symbolic valuein Bourdieus terms, that there is an interest in disinterestedness. Our work is situated within a viewpoint that posits a division of labor within the legal field, 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; the elites are more likely to compete to gain recognition for pro bono activity and public service, and they are rewarded for it. Their engagement in pro bono work is not necessarily, however, a rationally determined action calculated in advance as an act for which they will be rewarded. As Bourdieu notes, ideals such as pro bono become part of the set of orientations and dispositionsthe habitusthat is part of the elite lawyers game. Some individuals with a head start to elite status or with outsider aspirations to join the elite may also come to the same behavior, but from a different starting point. They may conclude opportunistically that professional success requires some investment in disinterestedness. Whatever their actual motives, 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).
Our results provide support for this characterization of the legal profession. We find that although lawyers in large law firms engage in more pro bono work, not all large-firm lawyers equally perform this altruistic work. Indeed, our results suggest that elite law school graduates working in the largest corporate law firms engage in significantly more pro bono work than their peersand this holds when controlling for a full range of factors including the incentives that law firms offer (e.g., counting pro bono work as billable time), work hours, and social background. We also find, in keeping with Bourdieus approach, that engaging in pro bono work is related to lawyers orientations toward legal practice. 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. Our work also explored the contention that there is a value to disinterestedness by investigating the relationship between pro bono work and job satisfaction. Again, our results suggest that engaging in pro bono work brings with it important symbolic and tangible capital for new lawyers. We find that engaging in some pro bono work versus none increases all forms of job satisfaction, but that increasing pro bono hours either decreases or has no effect on job satisfaction; this combination suggests that pro bono provides a symbolic form of capital that is divorced from how much pro bono work one actually does. 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 clientsfeatures that are otherwise largely absent from their private law settings. 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, future analyses will be able to draw on the AJD study as it continues to follow lawyers. Three years into a career is too early to see material results of what are by definition long-term strategies, yet the data indeed suggest that some differentiation is already occurring. Our analysis is of course incomplete in some respects as well. There is no doubt that, for many new lawyers, pro bono work can serve other ends that we have not yet examined. Pro bono may be a strategy for those who are more marginal, for those who are looking to leave their settings, or for those who know that their futures in the corporate sector are limited. Thus, although the power strategy requires corporate success and pro bono work, this is only one side of the story. We know too that not all pro bono work is equal, with some forms of pro bono providing more prestige than others, even within the large corporate firms (Garth 2004; Heinz et al. 2005). Paralleling Garths (2004:100101) argument in the context of public service, high-prestige pro bono work is not equally available to all lawyers, and thus pro bono cannot equally bring prestige to all lawyers. Unfortunately, the AJD data do not allow us to sort and identify these different forms of pro bono work in our analyses.
Finally, despite documenting the value of disinterestedness, we must clearly also acknowledge that pro bono work provides a good in and of itself, regardless of the secondary value that it might bring to the lawyers who provide it. Therefore, we are not arguing that pro bono work is all a shuck simply because there is an interest in disinterestedness. 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.
references
Abel, Richard (1988) The Legal Profession in England and Wales. Oxford: Blackwell. American Bar Association (1994) Legal Needs and Civil Justice: A Survey of Americans. Chicago: American Bar Association. Association of American Law Schools (2001) A Handbook on Law School Pro Bono Programs. http://www.aals.org/probono/probono.pdf (accessed December 28, 2008). Blankenburg, Erhard (1999) The Lawyers Lobby and the Welfare State: The Political Economy of Legal Aid, in F. Regan et al., eds., The Transformation of Legal Aid: Comparative and Historical Studies. Oxford: Oxford University Press. Bourdieu, Pierre (1977) Outline of a Theory of Practice. Cambridge, United Kingdom: Cambridge University Press. (1998) Practical Reason: On the Theory of Action. Cambridge, United Kingdom: Polity Press. Christensen, Barlow F. (1981) The Lawyers Pro Bono Publico Responsibility, 6 American Bar Foundation Research Journal 119. Cummings, Scott (2004) The Politics of Pro Bono, 52 UCLA Law Review 1149. Dezalay, Yves and Bryant G. Garth (2004) The Confrontation between the Big Five and Big Law: Turf Battles and Ethical Debates as Contests for Professional Credibility, 29 Law and Social Inquiry 615638. Dinovitzer, Ronit et al. (2004) After the JD: First Results of a National Study of Legal Careers. Overland Park, KS: NALP Foundation for Law Career Research and Education, and Chicago: American Bar Foundation. Dinovitzer, Ronit and Bryant G. Garth (2007) Lawyer Satisfaction in the Process of Structuring Legal Careers, 41 Law and Society Review 150. Erlanger, Howard S., Charles R. Epp, Mia Cahill, and Kathleen M. Haines (1996) Law Student Idealism and Job Choice: Some New Data on an Old Question, 30 Law and Society Review 851864. Garth, Bryant G. (2004) Noblesse Oblige as an Alternative Career Strategy, 41 Houston Law Review 93111. Gordon, Robert (2008) The American Legal Profession, 18702000, in M. Grossberg and C. Tomlins, eds., The Cambridge History of Law in America, vol. 3, The Twentieth Century and After (1920). Cambridge: Cambridge University Press. Granfield, Robert (1992) Making Elite Lawyers: Visions of Law at Harvard and Beyond. New York: Routledge. (2007) The Meaning of Pro Bono: Institutional Variations in Professional Obligations among Lawyers, 41 Law and Society Review 113146.

Heinz, John P. and Edward O. Laumann (1982) Chicago Lawyers: The Social Structure of the Bar. Chicago: American Bar Foundation. Heinz, John P., et al. (2005) Urban Lawyers: The New Social Structure of the Bar. Chicago: University of Chicago Press. Lamont, Michelle (2000) The Dignity of Working Men: Morality and the Boundaries of Race, Class, and Immigration. Cambridge, MA: Harvard University Press. Lochner, Philip R. (1975) The No Fee and Low Fee Legal Practice of Private Attorneys, 9 Law and Society Review 431473. Rhode, Deborah (2005) Pro Bono in Principle and in Practice: Public Service and the Professions. Stanford, CA: Stanford University Press. Sandefur, Rebecca (2007) Lawyers Pro Bono Service and American-Style Civil Legal Assistance, 41 Law and Society Review 79112. Seron, Carroll (1996) The Business of Practicing Law: The Work Lives of Solo and SmallFirm Attorneys. Philadelphia: Temple University Press. Sossin, Lorne (2008) The Public Interest, Professionalism, and Pro Bono Publico, 46 Osgoode Hall Law Journal 131158.
7. the institutionalization of pro bono in large law firms

Trends and Variation Across the AmLaw 200
steven a. boutcher
introduction 1
Over the past decade, the practice and organization of pro bono publico has undergone dramatic changes within the American legal profession. The formalization of pro bono has been one of the major projects of the professional bar in recent years. Recent scholarship has illustrated the varied ways that pro bono has rapidly and profoundly changed in form over the past decade (Cummings 2004). Historically, the delivery of pro bono was idiosyncratic; however, pro bono is now a systematic enterprise throughout the legal profession. As Cummings (2004:4) notes, Whereas pro bono had traditionally been provided informallyfrequently by solo and small-firm practitioners who conferred free services as a matter of individual largesseby the end of the 1990s pro bono was regimented and organized, distributed through a network of structures designed to facilitate the mass provision of free services by law firm volunteers acting out of professional duty. 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. Paradoxically, although the organized bar has spent a considerable amount of time, energy, and money to raise a professional pro bono consciousness and to mobilize lawyers to engage in more pro bono work, little empirical analysis exists on the topic (Sandefur 2007:101). Much of the empirical research that does exist on pro bono, usually in the form of surveys, tends to focus on individual lawyers motivations and attitudes, and not on the organizational characteristics that facilitate or
1. I have benefited from the comments and advice of Scott Cummings, David John Frank, Kelsy Kretschmer, David Meyer, Becky Sandefur, Carroll Seron, Mayer Zald, and the participants of the University of California, Irvine (UCI) Social Movement and Social Justice Workshop. I especially thank the editors of this volume, Bob Granfield and Lynn Mather, for their extremely helpful comments. I also wish to thank the Center for Organizational Research (COR) at UCI for providing funding, and the Law Firms Working Group for generously providing much of the data that appears in this chapter.
impede a law firms pro bono practice.2 The few analyses that do exist at the firm level are typically cross-sectional, that is, they do not examine pro bono practices over time (see Galanter & Palay 1995; Burke et al. 1994). 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. If large-firm pro bono is becoming institutionalized (Cummings 2004), there should be real observable effects in the pro bono practices of these firms. 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. However, the process of institutionalization is mediated by specific organizational factors, such as the economic performance and geographic location of the firm. Thus, this chapter examines the overall trends in pro bono participation across the top 200 law firms between 1998 and 2005, and the organizational factors that facilitate, or impede, a firms pro bono commitment. The institutionalization of pro bono is not only mediated by organizational factors specific to the law firm, but is also mediated by the organization of the profession itself. The legal profession is not organized around a single set of goals, but instead is driven by two distinct hemispheres differentiated by the type of clientone hemisphere represents large organizations, such as corporations, and the other primarily serves individuals (Heinz & Laumann 1982; Heinz et al. 2005). Even within each hemisphere, lawyers norms about professional practice are mediated by overlapping communities of practice, that is, the day-to-day networks of colleagues and local institutions that shape the norms of practice (Mather et al. 2001). Large law firms can be thought of as one community of practice where elite lawyers norms about pro bono practice are formed. Although the American Bar Association doesnt distinguish between the different hemispheres of the legal profession in its definition of pro bono, research has shown that important differences exist in how lawyers approach pro bono work, which is related to the practice context (Lochner 1975; Seron 1996; Mather et al 2001; see also Granfield 2007a). Specifically, large-firm pro bono targets organizations that assist the poor and other marginalized groups, whereas small-firm and solo practitioners primarily assist individuals. I begin this chapter with a discussion of the development and institutionalization of pro bono within large firms, noting the important factors that have contributed to the rise of pro bono within this segment of the legal profession. I then outline some of the central themes of sociological neoinstitutionalism, which provide the theoretical frame for the chapter. Next, 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, as ranked by
2. Many surveys have been conducted by professional groups such as the American Bar Associations Pro Bono Center and various state bar associations.
the institutionalization of pro bono in large law firms 137
The American Lawyer. Finally, I report the results of my analysis and conclude with a discussion about pro bono in large firms.
the institutionalization of pro bono

Over the past decade, the topic of pro bono publico has experienced a renaissance within the legal profession (Cummings 2004; Rhode 2005). The topic of largefirm pro bono is everywhere. Large firms routinely report their pro bono activities on their websites and in their annual reports. Professional organizations, such as the ABAs Center for Pro Bono, the National Association for Legal Career Professionals (NALP), and Georgetown Law Centers Pro Bono Institute monitor the pro bono work of large firms, in addition to giving awards to firms and individual lawyers for their pro bono achievements (Cummings 2004:14). The Pro Bono Institute monitors the Pro Bono Challenge, 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.probonoinst.org/challenge.php; see also Cummings 2004). An annual Equal Justice Conference brings together pro bono managers and other professionals to discuss means of increasing legal access for the poor. This conference includes workshops where new pro bono managers can learn how to successfully structure their firms programs, and also provide networking opportunities where firm managers can speed date with potential nonprofit pro bono clients (www.equaljusticeconference.org). The Association of Pro Bono Counsel (APBCo), dedicated to the development of pro bono counsel within large firms was formed in 2006 and now has close to 100 members (www. probonocounsel.com). Even a recent book, Monkey Girl, showcased the pro bono involvement of two partners from the Philadelphia firm Pepper Hamilton in the intelligent design case, Kitzmiller v. Dover (Humes 2007). These developments appear to mark the presence of a genuine pro bono movement, 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.g., Kronman 1993; Linowitz 1994; Rhode 2005). The current push to institutionalize pro bono takes its cues from the aspirational guidelines that define a lawyers professional responsibility. There is no standard definition of acceptable pro bono; rather, the American Bar Association suggests a guideline for lawyers to follow. For example, Model Rule 6.1 of the ABAs 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. The Model Rule was revised more than 30 times between the initial adoption and the current revision, which passed in 2002 (Pearce 2001). Currently, the rule states, Every lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should aspire to render at least (50) hours of pro bono publico legal services per year (quoted in Granfield
and Mather in this volume:4). This definition of pro bono outlines the professional bars aspiration for all lawyers, regardless of practice site, which has led some to argue that the ABAs definition is an elite definition of pro bono (see Levin in this volume). However, the recent mobilization of large numbers of lawyers to provide pro bono services does not result from the formalization of the Model Rules. To some extent, lawyers have always had the ethical responsibility to provide equal access to the poor, yet have done so idiosyncratically. Instead, 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, the legal profession, and the law firm. As part of the general trend toward decentralizing governmental support for social services, federal funding for legal services has decreased sharply since the early 1980s. Beginning with President Reagan, who tried to eliminate all federal funding of legal services when he first came to office, the federal government severely cut its support of the Legal Services Corporation (LSC), which has funded numerous legal service organizations to assist the poor. The reduction in funding was coupled with the restriction of whole classes of cases and activities that grantee organizations could not engage in, such as abortion cases, redistricting cases, class-action lawsuits, criminal defense, 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, but funded in a piecemeal fashion from a variety of different sources (Sandefur in this volume). The private bar has become one vital source of civil legal assistance fundingso substantial, in fact, that by the late 1990s, 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; see also Cummings 2004). Responding to the restructuring of federal legal services and the longstanding critiques of increasing commercialization of the legal profession, the bar has been a major contributor in building the current pro bono movement. As Cummings notes, the organized bar played a central role in building the institutional structures of pro bono during this time, investing heavily in organizing nonprofit pro bono programs and promoting private-sector volunteerism in large law firms. This constituted a dramatic shift in position: Whereas the organized bar had historically offered only meager support for pro bono practice, by the end of the millennium it had become pro bonos most stalwart supporter (2004:18). 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. Two main fronts in particular were the target of this new pro bono movement: law schools and large law firms. Within law schools, formalized pro bono programs and curricula have sprung up across the country. As of August 2007, 35 law schools had a mandatory graduation
requirement that involved pro bono or some form of public service; 110 schools had a formal voluntary program that was not mandatory for graduation; and 24 schools had no formal program but had student pro bono groups (see Adcock in this volume; American Bar Association 2007).3 These programs are designed with the goal of socializing students with a commitment toward public service. However, although the efforts of these programs should be applauded, 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; see also Rhode 2005). There is evidence that suggests that the pro bono movement has had a more significant impact on large-firm practices than in law schools. In terms of individual participation rates, large-firm lawyers do more pro bono work than lawyers in other work settings. 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), and more than 1.7 times more than solo practitioners (Dinovitzer et al. 2004). The main reason for the difference between large and small firms is closely tied to the evolution of the big firm. During the second half of the twentieth century, there has been an explosion in the growth and number of large firms (Abel 1989; Galanter & Palay 1991; Nelson 1988; Heinz et al. 2005). Initially centered in New York City, large firms sprang up in other metropolitan areas across the country (Hobson 1986; Galanter & Palay 1991). The growth of large firms has led them to increasingly specialize, routinize, and bureaucratize their organizational structures (Galanter & Palay 1991; Nelson 1988; Heinz et al. 2005). One consequence of the rapid growth of the big firm was the demand for large numbers of associates from elite schools. However, during the 1960s and 1970s, the rise of the public interest field, competition with the legal services movement, 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 1976:278279; Powell 1988:161165; see also Cummings 2004:13). In response to this new competition, some large firms began to formalize pro bono programs in order to recruit elite students (Handler et al. 1978:123). However, as the lure of social activism began to recede during the 1970s and 1980s, large firms no longer felt pressured to pursue organized pro bono programs, and commitment to pro bono waned (Handler et al. 1978:123). It wasnt 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). However, the new pro bono
3. These numbers represent returned surveys of law school pro bono programs as of August 2007, which included responses from 169 total schools. http://www.abanet.org/ legalservices/probono/lawschools/pb_programs_chart.html#definitions.
wave was markedly different from its predecessor of the 1960s. For example, Joel Handler and his colleagues identified only 24 formalized programs in large firms in 1973 (Handler et al. 1978:123), but now pro bono departments can be found in many of the top firms across the country. Pro bono departments function like other legal departments and centralize the administration of a firms pro bono practice (Cummings 2004). These programs, often staffed by a pro bono manager, implement and structure the firms pro bono practices as well as provide rotating opportunities that connect associates with a network of nonprofit organizations. Although the institutionalization of pro bono within the private bar provides much-needed legal assistance to the poor, it also provides beneficial outcomes for the firm. Pro bono entrepreneurs, bar leaders, and firm managers are quick to tout the business case for pro bono. Increased commitment to pro bono, they argue, leads to successful retention of good associates, provides learning opportunities where associates can diversify their legal training, and provides good publicity for the firm (see Dinovitzer & Garth in this volume; Lardent 2000; Epstein 2002:16931694). Markedly different from earlier attempts to organize pro bono in the 1960s and 1970s, the current pro bono movement is structured upon important changes in the state, the profession, and the law firm. Furthermore, the institutional landscape from which the current movement receives its support provides much firmer ground for the movement to grow. These changes provide ample reason to analyze what effect the current institutional movement has on the pro bono commitment of the legal profession. Largely for reasons of data availability, but also because the profession has directed a lot of attention toward elite lawyers, I focus on large law firmsspecifically, the top 200 firms as ranked by The American Lawyer. Although this group constitutes a small subset of the legal profession, it is one of the pillars of the contemporary pro bono movement and allows me to examine the efficacy of the professions directed efforts to institutionalize pro bono over the past decade. Sociological Neoinstitutionalism and Large-Firm Pro Bono The study of institutions and institutionalization is a common area of empirical analysis within sociology. 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). Often, sociologists will refer to institutionalization as the process by which elements of social structure or human interaction become taken for granted. Thus, institutionalization can refer to both macro and micro processes, and these processes are conceived as relatively stable elements that are self-generating and self-policing (Scott 2008; Jepperson 1991). For example, 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. Institutions are rule-like in our perception of them because they constrain our behavior. However, they are
not overtly coercive; rather, institutions constitute behavior by prescribing action based on a shared set of knowledge. The sociological definition of an institution differs from the definition used in other disciplinessuch as political science, for example, in which an institution is often referred to as a formal organization or association (e.g., the United Nations) (Jepperson 1991). Sociological neoinstitutionalism has had a big impact within the field of organizational behavior. Some of the early statements focused on formal organizations and organizational fields (see Meyer & Rowan 1977; Zucker 1977; DiMaggio & Powell 1983). These studies examined how components of formal organization become institutionalized and diffused throughout an organizational environment. Meyer and Rowan (1977) defined institutions as rationalized myths within an organization, referring to the rule-like conventions that coordinate action within the organization. For example, 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. Institutionalists stress that the adoption of these structures is not based on concerns over organizational efficiency or the interests of rational actors; rather, the structures are often adopted because organizations seek legitimacy within their environment. This description evokes the external environment of an organizationorganizations do not simply make decisions in a vacuum, but implement structures relative to other similarly situated actors in their environment. However, formal adoption of a policy or department is often divorced from real practices on the ground. This is commonly referred to as loose coupling (see Meyer & Rowan 1977). This occurs because organizations often seek legitimacy within their professional field and will create formal policies in symbolic compliance with professional ideals (Edelman 1990; 1992). 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. However, very little is known about how similarly situated firms vary in their response to institutional pressures (Westphal & Zajac 2001; see also Oliver 1991). This study examines variation in pro bono commitment among large law firms during a period of high levels of institutional activity. As argued above, by the late 1990s, institutional activity surrounding pro bono was very dynamic, with the creation of new managerial roles, firm departments, and professional organizations devoted to expanding pro bono commitment throughout the legal profession. Among large law firms, pro bono commitment will be mediated by existing organizational arrangements within each firm. In particular, I analyze three organizational characteristics that might mediate the institutionalization of pro bono: economic performance, organizational structure, and geographic location. I expect that these characteristics will affect a firms pro bono commitment in different ways. In terms of economic performance, pro bono hours actively compete
for billable hours. To the extent that firms are able to generate more billable hours, I expect that firms will do so at the cost of pro bono. However, I also expect that firms with higher profits can afford to do more pro bono than firms with lesser profits. Regarding organizational structure, I expect that larger firms will do more pro bono than smaller ones. Organizational scholars have long argued that firm size is related to increased formalization and complexity of the workplace (see Blau & Schoenherr 1971; Sutton & Dobbin 1996). 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. Furthermore, 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, and partners are often responsible for bringing pro bono contacts to the firm. In terms of geography, I expect that firms in the Northeast will be more committed to pro bono than firms in other regions of the country. The Northeast is the birthplace of the large firm and there may be an imprinting effect among these firms with respect to pro bono. Northeastern firms are also more likely to be densely connected to each other, and in that case are more likely to monitor each others pro bono behavior.
data and methods

I follow both Burke et al. (1994) and Galanter and Palay (1995) in using data collected and reported by The American Lawyer (see also Lancaster et al. 2008). The American Lawyer collects annual data on various organizational measures related to the top 200 firms, such as gross revenue, profits per partner, geographical location, and pro bono performance.4 The dependent variable for this study is a firms commitment to pro bono. I measure this as the average pro bono hours per lawyer. The dataset contains a maximum set of 1,309 observations across a total set of 224 law firms. The data are unbalanced, meaning that each firm contributes a different number of observations and contributes at different intervals.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. Because The American Lawyer ranks each firm based on gross revenue, the annual ranking of
4. In part, this study emulates past empirical studies of large-firm pro bono by Burke et al. (1994) and Galanter and Palay (1995). However, this study differs in important methodological ways. Most importantly, the present analysis examines a longer time period than the two previous studies, and I include more firms. 5. This is in contrast to a balanced dataset, in which each firm would contribute the same number of observations across the same set of years. In practice, unbalanced datasets are common as a result of subject attrition or missing data.
firms can change depending on how well (or badly) a law firm does the previous year. For example, a firm ranked 180th in 1998 could fall off the list in 1999, only to reappear again later. I operationalize pro bono commitment as the average pro bono hours worked per lawyer. This measure differs from attitudinal measures of commitment commonly used in pro bono surveys. However, my measure allows me to get at the aggregate behavioral dimension of pro bono activity within the firm. Unfortunately, this measure does not allow me to say anything about the individuals within the firm doing pro bono work. Furthermore, I am unable to say anything about what type of pro bono work these firms are doing; for example, whether these hours represent large civil rights cases or pro bono assistance in neighborhood legal clinics, or whether the work is transactional or litigation. However, 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 test for the relationship between economic performance and pro bono, I use two different measures: the percent change in revenues and profits per partner, based on data from The American Lawyer. I use the percent change in revenue as opposed to gross revenues in order to normalize across the field of firms. Gross revenue is highly correlated to the size of the firmlarger firms have higher revenues. Profits per partner taps into the profitability of the firm, which is independent of the revenues of the firmlarger firms could conceivably have higher costs as a result of hiring more personnel, which can feed into profitability. I do a log transformation of profits per partner because the variable is skewed. In order to test for the relationship between organizational structure and pro bono, I use the percent change in the number of associates in the firm and the percent change in the number of partners. Previous analyses aggregated these two variables into one organizational size variable. However, growth in associates and growth in partners should be conceived as separate processes (e.g., Galanter & Palay 1991). I also control for the overall size of the firm. I do a log transformation of the overall size of the firm because the variable is skewed. I also test the geographical location of each firm. Although large firms typically have offices in many locations, I use the headquarter city or the largest office listed. I then coded each firm as belonging to its corresponding census region: Northeast, South, Midwest, and West. The only exception to this case is for law firms located in Washington, DC, which I code as Northeast. In the subsequent analyses, the Northeast is the reference category. In order to analyze the relationship between the three organizational characteristics and large-firm pro bono, I perform a cross-sectional time-series analysis. Traditional ordinary least squares (OLS) regression is an inconsistent and inefficient method for analyzing panel data due to correlation of the error terms
(Alderson & Nielsen 2002; Greene 2003; Hsiao 1986). Two common methods in social science research for analyzing panel data are the fixed effects and the random effects models. In this analysis, I use the random effects model because fixed effects regression removes any time-invariant independent variables from the analysis. Because one of my key variables of interest is the geographic location of each firm, which does not change over time, I cannot use fixed effects models. Thus, the fixed effects model can be substantively interpreted as throwing out all between-firm variation (see Brady 2003:564).6 Furthermore, I found evidence of autocorrelation in my error terms and added controls for it.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 2005.8 First, I examine the total number of pro bono hours contributed by the AmLaw 200 firms. Next, I examine the average hours of pro bono per lawyer across the organizational field. This measure is a better indication of large-firm pro bono participation because it controls for the size of the firm. The total number of firms represented each year varies depending on the number of responses that The American Lawyer receives. Between 1998 and 2005, 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. Figure 7.1 shows the total number of hours reported each year by all of the firms in the dataset. In 1998, over two million hours of pro bono were contributed by 167 firms for which data is available. This value rose steadily to almost double by 2005, when nearly 3.8 million hours were contributed by the AmLaw 200. Although this trend line shows that total participation, measured in absolute hours, increased throughout the time period, this could be the result of factors other than institutionalization, such as growth in the total number of lawyers in each firm or an increase in the response rate of the firms over time.
6. A common statistical test for deciding between fixed effects and random effects models is the Hausman specification test (1978), which compares the consistent fixed effects model to the efficient random effects model (StataCorp 2007). This test gave further support in my use of the random effects model. 7. I use a general least squares estimation method and control for first-order autocorrelation. Specifically, I use the xtregar command in Stata version 10, which implements the methods developed by Baltagi and Wu (1999). This method allows for unbalanced panels and automatically corrects for autocorrelation where the disturbance term is firstorder autoregressive (StataCorp 2007). 8. Although data are available for the top 100 firms prior to 1998, I begin my analyses in 1998 in order to include the AmLaw 200.

4,000,000 3,500,000 3,000,000 2,500,000 2,000,000 1,500,000 1,000,000 500,000 0 1998 1999 2000 2001 Year 2002 2003 2004 2005
figure 7.1 total pro bono hours, 19982005
Figure 7.2 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). The average across all firms does appear to gradually increase over the time periodrising about 5 hours on average between 1998 and 2005.
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
figure 7.2 average hours of pro bono per lawyer, 19982005
These trends indicate that average hours of pro bono per lawyer increased for the top firms, whereas the second group of firms actually decreased their average commitment over the time period. Furthermore, Figure 7.2 shows that the average hours per lawyer failed to reach the professional bars aspirational mandate of 50 hours per lawyer stated in the Model Rule 6.1. Thus, although the top 100 firms appear to have taken seriously the call for increased pro bono, it wasnt until 2005 that these firms reached the 50 hour per lawyer threshold. I turn next to the results of my analyses.
results
Table 7.1 shows the results of my statistical analyses. I ran three models to analyze large-firm commitment to pro bono. The first model included all of the firms in the dataset. I then ran two additional models with the same set of variables, 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 7.2). Model 1 shows the results for all of the law firms in the dataset. This model shows that the percent change in revenues has a negative and significant effect on pro bono commitment. However, profits per partner have a positive and significant effect on pro bono. These different effects indicate that these two economic variables potentially operate in distinct waysprofits per partner is more indicative of internal economic processes within the organization, whereas change in revenues is more indicative of the demand for legal services from corporate clients. 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. 2008). However, after controlling for change in revenue, profits per partner has a positive effect on pro bono, which suggests that firms where partners make more money have a higher commitment to pro bono. Model 1 also shows that larger firms do more pro bono, but the percent change in partners or associates has no statistical effect. Furthermore, model 1 shows that firms in the South, Midwest, and West do significantly less pro bono work on average than firms in the Northeast. Model 2 tests the same variables in model 1 but only for the AmLaw 100 firms. Percent change in revenue, profits per partner, and firm size are again all statistically significant and in the same direction as for model 1. The composition of partners or associates is not significant. Moreover, for the top 100 firms, Midwestern and Southern firms do significantly less pro bono work than Northeastern firms, but there is no significant difference between the Northeast and the West. Model 3 tests the same set of variables for the AmLaw 200 firms (firms ranked 101200). This model shows that most of the previously significant variables no
table 7.1 effects of selected organizational characteristics on large-firm pro bono participation, 19982005 Model 1: All Firms Percent Change in Revenue 11.642 (2.751) Profits per Partner 5.438 (1.679) Total Number of 10.510 Lawyers (2.018) Percent Change in 0.009 Associates (.049) Percent Change in Partners 0.023 (.036) South 12.661 (4.310) Midwest 11.628 (4.034) West 9.465 (4.264) Constant 91.494 R-Squared Within 0.092 R-Squared Between 0.141 R-Squared Overall 0.141 N 1309 *** *** *** Model 2: AmLaw 100 16.061 (3.672) 8.665 (3.672) 10.010 (2.858) 0.016 (0.021) 0.002 (.050) 11.599 (5.954) 10.285 (5.916) 6.490 (5.787) 130.258 0.160 0.067 0.100 759 *** *** *** Model 3: AmLaw 200 8.220 (4.804) 0.633 (2.613) 0.738 (4.153) 0.008 (.021) 0.017 (.055) 11.984 (5.279) 9.229 (4.992) 9.046 (5.393) 30.486 0.015 0.053 0.074 550
** ** * ***
***
*p <.05, **p <.01, ***p <.001, p <.10 (two-tailed tests) (GLS Random Effects Corrected for First-Order Autocorrelation; Standard Errors in Parentheses)
longer have a statistical effect among these firms. Percent change in revenue, profits per partner, and firm size have no statistical effect on pro bono commitment. Similarly, the composition of partners and associates has no effect on pro bono commitment. However, as in model 1, the South, Midwest, and West all do significantly less pro bono work than the Northeast.
discussion and conclusion

For over a century, critics have routinely expressed concerns about the increasing commercialization of the large law firm (see, e.g., Berle 1933; Stone 1934; Linowitz 1994; Kronman 1993; Nelson & Trubek 1992). The increasing connections to business were thought to be antithetical to the professional obligation to
serve the public good. As one commentator noted over 75 years ago, 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, quoted in Galanter & Palay 1991:17). This concern was similarly shared by former Chief Justice Harlan Fiske Stone, 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 1934:67, quoted in Galanter & Palay 1991:18). Thus, 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). These repeated concerns over the increasing commercialization of the profession have regularly led to renewed calls for greater professionalism, although these calls have often produced lackluster results (see, e.g., Solomon 1992:148149). The current movement to institutionalize pro bono is embedded in the latest professional outcry against the commercialization of legal practice. 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.g., Rhode 2005). What is different about the contemporary critique is that large firms appear to have gotten the message. As I have argued in this chapter, large firms have reoriented their approach to pro bono through the restructuring of their pro bono practices. However, as noble as their efforts appear to be, institutionalized pro bono still remains a distant reality among many of the richest firms. Thus, although many of these firms have created elaborate departments and programs to illustrate their support for pro bono, there remains a gap in overall commitment in terms of hours. This gap is most striking among the second 100 firms, which have decreased their overall commitment to pro bono over the last decade (see Figure 7.2). But even the richest 100 firms have only recently reached the professional bars mandate of 50 hours of pro bono per lawyer. 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. Meyer & Rowan 1977). Pro bono becomes a way for elite firms to distinguish themselves within the profession. As Dinovitzer and Garth argue (in this volume), pro bono is a story of elite lawyers; large firms can promote the professional ideal because they have the revenues to do so. Thus, arguments that pro bono is institutionalized among large firms are only partially accurate. Pro bono practice is far from being a taken-for-granted feature of the modern firm, although there is evidence to suggest that the contemporary pro bono movement is radically different from earlier waves (Cummings 2004). Its more accurate to think about pro bono as being in the process of becoming institutionalizedalbeit only among certain firmswith this process mediated by specific organizational and institutional characteristics. Hence, this study analyzed a variety of organizational characteristics to understand which factors facilitate and hinder pro bono commitment among large law firms.
The most important organizational factors are associated with the economic performance of the firm. The results of my analysis indicate that change in revenue has a negative effect on pro bono commitment. Billable hours are in direct competition with pro bono hours, and firms that can generate higher revenues through increased billing will do so to the cost of their commitment to pro bono. Similarly, firms with higher profits per partner do more pro bono work. Taken together, these two findings provide evidence for the commercialization thesis: large firms are businesses and, like any business, are oriented toward maximizing profits. This does not necessarily mean that economic engagement is antithetical to public service. Indeed, as I have shown, firms that generate higher profits per partner do more pro bono, precisely because they can afford to do so. Nonetheless, this has important implications for the delivery of legal services to the poor. As the federal government continues to decentralize the delivery of social services, legal services will remain vulnerable to the economic realities of private corporations (see also Cummings 2004; Sandefur 2007). The current rhetoric surrounding professional obligations appears to be secondary to the economic realities that drive the contemporary pro bono system. These findings also provide evidence that institutions and markets are more connected than previously theorized. Much of institutional theory has separated the institutional sphere from the economic sphere (Powell 1991). However, institutional developments can be mediated by economic and competitive factors (see Sherer & Lee 2002). Large firms might create new pro bono structures, such as the creation of a department and the hiring of staff to oversee the firms pro bono practice, but the economic realities of the firm mediate the implementation of these practices. 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. Firm size is indicative of formalization, and more formalized firms are able to react to institutional changes more quickly. However, the percent change in the composition of associates or partners has no statistical effect on pro bono participation. 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. Associates might report that they are interested in pursuing pro bono work when they look for jobs, but the structural realities of the workplace can have an important mediating effect on what associates actually do after being hired. Thus, there is no indication that pro bono is driven by internal labor market demands. 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, which indicates that the institutional development of pro bono is more robust in the Northeast than in other regions of the country. We might expect this to be the case because New York City has traditionally been
the home of the large firm, although this trend has shifted over the past couple decades (see Smigel 1969; Galanter & Palay 1991). Moreover, large firms are more densely located in the Northeast, with many firms located in Boston, New York City, and Washington, DC. The close proximity of these firms to each other might create a facilitative environment regarding pro bono practice, as partners in these firms potentially interact more frequently and monitor each others behavior more closelyfor example, through sitting on the boards of the same nonprofit organizations. This geography effect also provides evidence that endogenous organizational factors can work in tandem with exogenous factors in facilitating institutional developments (see also Sherer & Lee 2002). Finally, this study shows that the organizational field of large firms is not a homogeneous entity. There exists a clear divergence in pro bono commitment between the top 100 firms and the second 100 firms. The decline in commitment to pro bono among the second group of firms indicates that real differences exist even among this elite segment of the legal profession. Moreover, this also indicates that there are potentially different communities of practice within this relatively small subset of the legal profession (Mather et al. 2001). Its possible that firm leaders between these two groups differ in their attitudes toward pro bono. However, further research is needed to understand the motives and values toward pro bono among firm leaders across these two groups.
references
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Lardent, Esther F. (2000) Making the Business Case Pro Bono, paper prepared for the Pro Bono Institute, http://www.probonoinst.org/pdfs/businesscase.pdf (accessed October 31, 2007). Linowitz, Sol M. (1994) The Betrayed Profession: Lawyering at the End of the Twentieth Century. New York: Scribner. Lochner, Phillip R., Jr. (1975) The No Fee and Low Fee Legal Practice of Private Attorneys, 9 Law and Society Review 431474. Mather, Lynn et al. (2001) Divorce Lawyers at Work: Varieties of Professionalism in Practice. New York: Oxford University Press. Meyer, John W. and Brian Rowan (1977) Institutionalized Organizations: Formal Structure as Myth and Ceremony, 83 American Journal of Sociology 340363. Nelson, Robert L. (1988) Partners with Power: The Social Transformation of the Large Firm. Berkeley, CA: University of California Press. Nelson, Robert L. and David M. Trubek (1992) Introduction, in R. L. Nelson et al., eds., Lawyers Ideals/Lawyers Practices: Transformations in the American Legal Profession. Ithaca, NY: Cornell University Press. Oliver, Christine (1991) Strategic Responses to Institutional Processes, 16 Academy of Management Journal 145179. Pearce, Russell G. (2001) The Lawyer and Public Service, 9 American University Journal of Gender, Social Policy, and Law 171178. Powell, Michael (1988) From Patrician to Professional Elite: The Transformation of the New York City Bar Association. New York: Russell Sage Foundation. Powell, Walter W. (1991) Expanding the Scope of Institutional Analysis, in W. W. Powell and P. J. DiMaggio, eds., The New Institutionalism in Organizational Analysis, Chicago: University of Chicago Press. Rhode, Deborah L. (2005) Pro Bono in Principle and in Practice: Public Service and the Professions. Palo Alto, CA: Stanford University Press. Sandefur, Rebecca L. (2007) Lawyers Pro Bono Service and American-Style Civil Legal Assistance, 41 Law and Society Review 79112. Sayrs, Lois W. (1989) Pooled Time Series Analysis. Newbury Park, CA: Sage Publications. Scott, W. Richard (2008) Institutions and Organizations: Ideas and Interests. Thousand Oaks, CA: Sage Publications. Seron, Carroll (1996) The Business of Practicing Law: The Work Lives of Solo and SmallFirm Attorneys. Philadelphia, PA: Temple University Press. Sherer, Peter D. and Kyungmook Lee (2002) Institutional Change in Large Law Firms: A Resource Dependency and Institutional Perspective, 45 The Academy of Management Journal 102119. Smigel, Erwin (1969) The Wall Street Lawyer: Professional Organization Man?. Bloomington, IN: Indiana University Press. Solomon, Rayman L. (1992) Five Crises or One: The Concept of Legal Professionalism, 19251960, in R. L. Nelson et al., eds., Lawyers Ideals/Lawyers Practices: Transformations in the American Legal Profession. Ithaca, NY: Cornell University Press. StataCorp (2007) Stata Statistical Software: Release 10.0. College Station, TX: Stata Corporation. Stone, Harlan (1934) The Public Influence of the Bar, 48 Harvard Law Review 114.
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8. pro bono and low bono in the solo and small law firm context
leslie c . levin
introduction
Over the last 35 years, the organized bar increasingly has provided pro bono legal assistance to the more than 50 million people of limited means in the United States.1 Much attention has been devoted to the pro bono efforts of the largest law firms, which now contribute millions of hours of pro bono service annually to individuals and organizations that could not afford to hire lawyers (Raymond 2008). 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). Lawyers in solo and small (2- to 5lawyer) firms, who comprise more than 60 percent of all private practitioners (Carson 2004:89), 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. 2005:131; Ruggiere & Carpanzano 2008:10, 13). The pro bono efforts of these lawyers have not received focused attention, even though they are different in many respects from the pro bono experiences of other lawyers. As Robert Granfield has observed, pro bono work means something different to lawyers across different organizational sectors within the hierarchy of the legal profession (2007a:141). Indeed, 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 motivations and incentives for performing it, the types of work performed, and the supports available for this work. Just a few examples of the differences suffice to make this point. In large law firms, pro bono work has been thoroughly institutionalized (Boutcher in this volume). A lawyer or administrator runs the firms pro bono program. 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. Firm lawyers may be given time off to work exclusively on pro bono matters while still receiving
1. 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). 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.
full compensation. They may devote enormous resources to a single case. Large law firms view their pro bono programs as critically important to recruitment of new associates and firm marketing. Consequently, some large-firm lawyers may feel direct pressure from their colleagues or their clients to perform pro bono work (Boon & Whyte 1999:187188; Rhode 2005:168). In contrast, 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. 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, but more often it comes through friends, family, and existing clients (ABA Standing Committee on Pro Bono and Public Service 2005:14). Because their compensation is very directly tied to what they earn on an hourly or flat-fee basis, every hour these practitioners spend performing pro bono work affects their monthly take-home income. Many consider themselves to be doing pro bono when they perform low bono work, which involves the provision of legal services at reduced rates to individuals, including regular clients, who cannot otherwise pay (Stull 2004).2 Thus, the very meaning of pro bono in the solo and small-firm context is different than in the large-firm setting. Moreover, the firm cultures of solo and small firms, and the motivations of lawyers in such firms for taking pro bono cases, are often very different from those in large-firm practices. Pro bono is rarely important for small-firm recruiting, and may actually be discouraged by firm partners because of economic concerns (Mather et al. 2001:151153). It would be a mistake, however, to think of solo and small-firm lawyers as a monolithic group, even in the context of pro bono. They vary considerably in the types of clients they represent, in their level of administrative support, and in their economic success (Landon 1990; Seron 1996; Levin 2001). Some are essentially cause lawyers who deliberately choose to represent underserved populations (Kelly 1994; Cummings & Southworth in this volume). Other lawyers build practices serving middle-class and wealthier clients in personal plight areas such as family law, landlordtenant law, or criminal law, which are areas in which underserved populations also need legal assistance. Still others represent organizations and work in the same practice areas found in large law firms (Levin 2004:325). Solo and small-firm lawyers do, however, share common concerns about bringing in new business and being able to service their clients matters diligently and competently. 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. 2001:141; Levin 2004:323324, 343345). These concerns
2. 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.
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. This chapter examines pro bono in the solo and small-firm context. It will consider the political and marketing environment in which the organized bars pro bono rule evolved and the ways in which the rule is presently viewed by solo and small-firm practitioners. 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, as a part of running a business, and even as a revenue source. In doing so, the chapter reveals how low bono work performed for individuals who cannot afford a lawyer is insufficiently recognized and valued by the organized bar. Finally, the chapter will consider how the obligation to perform pro bono work may be inculcated in solo and small-firm lawyers, and will provide some suggestions for how pro bono might be conceptualized, encouraged, and organized so that these practitioners can perform it more easily.
the history, politics, and marketing of pro bono in private practice: dual perspectives
While U.S. lawyers have reportedly always provided some free legal services to clients who were unable to pay, the bar has not shared a common understanding of the term pro bono publico (Marks et al. 1972:8; Abel 1989:129; Cummings 2004:10). The term was understood to mean free legal work or work performed at reduced rates, but it also included work for the community that was nonlegal in nature. For solo and small-firm lawyers, pro bono publico often meant working for nonpaying clients or for those who were simply unable to pay. In contrast, 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. 1972:8, 10; Abel 1989:129130; Rhode 2005:115). Only relatively recently has the lawyers obligation to perform pro bono work for individuals of limited means come to be taken seriously by large segments of the legal profession. 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 1988:161162; Maute 2002:119128). By the early 1980s, as funding for the Legal Services Corporation (LSC) was being cut (Adcock in this volume), the organized bar began to embrace this type of pro bono as a professional value. This can be seen most clearly in the adoption by the ABA in 1983 of Model Rule 6.1, which articulated the official view that providing pro bono service to persons of limited means is a professional value (Marks, et al. 1972:1516; Maute 2002:123124). Since then, large law firms increasingly have provided the
resources and prestige to promote pro bono as an important professional goal (Cummings 2004:32; Boutcher in this volume). The elite bars 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. Large firms, which have more resources to devote to pro bono, have been more open to mandatory pro bono proposals, including minimum hour requirements, whereas solo and small-firm lawyers have generally opposed them.3 Thus, in 1979, the ABAs Kutak Commission considered a 40-hour per year mandatory pro bono rule, or its dollar equivalent (Schneyer 1989:701), which was vigorously opposed by a number of groups, including solo and small-firm lawyers. 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. 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 1988:162164), and again in the early 1990s, when the Association of the Bar supported a mandatory pro bono rule, but it was opposed by the New York State Bar Association because of the reactions of solo and small-firm attorneys (Greshin 1989:2; Behar 1992:2; Crider 2004:910). 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 1996:129130). This feeling was no doubt exacerbated by the fact that at that time, the New York Lawyers Code of Professional Responsibility defined pro bono as free legal services to individuals of limited means, 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. Today the provision of pro bono services to persons of limited means is an aspiration of the legal profession, but is still not a true bar norm, as evidenced by the fact that many lawyers continue to perform no pro bono work for these individuals. The bars reluctance to embrace pro bono as a core value is reflected in ABA Model Rule 6.1, which states that a lawyer should aspire to render at least 50 hours of pro bono services per year, but does not require it. The Comment to Rule 6.1 stresses that the pro bono responsibility is not intended to be enforced through disciplinary process. It is telling that no state has adopted a requirement that lawyers perform pro bono work, and several states have diluted ABA Model Rule 6.1 by removing annual target hours or the emphasis on serving
3. This is not intended to suggest that elite lawyers were necessarily more concerned about helping underserved populations. Rather, the insertion of pro bono requirements in ethical codes is part of the professionalism project, and has symbolic significance in demonstrating the professions concern about moral standards, wholly apart from the reality (Powell 1988:173).
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. 1972:8592; 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.
because of rising salary costs (Cummings 2004:3839), 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 2003:366372). 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 & Strawns work on former Illinois Governor George Ryans 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 organizations 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 Yorks 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
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 bars 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 2009:67). 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 20022003; 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 2009:1011; 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 2008:2021). 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.
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 LawyersThe 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 areaswho tend to practice in solo and small firmsrendered 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 (2008:1516). 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 (15 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 lawyerswho are required to keep detailed track of their billable and nonbillable timemay 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. 2002:3233; 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
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 (1975:436437) 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, 449452). 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). Lochners observations are consistent with Carroll Serons study of lawyers in solo and small (under 15-lawyer) firms in the New York City area. Seron (1996:130131) 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 (1996:129133). Likewise, Lynn Mather et al. (2001) reported in Divorce Lawyers at Work that virtually all the lawyers they interviewedwho were predominantly solo and small-firm lawyers in New Englandprovided 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).
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 lawyers 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 (2001:135138). 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 firms financial requirements (2001:137, 151153). 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 (2001:138139, 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 Serons (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.
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. These delivery mechanisms, which are often embedded in fee-generating activities for solo and smallfirm lawyers, can help to provide a deeper understanding of the meaning of pro bono in this practice setting. Occasional Planned No-Fee Pro Bono7 Lawyers in solo and small-firm practice, like large-firm lawyers, participate in formal bar, court, or legal services pro bono programs in which individuals of limited means are referred to volunteer attorneys who provide their services free of charge. They often provide pro bono work in their own areas of expertise. In some cases, solo and small-firm lawyers, like larger-firm lawyers, may volunteer to assist with other organized projects such as those that provide assistance to death row clients or detainees at Guantanamo Bay. Some of the planned pro bono work also comes to solo and small-firm lawyers through friends and family, or from individuals who simply walk in the door and tug at your heartstrings (Stull 2004). This may be especially common in rural areas, where lawyers personally know many of the people in the community (Renaud 2000). 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. As Lochner (1975) noted, the lawyers who provided pro bono services for individuals referred to them by their business associates, friends, and families often represented middle-class individuals who were going through hard times, rather than truly indigent clients. Formal Reduced-Fee Programs Solo and small-firm attorneys also provide reduced-fee services through formal programs designed to assist individuals of limited means. Reduced-fee programs take two forms. In the first, 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. In the second, which is often run by a bar association, legal services organization, or other nonprofit organization, the lawyer receives the reduced fee directly from the client. These programs are grouped together because they both result in lawyers being paid a reduced fee
7. 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. It contrasts with unplanned pro bono, which arises when lawyers provide free or reduced-fee services at some point after the representation commences because their clients can no longer pay.
through a formal program that is designed to benefit low-income clients. The programs are also explicitly recognized as pro bono activities under ABA Model Rule 6.1, although they are in a less preferred category than the provision of free legal services (ABA Rule 6.1 Comment 7). 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. These lawyers typically serve on a panel of criminal defense lawyers who are willing to serve as appointed counsel at fixed rates. The compensation rates mostly range from $60 to $100 per hour and some have had capped maximums (Spangenberg Group 2007). Appointed counsel work is undertaken by lawyers while building their practices, by more experienced lawyers to supplement their income from their established law practices, and by other lawyers who simply seek to provide access to justice for indigent clients. 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. One such program, which started in 1966, is Wisconsin Judicare. Judicare is funded by the Legal Services Corporation as well as the state, and uses the private bar to represent low-income persons who would qualify for assistance from LSC-funded programs. If the case is approved, the lawyer is paid a low hourly fee ($45 per hour) for the work performed for eligible clients (Wisconsin Judicare 2008). In other instances, some lawyers provide reduced-fee services at low fixed rates through formal programs that require low- and moderate-income clients to pay the reduced fees directly to the lawyers. For example, the Maryland Legal Services Corporation has launched the Child Custody Representation Project to provide representation to low-income individuals in contested child custody cases. Lawyers are paid $50 per hour and an amount not exceeding $1,000 per case, and may report the work in their annual pro bono reports (Hurley 2005). Similarly, 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, landlordtenant law, and criminal defense at a rate of no more than $60 per hour. It bills itself as a low bono alternative for clients who cannot qualify for free legal services (Oregon State Bar). Little information has been gathered systematically about which lawyers participate in these programs and for how long. It seems likely, however, that solo and small-firm lawyers, who disproportionately practice in personal plight areas, are the primary providers of these reduced-fee legal services. 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. During the last dozen years, law schools and other
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. For example, 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- and middle-income communities and in finding an economically viable way in which to do so (Lowbono.org 2008). It created the Community Legal Resource Network, which includes about 800 solo and small-firm practitioners and provides support for these lawyers through mentoring, listservs, and discounted support services such as electronic research and insurance (Cooper 2002; Dhillon 2008). A survey of the practitioners in the network revealed that on average, 42 percent of the matters were handled on a low bono/discounted basis, 37 percent were fullfee, 7 percent were fee-shifting cases, and the remainder was free legal work. The lawyers characterized slightly more than half of their clients as impoverished or low income (Law School Consortium Project 2005:2). Not surprisingly, these practices can be economically difficult to sustain. For example, 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, she responded: [I]n terms of the professional context and my client base is similara lot of the people who end up being clients could easily be clients of the office. Some of them are a little[are] more on their feet financially, but not always. I mean Im making somesomewhat moredoing better financially but Im not . . . I think the phrase thats come up is this is low bono [laughs]just a littleI mean Im not[my] financial situation is not sort of like starkly different in some ways.8 Maintaining these practices takes a toll on the lawyers. Working in personal plight areas such as family or immigration law can be emotionally draining. Cases may be complex, but hourly fees are low. Vacations are hard to take and difficult to afford. Burnout is a problem because it can be difficult to sustain the pace with so little remuneration and so many demands on the lawyer. Unplanned Pro Bono: Nonpayers Who Become Pro Bono Clients When a lawyer has a client who can no longer afford to pay her fees, the lawyer may find herself providing free or reduced-fee legal work, but not always for those who are indigent and not in an entirely voluntary sense. In some cases, the lawyer may feel a desire or a moral commitment to continue to represent the client. In other cases, the lawyer may not feel such a desire or commitment, but cannot readily withdraw from representing the client, especially when litigation
8. Interview with Attorney in Queens, NY.
is ongoing. Social relations within small communities may also make withdrawal difficult. Ethical obligations to handle client matters competently may require lawyers to continue to perform some legal work, 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. Solo and small-firm lawyers who perform free or reduced-fee work under these circumstances sometimes view it as pro bono work, although it is not recognized as such under ABA Model Rule 6.1(a), which only includes work undertaken without expectation of a fee. Not only are these efforts not recognized by the elite bar, but they are actively discouraged within some circles. As one well-known author of law office management books for solo and smallfirm lawyers advises, you should withdraw from a case as soon as clients give you the indication that theyre not going to live up to their fee agreement (Foonberg 2004:329). Not surprisingly, even though there may be some altruism involved in the continuing willingness to represent the client for little or no compensation, this type of work is often viewed as a failure of the lawyers business management skills.
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 Laumanns observation that there are two distinct sectors of the U.S. legal profession: one represents individuals and the other represents large organizations (Heinz et al. 2005:29). Not only do the lawyers who practice in these sectors serve different types of clients and practice in different office environments, but their conception and performance of pro bono work also differ in important respects. This does not mean that there are not significant differences in pro bono practices among solo and small firms based on their clientele, their financial resources, and their commitment to performing pro bono work. Nevertheless, the pro bono experiences among those firms are more similar to each other than they are to the large-firm pro bono experience. Moreover, Model Rule 6.1, which was promulgated by the historically elite ABA, reflects the views and practices of the elite (corporate) segment of the profession, and not those of solo and small-firm lawyers. As will be discussed below, to the extent that the ABAs Model Rule 6.1 has come to reflect the dominant view of what pro bono means in practice, it minimizes the important contributions of solo and small-firm lawyers. It may actually operate to discourage some of the free and reduced-fee work that would otherwise be performed. Thus, one important question to consider is whether to revise 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. A second question is how to increase
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. Redefining Pro Bono In order to encourage more pro bono work by solo and small-firm practitioners, it is important to consider redefining pro bono in a way that recognizes the realities of practice in that setting, and gives the contributions of these lawyers a positive meaning. As previously noted, ABA Model Rule 6.1 (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, 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. 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 6.1 Comment 3). The LSC guidelines make eligible those who earn at or below 125 percent of the federal poverty level guidelines, which in 2009 was $27,563 for a family of four. The poverty guidelines are extremely low and based on outdated methodology (Ruggles 1990; Citro & Michael 1995). In 2009, even 200 percent of the poverty guidelines only amounted to an income of $44,100 for a family of four (45 CFR Part 1611, App. A). Individuals earning less than that amount fall within the definition of the working poor (Acs et al. 2000; U.S. Census Bureau 2008a). The pro bono practices of solo and small-firm lawyers highlight a problem that has been largely ignored by the elite bar: many Americansand not just those whose incomes are easily measured in relation to the federal poverty guidelinescannot afford the legal fees charged by lawyers for the important legal problems that arise in their everyday lives. 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. In order to encourage more pro bono work by lawyers in solo and small law firms, their provision of free and reduced-fee services to certain individuals should be recognized as providing a valued service, in order to combat the perception that such work simply reflects poor law office management practices and should be avoided. This requires four changes in the ABAs current pro bono rule. First, the term person of limited means needs to be defined more expansively. The current definitionwhich 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. In cases where important personal rights or relationships are at stake (e.g., criminal, employment, family, or immigration law), or where entitlements (e.g., social security or workers compensation) or housing are at issue, the definition of persons of limited means should be expanded. It should also not be linked to the federal poverty guidelines, which do not account for significant variability in the cost of
living in the continental United States. Instead, persons of limited means should be defined as individuals whose income and assets are less than twothirds of the states median family income. 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. For example, two-thirds of the median family income for a four-person family in Arkansas and Mississippi is just under $37,000; in New York and California, it is approximately $51,500 (U.S. Census Bureau 2008b). Second, legal work for a substantially reduced fee should not be relegated to a secondary position in the Model Rulesor worse, excluded altogether from the definition of pro bono under some state bar rules. 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. There is admittedly good reason to encourage no-fee legal work by those who can perform it. But Model Rule 6.1 also conveys that no-fee pro bono is the purest form of pro bono, when in fact the purity of the motivations underlying no-fee pro bono work is debatable. Many largefirm lawyers draw precisely the same salaries for their pro bono work as for their paying work, even if no fee is charged for the work performed for their pro bono client. In contrast, reduced-fee pro bono performed by solo and small-firm lawyers can require a significant sacrifice. To the extent that the Model Rules seek to convey the values of the profession, 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. Third, the Comment accompanying ABA Model Rule 6.1 that states services rendered cannot be considered pro bono if an anticipated fee is uncollected deserves reconsideration. Obviously, a lawyer who performs legal work believing she will be paid, and then is unable to collect the fee, has not undertaken the work with an altruistic motive. But what counts as pro bono for large-firm lawyers is not based entirely on a lawyers altruistic motives, as evidenced by the fact that some large-firm lawyers undertake pro bono work, at least in part, for recruiting and marketing reasons. In some circumstances, 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, this type of behavior should be encouraged and viewed by the bar as pro bono. The fact that this may happen with some frequency in certain types of solo and small-firm practicesor that it arises out of the lawyers day-to-day workdoes 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. Finally, 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, some lawyers will claim that they have performed
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 aloneand particularly an exhortatory rulewill 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 lawyers existing clientele, individual personal factors, and the lawyers work place and communities of practice. A lawyers 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 lawyers 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
have a full practice may be willing to take on pro bono work to gain experience, contacts, and possiblydown the roadpaying 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:382385, 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 1999:172173). 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 1996:89; Levin 2001:879880). 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 1966:16667). 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 practicethat 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
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 workor special knowledge about how to perform itpro 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 associationsand not the elite bar groupsare 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 2004:56). 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 Associations 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
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 bonoincluding low bonois 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 2009:2021). Lawyers who receive pro bono referrals from legal services organizations are often covered by the organizations 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 clients 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
encourage them to perform some pro bono services for individuals who cannot affordbut desperately needsome 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 6.1that lawyers should aspire to perform pro bono work for individuals who genuinely cannot afford a lawyeris a concept about which many lawyers can generally agree. Disagreements arise mostly from the bars 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 bars 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
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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regulations cited
45 C.F.R. pt. 1611, App. A (2009).
rules cited
ABA Models Rules of Professional Conduct Rule 6.1 (2008) Arizona Rules of Professional Conduct Rule 6.1 (2008) Connecticut Rules of Profession Conduct Rule 6.1 (2009) Illinois Supreme Court Rule 756 (f) (2008) Kansas Rules of Professional Conduct Rule 6.1 (2007) Michigan Rules of Professional Conduct Rule 6.1 (2009) Rules Regulating the Florida Bar Rule 4-6.1 (2008) Virginia Rules of Professional Conduct Rule 6.1 (2008)
part
III
pro bono in the interest of public service
9. between profit and principle

The Private Public Interest Firm
scott l. cummings and ann southworth

introduction
Pro bono publicowhich means for the public goodis at once a narrow duty and a broad aspiration. The narrow duty is codified in Rule 6.1 of the American Bar Associations Model Rules of Professional Conduct, which calls for [e]very lawyer . . . to provide legal services to those unable to pay. 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). 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, whereas others assert a distinct public role for private lawyers. The recent literature on pro bono has focused primarily on the provision of pro bono services by big firms (Cummings 2004; see also Boutcher in this volume; Epstein 2002), 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). This conception differs from the notion of public service associated with lawyers in solo and small-firm practice, 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; see also Lochner 1975:442448; Seron 1996:132). 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. Although such firms have existed since the early days of the public interest law movement (Handler et al. 1978a:112), interest in them has increased as the field has become larger and more complex, and as law students seek alternative public interest careers. Yet private public interest firms remain underexamined in the contemporary scholarly literature (Sarat & Scheingold 2005:12). Because none of the existing research (including our own) is designed to test propositions about private public interest firms, we draw upon multiple sources to offer a preliminary assessment of opportunities for, and constraints on, the pursuit of public interest goals within these firms and to sketch an agenda for future research. Our sources include the secondary academic literature, as well as interview data we collected from a small number of firms in connection with other projects: Cummingss research on Hadsell & Stormer and associated
firms in the Los Angeles area (Cummings 2009) and Southworths study of lawyers in the conservative coalition (Southworth 2008). We also gathered data from two published directories of private public interest firms and from the websites of firms listed in those directories. This chapter describes the evolution of private public interest firms and explores the meaning and practice of public interest law within them. 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. 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, while constraints on nonprofit public interest organizations have prodded some lawyers to enter the private sector in search of greater autonomy. 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 firmproviding an alternative way for lawyers to pursue public ends through private means that challenges the conventional pro bono model. 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.
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. Insofar as its lawyers pursue a political mission beyond client service, the private public interest firm resembles its counterpart in the nonprofit sector. Indeed, such firms are sometimes founded by lawyers who previously worked in nonprofit organizations, and they sometimes share issue agendas with nonprofit legal groups and collaborate with them on cases (Cummings 2009). However, there are crucial distinctions between private public interest law firms and their nonprofit counterparts. Key among these is the source of funding: private public interest firms generally rely on fees rather than charitable donations. Distinguishing private public interest firms from their commercial counterparts is more challenging because, by their very nature, these firms blur the line between profit-making and advancing the public interest, which is itself a contested concept. Two different approaches to defining private public interest firms have emerged, each with its own tensions and ambiguities. 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. In a classic study of public interest law in the 1970s, Handler and his colleagues identified the emergence
between profit and principle 185
of what they termed mixed firms, which were located in the private, 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. 1978b:60). The researchers considered two factors: whether the firms devoted a significant part of their practice (at least 25 percent) to public interest issue areasincluding civil liberties, the environment, consumer protection, employment, education, welfare, and housingand 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. 1978b:6061). In short, 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). 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).1 Critics charged that this definition did not fit some groups that bore the public interest label, such as environmental organizations, which were increasingly well-funded and politically powerful. Moreover, as the conservative movement began developing a parallel infrastructure of legal advocacy organizations in the 1970s and 1980s, 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). 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. Sarat and Scheingolds definition of cause lawyering has been the most influential alternative, premised on the deployment of legal skill to pursue ends and ideals that transcend client service (Scheingold & Sarat 2004:3). In contrast to public interest law, the cause lawyering concept emphasizes professional identity rather than areas of practice. This big-tent approach avoids concerns about ideological bias and conceptual incoherence, but the definition potentially applies to a broad spectrum of lawyers, conceivably including lawyers in personal injury firms (if the lawyers are motivated primarily by a desire to vindicate victims rights), securities litigation firms (if the lawyers view their function primarily in terms of holding corporations accountable to their shareholders rather than earning a living), and even corporate law firms (if the lawyers identify sufficiently with their clients business objectives).
1. Some law school job placement materials rely in part on the classic underrepresented rationale to define private public interest firms. For instance, the University of Southern California (USC) breaks down private public interest firms into different categories: those that provide legal services to the underrepresented, those that represent unions, and those that represent public agencies (USC Law School 2002).
Contemporary efforts to stake out an alternative conception of the private public interest law firm sometimes blend the two previous approaches. For instance, some law school resource guides assert a broad notion of what qualifies as a public interest cause, while nonetheless grounding the definition in specific practice categories commonly associated with the public interest sector. The Private Public Interest and Plaintiffs Firm Guide published by Columbia Law School and Harvard Law School (2007:23), for example, defines private public interest firms as for-profit businesses that bring cases to promote a particular social, political, or economic vision that includes helping underrepresented groups and/or promoting change, but then identifies common areas of practice, including employment discrimination, civil rights, immigration, consumer protection, disability rights, and environmental law. Yale Law School (2008:1) takes a similar approach, defining public interest law firms as those with a primary mission . . . to assist underrepresented people or causes, rather than to make money, while suggesting that typical practice areas include plaintiffs employment discrimination, civil rights, criminal defense, environmental law, and disability rights. We define private public interest firms as for-profit legal practices structured around service to some vision of the public interest. They are organized as forprofit entities, but advancing the public interest is one of their primary purposes a core mission rather than a secondary concern. 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. Whether any particular firm falls within the category is an empirical question requiring investigation into the firms activities and the commitments of its lawyers. Evidence that one might use to evaluate whether a private firm qualifies would include the firms practice areas (and how clients are billed), which may reflect a firms commitments and suggest its underlying mission. In this sense, 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; Rhode 2008). Other evidence might include the self-perceptions of firm lawyers, articulated directly or in firm mission statements. We do not undertake the categorization project here, 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, where inevitable boundary disputes would crystallize the concept and permit a more searching exploration of its tensions. 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. Lawyers ideas about professionalism have long
reflected the economics of legal practice and social stratification within the bar (Marks et al. 1972). Even during the so-called golden age of civic professionalism (Galanter 1996), lawyer-aristocrats and country lawyers offered differing models of lawyers contributions to society (Scheingold & Sarat 2004:3032). Elite lawyers claimed to discharge their public obligations by mediating between client and communitychanneling client desires into socially beneficial outcomes (Simon 1998), and taking time away from private practice to serve in public office (Kronman 1993). The country lawyer, in contrast, served his community by representing clients at reduced rates or for no fee at all (Scheingold & Sarat 2004:3132). 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. The notion of pro bono publicolawyering for the public goodgrew 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), 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 rise of the big law firm in the last half of the century (Abel 1989; Galanter & Palay 1991) transformed elite practice and contributed to the institutionalization of the pro bono ideal (Cummings 2004). Inside the big firm, where economic success rested on the zealous pursuit of corporate client interests, the ideology of advocacy prevailed (Simon 1978). There, the lawyers 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). 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 poorthe 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. Although efforts to make pro bono mandatory failed, voluntary pro bono was nonetheless codified as a professional aspiration, 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. civil legal aid system (Sandefur 2007). In contrast to the image of legal aid and public interest lawyers as ideologically committed activists, 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). Moreover, 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 2004:3341; Mather et al. 2001:156). The conventional vision of pro bono has diverged from the realities of solo and small-firm practice, where lawyers have been less able to forgo payment in
the name of public service (Lochner 1975; Mather et al. 2001:139). Accordingly, at the lower end of the legal professions status hierarchy, a distinct conception of the relationship between the private firm and the public good has emerged. Although solo and small-firm lawyers do, in fact, take on conventional pro bono cases without the expectation of payment (Levin in this volume), many equate public service with reduced-cost, or low bono, work (Seron 1996:127136; Landon 1990)2an updated version of the country lawyer ideal. Under this model, 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). Solo and small-firm lawyers do not neatly separate paid from unpaid work, and often view service to a working class clientele as a form of public service (Levin in this volume). 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. This type of private practice is not new (Berlin et al. 1970). Rather, some version has existed since at least the early part of the twentieth century, forged through the entrepreneurial efforts of prominent lawyers (Epstein in this volume). In Los Angeles, for example, the firm of Margolis & McTernan was founded in 1943 by legendary radical lawyers Ben Margolis and John McTernan, both of whom were charter members of the Los Angeles chapter of the National Lawyers Guild (Cummings 2009). 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.3 For nearly 50 years, Margolis was in partnership with John McTernan, who also had a distinguished career, winning cases striking down racially restrictive housing covenants and segregated unions, and establishing the right of defendants to examine evidence gained from informers (Cummings 2009). When the firm began in 1943, it specialized in civil rights and civil liberties cases, while also representing Southern California chapters of the Congress of Industrial Organizations. However, after the firm was blacklisted for its representation of communists, most of the union clients left, fearful that their association would expose them to government persecution. Going forward, the firm subsidized its political cases with fee-generating work on personal injury and products liability matters, and also built a maritime practice through its representation of the International Longshore & Warehouse Union (Cummings 2009).
2. Garth (2004) and Heinz et al. (2005) have shown that opportunities for pro bono and public service are stratified, with the most desirable work disproportionately available to lawyers in the sectors of the profession that hold the highest social status. 3. Yates v. United States, 354 U.S. 298 (1957).
While Margolis & McTernan grew out of the postwar radical left, the Philadelphia-based Norris, Schmidt, Green, Harris, Higginbotham & Associates emerged in the 1950s as an effort by prominent African American attorneys, excluded from the white legal establishment, to build their own professional capital and serve their communities (Porter 1998). The Norris firm initially focused on criminal defense but expanded into civil rights after Brown v. Board of Education. It used its connections with the Black community to carve out practice areas supporting Black businesses and churches (Porter 1998:164). In addition to advancing civil rights through legal advocacy, the firms lawyers also adopted a more conventional model of public service, with many moving into government service and gaining state and federal judicial appointments. Most prominently, partner Leon Higginbotham became the Chief Judge of the Third Circuit Court of Appeals (Porter 1998:151). The evolution of private public interest law firms is part of a broader story about the trajectory of the plaintiffs bar. As Yeazell (2001b) details in his study of civil litigation, 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), the doctrinal expansion of defective products liability (raising the prospect of large-scale recovery against corporations), the erosion of governmental immunity (exposing governments to tort liability), changes in discovery rules and settlement practices (enhancing the role of lawyers), and the increased availability of law firm credit (permitting the financing of large-scale litigation over time). In response to these improved circumstances, plaintiffs lawyers restructured their practices, 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, low-paying cases with high-risk, high-paying ones in profitable combinations (Kritzer 2004:12; Kritzer 2002:754). These changes transformed the plaintiffs bar. Although the social status of solo and small-firm lawyers has remained low relative to their corporate firm counterparts (Carlin 1994:xxiii; Heinz & Laumann 1994; Heinz et al. 2005), over the past 50 years, the plaintiffs bar as a whole has become more deeply capitalized, specialized, and expert (Yeazell 2001b:200; see also Dinovitzer et al. 2004). Private public interest firms have benefited from some of the same trends that improved the fortunes of the plaintiffs bar (Yeazell 2001a). Indeed, some of these firms emerged from plaintiff-side tort practices (Handler et al. 1978a:113),4 and some continue to use tort practice to subsidize mission-driven work. Yet private public interest firm lawyers have sought to distinguish themselves from
4. 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. See, for example, Criminal Justice Act of 1964, Pub. L. No. 88-455, 78 Stat. 552 (1964) (codified as amended at 18 U.S.C. 3006A (2006)) (providing for the appointment of criminal attorneys for a fee).
the profit-orientation associated with the plaintiffs bar by organizing their practices not only to make money but also to promote the public interest. Thus, in contrast to the profit-maximizing approach of contingency-fee lawyers more generally, private public interest firm lawyers have sought to pursue a double bottomlinemeasuring practice outcomes in terms of economic return and the advancement of public interest goals. These firms therefore adopted the ethos and often the legal objectivesof the public interest law movement as it emerged in the 1960s and 1970s. Other firms grew out of earlier models associated with African American lawyers who pursued civil rights cases for modest fees (Carle 2001). And still others combined public interest goals with private forms in innovative new configurations (Trubek & Kransberger 1998). The evolution of private public interest law firms has also been shaped by a set of structural opportunities and constraints peculiar to this field. On the opportunity side, 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). The Civil Rights Act of 1964 carried its own attorneys fee provision in employment discrimination cases under Title VII and in public accommodations cases under Title II.5 After the Supreme Court held that federal courts could not award fees to prevailing parties in other public interest suits without statutory authorization,6 Congress passed the Civil Rights Attorneys Fees Awards Act in 1976, which provided for attorneys fees in cases brought under section 1983, Title IX, and other federal statutes,7 thus opening the door to a broader range of potentially remunerative civil rights lawsuits against governmental and private actors. Some states crafted their own private attorney general statutes (Rubenstein 2004), which expanded opportunities to recover fees under state law. For example, California passed its private attorney general fee provision in 1977 (McDermott & Rothschild 1978:138), allowing fee awards in cases where a significant benefit . . . has been conferred on the general public or a large class of persons.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 2003:241245). Although court decisions have complicated attorneys efforts to recover fees in statutory fee cases, private public interest lawyers have been able to adapt their fee arrangements and reorganize their practices to maintain financial viability. Thus, in the face of defense sacrifice offers that condition damage settlements on the waiver of statutory attorneys fees,9 some private public interest lawyers
5. Civil Rights Act of 1964, Pub. L. No. 88-352, Title II, 204(b), Title VII, 706(k) (codified as amended at 42 U.S.C. 2000a-3(b), 2000e-5(k) (2006)). 6. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240 (1975). 7. Pub. L. No. 94-556, 90 Stat. 2641 (codified as amended at 42 U.S.C. 1988 (2006)). 8. Cal. Civ. Proc. Code 1021.5 (West Supp. 1978). 9. Evans v. Jeff D., 475 U.S. 717 (1986).
have structured their retainer agreements to provide for a contingency fee in the absence of a statutory fee award. In the wake of the Supreme Courts elimination of fee awards under the catalyst theory,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).11 While the availability of fees has made public interest law firms economically feasible, a variety of constraints associated with nonprofit practice have encouraged lawyers to move into the private sector. Lawyers complaints about the nonprofit sector focus on its lower pay, the scarcity of jobs, limited training opportunities, and insufficient resources for large-scale litigation. 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 2004:2122). Accordingly, 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, while restrictions on federal legal services programs have eliminated the ability to pursue class actions, attorneys fees, and cases involving most undocumented immigrants (Houseman 2007). Against this backdrop, 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, such as greater freedom to shift agendas, more autonomy from funding sources, and better facilities (Katz & Bernabei 1994). In so doing, they have rejected the prevalent view of public interest work as a kind of practice specialty best left to government programs, legal services organizations, and nonprofit public interest law groups (Gordon 2003:1209). Private public interest firms have thus prompted a reconsideration of the now assumed separation between socially conscious lawyering and private practice (Trubek & Kransberger 1998), 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. This focus has reflected the public private divide within the field, where nonprofit groups have grown into a major advocacy force sustained by governmental funding and private philanthropy (see Aron 1989; Nielsen & Albiston 2006; Rhode 2008), 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). Yet as private public interest firms
10. Buckhannon Board & Care Home, Inc. v. West Virginia Dept of Health & Human Resources, 532 U.S. 598 (2001). 11. However, Albiston and Nielsen (2007:1133) note that civil rights lawyers are more hesitant to take on cases that seek only injunctive relief, because there is no possibility of a contingent fee and strategic settlement may negate a statutory fee award.
have gained prominence,12 fueled by the economic opportunities presented by for-profit practice and disillusionment with the constraints of nonprofit organizations, this division (which was never complete) has increasingly come under stress. 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), private firms have gained importance as practice sites with the resources, expertise, and financial incentives to litigate against corporate legal violationsin contrast to classic public interest law firms, which have focused on challenging government actors (Trubek 2005). On the right, as the conservative movement has increasingly relied on legal strategies to advance its diverse missions, small-firm practitioners have come to play significant supporting roles (Southworth 2005b). Thus, the private public interest law firm has become an alternative site for doing well and doing good (Wilkins 2004; Erichson 2004), allowing lawyers to take on large-scale litigation that nonprofit groups cannot pursue because of resource limitsand big-firm pro bono programs will not because of business conflictswhile also addressing other deficits associated with nonprofit practice, such as low salaries, lack of training, and high turnover. By organizing practice around a cause to believe in (Scheingold & Sarat 2004), these firms destabilize the ideology of advocacy associated with private practice and challenge the conventional noblesse oblige vision of professional service. Design Although the private public interest firm sector has emerged as an important arena of professionalism (Nelson & Trubek 1992), we know relatively little about it. The quantitative evidence is dated and the qualitative research, though rich, provides only snapshots of a small number of firms. Nevertheless, in this section, we draw upon the existing data, supplemented with preliminary findings from our own research, to sketch a tentative portrait of the field. In the mid-1970s, the existence of a handful of private public interest firms prompted scholarly inquiry into their form and function. The Council for Public Interest Law (1976:136) identified 44 firms that devoted over half of their work to public interest practice, and it found that these firms employed 160 lawyers. Nearly all of the firms were established after 1969, suggesting the influence of the public interest movement and of the advent of attorneys fee statutes. About two-thirds of these firms employed four or fewer attorneys; low pay was standard, with 60 percent of lawyers in these firms earning no more than $20,000 then the starting salary for first-year law firm associates (Council for Public
12. As one indication of the interest in private public interest law firms, the Law School Consortium Project was launched in 1997 (initially including the University of Maryland, City University of New York, and Northeastern University law schools), with funding from the Open Society Institute, to provide support to law schools promoting communitybased solo and small-firm lawyers working to enhance access to justice (Blom 2006).
Interest Law 1976:137).13 The firms relied on varying economic arrangements to promote stability, including establishing ongoing cooperative relationships with nonprofit public interest groups, taking advantage of federal programs subsidizing the cost of public participation in regulatory agencies, participating in prepaid legal services plans, and relying on nonpublic interest cases to supplement their income (Council for Public Interest Law 1976:138140). This picture looked quite similar to the one painted by Handler and his colleagues, whose study of mixed firms identified 100 public interest lawyers practicing in approximately 20 private firms during the early 1970s (Handler et al. 1978a). The Handler study attributed the scarcity of such firms to the inherent limits of the model, which required clients to pay and lawyers to subsidize their mission-driven work with commercial cases (Handler et al. 1978a:112113). It also found that most mixed firms were located in the Northeast, were quite small (with an average of five lawyers), and paid relatively low salaries. The most common public interest practice areas were consumer protection, environmental law, employment discrimination, housing, criminal law, and civil rights work (Handler et al. 1978a:113). The study also concluded that the firms regular work focused on individuals and small businesses that could not pay large fees. Personal injury law was the most common regular work practice area, followed by labor and general commercial law (Handler et al. 1978a:114). Although there are no current systematic data on private public interest firms, there is some evidence that the field has grown since these early studies. 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. Columbia and Harvard Law Schools Private Public Interest and Plaintiffs Firm Guide (2007) provides a list of firms, with contact information, office size and summer job openings, areas of specialization, and types of advocacy. The Guide does not purport to be comprehensive,14 and it does not disaggregate private public interest and general plaintiffs firms. PSLawNet, an online database administered by the National Association for Law Placement (NALP), allows subscribers to search for information on public interest job opportunities and employer profiles.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, $20,000 in 1975 (when the survey was conducted) was worth approximately $79,500 in 2009 dollars. 14. The Guides list is generated by compiling firms that submit job postings to Columbia and Harvard Law Schools, firms at which Columbia and Harvard students work, postings on listservs and other reports, and recommendations from colleagues at other institutions. 15. PSLawNet, About Us, http://pslawnet.org/aboutpslawnet.
PSLawNet staff members monitor.16 NALP does not claim that the site is comprehensive, and law firms can unilaterally choose to be listed as a public interest law firm. Therefore, the list is likely to be both under- and over-inclusive. Despite the limitations of these databases, they may nevertheless indicate trends regarding firm location, size, and practice areas. Both databases suggest that the field has grown in size and geographic diversity since its early days. The Columbia and Harvard Guide, for instance, lists 329 firms, a large portion of which are located outside the Northeast (72 of the listed firms (22 percent), for example, are based in California). Searching the Law FirmPublic Interest Focus/Practice database on the PSLawNet site generates a list of 464 firms nationwide, with 187 in California, and only 117 in New York, Massachusetts, and Washington, DC, collectively. Looking just at firms based in California, and after eliminating firms that appeared to have been improperly included in the list, we found that the mean size was eight lawyers (with a median of three).17 Employment law and civil rights were the most commonly cited practice areas of these firms. 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. These studies also suggest that private public interest law firms are typically small, usually with fewer than ten lawyers. Many of these firms struggle financially (see Trubek & Kransberger 1998; Katz & Bernabei 1994), although some generate substantial incomes. Firm size appears to be constrained by the lack of predictability in revenue streams. The firms financing models vary, but many depend upon contingency fee arrangements, fee-shifting statutes, and other private attorney general models of law enforcement. Other firms build practices primarily on paid service to nonprofit organizations devoted to causes they endorse. Some firms combine these approaches. The case studies reveal that private public interest law firms pursue a variety of different substantive agendas including progressive causessuch as racial justice, environmental protection, civil liberties, and gender equityand causes associated with conservatives and libertariansfor example, reversing Roe v. Wade, promoting family values, and restricting governmental regulation (Southworth 2005b). The Los Angeles-area civil rights firm of Hadsell & Stormer asserts that it is committed to fight[ing] injustice, no matter what form it takes,18 while Traber & Vorhees, a civil rights firm focused on employment and housing that operates out of the same building as Hadsell & Stormer (Cummings 2009), asserts that it is dedicated to upholding and advancing the civil and human
16. See About PSLawNet, at http://pslawnet.org/aboutpslawnet. 17. The false positives included firms that were (1) double-listed; (2) defunct; (3) mischaracterized as for-profit; or (4) mischaracterized as legal. 18. Hadsell & Stormer, Inc., http://hadsellstormer.com/ (accessed August 29, 2007).
rights of all people.19 Porters profile of Norris, Schmidt, Green, Harris, Higginbotham & Associates, a Philadelphia practice established in the early 1950s, describes the firms overall objective as social justice and equality of opportunity (Porter 1998:173174). One of the founders of a firm, pseudonymously called Marks, Feinberg, Fried & Burch in Kellys study (2007:31) of the relationship between practice context and conceptions of professionalism, said that his practice was built to serve the little guy battling the giant. Thats what weve always done. Scheingold and Bloom (1998:239) found that the small firm lawyers in their Seattle sample embraced a range of political causes, with radical lawyers espousing the most politically transformative missions, while critical lawyersthose whose emphasis was on client empowermenttended to focus on achieving discrete, short-term gains for clients. Lawyers associated with civil rights and civil liberties firms, by contrast, were focused on upholding constitutional principles or defending the legal system (1998:239). 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). Lawyers profiled in the literature emphasize the strong advantage of flexibility in case selection. For instance, the lawyers at the Washington, DCbased Bernabei & Katz started their civil rights firm in order to maximize discretion to select cases consistent with their own political goals (Katz & Bernabei 1994: 196197). When Hadsell & Stormer formed its partnership in 1992, 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 theres going to be. And we really, literally, wanted to be able to take any case we wanted (Cummings 2009). Southworths 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). Other studies highlight the attraction of private public interest firms for lawyers seeking to experiment with unconventional client relationships and advocacy tactics. For instance, the lawyers in Trubek and Kransbergers study (1998:211) stressed the importance of creating a more collaborative and less traditionally hierarchical relationship with the client, and insisted on the importance of client empowerment, personal agency, and autonomy. Similarly, Kilwein (1998) found that small-firm Pittsburgh lawyers pursued a range of radical goals, such as client empowerment and political mobilization. Bernabei & Katz reported that in addition to litigation, it advanced civil rights causes through counseling, lobbying, research and investigation, the use of the press, mobilizing community demonstrations, and organizing and educating grassroots groups (Katz & Bernabei 1994:294).
19. Traber & Voorhees, http://tvlegal.com (accessed January 30, 2009).
But the autonomy of lawyers in private public interest firms is limited by financial imperatives (Scheingold & Sarat 2004:88), forcing tradeoffs to balance mission and monetary reward. The literature reveals that private public interest firms adopt a variety of economic models. Some claim to pursue only work that the principals believe inand sacrifice income to do so. Traber & Voorhees, for instance, reports that it has never taken a case outside its core practice of civil rights, housing, and human rights law (Cummings 2009). Similarly, Bernabei & Katzwhich accepted civil rights, civil liberties, employment, AIDS discrimination, whistleblower, and prisoners rights casesdeclined 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). The community-based El Centro practice, studied by Trubek and Kransberger (1998:218), also combined foundation grants with client fees, which were limited based on ability to pay. Many firms, however, supplement their mission-driven work with other matters that are consistent with their commitments but not especially dear to them. Other firms take cases that do not further their political ideals at all, in order to subsidize the work they deem to be in the public interest. Hadsell & Stormer, for instance, represented wealthy executives in employment contract disputes in what one lawyer called its white male cases (Cummings 2009). Scheingold and Blooms research (1998:246) similarly found that attorneys in small firms, whose financial status tended to be precarious, subsidized transgressive work with paying non-political clients.
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, 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. 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. Big-firm attorneys render unpaid services to deserving clients as a way of giving back. Solo and small-firm attorneys argue that their low bono work for lower-income clients discharges their professional duties. Private public interest firm lawyers suggest that their fee-generating cases advance important public purposes. From this perspective, the question is not which type of private practice best promotes the public interest, but rather how market-dependence shapes opportunities and constraints across sectors of the private barand how different organizational structures influence the meaning and practice of lawyering for the good (see Sarat & Scheingold 2005:11). This section begins such an analysis, offering a preliminary comparison of the private
public interest firm and the big firm pro bono model across the dimensions of lawyer ideology, case selection practices, and approaches to unpaid pro bono work. 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). In large law firms, lawyers generally espouse the conventional view of public service as sporadic volunteerism via pro bono (Scheingold & Bloom 1998:245). In private public interest firms, in contrast, lawyers tend to emphasize commitment to particular social and political goals as the sine qua non of public service. They generally view their mission-driven work as all of a piece with their paid work, and tend to see pro bono, as conventionally defined, as a modest public-spirited gesture promoted by lawyers whose practice model is much less consistent with the public interest than their own. Whereas big-firm lawyers tend to regard pro bono (along with civic involvement) as a primary outlet for public service, 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. In this spirit, 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), which holds lawyers unaccountable for their choices of clients and goals. They suggest that the bars emphasis on pro bono service diverts attention from the question that drives their own practice choice whether the firms daily work serves or undermines the public interest (Cummings 2009). Some of them stake out stronger positions; 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. According to these critics, even if pro bono accomplishes some good, it does not compensate for the mischief caused by the conventional models allocation of services without regard for the merits of clients and their goals. Lawyers in private public interest firms see their own paid work as valuable and consistent with the public good. They do not feel obliged to participate in pro bono service in order to vindicate their sense of professional virtue. Case Selection The dockets of large firms and private public interest law firms differ substantially. Whereas the big firm is organized around fee-generating service to commercial (largely corporate) clients, with unpaid pro bono constituting a small fraction of the overall docket,20 the private public interest firm is by definition
20. Even firms with the highest number of pro bono hours devote a relatively small percentage of their time to pro bono work. For example, at Jenner & Block, the top-ranked
organized around service to some vision of the public good, which requires building a practice that is consistent with the firms political aims even if it generates less financial security. Case selection in the private public interest firm is driven by the desire to balance mission and monetary reward. The portfolio of pro bono cases in big firms is shaped by competitive pressures and political realities, as well as by lawyers professional commitments. Big firms accept different types of cases, including high-profile impact cases and smaller direct services cases, for multiple and often overlapping reasons: to advance political causes, help those in need, recruit and train lawyers, and score high on law firm rankings (Cummings 2004:8182). 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. 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). However, there are also systemic gaps, particularly with respect to cases involving major challenges to corporate practiceswhich big-firm pro bono shuns. Although most big firms state that they give lawyers wide latitude to accept pro bono matters, informal law firm practices exclude many pro bono cases (Spaulding 1998). There is no systematic evidence of the impact of positional conflicts, but anecdotal accounts suggest that they strongly influence large-firm pro bono dockets. The most noticeable effect is to bar pro bono cases that strike at the heart of corporate clients interests, particularly employment, environmental, and consumer cases against major companies. For example, the pro bono coordinator at Skadden, Arps, Slate, Meagher & Flom has indicated that the firm rarely accepts employment-related civil rights cases because of conflicts with labor clients, whereas it more readily takes voting rights and housing cases (Cummings 2004:119). Similarly, nonprofit environmental advocacy organizations complain that big firms will not touch certain types of environmental cases, such as challenges to placing environmental hazards in low-income neighborhoods. In those cases, environmental groups rely on private public interest law firms for support (Cummings 2004:119). Cases involving the preservation of endangered species or particular natural habitats fare better in large-firm pro bono programs, although they can be perceived as antidevelopment and therefore are risky for developer-side firms. Big firms sometimes take consumer cases against private companies, but the defendants in these cases tend to be small-time scam artists who have defrauded home owners of their equity, predatory lenders who charge usurious interest, or
firm in The American Lawyers 2008 Pro Bono Scorecard, the average lawyer did 175 hours of pro bono per yearabout 9 percent of total billable hours based on a 2000-hour billable year (Pro Bono Scorecard 2008).
document preparers who pose as lawyers. Big firms generally do not bring impact suits against major corporations for finance discrimination or sue major banks for credit fraud. Requests for pro bono assistance for plaintiffs bringing products liability suits also typically elicit swift rejection (Cummings 2004:120). Positional conflicts also operate in a less categorical fashion, leading individual law firms to decline cases that conflict with their practice specialties. Firms that represent housing developers shy away from landlordtenant matters; firms that represent biomedical clients engaged in animal testing avoid animal rights cases; and firms that do municipal bond work decline to sue local jurisdictions. 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). Firms also consider how politically controversial pro bono matters will play with their client constituency. Thus, even when positional conflicts are not technically at issue, firms sometimes take a dim view of pro bono activities that might merely offend the firms regular clients or its prospective clients (Scheingold & Sarat 2004:77). Some firms therefore decline to take pro bono cases on either side of the abortion debate, while others shy away from cases involving hate speech, gun control, or religion. Private public interest firms often take on cases that big firms do not want and nonprofit organizations cannot afford. That means, on the left, that such firms have dockets often consisting of corporate accountability cases, in which they represent individuals or classes in suits against companies to redress labor, employment, environmental, or consumer violations. 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. Because private public interest firms fill some of the gaps left by big firm pro bono, they sometimes find themselves on the opposite side of the table from big firms. Contingency fee arrangements, combined with the opportunity for attorneys fees, provide small firms with an economic incentive to aggressively pursue claims against deep-pocket companies. As a result, cases involving employment discrimination on the basis of race, sex, age, and disability are staples of some private public interest firms. For instance, Chicagos Miner, Barnhill & Galland the former firm of President Barack Obamabuilt its success on its employment discrimination practice. Other common practice specialties include employment law (wage-and-hour enforcement and workers compensation) and consumer protection. The availability of private attorney general statutes has also enabled some private public interest firms to develop niche environmental practices. For example, Chatten-Brown & Carstens in Los Angeles handles land use and environmental protection matters with potentially broad public impact. In one prominent case, 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, California. In that case, the firm was paid by a local union opposing
Wal-Mart, illustrating another common financing model used by private public interest firms: alliance with repeat-player organizational clients. In addition to union affiliation, some firms develop relationships with organizational clients in the community development and affordable housing sector. One of the most notable affordable housing firms is Bocarsly Emden Cowan Esmail & Arndt LLP, which represents developers and investors in complex federally subsidized real estate deals. Because private public interest firms often focus on practice areas that promise consistent returns against economically viable targets, some of them also regularly sue government agencies, particularly in the discrimination context. In addition, some firms take on the representation of criminal defendants, especially when state subsidies are available. In general, private public interest firms pursue a double bottom line, in which case selection attempts to balance financial reward and social impact. For example, Marks, Feinberg, 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). As this suggests, lawyers in private public interest firms, like their counterparts in other types of private practice, must generate enough income to cover costs and keep their practices afloat. Even the most successful of these firms sometimes accept work that the firms lawyers do not find particularly compellinga concession that is in tension with the goal of building a practice around worthy causes. But lawyers in private public interest firms view work accepted for purely financial reasons as the exception rather than the rule, just as public service work is the exception rather than the rule for most large law firms. 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, while private public interest lawyers select cause-advancing cases within the framework of fee-generation. Yet this dichotomy is problematic, because big-firm pro bono and small-firm public interest work intersect and diverge in more complex ways. In particular, there is evidence to suggest that the selection and prosecution of big-firm pro bono cases is sometimes tied to bottomline calculations, whereas private public interest firms take on what are, in effect, pro bono cases with no (or very little) expectation of recovering fees. Big-firm pro bono is typically understood as a check on the crass commercial concerns of large firmsan elevation of private legal practice above the morals of the marketplace. But recent scholarship suggests a number of ways in which pro bono is also a product of economic concerns. For individual lawyers, 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). Wilkins (2004) has shown that Black corporate lawyers have pursued public service, in part, to
generate career assets that they find difficult to acquire through insider strategies: experience, visibility, and contacts (see also Dinovitzer & Garth in this volume). Firms, too, 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; Rhode 2005). 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 professions ideals. Big law firms compete for recognition as top pro bono performers, 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; Cummings 2004:4041, 7273). Though the business case for pro bono has not been empirically tested, it is often treated as an article of faith among pro bono proponents, 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. In addition to these perceived economic rewards of pro bono, some big firms reap even more concrete benefits beyond the heart (Rubin 2006). Under the Pro Bono Institutes Law Firm Challenge, 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). Accordingly, when firms accept cases that might generate attorneys fees, whether or not the case counts as pro bono hinges on the firms ex ante intention to collect fees. In practice, however, it is not unusual for firms to accept cases on a pro bono basis but later collect fees. According to a 20072008 survey of law firms conducted by the Pro Bono Institute (2008:5), 14 percent of firms reported keeping all of the fees awarded in pro bono matters, while 45 percent said that their firms retained a portion of the fees and donated the rest. Of those firms that retained some portion of the attorneys fee awards, one-third said that the retained fees were placed in the firms general revenue, while the rest used the awards to fund pro bono programs and support other charitable groups (Pro Bono Institute 2008:5). 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), the study suggests that firms retain some fees in a majority of cases. And although firms do not keep fees to remunerate lawyers directly, they sometimes use them to cover litigation costs and the expenses of running pro bono departments (Kolker 2006). Well-known firms such as Los Angeles-based OMelveny & Myers evaluate fee awards on a case-by-case basis, 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). Although lawyers in nonprofits privately complain about firms that keep fees, they view this practice as the price of persuading
firms to accept future pro bono representation (Rubin 2006). When big firms keep all or part of an attorneys fees award, the matter still counts as pro bono so long as it was undertaken without expectation of the award at the outset, leading critics to accuse firms of having it both ways (Kolker 2006; see also Pro Bono Institute 2004:8).21 Thus, the ideal of pro bono as volunteerism often gives way to the reality of big firms getting paid for pro bono work, undercutting the notion of pro bono as an extra-market activity. By contrast, although private public interest firm lawyers reject the conventional distinction between paid and unpaid work, they sometimes find themselves doing pro bono conventionally definedeither 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). When private public interest firms select cases for pro bono representation, the choice tends to be intimately bound up with the firms political identity. This is different from the choice of cases in the big-firm setting, where advancing a cause (beyond client service) is not the organizations mission, even if it may be highly valued by individual lawyers working in those firms. Thus, for private public interest lawyers, the choice of pro bono cases is a constitutive act. For big-firm lawyers, it is better understood in terms of its satisfaction of broader professional service obligations. In addition, some lawyers in the private public interest firms suggest that pro bono is a practice that must be used cautiously, with due consideration for how it affects the firms financial viability. This financial concern also is heard in big firms, but the scale of cause-oriented practice gives it a different salience. Private public interest firms often limit their own profitability by insisting that their work should be compatible with the firms mission. Lawyers in private public interest firms feel pressure to generate fees in order to fulfill the institutions public purposes. For example, 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, 219). A property rights lawyer said of the firms 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 attorneys fees in the first instance, with some courts holding that fee awards should be reduced or eliminated in successful cases taken on a pro bono basis. See Cruz v. Ayromloo, 155 Cal. App. 4th 1270, 1278 (Cal. App. 2nd Dist. 2007) (criticizing such a holding by a lower court); Arbor Hill Concerned Citizens Neighborhood Assn v. County of Albany, 484 F.3d 162 (2nd Cir. 2007) (suggesting that a court, in awarding attorneys 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)), opinion amended and superseded by Arbor Hill Concerned Citizens Assn v. County of Albany, 522 F.3d 182, 184 n.2 (2nd Cir. 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.).
that its always a balance. . . . [it is] a constant subject of discussion, and should be, because its a business. If we cant keep enough coming in to keep the doors open, then we cant do any of [the cause] stuff (confidential interview, September 2002). 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. He noted, however, that he charged this clientand all his nonprofit clientsmuch less than he charged clients whose causes he cared about less (confidential interview, January 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.g., Heinz et al. 2005; Mather et al. 2001; Powell 1988)a justification different from the one given by big firm lawyers, who tend to object to mandatory pro bono on the ground that coerced volunteerism will result in inferior service.22 As in solo and small firms more generally (Levin in this volume), private public interest law firms vary in how explicit they are about taking on pro bono cases for no fee. Some firms do so openly and in advance. For example, a property rights lawyer reported that his small firm does a lot of amicus work that we dont get paid for, that we take on simply in an effort to try to push the law in some direction (confidential interview, September 10, 2002). Other firms accept cases on a contingency basis but have little faith in their chances of recovery. As another property rights lawyer said of many cases that he handled on a contingency basis, I knew I wouldnt get paid because they involved the kind of appeal where we asked the court to change the law in order to win. I won a few of those, but most of the time we lost those (confidential interview, September 26, 2002). Some private public interest firms that accept such high-risk, politically significant cases refuse to associate the practice with the conventional model of pro bono, which they oppose on principle. At Hadsell & Stormer, for example, the lawyers self-conception as advocates for the underdog means that they view all their workincluding routine civil rights casesthrough 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. As firm partner Dan Stormer puts it: I dont believe in pro bono (Cummings 2009)). Instead, the firms raison detre is the righteous caseone that stirs passion in the firm attorneys, who believe that their legal intervention helps to right a manifest wrong. There are two distinguishing features of the righteous case: (1) the client
22. Bagenstos (2007:189) offers another objection to mandatory pro bono focused on the potential impact on civil rights firms. In his view, 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, and it may lead them to tighten the rules for statutory attorneys fees even further. The result, on net, could be a major loss for civil rights litigation.
is from a social group deemed less powerful, and (2) the financial outcome of the case for the firm is uncertain. These cases comprise a minority of those on the docket, but there is a sense in which they are the firms lifeblood, providing the moral and political authority that sustains the firms collective mission (Cummings 2009). The South Central Farmers typifies one of Hadsell & Stormers righteous cases. In 2006, 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). In what it sees as another righteous case, 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. Significantly, righteous cases are not uniformly financial losersthus, the firm always holds out hope for a recovery. In Doe v. Unocal, a human rights suit against the Unocal oil company for supporting the Burmese military in committing abuses against workers on Unocals oil pipeline, 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. But after some favorable court rulings, the firm ended up settling the case for an undisclosed (but presumably large) amount.
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. It shows that the bars definition of pro bono, as unpaid service to clients who are unable to pay, is not a singular ideology of professionalism operating across the legal profession (Granfield 2007:120), but rather a particular view of professionalism that is more congenial to lawyers in some practice settings than others. Specifically, for lawyers in private public interest firms dedicated to a particular social mission, pro bono seems almost beside the pointa distraction from what they see as a more important inquiry about whether the firms core function is consistent with the public interest. 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. It might discourage an excessive focus on pro bono as the measure of the private bars 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.
Our conclusions are limited by the sparse data available at this stage. This chapter provides an overview of the state of the current research, but it also charts a future research agenda. We plan to pursue a series of case studies of private public interest law firms that will explore how these organizations work and what professional values their lawyers hold. This research will address several questions: What organizational models do private public interest firms employ and why? How do lawyers within such firms conceive of their professional obligations, choose practice areas, select cases, and finance mission-driven cases? When and how do the lawyers in these firms engage in pro bono and how do they define it? How are these firms governed and how do they distribute economic rewards? Do private public interest law firms vary with respect to any of these questions by the ideological content of their missions? The answers to these questions will provide more systematic information about this hybrid institutional form, while also illuminating the evolving relationship between private practice and the public good.
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Alyeska Pipeline Service co. v. Wilderness Society, 421 U.S. 240 (1975). Arbor Hill Concerned Citizens Assn v. County of Albany, 522 F.3d 182 (2nd Cir. 2008). Arbor Hill Concerned Citizens Assn v. County of Albany, 484 F.3d 162 (2nd Cir. 2007). Buckhannon Board & Care Home, Inc. v. West Virginia Dept of Health & Human Resources, 532 U.S. 598 (2001). Cruz v. Ayromloo, 155 Cal. App. 4th 1270 (2007). Evans v. Jeff D., 475 U.S. 717 (1986). Yates v. United States, 354 U.S. 298 (1957).
statutes cited
Civil Rights Act of 1964, Pub. L. No. 88-352, Title II, 204(b), Title VII, 706(k) (codified as amended at 42 U.S.C. 2000a-3(b), 2000e-5(k) (2008)). Civil Rights Attorneys Fees Awards Act of 1976, Pub. L. No. 94-556, 90 Stat. 2641 (codified as amended at 42 U.S.C. 1988 (2006)). Criminal Justice Act, Pub. L. No. 88-455, 78 Stat. 552 (1964) (codified as amended at 18 U.S.C. 3006A (2006)). Cal. Civ. Proc. Code 1021.5 (West. Supp. 1978).
10. issues entrepreneurs

Charisma, Charisma-Producing Events, and the Shaping of Pro Bono Practice in Large Law Firms
cynthia fuchs epstein

introduction 1
The classic sociological definition of a professionone that differentiates professions from business and other activitiesholds that among other things its work must contribute to the public good (Parsons 1954 [1949]).2 However, a number of analysts of the legal profession (Larson 1977; Abbott 1988) have questioned whether this defining characteristic is true any longer for the law. More than some professions, such as medicine or the ministryin which service is part of their vital corethe legal profession has, over time, moved closer to a business model. Nonetheless, a service-to-society ethos has always found expression in the voices of respected leaders of the bar (Kronman 1993; Linowitz & Mayer 1994), in the mandates of national and regional bar associations, and in the commitment to pro bono work of a substantial number of large law firms, suggesting that the service ideal remains alive. Of course, how the ethos is addressed and carried out varies greatly, with consequences for society, for the profession, and for lawyers themselves. Furthermore, and perhaps ironically, 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. civil legal assistance (Galanter & Palay 1995; Sandefur 2007).3 In this chapter, I suggest that this has something to do with the mission and culture set by a number of the professions charismatic leaders, some of whom were founders or early recruits in firms that were to become, and are today, the most prestigious, affluent, and large, as measured by numbers of lawyers and total revenues. These firms include those founded by members of the white Anglo-Saxon Protestant (WASP) establishment around the turn of the twentieth
1. I wish to thank Robert Saut and Bonnie French for assistance in the first stage of this research, and Jessica Sperling who helped with further research and organization of the paper. I am grateful also to Howard Epstein for his editorial diligence. 2. Many businesses do this as well, but there is not a collective mandate that they do. 3. Attorneys employed in civil legal service organizations devote more hours to providing civil legal aid to the poor.
century (Smigel 1964), and those created by Jewish and Catholic lawyers who, excluded from the Wall Street law firms, built their own parallel institutions in the midtwentieth century.4 I further suggest that a subset of leaders holding strong public service views were professionally situated during particular historic momentscharismatic periods that motivated lawyers and other citizens to think and act beyond pedestrian day-to-day tasks, immediate self-interest, and a minimal commitment to pro bono work.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 evidence presented below is suggestive rather than conclusive. 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) observationbased on unsolicited comments made by several firm leadersthat 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. These lawyers had been recommendedby informants in the law schools in the prior study or by lawyers in public interest firms I interviewedas promoting pro bono activities in their firms. With this in mind, I began to search the web for information about the histories of the large firms with which I had contact. The periods that most affected lawyers I interviewed and those whose lives I found in historical accounts were the years of President Franklin Delano Roosevelts New Deal, World War II, the Civil Rights movement of the 1950s and 1960s, and the War on Poverty.7 During the New Deal and the immediate prewar period, some insiders in the elite WASP legal establishment were recruited into government service on an emergency basis. They were joined by other recruits who were excluded from the establishment because they did
4. The old distinctions have, over the past several decades, been undercut by a more democratic recruitment of lawyers from dissimilar backgrounds and some commitment to diversity, 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. 5. Most pro bono work by lawyers in firms was connected to personal assistance to needy people the lawyer knew, or service to religious and cultural organizations of which he (recall, no women were in these firms) was a member. 6. See my forthcoming book (with Robert Saut, Mitra Rastegar, and Hella Winston), The Lawyers for the People: Law Students Choice of Careers in the Public Interest. 7. The War on Poverty was introduced by President Lyndon Johnson in a speech on January 8, 1964, and resulted in the inauguration of the Office of Economic Opportunity, the first head of which was Sergeant Shriver, the brother-in-law of President John Kennedy. Shriver later started the Peace Corps and other organizations devoted to the public interest. He became a partner of the firm of Fried Frank in 1970.
issues entrepreneurs 213
not share the social and cultural capital of its members (Bourdieu 1984 [1979]) for example, because they were Catholics or Jews (Powell 1988). After the war, many non-establishment recruits went on to establish successful competing firms. In later years, during the charismatic period marked by the social movements of the 1960s, motivated younger lawyers succeeded both groups of elders, some again starting their own firms. (Other historic moments were to come still later, marked by movements that sought to provide rights for individuals with alternative sexual identities, for immigrants, for individuals deemed unjustly imprisoned, and, currently, for those involved in cases arising out of the Iraq war and the war on terror.) I further suggest that lawyers affected by these movements who became titans in business law often also became entrepreneurs of pro bono work,8 setting up programs or providing examples of service, and thus creating in their firms a culture of commitment (Rhode 1999, 2003) to pro bono work. 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, 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. How Have These Cultures Been Created, and By Whom? As we know, lawyers and the legal profession as a whole respond to changing times and social conditions in the contexts of their collective and personal histories. In my study of the factors that contribute to law students choice to enter careers in the public interest, I decided to include a number of interviews with lawyers responsible for guiding pro bono programs in their firms. These firms, located in New York and San Francisco, known for their pro bono activity, and ranked high in the listing reported by The American Lawyer magazine, often attracted students who wished to do public interest work but were unable to forgo the income they would make in the private sector. The interviews were conducted to provide background on the opportunity structure (Merton 1995) available to students in the schools being surveyed. In the course of the interviews, 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. Although I am not an advocate of the great man theory of history (Carlyle 1888), 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).
8. The concept of entrepreneurs of various kinds, such as reputational entrepreneurs, has been used creatively by Gary Alan Fine in his cultural analyses (see Fine 1996; King & Fine 2000).
Of course, this observation does not preclude other explanations for the pro bono patterns of large firms, all of which contribute to the firms commitments to pro bono work. These include isomorphism, the process by which organizations tend to mimic each others behavior (DiMaggio & Powell 1983); self-interest; the value of pro bono in providing a positive public-relations spin stressing integrity (Epstein 2002);9 the pressure of clients; and the visibility (Merton 1957) created by an active legal press that ranks firms for their pro bono activities.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, Volunteers of Legal Services, and ProBono Net. Nonetheless, 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. These lawyers histories have been important in creating the culture and structures for doing pro bono work that exist today. They have not only framed the cultures of their firms; they have changed the entire concept of pro bono law from chance noblesse oblige to stated expectations, as characterized by the subtitle of a paper by Judith L. Maute (20022003). Though they were not exactly personal role models (Merton 1957), their careers were admired as exemplary and provided the legendary stories thatas we have come to understand in new work on cultural analysiscontribute to the ongoing culture of organizations and societies (Economides & OLeary 2007; Gamson 2002). Focusing on these individuals is of importance because law firms, like other organizations, have cultures and social structures informed by their pasts (Stinchcombe 1965; Mills 1945). Other lawyers, currently in practice but less well known to the world outside the law, have also been key players in creating and supporting pro bono programs and are well known in the legal community. As I learned by interviewing a subset of them, they were often recipients of the legacies of the iconic figures that preceded them, but developed their own leadership and supportive roles informed and inspired by the social movements of their time. As I shall note later, some of these individual legacies were especially important because, at the time when the individuals made their mark, their firms were very small compared with firms today and individuals contributions were visible and important. The New York and San Francisco-based lawyers I interviewed for this inquiry were recommended through a snowball sample as those responsible for guiding, assigning, and otherwise charting the role of their firms in pro bono legal work for the publics they serve. They were also viewed as strategic mentors and role
9. Further, 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, by not counting lawyers time spent working on pro bono matters as billable hours). 10. For a view of the social and political forces that influenced the institutionalization of pro bono in firms, see Saut (2008).
models who inspired others in their firms. 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. I augmented these accounts with biographical information about leaders of the firms from public sources, such as firm websites and obituaries. I began my analysis by highlighting the lives and contributions of selected formative pro bono leaders in the firms in which I conducted interviews. Exploring the influence of charismatic individuals, including these early figures, on lawyers currently involved in pro bono work, I identified other factors, such as social movement involvement, that drew some later leaders to public interest concerns. After explaining some key changes in law firms since the days of the formative pro bono leaders, I examined the specific ways in which public service work has been institutionalized into firms cultures and organizational structures. 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. Yet, in the firms I studied, some lawyers who came from conventional backgrounds left the traditional life-course trajectories followed by others of their social class. Leaders in firms that set the tone for innovation in pro bono activity were often outliers in some ways, or perhaps were also identified as having charismatic qualities touched off by what we may frame as charismatic events. As I noted earlier, the formative leaders, nearly all of them men,11 whether from elite law firms or from outside the WASP establishment, were influenced by participation in charismaproducing events such as the New Deal, World War II, and the social movements of the 1960s and 1970s.12 The biographies of these men contribute to ongoing stories of social leadership. By intertwining strong leadership and commitment to public service, these lawyers developed roles as issues entrepreneurs. As McCarthy and Zald (1977:1215) explain, issues and problems are defined, created, and manipulated by issue entrepreneurs. Able to identify significant issues that others might also embrace, such entrepreneurs organize networks and other structures to promote
11. It was not until the 1980s that women became a presence in the large firms, and even today, women constitute only 17 percent of partners in the top 250 law firms in the United States. Therefore, it was men who were important in creating the culture of commitment in large firms. 12. Curiously, the Womans Movement of the 1960s was less a source of pro bono work in the firms, perhaps because there were virtually no women lawyers in them at the time to mobilize. Firms later took up some cases of sex segregation, such as those involving the Virginia Military Academy and the Citadel (in South Carolina), two publicly funded colleges that excluded women (United States v. Virginia 1996). However, in general, most womens rights issues were handled outside the large firms.
their causes. Although the term has often been used to describe social movement leaders, early pro bono leaders can be classified as entrepreneurs in the legal world, for they embraced pro bono work and helped to develop a culture and in some cases an infrastructure working toward that goal. The effects of the networks they created for their pro bono efforts can also be interpreted in a broader sense, for these leaders also influenced the overall perception of corporate firms work as an activity that should include public service aims.
lawyers of elite backgronds and their firms

Debevoise & Plimpton Eli Whitney Debevoise, a founding partner of this firm in 1931, was named deputy U.S. high commissioner for Germany after World War II. His public service work also focused on domestic issues, including the chairmanship of the New York State Task Force on Youth and Juvenile Delinquency. William Stevenson, another founder, served as the U.S. ambassador to the Philippines for two years and headed the American Red Cross during World War II, after work as an assistant U.S. attorney in New York. After the war, Francis T. P. Plimpton, another name partner, was named ambassador to the UN under Presidents Kennedy and Johnson. Oscar Ruebhausen, a noted civic leader and fighter for social justice, was another early pro bono leader in this firm and its presiding partner for 19721981. He joined the firm in 1937 when it had only 11 partners (today it has 600 partners). During World War II, Ruebhausen first worked as an attorney in the Lend-Lease Administration and then became general counsel for the Office of Scientific Research and Development. Ruebhausen is credited with drafting the document that led to the establishment of the National Science Foundation in 1950. He remained active in many civic and charitable causes (for example, as chair of the board of trustees of the Russell Sage Foundation) until his death in 2004. Debevoise & Plimpton has handled more asylum cases for the Lawyers Committee for Human Rights than any other law firm in recent years. It has been honored by the Center for Constitutional Rights and the Legal Aid Society, and was the winner of the ABA Pro Bono award in 2006. In an interview with a current partner in this firm, 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]. . . . 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 . . . not unlike his brother (Mayor of New York John Lindsay) . . . he was of the liberal Republican establishment, [and] just happened to put his energies where his mouth was on
some areas of doing good. . . . The current chair of our litigation group, John Hall, spent a year and a half as an associate creating and opening up Community Law offices. . . . He left the firm and then came back and has argued several death penalty cases in front of the Supreme Court. . . . [Going back in time,] Rod Perkins . . . had been Nelson Rockefellers counsel at age 31. He was also chair of the Lawyers Committee for Civil Rights. In recent times, Barbara Paul Robinsonthe first woman partner named by Debevoise, in 1976became the first woman president of the prestigious Association of the Bar of the City of New York, and brought to fruition a study that documented the glass ceiling facing women lawyers who aspire to become partners in large firms.13 Milbank, Tweed, Hadley & McCloy Each name partner of this firm, founded in 1866, displayed significant involvement in public interest and government service, setting a tone of commitment to pro bono work that extends to the present. Albert Milbank served on the board of directors of the Welfare Board of New York City and Greater New York, and was a president of the World Bank and a chairman of the Ford Foundation; 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; 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. This model of service persists beyond the founders to recent and current firm partners. One former partner, Elliot Richardson, held several cabinet posts in the 1970s and won the Presidential Medal of Freedom in 1998. Alexander Forger, senior counsel in the firm, worked as a long-term vice president of the New York Legal Aid Society, chaired the Volunteer Lawyers AIDS Project, and was president of the Legal Services Corporation during the Clinton Administration. As a current partner in the firm reported: There have always been public figures involved in the firms leadership going back to Harry Tweed. . . . Tweed was among the people that Jack Kennedy called to the White House in the sixties to create the Lawyers Committee, and Alex Forger, who was . . . well known in that regard. Another respondent in the firm expressed particularly high praise for Frank Logan, a former chairman of Milbank who created the firms pro bono practice. As he noted, in the 1990s, when there was a move to a greater business orientation, Logan, like Ulysses, recognized the need to lash our pro bono values to the mast
13. This study, initiated by the Committee on Women of the Association of the Bar of the City of New York, was conducted by myself and several graduate students and resulted in a report published in the Fordham Law Review (Epstein et al. 1995).
in order to preserve it through what he saw as a perilous trip through the region inhabited by the economic sirens. Others also mentioned more recent firm leaders who had done such service work as opening community law offices, serving as chairs on civil rights groups, serving on presidential administrations, and creating firm positions dedicated to pro bono work. Simpson Thatcher Founded in 1880, Simpson Thatcher has become one of the top-ranked law firms in the country and was named as a 2008 pro bono leader. Its partners have included many lawyers who have worked in the highest reaches of government and thereby set a tone for public service. Thomas Thatcher, whose forebears go back to the founding fathers, served as solicitor general of the United States under Herbert Hoover and later became a judge on the New York State Court of Appeals. He also served as a president of the Association of the Bar of the City of New York (19331935). Cyrus Vance, a successor partner, was known for public service under several presidents. In his New York Times obituary, 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, with time out for service in government. He was reported as saying that a lot of us were raised in families where we were taught that we were very fortunate, that we were going to have a good education, and that we had the responsibility to return to the community some of the benefits and blessings we had, and that there was an obligation to participate in government service at the local, state and national level (Berger 2002). Vance was chairman of the board of the Rockefeller Foundation, Chairman of the Council on Foreign Relations, and for 19701972 he was named to the New York Commission on Government Integrity to investigate corruption at all levels of government in the state. He was also president of the New York City Bar Association in 19751976, when he made a stubborn but not too successful effort to persuade the lawyers to devote Saturdays to providing the citys needy with free legal advice (Berger 2002). He served as secretary of state in the cabinet of President Jimmy Carter. Cleary Gottleib This firm was founded in 1946 by Henry J. Friendly, George Ball, and Fowler Hamilton, all of whom are cited on the firms website as examples of a firm culture in which the practice of law is a privilege, one that carries with it the responsibility to apply our talents for the benefit of less privileged individuals and communities. Friendly, who had been a law clerk to Justice Louis D. Brandeis, was appointed by President Dwight D. Eisenhower as chief judge of the U.S. Court of Appeals for the Second Circuit. Ball, who had served in the New Deal after graduating from law school in 1933, later went to work with the Lend-Lease Administration. During World War II, he was also director of the United States
Strategic Bombing Survey, and he later served as undersecretary of state and U.S. delegate to the United Nations and argued forcefully but unsuccessfully against United States involvement in the Vietnam war (McFadden 1994). Fowler Hamilton was also committed to public service and served as the director of the Agency for International Development. The work done by the three founding partners has since been integrated into the structure of the firm, and in 1968 it was the first firm to establish an externship granting lawyers paid leaves to work at legal services organizations. Patterson & Belknap Founded in 1919, Patterson & Belknap is a small firm (200 lawyers) compared to other elite firms, but it is noted for its public service. It is ranked third on The American Lawyers A-List of the top 20 firms in the nation and among the top ten in the magazines 2008 pro bono survey (holding this position since 1999). The name partner, Robert Porter Patterson Sr., was appointed as a judge of the U.S. Court of Appeals by Franklin D. Roosevelt and later became undersecretary of war in 1940 and secretary of war under President Harry Truman in 1945. 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. Other lawyers from the firm have continued to work for public interest and government services, including Michael Mukasey, the former U.S. Attorney General. Morrison & Foerster According to a firm account (Morrison & Foerster 2004), Herbert Clark, a founding partner, 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. Clark is cited as a mentor to Robert Raven, a past partner who joined the firm in 1952 as its seventeenth lawyer and died in 2004, when the firm had more than 1,000 lawyers. Firm lawyers described Raven as creating a culture of service to society. Raven became an accomplished litigator and an advocate for public service and was elected president of the Bar Association of San Francisco. He also organized the state bar to keep alive the Legal Services Corporation that then-Governor Ronald Reagan hoped to abolish, and advocated for the status and participation of minorities in state bar activities and the legal profession. The American Lawyer (2004) wrote: He built a partnership that didnt require pro bono work, it expected it. He created a strong mentoring system . . . he hired women and promoted them before that was conventional thinking. A lawyer we interviewed at the firm noted her own current commitment as stemming from the legacy created by Raven and those he mentored. This firm views its pro bono program as central to the firms value system and has resisted attempts to reduce it. Its high-profile work is exemplified by James J. Brosnahan, known for his defense of John Walker Lindh, the American captured in Afghanistan and tried and convicted for serving with the Taliban.
Brosnahan, the winner of numerous awards and ranked among the top litigators in the country, has also been a model for the integration of pro bono work and profit-making work in this firm, sometimes clashing with younger partners who assert that the bottom line is primary. During a time of conflict over priorities in the firm, Brosnahan is reported to have emphasized the value of profession over business. His many activities include service on the boards of the American Civil Liberties Union, Legal Services for Children, and the Lawyers Committee for Human Rights. As an example of the firms continuing emphasis on pro bono, a lawyer in Brosnahans 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. Paul, Weiss, Rifkind, Wharton & Garrison Founded in 1945, Paul, Weiss was the first major New York firm to hire a Black lawyer and one of the first to hire a female partner. Lloyd K. Garrison, a name partner, was a great grandson of the abolitionist William Lloyd Garrison and the grandson of Wendell Phillips Garrison, the literary editor of The Nation. Garrison joined the National Urban League in 1924 and later became its president. He was called to government service several times by Presidents Franklin Delano Roosevelt and Harry Truman, and in the 1950s he was a member of the Democratic Party reform movement in New York City. Inspired by Martin Luther King Jr. among others, he fought racial prejudice all his life; 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. Arthur L. Liman, a senior partner at the firm, was Jewish and grew up in an era when his formative influences were World War II, Nazism, and intolerance. He was on the commission to investigate the Attica Prison riot of 1971. He was also chief counsel of the Senate Committees hearing on the Iran-Contra scandal. According to his obituary in the New York Times he also made his living representing both corporate tycoons and scalawags (Haberman 1997). 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. Simon Rifkind, also Jewish, was a name partner of the firm and a renowned trial attorney known for his representation of needy Holocaust survivors. Rifkind was born in Russia and immigrated to the United States with his parents when he was nine years old. He graduated in 1922 from the legendary tuition-free College of the City of New York (CCNY), and received an LLB from Columbia Law School in 1925. From 1927 to 1933, he was legislative secretary to Senator Robert F. Wagner and helped him draw up important New Deal measures. He was a federal judge from 1941 to 1950 and later served as an advisor to President Kennedy.
The firm also helped Thurgood Marshall prepare Brown v. Board of Education in the 1950s. 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 prisoners rights. Skadden, Arps, Slate Meagher & Flom Joseph Flom, the patriarch of Skadden Arps, joined the tiny firm, founded in 1948, as its first associate in 1954 (today the firm has more than 2,000 lawyers). Distant from the elite world of the Wall Street firms, he grew up in a Jewish family in modest economic circumstances in Brooklyn, New York. Before attending Harvard Law School, he was a graduate of CCNY. Many of his awards convey his commitment to social justice and public service, such as the Legal Aid Societys Servant of Justice Award, the Department of Defenses Distinguished Service Medal, and the CCNY Presidential Medal for Distinguished Achievement and Public Service. On retirement from the firm, Flom gave $10 million to support good works and inspired the Skadden Fellowships, which pay $46,000 to each of 25 law school graduates each year who devise projects in public interest organizations that could not otherwise finance them. His legacy has continued in the firm, 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. Skadden partners who were interviewed for this study note the record of Skadden lawyers in taking on pro bono cases. In 2008, Skadden Arps led The American Lawyers financial success rankings. Arnold & Porter The name partners of this firm, founded in 1946, were New Deal alumni who had been creative designers of government institutions and programs to promote public welfare. They included Abe Fortas,14 born into a Jewish family in Memphis, Tennessee. A New Deal liberal, he became a counselor to Lyndon Johnson, who appointed him to the Supreme Court. The other original name partners, Paul Porter and Thurman Arnold, were also involved in public service and government work. Porter served as chairman of the Federal Communications Commission, and Thurman Arnold headed the antitrust division of the Department of Justice. Arnold is also known for his resistance to the loyalty hysteria of the McCarthy period, and the firm gave legal support to individuals who were targeted by the Senators committee (Westwood 1978). Charles Halpern (2008), who was also interviewed for this study, 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), and exemplifies Arnold & Porters commitment to social justice. Halpern worked for the firm in
14. The firm formerly was named Arnold, Fortas & Porter.
his first job after law school, 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; he went on to co-found the Center for Law and Social Policy and the Alliance for Justice. The name partners also supported younger lawyers who came after Halpern in taking on pro bono cases. One suit was pressed on behalf of the victims of a flood caused by the negligence of coal mine operators in Buffalo Creek, West Virginia, a disaster immortalized in a book by the sociologist Kai Erikson, Everything in Its Path (1976). Erikson (private communication) recalls that the young lawyers who managed the case, Harry Huge and Gerald Stern, reminded him of Bobby Kennedy in that they wanted to do good as well as have successful legal careers. Shearman & Sterling Founded in 1873, this firms earliest clients were the industrialist Jay Gould and members of the Rockefeller family. John Sterling, who died in 1918, was a philanthropist whose bequests to Yale University paid for the construction of a new library, the Law School, and the Hall of Graduate Studies and funded the prestigious Sterling Professorships, which continue to this day. 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 firms reputation from Valerie Vojdik, who, while an associate at Shearman & Sterling, became the lead lawyer for the case against the Citadel, South Carolinas state-funded military academy that refused to admit women students. When I asked Vojdik about the firms involvement,15 she observed that in the 1980s and 1990s S & S developed a strong pro bono practice. She noted that it was beneficial for elite firms to do pro bono work because it gave their associates litigation experience, but the culture of commitment grew in the firm. In particular, she notes a senior litigation partner, Joe McLaughlin, as a source of inspiration. The firm attracted more progressive, socially active associates who became partners and in turn expanded the firms culture of pro bono work. Two liberal partners, for whom social justice was also very important, also were involved in the Citadel case. Vojdik wrote to me: There is a huge photo of Henry Weisburg and I and Mary Warren, now a partner there, and Shannon [Faulkner, the client in the Citadel case], walking to court that was in the New York Times. It has been blown up and posted with all of the other corporate deals and accomplishments of the firm next to the
15. A personal note: I met Valerie Vojdik when she asked me to become an expert witness in the Citadel case, and we have been in contact since.
Lawyers Dining Room. . . . So its commitment and pride are showcased for the firms lawyers, clients and visitors. . . . I met a woman who clerked at S & S this summer. She was so excited to meet me because she knew S & S trumpeted its work on the Citadel case and . . . she saw the photograph next to the Lawyers Dining Room. So it is continuing to attract lawyers who value social justice. I think that is how the culture grows.
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. I found that the legacies of the 1960s and 1970s were especially prominent on these lawyers personal paths toward pro bono commitments, even if they were not engaged as radicals or activists. Most of the lawyers with whom we spokewho were in their fifties or sixties at the time of their interviewsreported that they were in some ways affected by the sixties social movements. Some were merely sympathetic, but others joined organizations and participated in marches and demonstrations against racial inequality and the Vietnam War. They went to college and law school at a time when issues of social justice were in the air, and they were moved by these causes. 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). Robert Sauts (2008) work on the New York Legal Aid Society notes that lawyers were drawn to the organization because of their sixties generation idealism. In the following quotes from a number of interviews, 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. 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. This was the Watergate era and there was a lot scrolling in my head about lawyers as agents of protecting a free society. I was never a radical. . . . But . . . how could you not have been shaped by that period? I wasnt out marching and I wasnt going to demonstrations. I had a lot of sympathy, but I kept focusing on the lawyers who were able to make changes. During my third year, when I was interviewing . . . I still remember that the primary criterion that I had for interviewing at law firms was how much pro
bono work they did. How much would they let me do? And it was . . . and that was very typical of my peers at Yale at the time. We all either wanted to go into public interest work full time or wanted to do a lot of pro bono work. It was pretty much a class-wide phenomenon, which I think partly is a product of Yales peculiarities and also just a function of the times. It was just a time when we all got clean for Gene [McCarthy]. I went to New Hampshire to campaign in68. And I think we all felt like we wanted to make a change. *** . . . The people that founded the Lawyers Committee, as an example, 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 theres just been a communitywide tradition and particularly in the big firms. I think thats one of the major influences here, I think, is that the leadership of large firms has encouraged younger people within the firms to do pro bono work. *** At this firm, in particular, I would say it was probably starting . . . I dont recall that I had any mentors in the pro bono arena that were among the senior people in the firm. It was more people who were one, two, three years ahead of me that had gotten that going. 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, in the mid-70s, that was a big catalyst as well. We and most of the larger firms in town signed up to take turns staffing the clinic, which has become known as the Tuesday Night Clinic, because it meets every Tuesday night. In fact, I think that was my first connection with the Lawyers Committee for Civil Rights . . . *** I was involved in the antiwar movement and the student politics and educational reform stuff. I was involved. I went to demonstrations in Washington and all that. . . . I think at that point I had the zeal of the newly converted. 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. Not giving any thought to other alternatives. 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. In fact, at that time, opportunities in the public sector were so limited that a number of my peers founded public interest organizations of their own. The Environmental Defense Fund came out of that, for example. It was founded by Yale law students in my class and the two classes ahead of mine.
*** . . . I had spent my summer after my first year [working] for a law commune in Berkeley and then I had worked, the summer of my second year, for [Xs] law firm. And so he [the partner] takes a look at my resume and says, Why do you want to come here and practice money-grubbing law? And I was trying to figure out what to say . . . [but] he said, You dont have to answer that question. Being here is enough. (Asked about the other lawyers who, with him, became partners in this firm, he said):. . . They were all people who were active in the Lawyers Guild. These individuals might all be characterized as conscience constituents, a term coined by Michael Harrington (1968). Harrington used the term to refer to middle-class liberals who demonstrated strong sympathies for underdog groups, the social movement atmosphere giving them a sense of duty to help those in need. Just as former pro bono leaders had been influenced by and responded to movements of their times, so did their successors see their role in creating change.
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. By serving as issues entrepreneurs and instilling a strong focus on pro bono work, they altered the focus of corporate law firms to include public service efforts. 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. As the focus has moved from the individual and personal to the organizational and structural, involvement in pro bono work has changed form and become a part of the firm itself. The structure of the legal profession has also changed in many ways because of ideological shifts in the society, triggered at various times by events such as war and economic stress, social movement activity, legislation, and party politics. Indeed, 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. As Scott Cummings (2004) has ably demonstrated, pro bono activity has shifted from the personal responsibility of individual lawyers to the collective responsibility of large firms. The structural shifts include a vast change in size of law firms. Todays megafirms started out very small and remained so for decades. The top large Wall Street firms that Smigel (1964) reported on in the early 1960s were composed of 100 to 150 lawyers, compared with a range of 600 to 2,000 lawyers today.
No doubt, individual lawyers in the smaller partnerships of the past had more influence than they do today. As noted before, many iconic lawyers made their marks when their firms were substantially smaller than they are at present. Changes in the Organization of Pro Bono Work Doing good once involved role partnerslawyers and clientswho worked together, serving on each others favorite charity boards and contributing money to their favorite causes, the lawyers handling the legal issues that were appropriate. The focus was on action by individual lawyers, and pro bono activity was in general quite individualistic. It often was conceived as a lawyers way to demonstrate personal charity, or social affiliation with an elite supporting religious institution or the arts (Maute 20022003). In todays pro bono world, serving clients who are members of ones inner circle is only a minor part of pro bono work, especially in large firms. Instead, lawyers handle pro bono clients with whom they generally share no personal relationship, and pro bono work is seen as properly a part of the firms obligations. In addition, organizations have developed to enlist large firms participation in pro bono work. In 1976, 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. Six months after its founding, NYLPI had enlisted nine of the citys most prestigious firms for its ambitious pro bono program; by the end of 1979 that number grew to 30, and by 1991 it doubled again to 57 firms (Saut 2008). In 1993, the American Bar Association unveiled its Law Firm Pro Bono Challenge, calling on firms to dedicate 35 percent of their annual billable hours to pro bono work. In 1995, responding to the reduction in government funds for the Legal Services Corporation, William J. Dean, executive director of the Volunteers of Legal Service, called for further development of pro bono by large law firms. Changes in the Pro Bono Clientele As corporations and law firms have grown in size, there also have been shifts in the organization of the pro bono clientele. Clients are now typically members of disenfranchised and subordinated groups or of racial and national minorities, persons with physical disabilities, or those who have alternative sexual preferences. They are individuals, but they are often mobilized within organizations oriented toward their problems. In this era of identity politics, and with the loosening of prejudice against lawyers who hold formerly stigmatized identities, lawyers who share these identities often are mobilized to act on behalf of such clients. And of course, clients facing classic problems of the poor also seek the aid of lawyers in their quests for help. 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. Although certain lawyers
stand out as prototypical leaders, groups and committees engage in the selection and performance of pro bono work. Despite these organizational changes, 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. 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, such as counting it toward the billable hours tallies of the lawyers involved. Thus, many firms have been able to move to a more business-oriented culture without limiting their public interest commitments. In this sense, individualsboth issues entrepreneurs and the inspirational pro bono leaders who preceded themhave ensured the survival of a pro bono focus within large firms today by embedding it in the structure of the firm itself. Public Service Embedded in the Professions Image Many pro bono lawyers interviewed stressed the perceived intertwined relationship between the legal profession and public service, demonstrating how this culture of commitment has spread across the profession. 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. . . . I could in the right place in law make different kinds of changes. Another declared that I think lawyers do have an obligation to do it [pro bono work]. Asked why some become absorbed in pro bono throughout their careers, one respondent noted the importance of the firm environment, asserting that thats where the institutional personality comes in. But another explained that pro bono work can help a lawyer make partner, 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. Many respondents held positions specifically devoted to pro bono work, some reporting they were expected to spend 100 percent of their time on it. Other lawyers served on their firms pro bono committees and were involved in efforts to revise and improve their pro bono programs. One respondent participated in an externship program, wholly arranged by the law firm, in which lawyers left the firm for four months to do public interest work for specific organizations. Describing how pro bono cases are chosen in his firm, one interviewee said we get a printoutits about ten pages and we flip through it and its just tons and tons of material. . . . And that comes out quite regularly. Another lawyer, speaking of the process by which a lawyer chooses a pro bono case at his firm, illustrated the extent to which pro bono work has become part of the firms culture and work. He said: Today, an associate who has a desire to do something will contact me or contact an assistant director . . . and say, Im interested in doing . . . I have some time
and I would like to do a pro bono project. What do you want to do? I dont know. Okay, check 17 lists and this website and center. Or, Im interested in children. Well, then you should check out this and check out that. And through that process the individual selects something they are interested in. Then I get more involved. I look over what they want to do. If its a domestic violence case thats going to trial in two weeks and the person is a second-year banking lawyer, I say, You cant take this unless someone else in the firm is going to help you. So I do that up-front screening, as does my assistant. . . . When we decide the person is the right person and the case is the right case, and there are no conflicts, I will go through all the same administrative steps that they do with any other case. . . . And where its appropriate, we have an engagement letter to the client. Its all very formalized. It says, You will do this and this.
conclusion
Change in the social structure of pro bono activities in the legal profession has been chronicled and examined in this paper. This is a first attempt to identify some of the factors contributing to the change and to show how iconic individuals, affected by dramatic moments in the history of their times, have contributed to that change and have become issues entrepreneurs in promoting a social agenda in the law. 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. 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, not permitting it to be defined as a threat to profitability. Within these leading law firms, major figures call upon a shared history and tradition to appeal to individual lawyers sense of solidarity and identity. They also create a framing perspective, a discursive approach that links attorneys interests, perceptions, and a firms cultureits legacytogether. Moreover, younger pro bono advocates legitimate and promote current pro bono service, and, referring to the professions historical predecessors, argue that pro bono is not only in their firms financial interest but also part of its identity.
references
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cases cited
United States v. Virginia, 518 U.S. 515 (1996).
11. the role of volunteer lawyers in challenging the conditions of a local housing crisis in buffalo, 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. During this time, according to Cummings (2004), an intricate network of professional, private commercial and nonprofit, and public-sector legal organizations has emerged and set out to construct a centralized and streamlined pro bono system. The implications of organized pro bonos emergence and institutionalization deserve more nuanced scholarly attention than has been given. Little is known, for instance, about how these changes affect the consciousness and actions of legal practitioners around issues of pro bono service. According to Cummings (2004:6), organized pro bono inculcates a set of values and practices that have become deeply ingrained as part of the culture of legal professionalism, defining how lawyers understand their role in making legal services available to poor and underrepresented groups. This chapter follows from and seeks to build on this observation. I present findings from a case study of organized pro bono service in Buffalo, NY. In this study, 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 landlordtenant relations. 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; Southworth 1996a). 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 providerto direct the recruitment of private attorneys and organize the provision of volunteer legal services to low-income members of the local community. For nearly 20 years, VLP has administered a targeted, direct client service pro bono programthe Attorney of the Morning (AOM) programwhich pairs private attorneys with low-income tenants facing summary eviction proceedings in Buffalos Housing Court. The BAEC and VLP tout the success of the program in increasing low-income tenants
access to justice.1 However, according to a recent report by the Pro Bono Committee for the Eighth Judicial District (2006)which includes the City of Buffalo and Erie Countythe legal needs of the poor and indigent in the area of housing continue to go unmet. Mirroring involvement nationally, 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). Because of the persistence of unmet needs, VLP has recently initiated efforts to boost levels of participation in pro bono activities by members of the local private legal community. 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. I view the AOM program as a pro bono workplace setting (Granfield 2007) embedded within a dynamic institutional field, in which Buffalo Housing Court and additional legal services providers, as well as other institutions of local governance, seek innovative ways to manage and/or resolve complex housing issues. The AOM program further resembles an arena of professionalism, that is, a setting in which groups construct, explicitly or implicitly, models of the law and of lawyering (Nelson & Trubek 1992:179). The way in which private attorneys situate themselves, or are situated, as volunteers within these environments has consequences. Attorneys position as day-in-court volunteers shapes the meaning of professional commitment to pro bono service, 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. The analysis and claims that I present should not be understood as an attempt at evaluation research in a narrow instrumental senseI do not try to evaluate the effectiveness of the AOM program, for example, in preventing or delaying the execution of eviction warrants or in securing rent abatements for tenants who have alleged substandard living conditions. Clearly, these issues are critical for understanding how the provision of free legal assistance to the poor affects access to justice. But equally critical to an understanding of justice in this area, and perhaps less easily obtained through experimental or survey-based methods, are the ways in which attorneys pro bono service is socially constructed. Although I will go into more detail below, I can highlight the following set of findings. The first finding, around which the bulk my discussion is focused, is that service in the AOM program appears to circumscribe traditional or familiar
1. 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, see Seron et al. (2001), Office of the Administrative Judge of the Civil Court of the City of New York, et al. (2008).
the role of volunteer lawyers 233
understandings of legal representation, specifically as they relate to norms of client advocacy and expectations of professional efficacy. For AOM program volunteers, this observation takes root in the simple fact that provision of legal representation to low-income tenants is bounded by time-, place-, and task-based conditions. Service typically occurs during a three-hour-long term of service in a single morning session at Housing Court. Most attorneys who were interviewed said they are encouraged to volunteer for only one morning session each fiscal quarter. Certain types of clients (e.g., Section 8 voucher recipients), cases (e.g., warranty of habitability), and stages in a case (e.g., appeals) essentially remain off-limits to volunteer attorneys. It is through these basicand, in the view of many attorneys, necessarydimensions of service that the cultural parameters of the pro bono workplace setting are established and communicated. 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). The second finding, on the implications of this research, relates to the delivery of bounded forms of legal service within an environment of institutional innovation. For attorneys who volunteer in the AOM program, participation gives them critical insight into the effects that underlying contradictions of speculative forms of property ownership have on low-income individuals and communities.2 The power of this insight, however, fades under the weight of a routinized pro bono role performance. Meanwhile, an institutional response that attempts to manage these contradictory tendencies through creative legal and policy interventions continues to evolve. This institutional response relates to the recent reorganization of Buffalo Housing Court, where the same City Court judge now presides over the administration of housing violations and summary eviction proceedings in a single consolidated term. At the same time, 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. These changes bring legal issues related to the physical condition of properties, property relations, and the interests of political, economic, and civic groups to bear under a common problem-solving authority. For this research, I conducted in-depth interviews with 19 attorneyssolo or small-firm practitioners in Buffalo and Erie County, New York, the majority of whom were white, middle-aged men. From an initial list of 31 names supplied by VLP, I ended up with an effective sample size of 19 respondents. The list of 31 attorneys included active volunteers in the AOM program only; as a result it was likely not representative, in terms of social, demographic, or professional
2. The inherent tension between the use value and exchange value of land and the urban built environment (see Harvey 1973; Logan & Molotch 1987), or between housing conceived as a social resource or speculative commodity form (see Stone 2006), serves as the basic expression of this contradictory tendency.
characteristics, of the broader universe of attorneys in either the Erie County Bar Association or the New York State Bar Association. I invited each attorney to participate first by mail and then, if necessary, with a follow-up phone call. Eleven attorneys did not respond to either invitation attempt, and one attorney declined to participate. With each respondent I followed a semistructured interview guide organized around four salient themes: (1) general impressions of pro bono service, (2) lawyer-client interactions in the AOM program, (3) VLP and volunteer attorney relations, and (4) pro bono service and the politics of housing.
bounded forms of civil legal assistance to the poor

Time-, place-, 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. For example, Cummings (2004:76) describes the virtues that many nonprofit pro bono programs find in organizing volunteer opportunities around a clinic model of professional service. 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. The clinic model of service introduces flexibility and rationality into private lawyers experience of pro bono. In terms of substantive areas of practice, housing and landlordtenant law are typical areas where bounded forms of legal representationone-shot or day-incourt modelsare often hailed for their effectiveness and efficiency. Summary eviction proceedings in New York State courts, 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, a tenant must be served notice of the scheduled court appearance as well as the landlords reasons for seeking the eviction, such as nonpayment of rent or holdover at the conclusion of a lease. Landlords can prevail in court when a judge issues a warrant of eviction and perhaps a money judgment against a tenant. In nonpayment cases, tenants can make counterclaims that seek to enforce habitability standards, win rent abatements, and extend tenure. More often, tenants only recourse in a summary proceeding is to plead with the court for a stay of the warrant to evict, thus buying them additional time to arrange for alternative housing. In an experimental study of a free legal assistance program for indigent tenants in New York Citys Housing Court, Seron et al. (2001) found that the provision of full, albeit bounded, legal representation delivered beneficial procedural and substantive outcomes to poor tenantsincluding favorable settlement agreementsand a decrease in the rates of eviction and the value of money judgments issued against tenants. More recently, 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 program was developed around a concept of
unbundled legal services or limited-scope representation common in nonlitigated matters. Pro se tenants in Housing Court were provided with free legal representation in nonpayment cases, but only for the duration of pretrial settlement conferences. A subsequent evaluation of the program reported that unbundled legal representation increases access to justice, perceptions of procedural fairness, and the overall efficiency of summary eviction proceedings. 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. In a critical analysis of institutional reform of New York Citys Housing Court system in the 1970s, 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, which rely on an extensive division of labor, in order to handle heavy caseloads and intake duties. Under this model of service, attorneys share caseloads and responsibilities for representing the same clients in court. According to Lazerson, horizontal representation in the housing and landlordtenant context, however, is double-edged. In a general sense, 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 lawyerclient relationships. 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 clientsThe quality of individual representation . . . declined. Clients often did not know who was representing them until they appeared in court. [And] lawyers . . . never felt they had exercised all their professional skills (except in the rare case they represented from beginning to end) (Lazerson 1982:149). Katzs (1982) analysis of poverty law practice within a legal aid organization identifies features of time- 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. Short-term relations with clients localized around immediate crises in clients livestypical of poverty practiceforce attorneys to become reconciled to their restricted ability to determine the meaning of their work to clients (Katz 1982:29). Under these conditions, legal aid attorneys adopt a working ethic of reasonableness that enables them to give certain meaning to their work. By adopting reasonableness as a working ethic, Legal Aid lawyers translate the procedural, day-in-court jurisprudence into a means for personally accepting everyday professional and moral limitations (Katz 1982:56). They construct the legal problems of transient poor clients as routine. Legal aid attorneys also rely on the uniform, organizationally controlled context of their work to apply a veneer of predictably to the trajectory of legal representation they provide to clients.
Turning to volunteer attorneys accounts of their service in the AOM program, I will attempt to demonstrate how their participation within a bounded form of legal service unsettles conventional notions of legal representationspecifically, client advocacy and professional efficacy. This process in turn has implications for how attorneys conceive of their role as providers of free legal assistance to the poor, 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.
participation in vlp and the aom program

I asked attorneys to discuss their particular pathways into organized pro bono with VLP, and more specifically their recruitment into the AOM program, as well as their motivations to continue participating. Not surprisingly, 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, whether they are individuals or nonprofit organizations. Professional connectionscolleagues who referred attorneys to pro bono opportunities with VLPor a desire to build or hone legal skills represented additional inroads into VLPs network of pro bono providers. For at least four attorneys, 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. For 13 of the attorneys I interviewed, service in the AOM program aligns closely with their private practice area in real estate and their representation of private landlords. Attorneys suggest that this situation does not lead to substantial direct conflicts of interest. 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. Attorneys reluctance to perceive their representation of landlords and tenants in terms of tangled loyalties (Shapiro 2002:56) might result from the nature of the intermediary role they often play in housing court. Although disputes between landlords and tenants are often described in adversarial terms, 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. Motivations to continue participating in the AOM program and working with VLP remain consistent with initial commitments for attorneys across the sample. Attorneys service is sustained by an intrinsic sense of moral obligation and professional duty. For close to half of the attorneys I spoke with, original motivations are now supplemented by a strong desire to help VLP as an organization, 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.
the aom program as a bounded pro bono workplace setting

I usually meet them [tenant clients] the morning Im there. Its the first time I meet them. And in the brief few moments that you have to talk to them you better accomplish a couple of things: First, you have to identify what the issues are from a legal basis. Second, youve got to understand whats really going on with them. And even if its a few sentences just to give you an understanding of how they got there and what the underlying issues are. Third, youve got to find out what their goal is. . . . I then try to talk to whoever the landlord is or the landlords representative to find out where they are, to see if there is some way for a solution outside of eviction. Now thats what I refer to as triage. Solo practitioner The one thing about the Attorney of the Morning program is that youre in and out. Its very intense for the three hours youre in there. Its like a legal MASH unitYou never know how many cases youre going to get. You never know how complex theyre going to be. And in the meantime the court is wanting to keep the cases moving. So while youre out negotiating with a landlord, the courts about to call your case, one of your other five cases. Solo practitioner Attorney of the Morning . . . is not a gauzy moment in movies where everything is wonderful and arent we doing great. Its not an uplifting experience. Its damage control. Large-firm attorney These insights point to essential features of service in the AOM program that set it apart, as a bounded pro bono workplace setting, from conditions lawyers typically encounter in either their private practices or other forms of pro bono work they do. The overarching AOM experience at Housing Court borders on organized mayhem and expresses a basic tension as a controlled environment imbued with uncertainty. On one hand, it incorporates formal, systematic, and routine elements of legal service familiar enough to many attorneysclient intake and case review performed by VLP staff, interns, and volunteer attorneys; informal and court-mediated negotiations with landlords and/or their attorneys; stipulated settlements; and judicial hearings. On the other hand, the operation of the AOM program channels more unfamiliar qualities of direct legal service intensity, unpredictability, triage, damage control, uneven caseloads, and fleeting time with clientsthat many private attorneys believe are necessary byproducts of the technical requirements found within statutory summary eviction proceedings. The other significant and defining feature of pro bono service within this setting is that it is finite. Service is bounded by time and place, as well as by a division of
task-based labor among paid and unpaid and among nonlegal, paralegal, and legal service providers.3 Client representation begins and ends on the same day and in the same location. Volunteer attorneys are not required to perform coordinating roles associated with initial client intake or referrals of clients to emergency housing assistance providers. And attorneys are generally precluded from participating in later phases of adjudication, such as trials and appeals, that would require returning to court on a specified date, or more complex areas of landlord-tenant lawfor example, Section 8 rental assistance and warranty of habitability cases. With the assistance of the court, 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. Most volunteer attorneys I spoke with have alleged substandard housing conditions and raised these issues in habitability-based defenses before the court, only then to relinquish client representation in these cases to more experienced staff attorneys at VLP or legal services. Generally, these conditions appear to encroach upon lawyers experience of involvement (Katz 1982:106122) and to contribute to feelings of personal and professional detachment from clients biographies, more complex legal issues, and broader social outcomes potentially at stake in housing matters. 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, attorneys can attempt to buy time for their clients to relocate, or, if the landlord-tenant relationship remains amicable, to come up with money owed in back rent. Alternatively, under circumstances characterized by greater landlordtenant antagonism and ill will, volunteer attorneys can invoke any number of procedural defenses aimed at dismissing a landlords claim on grounds of improper notice or filing errors. This line of defense is seen as a stop-gap measure to buy clients time while their landlords refile claims. Far less often do attorneys pursue a factual defense of their clients interests, because clients either plead nonpayment of rent to their attorneys or else fail to supply material support, such as rent receipts, to substantiate counter-claims against a landlord. Client Advocacy The bounded conditions of the workplace setting serve to destabilize conventional notions and practices of client representation and advocacy. Attorneys report
3. 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. Annual hourly commitments to the AOM program vary widely. Among individual attorneys in this study, annual hourly commitments ranged from a low of 6 hours to a high of 72 hours. And for the 17 attorneys who have participated in the program longer than one year, hourly commitments often vary from year to year within a set range.
that the time constraints they confront each morning, together with the scripted nature of summary proceedings, affect their ability to cultivate an effective rapport with clients.4 Lawyerclient relationships in Housing Court, therefore, are built on a temporary foundation that combines elements of mutual trust/suspicion, a pragmatic professional detachment, and a halting empathy for tenants accounts of marginalizing bad-luck circumstances, poor housing accommodations, and deteriorating relationships with landlords. 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). The following exchange I had with one attorney, a solo practitioner, 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, though some people are harder to empathize with than others. 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. . . . [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 youd made whatever agreement you couldve with the landlord earlier; and it also makes it much easier to deal with the landlord as a human being . . . I usually dont have any problem if the tenant just told me the landlords an ogre; it doesnt really affect me maybe because I try as hard as I can to stay objective. Solo practitioner This attorneys views are fairly representative of the views of other attorneys I spoke with. For example, as one attorney readily admits, empathy is in practice partially undermined by the need to get at a clients 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. So you need to help the clients focus on whats important for today; not what
4. 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. He described a particular experience he had of being called a racist by a client he was representing one morning in the AOM program. He believed this was an unfair characterization in light of the fact he was providing free legal services at the time. The experience caused him to discontinue his participation in the program for one year.
a rotten S.O.B. the landlords been, but, Do you have the money? Did you pay the money? Did you not pay? You know, lets get to the real issues here. And you have to help them focus on that. Solo practitioner The apparent practical limitation placed on attorneys abilities to fully integrate empathy into their client advocacy has consequences. 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, or even cast in doubt. For one attorney, empathy represents a means of establishing the validity of clients accounts and not merely an expression of pure understanding: Youve got to understand your client in order to represent them properly, but also to ferret out whether theyre telling you the truth or the lies. There are many that tell you lies because they want to win a case. You need to get to know your client well enough to be able to read between those lines and figure it out. Solo practitioner Returning to the statements expressed in the exchange I had with the attorney, we can see that a conditional form of client advocacy also gets expressed through conciliatory relations between volunteer attorneys and opposing parties. To be clear, by all accounts an adversarial mode of legal representation persists within the context of the AOM program; 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. However, 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. 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. These sympathies are expressed at times as straightforward allegiancesuch as one attorneys assertion that the behavior and actions of tenants often transforms respectable landlords into scumlordsbut 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. It is simply the disparity of a tenant who is unable to pay. But the nature of housing and evictions is such that a landlord is forced to go through this process unless a person leaves voluntarily. There is in many respects no penalty for the tenant who wants to be forced out rather than leave voluntarily. So thats what you have then. So theyre not real disputes in that sense. Solo practitioner
In the above attorneys view of law on the booksthat is, the real property actions and proceedings lawdue process rights impose an undue burden on landlords who seek to reclaim possession of private property. Tenants, meanwhile, are not bridled by a comparable burden and are thus free to choose the method of their own dispossession. In characterizing summary eviction proceedings as not real disputes and, rather, as prima facie disparities, the attorney directs his sympathies to landlords position of procedural disadvantage within the law. At the same time, the nature and meaning of tenants substantive disadvantage vis--vis the law is marginalized. Attorneys sympathies extend to different categories of landlords as well. On one hand, attorneys express less sympathy for novice hardliners who want immediate possession, monetary damages awarded in their favor, and the law followed to the letter even though their knowledge of the law is seen as limited. On the other hand, attorneys recognize and respect conciliatory repeat players as willing and reasonable participants in settlement negotiations. Two attorneys concede that landlords have the upper hand in legal proceedings because of their experience with the system and knowledge of the law. However, another attorney, an inhouse counsel, believes that many landlords in this group are often too willing, despite their experience, to help tenants through rough times, and that as a result they often get burned. A familiar category of landlordthe slumlordis recast by many private attorneys as a bit player in the current housing crisis in Buffalo, having been replaced in most instances by an emerging class of marginal landlordsthose whose social locations and economic fortunes more closely approximate those of tenants. In attempting to dispel the myth of the private slumlord, 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, very tough time. And the stereotypical story of wealthy capitalists providing the substandard housing and reaping great financial rewards, thats just so off the mark its almost laughable. So I do see both sides of the coin. I dont see landlords as the villain and impoverished tenants as being saintly. I recognize, and you see visually on a daily basis in this program, that theres a big grey area in between. 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. Characteristics such as continuity, trust, rapport, and personal and professional history are missing from lawyer client dynamics in the bounded AOM program. Several attorneys I interviewed indicate that they commonly deploy the insights they gain while serving in the program back into private fee-based consultations
with clients involved in the landlord and property investment game. For example, they advise their clients of the tremendous risks associated with speculative property ownership in low-income rental markets, and with certain clients they advise against such investments. One attorneys 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. . . . They have gone into high-risk neighborhoods. And you can function in high-risk neighborhoods, but you have to be diligent about your work in those neighborhoods. I mean if somebody steps out of line and they dont pay for one month, or even a couple months, then youve got to move on it quickly because you have every right under the law to evict them. And if theyre establishing a pattern of nonpayment then youve got to act on it quickly. Small-firm practitioner The insights that attorneys take away from their experience representing low-income 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, 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. It appears less common for attorneys to mobilize their insights from a tenant-oriented perspective, 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. Another theme that emerges in the interviews relates to the authenticity of client advocacy. Several attorneys shared with me anxieties they have regarding their role as authentic advocates of client interests in Housing Court. In one account, a small-firm attorney claims he was challenged by a client in the courtroom for misrepresenting the clients interests before the judge. It occurred on the heels of a negotiation with a landlord to buy his client time to vacate the clients residence, in lieu of a warrant to evict. Returning to the client to discuss the proposed settlement offer, the attorney was accused of serving the landlords interests behind the clients back. In the courtroom, when the attorney presented the settlement to the judge, the client and an associate both spoke up. According to the attorney, they loudly protested the settlement offer currently on the table, and in turn were immediately issued a five-day warrant of eviction. The client and his associate then denounced the volunteer attorney for his ambiguous representation of the clients interests. This attorneys experience is echoed by a solo practitioners comment that the lack of relationship with clients can create a condition of unpredictability, especially before the judge.
In a summary statement indicative of the inherent instability or insecurity of client advocacy under conditions of bounded service in the AOM program, a volunteer attorney concludes: Because we dont really have that ongoing professional trusting relationship with the client, sometimes theyll say to me, my guess is in the eyes of our pro bono clients, were viewed as much as an extension of the legal system and the adversaries who are, for example, in the L&T court seeking to evict them, were viewed as much as that system as we are as an individual confidential legal representative of the client. So very often, since we dont have that trust and rapport with our own clients, we dont actually obtain the full story and gain the confidence and as a result clients often tell us things that arent entirely candid. We become an extension of the legal system judging them rather than representing them. Small-firm attorney Professional Efficacy In addition to the turbulent experience of an unstable form of client advocacy, volunteer attorneys confront particular meanings of effective professional representation of the poor that are communicated by their workplace setting. From the vantage point of VLP and its partners in the legal assistance community, the AOM program aims to prevent homelessness, promote family stability, and preserve housing-related entitlements enjoyed by low-income tenants who face the possibility of eviction. 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. It is at this intersection of perceived legal and social impact that volunteer attorneys wrestle with a conception of professional efficacy. Pro bono work for Attorney of the Morning is markedly different than any other pro bono work. . . . You dont walk out of the courthouse whistling, saying, Boy, I feel good about what just happened. You walk out feeling depressed because theres a mess out there and . . . what you just did has absolutely no effect whatsoever. Large-firm attorney I dont see . . . with the broader housing crisis, with communities being raped and pillaged, what were doing, volunteer lawyers, really does not impact that. Institutional administrator In the landlordtenant context, narrow instrumental meanings of professional efficacy are easily drawn around the work attorneys are expected to perform,
including several reasonable outcomes that attorneys typically play a key role in bringing about. These outcomes include (1) in nonpayment cases, 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, and avoiding or minimizing the amount of a money judgment levied against a tenant by the court; (2) in holdover cases, buying time for a client to relocate; and (3) in lieu of a negotiated settlement, dismissal of a landlords action on the basis of procedural error (e.g., defective paperwork or improper service), which essentially amounts to a more adversarial mode of buying time. 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. Nevertheless, attorneys believe that their ability to secure any of these outcomes for low-income clients, thus averting the issuance of a warrant to evict, vindicates the meaning of pro bono contributions in this particular area of housing law. More complex and contradictory understandings of professional efficacy emerge from these experiences as well. First, these understandings continue to be traced back to the social and organizational dimensions of the workplace settingthe bounded nature of pro bono service in the AOM program and the meaning of attorneys client advocacy. For one attorney in a medium-sized firm, 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, obviously through Attorney of the Morning . . . its usually one of the last resorts. Whereas had an attorney been assigned or consulted . . . sooner, 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. Often times the person is looking for help and its almost too late. Medium-sized-firm attorney Absent earlier forms of intervention, prospects for effective client representation often unfold for many attorneys in the AOM program as they do for this attorney: When Im in a voluntary situation, you get what you get, which is often times limited documentation, conflicting stories, all kinds of things. And other than saying, Im not going to be able to help you without this, you have no leverage over the client. Medium-sized-firm attorney A perceived lack of leverage over clients, or more precisely a lack of consistent control over clients, combines with the lack of rapport and mutual trust between lawyers and clients to substantially limit the possibilities for more
broadly substantive and effective representation. In a particularly astute observation that further illustrates these issues, one attorney asserts: I realize there are a lot of properties out there that are not maintained properly. Whether or not theyre not habitable is a thing I couldnt determine from seeing a few pictures or listening to somebody make a few descriptions. Plus, these people are talking in unsworn testimony, so to speak, so whats truth and whats not, I have no way of knowing. But the fact that it does come up so frequently on these eviction proceedings, there must be something to it. Large-firm attorney Therefore, many lawyers often find their experience of professional efficacy at the mercy of unproven, unsophisticated, or unprepared clients as much as at the mercy of a landlord who, as one solo practitioner puts it, has the gun hand. Nearly half of the lawyers I spoke with describe some variation of a win-win outcome as the best-case scenario for resolving these situations5in other words, buying a tenant time from a landlord to relocate in exchange for an orderly eviction that protects the landlords property interests against retaliatory acts of vandalism. This particular win-win outcome becomes a practical embodiment of professional efficacy, though one whose euphemistic qualities proscribe an expectation of broader substantive justice. In a second sense, volunteer attorneys narrower understandings of professional efficacy and pro bono servicedelivery of a benefit to disadvantaged strangers under constrained working conditionsare routinely challenged within the AOM program by the operations of more transcendent institutional forces poverty, private property, capitalism, law. Both of the attorneys insights above point us in this direction. In the large-firm attorneys experiences as a volunteer, 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. By his own admonition, and by others as well, the conditions of the local housing crisis and their effects on real people materialize everyday in the context of the AOM program, yet fail in certain respects to articulate with lawyers pro bono roles or with the critical knowledge they gain while representing indigents. As participants in the program, attorneys are left to consume the stories and images of displacement, disinvestment, 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 evictionthe judge orders a tenant to vacate his or her premises after finding living conditions substandard. This grants a form of backhanded relief to the landlord. A third example widely cited by attorneys whose sense of professional efficacy is informed by the win-win concept occurs in winter months, when landlords face extended vacancy rates and increased operating expenses. They will often allow tenants to stay through the winter so that a unit remains heated at the tenants expense.
morning commute or from the panoramic vistas afforded by their private legal offices: as concrete and tragic phenomena ultimately beyond their effective professional control.
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. 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. The bounded nature of pro bono service in the AOM program continuously unsettles attorneys pro bono roles in two ways: First, the role they pursue for themselves as effective professional client advocates is made inherently unstable by the time-, place-, and task-bound characteristics of their work. These conditions circumscribe meanings of professional service to the extent that they disrupt lawyerclient relations as well as expectations for effective forms of service. Second, the bounded nature of service in the AOM program creates a role expectation for attorneys that precludes more collective, active, and strategic involvement in the ongoing transformation of the broader institutional environment (see White 2000). A more robust pro bono role therefore remains unsettled or undeveloped. Modest, though significant, proposals for change in this direction come from attorneys reflections on their own experiences with their current pro bono roles. 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. For two attorneys, 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. Under existing filing, service, and notice provisions contained within the real property actions and proceedings law, however, the possibility of earlier forms of intervention is severely compromised. Nevertheless, even a narrow window of time, for example, 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. 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 fact, one attorney claims to already incorporate follow-up practices within his commitment to service. In the days and weeks after negotiating stipulated settlements between the parties, the attorney will periodically check in
with tenants and landlords to ensure that both sides are adhering to the agreedupon conditions of the settlement agreement. Interestingly, though, the attorney describes his role in performing this work as nonlegal, thus suggesting his own cognizance of the limits of his pro bono role. His experience contrasts with other attorneys admissions of ignorance regarding follow-through and enforcement of stipulated settlements, or the social impact of an order of eviction on tenants lives and the life of the communities in which they are embedded. Within a context of institutional innovation, volunteer attorneys roles and insights have been less than fully integrated into the moral, tactical, and strategic calculations of the court and, more broadly, of municipal government, other legal services providers, and noninstitutionalized grassroots actors. That is not to say that volunteer attorneys are unaware of their changing institutional environment many in fact are. Rather, attorneys by and large are constrained in their ability to transcend the bounded terms of professionalismroutine, day-in-court, individual client representationthat epitomize service in the AOM program. 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, to include, for example, reform-oriented principles or transactional forms of service that incorporate planning skills and competencies (see Southworth 1996a). However, without changing the bounded model of pro bono service delivery in order to complement this pattern of institutional change, such an expansion is unlikely to occur.
references
Cummings, Scott L. (2004) The Politics of Pro Bono, 52 UCLA Law Review 1149. Eighth Judicial District Pro Bono Committee Initial Report and 2006-07 Action Now Plan (2006). Buffalo, NY. Granfield, Robert (2007) The Meaning of Pro Bono: Institutional Variations in Professional Obligations among Lawyers, 41 Law and Society Review 113146. Harvey, David (1974) Class-Monopoly Rent, Finance Capital and the Urban Revolution, 8 Regional Studies 239255. Katz, Jack (1982) Poor Peoples Lawyers in Transition. New Brunswick, NJ: Rutgers University Press. Lazerson, Mark H. (1982) In the Halls of Justice, the Only Justice Is in the Halls, in R. Abel, ed., The Politics of Informal Justice, vol. 1, The American Experience. New York: Academic Press, Inc. Logan, John R. and Harvey L. Molotch (1987) Urban Fortunes: The Political Economy of Place. Berkeley, CA: University of California Press. Nelson, Robert L. and David M. Trubek (1992) Arenas of Professionalism: The Professional Ideologies of Lawyers in Context, in R. Nelson et al., eds., Lawyers Ideals/Lawyers Practices: Transformation in the American Legal Profession. Ithaca, NY: Cornell University Press. Office of the Administrative Judge of the Civil Court of the City of New York, et al. (2008) Volunteer Lawyer for a Day Project Report.

Pro Bono Committee for the Eighth Judicial District 2005. Sandefur, Rebecca L. (2007) Lawyers Pro Bono Service and American-Style Civil Legal Assistance, 41 Law and Society Review 79112. Seron, Carroll et al. (2001) The Impact of Legal Counsel on Outcomes for Poor Tenants in New York Citys Housing Court: Results of a Randomized Experiment, 35 Law and Society Review 419434. Shapiro, Susan P. (2002) Tangled Loyalties: Conflict of Interest in Legal Practice. Ann Arbor, MI: University of Michigan Press. Southworth, Ann (1996a) Business Planning for the Destitute? Lawyers as Facilitators in Civil Rights and Poverty Practice, 1996 Wisconsin Law Review 11211169. (1996b) Lawyer-Client Decisionmaking in Civil Rights and Poverty Practice: An Empirical Study of Lawyers Norms, 9 Georgetown Journal of Legal Ethics 11011155. Stone, Michael E. (2006) Social Ownership, in R. Bratt et al., eds., A Right to Housing: Foundation for a New Social Agenda. Philadelphia, PA: Temple University Press. White, Lucie E. (2000) Pro Bono or Partnership? Rethinking Lawyers Public Service Obligations for a New Millennium, 50 Journal of Legal Education 134146.
part iv
the future of pro bono
12. rethinking the public in lawyers public service

Strategic Philanthropy and the Bottom Line
deborah l . rhode
Law firms . . . do not support pro bono unless there is a business reason to do so. The bottom line on this question is the bottom line. Chicago lawyer (New Approaches 2005:6)
introduction 1
In principle, the bars commitment to provide unpaid service pro bono publico implies concern for the public good. But in practice, pro bono has never been only about what is good for the public. It has also been about what is good for lawyers: what will enhance their reputation, experience, contacts, and relationships? Such concerns are not, of course, unique to this charitable context. And whether they matter is part of a longstanding debate about the meaning of altruism. Some branches of philosophy and economics deny the possibility of wholly disinterested behavior (Andreoni 1990: 1; Batson 1991:6; Cialdini et al. 1987:756; Loder 2001:467; Lerner 1982; Katz 2000:14). Their assumption is that all reasoned action is motivated by some self-interest: after all, why else would someone act? (Batson 1991:34; Mueller 1979:4; Gauthier 1986:120). On this view, when people attempt to benefit another, it is because they derive personal satisfaction from doing so. And from a societal standpoint, it scarcely matters. To borrow the philosopher Bernard Williamss (1972:66) example, when a man gives money to famine relief, why should we care whether his motive is to enhance his standing with the Rotary Club? So too, 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, reputation, training, and rankings in The American Lawyer? The point is to get their contributions. Yet to view public service solely in terms of professional interests is troubling on both moral and pragmatic grounds. As a matter of principle, 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 1990:4452). Part of what individuals find fulfilling about charitable contributions
1. This essay draws on an article of the same title in the Fordham Law Review (2009).
is a sense that they are expressing moral values and serving broader social objectives (Rhode 2005:5859; Luks & Payne 2001:1618, 4554, 60; Bank of America 2008). A wide array of evidence suggests that selfless action is good for the self; it enhances satisfaction, health, and self-esteem (Rhode 2005:59; Luks & Payne 2001:1718, 118119; Darly 1991:312317). Moreover, as a practical matter, encouraging individuals to engage in public service for intrinsic reasons advances societal objectives. 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; Batson 1991:59; Mansbridge 1990:136137). That is particularly true in contexts such as pro bono legal work, where most clients are not in a position to evaluate or challenge the adequacy of aid. 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 firms hourly quota or improving their legal skills. Some evidence also suggests that lawyers motivated by internalized commitments are the most likely to engage in substantial and sustained service (Rosenhan 1970:263267). Of course, intrinsic and extrinsic motivations are not mutually exclusive; often they are mutually reinforcing. Billable hours credit can ensure that individuals have the time to offer assistance that they are internally motivated to provide. 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. A strategic philanthropic approach also encourages the kind of public service opportunities that most benefit the public. Yet this ethical focus is too often eclipsed by an overly narrow business case for pro bono service. This essay explores the way that lawyers own pragmatic interests can marginalize more socially responsible considerations. It also chronicles the inadequacies in program design, evaluation, and accountability that have compromised the effectiveness of even the best-intentioned public service initiatives. The full potential of pro bono work is more likely to emerge under a framework grounded in strategic philanthropy. In essence, that framework demands clarity in goals and specific measurements of achievement. Its premise is that those who make philanthropic contributions want the maximum social return on their investment (Brest & Harvey 2008:715; Frumkin 2002:89). For lawyers pro bono programs, that will require a more reflective process for establishing priorities and evaluating progress.
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. Both conventional usage and official bar definitions of pro bono service are quite elastic. In the American Bar Associations (ABAs) current Model Rules of
rethinking the public in lawyers public service 253
Professional Conduct, Rule 6.1 asks that lawyers aspire to provide at least 50 hours of pro bono work each year or the financial equivalent. A substantial majority of their contributions should go to persons of limited means or organizations assisting them. Additional assistance should go to activities that improve the law, legal profession, or legal system, or that support civil rights, civil liberties or public rights, or charitable, religious, civic, community, governmental and educational organizations if payment of fees would significantly deplete the organizations economic resources or be otherwise inappropriate. How many lawyers meet even this expansive definition is unclear. Only six states require reporting of pro bono contributions (ABA 2007). Moreover, 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; favors for friends, clients, and family members; and cases where fees turn out to be uncollectible (Rhode 2005:145148). Based on such reports, the best estimates indicate that lawyers average pro bono contribution is less than half a dollar per day and half an hour per week, and that much of this assistance does not go to individuals of limited means or to public interest organizations.2 Rating systems that employ a more rigorous definition of pro bono find still lower contribution rates, even among the most profitable segments of the bar. The American Lawyer uses a standard developed by the Pro Bono Institute, which tracks the ABA Rule but excludes activities designed to improve the law or legal profession, such as bar committee work. Under that standard, only about twofifths of lawyers in the nations 200 most profitable firms have contributed at least 20 hours per year (Press 2008:311). After finding that some of those firms were stretching its definition, The American Lawyer recently clarified its standard to exclude board service, cases that generate fee awards that are not donated to legal aid, 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). Many lawyers, however, 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: 105106, 125126; Bronstad 2008:4). How much effect The American Lawyers tightened definition will have on these practices remains unclear. However, these disputes over definition are emblematic of more fundamental differences over the rationale for charitable contributions.
2. ABA Survey results finding that two-thirds of lawyers report doing some pro bono work are not inconsistent with this estimate, given that the average hourly contribution of lawyers who offered pro bono assistance needs to be adjusted for the numbers who did not, and for those whose contributions involved activities such as bar association services (ABA Standing Commission on Pro Bono and Public Service 2005).
pro bono for whom? the professions 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. Attorneys public service reflects the same mix of motives that underpins other charitable contributions. People contribute out of a sense of empathy and obligation, and out of a desire for rewards and recognition (Frumkin 2006:256257; Cary & Snyder 1991; Rhode 2005:7; Eisenberg 1986:3056; Olson 1965:60; Oliner & Oliner 1988:113, 165167, 173175, 228; Hoffman 1989:6585; Menkel-Meadow 1998:31). Giving makes givers feel good about themselves, and it also translates into tangible personal and professional benefits. Lawyers are no exception. When asked about their motivation for pro bono work, they most often cite personal satisfaction, and then a sense of professional obligation, followed by employer policies and encouragement and career benefits.3 For many attorneys, such public service offers their most rewarding experiences; it is a way to feel that they are making a difference, and to express the values that sent them to law school in the first instance (Rhode 2005:131132). Work for racial, ethnic, or other disadvantaged groups can also be an important form of giving back and affirming identity (Wilkins 2004:1; Granfield 2007:137; Granfield & Koenig 2003:495). For attorneys phasing into retirement, volunteer service is a way to continue making productive use of their skills on a less demanding schedule (Alfisi 2006:30; Galanter 1999:1081). Other lawyers cite practical payoffs: public service can bring recognition, contacts, trial experience, direct client relationships, and expertise in a field in which they would like to obtain paid work (Rhode 2005:131132; Granfield 2007:139; Lash 2008:8). A sense of obligation may also grow out of the professions longstanding tradition of pro bono representation, intermittently enforced by the courts and repeatedly affirmed in bar ethical codes (Ex Parte Sparks 1979). Judges and commentators have often maintained that some reasonable amount of assistance is an appropriate condition of the privilege to practice (Rhode 2005:3; Millemann 1990:18). As bar leaders have also recognized, the profession has a strong selfinterest in seeing that its members voluntarily assume such obligations. In a society in which over four-fifths of the legal needs of the poor and two- to threefifths of the needs of moderate-income individuals remain unmet, bar pro bono assistance can help relieve pressure for more systemic reforms that would reduce the need for attorneys (Rhode 2004b:3). Empirical research suggests that lawyers have provided more unpaid representation in states where they have experienced
3. On a scale of 1 to 5, with 5 being most important, the motivations were: personal satisfaction (4.2); a sense of professional obligation (3.7); employer policies and encouragement (2.7); professional benefits such as contacts, training, and referrals (2.7); reputation and recognition (2.5); and trial experience (2.5). Rhode (2005:13).
greater threats from other occupations (Sandefur 2007:79). Pro bono assistance also serves the bars reputational interests. In one representative survey that asked what could improve the image of lawyers, the response most often chosen was provision of free legal services to the needy; two-thirds of Americans indicated that it would favorably influence their opinion (Peter D. Hart Research Associates 1993:18). Legal employers, for their part, have comparable interests in supporting pro bono work, which vary somewhat across practice settings. Particularly for junior attorneys in large firms, nonpaying cases can offer training, litigation experience, client contact, intellectual challenge, and responsibility far beyond what is available in their other work (Granfield 2007:138; Cummings 2004:1; Rhode 2005:30). As corporate clients become increasingly unwilling to subsidize training of young associates, and firms become too highly leveraged to provide career development opportunities to all who need them, pro bono representation fills an important gap. Firm leaders consistently cite these professional benefits, along with recruitment and retention, as primary justifications for their public service initiatives (New Approaches 2005:10; Harris 2008). As one lawyer put it, pro bono work is an enormous morale booster for the entire firm. Everyone feels that they touched a life. . . . No office picnics or parties can give you that (Rhode 2005:30). Such work can also enhance the firms reputation and visibility in the community. The benefits are particularly great for the largest firms. They have the resources to attract and underwrite high-profile cases, 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. A firms pro bono rating also accounts for a third of its score in the competition for membership on The American Lawyers coveted A-List of the nations top 20 firms. A low score also risks relegating the firm to the magazines occasional profiles of cellar dwellers. Interviews with senior managers leave no doubt that many firms have responded to these rankings by substantially improving their pro bono programs (Harris 2008:2930; The American Lawyer 2007:88; Hallman 2007:92, 95).
limitations of current programs

These bottom-line concerns have led many bar leaders to stress the business case for pro bono initiatives. As one veteran repeatedly emphasized to American Bar Foundation researchers, often pounding the table: self-interest, self-interest, self-interest (New Approaches 2005:6). The risk, however, is that the public interest may become an unintended casualty. Problems arise in several forms: the quality of service, the need for recognition, and the criteria for selection. One chronic difficulty stems from the inadequacy of oversight and accountability. Law firms and media ranking systems compile information on the quantity,
not quality, of pro bono work, and clients often lack the knowledge or leverage to raise concerns. 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, All right, so you got 50 years to life, but my work was pro bono, so think of all you saved at that end. Particularly where pro bono cases are seen as training opportunities for junior lawyers, and supervisors have little incentive to monitor performance, the result may be ineffective or inefficient service. As one pro bono coordinator of a New York law firm noted, inexperienced legal teams may research ad nauseam useless issues, or push those issues at the expense of better arguments because they lack proper mentoring and guidance. Many firms that on paper have a partner in charge on the case do not believe the partner is doing anything (Harris 2008:24, 26; Wilkins 2004:78). And ironically enough, when supervisors actively manage the case and prevent time-consuming pointless effort, we are making our statistics in The American Lawyer look worse even though we are doing [the work] more efficiently (Harris 2008:24). In my own recent survey of leading public interest legal organizations, almost half reported extensive or moderate problems with quality in the pro bono work they obtained from outside firms (Rhode 2008:2070). The more specialized the work, the more difficulties arise in finding or equipping volunteer lawyers with the relevant skill sets. As the leader of one death penalty organization noted, in his field getting people to the point of real competence takes years, not weeks (Rhode 2008:2072, quoting Brian Stevenson). Although some organizations are willing to provide outside counsel with the necessary background in substantive law, they generally lack staff to train a junior associate in how to take a deposition (Rhode 2008:2072, quoting Mitchell Kamin; Rhode 2008:2072, quoting Janet Stotland, 2008). A related problem involves lawyers who want to do pro bono work in theory but in practice, dont want to make the commitment (Rhode 2008:2072, quoting Richard Rothschild). Although many firms go to considerable lengths to ensure that public service clients are not treated as second-class citizens, others let bottomline considerations prevail. These employers look for training and opportunities for bored associates, but dont want to give them the time . . . when other paid work comes up (Rhode 2008:2072, quoting Richard Rothschild). In some cases, the difficulty lies with associates who are disenchanted with their pro bono options, often because the programs do not provide sufficient choice or credit. Here again, The American Lawyer rankings may have perverse results if firms pressure attorneys to participate without providing a range of satisfying opportunities. Almost half the lawyers in my pro bono study expressed dissatisfaction with the kind of work their firms permitted (Rhode 2005:148). Favors for clients, other lawyers, and their relatives, or for partners pet organizations, struck many associates as not truly pro bono (Rhode 2005:148). Many surveys find that attorneys are foreclosed from taking on matters that would
offend the political sensibilities of firm leadership or major clients, or are drafted for matters that hold no interest (Rhode 2005:148; Rhode 2008; Wilkins 2004:77; Spaulding 1998:1395). 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. These projects drive her crazy, since she cannot bill for them, they take lots of time . . . and she then doesnt 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. Some of those assigned to assist low-income clients have lacked the interest or cultural competence for such work; the result ill serves all concerned (Secret 2008:4; Vongsawad 2007). Even firms that make some effort to assess participants satisfaction do not necessarily act on what they find. At one Los Angeles firm, only one-third of summer associates reported that their day of required service at a local legal services organization had been worthwhile, but the attorneys in charge had no plans to scrap the program. The firm paid the organization a substantial sum to provide pro bono work, and appeared unwilling to invest the resources necessary to design a more productive approach (Secret 2008:45). All too often, the discontent of junior lawyers or summer recruits may fail to register because they are reluctant to raise concerns if no one asks. 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). Other performance problems arise when relatively inexperienced pro bono attorneys want to call the shots, hog the credit, or make the arguments in important cases. About one-fifth of surveyed public interest organizations experienced extensive or moderate difficulties around these issues. Some firms took the position that if its our money, we should have control over spending it (Rhode 2008:2071, quoting John Bouman). Allowing pro bono counsel to exercise that degree of authority has generally been unacceptable to public interest organizations, which have long-term policy objectives to consider (Rhode 2008:2071, quoting Anthony Romero and Carl Pope). Although many public interest organizations are willing to let cooperating attorneys argue cases and monopolize the associated publicity, that result may not well serve the client or the cause. Often the organization has more experienced counsel and is in greater need of recognition than are financially well-off firms. Public visibility provides the psychic income and credibility with donors that are the lifeblood of many underfunded public interest groups (Rhode 2008:2068; Cummings 2004). But those concerns may fall by the wayside when firms view pro bono in terms of self-interest rather than societal responsibility. 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. As a partner at OMelveny & Myers noted, the worst thing in the world is to give them a bad experiencethat
means . . . no difficult clients, [and only] cases that are likely to be winnable or to achieve some sort of feel-good result. (Lash 2008:4, quoting David Lash). Crowell & Moring wants a compelling story a worthwhile client or cause, or clear villain (such as one of the citys worst slumlords) (Lash 2008:78, quoting Susie Hoffman). For Manatt, Phelps & Phillips, save the sob stories/sell the skills. Emphasizing sorrow and disaster is far less effective than showing how a case will benefit the volunteer through opportunities for court appearances, development of negotiating skills, or collaboration with an expert mentor. Perfect for the busy partner is a must-use phrase for certain projects. (Lash 2008:9, quoting Cristin Zeisler). Such criteria make sense in selling cases, but they often screen out those who need help most. Unless the firm also provides some general financial support to the referring organization to handle less marketable matters, a cherry-picking strategy may ill serve broader societal interests. A related problem involves the lack of strategic focus in formulating selection standards. Despite all the discussion about the business case for pro bono, most firms are strikingly unbusinesslike in the way that they structure their programs. The result is missed opportunities for both the profession and the public. 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, designing cost-effective strategies to address them, and developing criteria to measure their achievement (Frumkin 2006:57). By this standard, most lawyers pro bono work falls short. Relatively few firms engage in any systematic assessment of community needs or of the most cost-effective use of resources. 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. When asked about how effectiveness is measured, one Wall Street partner expressed a common view with uncommon candor: we are not able to answer this question as it is posed . . . we cannot opine as to which of our pro bono programs effectively contribute to the community (Harris 2008:2425, quoting Paul Saunders). The result is often a mismatch between public needs, partner priorities, and associate satisfaction. In Maryland, the only state that reports on the distribution of pro bono work compared with the demand for legal assistance, indigent clients greatest needs involve family matters, but those cases rank seventh or eighth in lawyers pro bono contributions (Dipasquale 2007). One obvious reason for the lack of attention to program effectiveness is the lack of accountability for the consequences. As in other philanthropic contexts where the need for help vastly exceeds the supply, those who contribute assistance often face inadequate pressure to worry about recipients satisfaction or social impact (Frumkin 2006:371). This is not to suggest that quality concerns are entirely missing. The most well-established public interest organizations, which generally control access to the most interesting high-visibility cases, can afford to be selective in their choice of outside counsel. Many receive more requests for pro bono work than they can accommodate, so they choose firms
that have demonstrated a commitment to effective representation (Harris 2008). Moreover, most lawyers have internalized an ethic of client service and care about their reputation among colleagues and the local community. But even the best intentioned attorneys may operate with unduly flattering self-evaluations when more disinterested forms of oversight are absent.
a strategic approach to pro bono service

Paul Brest, former law professor and now president of the Hewlett Foundation, likes to remind nonprofit organizations that if you dont know where you are going, any road will take you there (Brest & Harvey 2008:33). Pro bono decision making often lacks that sense of direction. Many lawyers have not thought deeply about their objectives or have no principled way of resolving conflicts among them. 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). Something usually does, but the result is not necessarily the most cost-effective use of resources. When the amounts of assistance are small, such an ad hoc approach is not particularly problematic. Lawyers making individual decisions about their own contributions can afford to do so based on the same personal considerations that guide other charitable contributions. But decision makers with control over significant investments would benefit from a more strategic approach. For organizations, 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, those who make substantial pro bono contributions need to become more strategic in setting goals and monitoring progress in achieving them. Identifying Priorities and Projects Pro bono activities serve multiple goals that often tug in different directions. Yet many lawyers are reluctant to acknowledge or address the tensions. From a prudential standpoint, that reluctance is understandable. One way of avoiding controversy is to offer something for everyone. Many law firms present their programs as enhancing recruitment and training, while also meeting professional responsibilities and advancing the public interest (Harris 2008). The risk, however, is that by failing to be explicit about sometimes competing objectives, a program that seeks to serve them all equally will serve none most effectively.
A more strategic approach requires establishing priorities and developing opportunities that reflect them. If the objective is to maximize recruitment and training, employers should ensure a broad range of well-supervised options offering marketable skills and full billable hour credit for participation (New Approaches 2005). If the primary goal is to enhance reputation and rankings, the program could require minimum contributions from all attorneys, and encourage more substantial involvement in high-visibility projects through recognition in marketing, promotion, and compensation decisions. To develop such projects, employers should develop expertise in some specialized area, or build longterm collaborations with well-established public interest organizations. Both approaches require sustained quality control and financial support (Rhode 2005; Rhode 2008; Jones 2007:B1). If the goal is to maximize social impact, programs should target compelling unmet needs that participants have special interest and capacity in addressing. So, for example, one Philadelphia firm surveyed its members and local service providers and decided to assist veterans and the elderly; a Los Angeles firm focused on abused and neglected children; and a Silicon Valley firm offered its start-up expertise to local nonprofit organizations (Aneiro 2006; Harris 2008). Such approaches are often cost-effective because the investment in training and contacts pays off in multiple cases. These goals need not be mutually exclusive. Well-designed programs can offer a range of opportunities that reflect different preferences, talents, and levels of commitment. Clarity about program priorities can, however, help in channeling efforts and determining how much autonomy to give lawyers in selecting projects. Well-publicized tensions have surfaced when pro bono attorneys have represented controversial positions in areas such as affirmative action, abortion, and gay and lesbian rights (Chen 2007:15, 16). If a firms primary objective is to maximize attorney satisfaction, then it makes sense to respect the diverse commitments of its members and provide credit and resources for whatever causes they choose. But if an important goal is to maximize reputation and recruitment, then some attention to the political fallout is prudent. When a central function of pro bono programs is to express organizational values, then employers need a case selection process that reflects broadly held views and is generally accepted as legitimate. Lawyers with different commitments can, of course, advance them on their own time, but they need not receive billing credit and institutional resources. For organizations with this philosophy, it is not enough to assert, as did one firm leader, that Id like to think [our choice of cases] reflects values (Chen 2007:16). Organizations need a formal process for identifying those values, and holding pro bono decision-makers accountable for the results. 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, organizations need to demonstrate a commitment to public service that is affirmed by their
leadership and institutionalized in their policies. For lawyers in my survey, the reforms most likely to encourage unpaid work included crediting it toward billable hour requirements, and valuing it in promotion and compensation decisions (Rhode 2005:150; Aneiro 2006). Particularly in organizations that lack a strong tradition of service, leaders need to demonstrate their support in tangible ways; this includes creating an effective administrative structure to identify and oversee appropriate projects. In one firm, pro bono participation rose 100 percent after the managing partner took every opportunity to stress its importance (Harris 2008, quoting Scott Edelman). In other firms, appointment of a fulltime coordinator and personal involvement by leaders has been critical. Their participation makes it possible to pressure nonparticipants. Program administrators can note that the firms chair is doing this, what is your excuse? Hes the busiest guy in the firm (Hallman 2007:93, 94). What does not work, however, is window dressing, or pressure without adequate placement and oversight structures. Offering trivial rewards, like a dinner for lawyers who contribute at least ten hours, or iPods for those who meet a mandatory 20-hour minimum, may send a message other than what is intended (Aneiro 2006:100, 103).4 The same is true of programs that fail to ensure sufficient choices, training, supervision, and backup resources. An analogous point applies to bar association initiatives. Databases, legal needs surveys, continuing legal education credit, and awards for exceptional service can all help to increase the amount and quality of pro bono participation. The ABA Standards for Programs Providing Civil Legal Services to Persons of Limited Means (Standard 2.12) identify strategies for assessing effectiveness, which include collecting evaluations from participants, clients, referring organizations, and peer review teams (Morrissey 2008:84). Requiring lawyers to report their contributions can also generate more hours and financial assistance.5 But initiatives that look like public relations gestures push in precisely the wrong direction. Some efforts in the ABAs recent campaign to promote a Renaissance of Idealism fall into this category: billboards advertising good works, exhortatory advisory resolutions, model powerpoints, and I am an idealist buttons (Commission on Renaissance of Idealism in the Legal Profession 2006). Translating the bars civic obligations into daily practices will require less aspirational rhetoric, and more resources and reforms. Enlisting students, clients, and the legal media in efforts to pressure legal employers also makes sense. For example, a student-led group, Building a Better Legal Profession, ranks major firms on measures including pro bono commitments
4. Aneiro, describing Sullivan and Cromwell dinner and Milbank Tweed iPod (2006, 100). 5. Since Florida has required reporting of pro bono work, the number of lawyers providing assistance to the poor has increased by 35 percent; the number of hours has increased by 160 percent and financial contributions have increased by 243 percent (Pro Bono Legal Service 2006).
(Liptak 2007:A10). If a significant number of students act on that information, many employers will respond accordingly. On similar reasoning, some government and corporate counsels offices in the United States and abroad have begun considering pro bono records in allocating legal work (Rhode 2005:167169; Wilkins 2004). If more clients joined a coordinated campaign, involving a broad spectrum of the legal market, the result might be a significant change in law firm priorities. And if more legal publications published pro bono rankings of more legal employers, the heightened visibility might help to improve performance.
evaluating effectiveness
A final group of strategies should focus on evaluation. Employers need to know not simply who contributes and how much, but also how satisfied participants, clients, and collaborating legal service organizations are with their contributions. More effort should also address social impact. It is of course true, as Albert Einstein reportedly observed, that [n]ot everything that can be counted, counts, and not everything that counts can be counted (Brest & Harvey 2008:15). In many philanthropic contexts, the social return on investment is hard to quantify and compare (Teles 2008; Frumkin 2006; Brest 2006:229, 237; Sievers 2006:249, 253; Gertner 2008:74). It is generally impossible to do a random, controlled experiment to demonstrate the causal influence of any single strategy (Brest & Harvey 2008: 141164). For example, a firm that wants to focus on domestic violence has multiple options. It could assist survivors in filing temporary restraining orders and obtaining appropriate support services, partner with a public interest organization to improve public policies, or help to develop violence prevention and offender treatment programs. We lack effective tools for calculating the social returns on these strategies. Providing individual services carries the lowest risks of failure, but also the least potential for promoting long-term societal interests. In some contexts, we also lack consensus on what those interests are. Federal judge Dennis Jacobs made precisely that point in a widely publicized speech before the Federalist Society: No public good is good for everybody, he noted. [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, social and political . . . [and] for training and experience (Jacobs 2008:2, 1). As illustrations, 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, and another in which environmental lawyers delayed levees that might have averted some of the flooding damage from Hurricane Katrina. According to Jacobs, only some pro bono matters really deserve that label. Among those that meet his definition are corporate work for nonprofit schools and hospitals, and the representation of pro se litigants whose claims have likely merit. But presumably not everything that those schools and hospitals want to do is good
for everyone, and what constitutes merit often depends on precisely the social and political judgments that Jacobs condemned lawyers for making (Jacobs 2008:10). Critics such as Jacobs are surely right on one point. Evaluating public interest work entails subjective decisions about what constitutes the public interest. But that is no reason to avoid the effort, and there are better and worse ways of making such evaluations. As research on philanthropy demonstrates, donors who want to make a difference cannot afford to conflate good intentions with good results (Brest 2006:247). Yet lawyers have a tendency to do just that. They often assume that anything given pro bono is pro bono; representation is taken as a good in and of itself, regardless of cost-effectiveness. 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). For example, 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, 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. As Steven Teless study (2008) of the conservative public interest movement notes, 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 todays increasingly competitive legal market, it comes as no surprise that pro bono is increasingly presented as a bottom-line issue. Convincing lawyers that they will do well by doing good is a key strategy in sustaining charitable commitments. But to present public service purely in those terms is to compromise altruistic impulses and societal objectives. When attorneys talk about pro bono, they generally speak in shorthand. Publico has dropped out of the discourse. We can afford to lose the Latin, but not the concept.
references
Alfisi, Kathryn (2006) The Senior Law Public Interest Project, Washington Lawyer December 2006, 3034. American Bar Association (2007) State-by-State Pro Bono Rules.

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Gertner, Jon (2008) For Good Measure, New York Times Magazine March 9, 2008, 6266, 74. Granfield, Robert (2007) The Meaning of Pro Bono: Institutional Variations in Professional Obligations among Lawyers, 41 Law and Society Review 137145. Granfield, Robert and Thomas Koenig (2003) Its Hard to be a Lawyer and a Human Being: The Confrontation with Ethical Ambiguity among Young Lawyers, 105 West Virginia Law Review 495524. Hallman, Ben (2007) Starting at the Top, The American Lawyer July 2007, 9295. Harris, Brent (2008) Fulfilling the Promise of Law Firm Pro Bono, unpublished manuscript, Stanford Law School. Harris, S. (2007) cartoon, National Law Journal October 22, 23. Hoffman, Martin L. (1989) Empathy and Prosocial Activism, in N. Eisenberg et al., eds., Social and Moral Values: Individual and Societal Perspectives. Jacobs, Dennis (2008) Pro Bono for Fun and Profit, speech before the Rochester Federalist Society, Rochester, NY, October 6. Jones, Ashby (2007) Law Firms Willing to Pay to Work for Nothing, Wall St. Journal June 19, 2007, B1-B4. Katz, Robert (2000) Can Principal-Agent Models Help Explain Charitable Gifts and Organizations?, 2000 Wisconsin Law Review 114. Kolker, Carlyn (2006) The Good Fight, The American Lawyer July 2006, 105106, 125126. Lash, Karen A. (2008) Equal Justice Works, Leadership Development Training, Pitching Your Pro Bono Projects: Getting to Yes With the Big Firms. Washington, DC: Equal Justice Works. Lerner, Melvin J. (1982) The Justice Motive in Human Relations and the Economic Model of Man: A Radical Analysis of Facts and Fictions, in V. Derlega and J. Grezlack, eds., Cooperation and Helping Behavior. Burlington, MA: Academic Press/Elsevier. Liptak, Adam (2007) In Students Eyes, Look-Alike Lawyers Dont Make the Grade, New York Times October 29, 2007, A10. Loder, Reed E. (2001) Mandatory Pro Bono and Moral Development, 14 Georgetown Journal of Legal Ethics 459508. Luks, Allan and Peggy Payne (2001) The Healing Power of Doing Good. Bloomington, IN: Indiana University Press. Mansbridge, Jane (1990) Altruism and Self-Interest, in J. Mansbridge, ed., Beyond Self-Interest. Chicago: University of Chicago Press. Menkel-Meadow, Carrie (1998) The Causes of Cause Lawyering: Toward an Understanding of the Motivation and Commitment of Cause Lawyers, in A. Sarat and S. Scheingold, eds., Cause Lawyering: Political Commitments and Professional Responsibilities. New York: Oxford University Press. Millemann, Michael (1990) Mandatory Pro Bono in Civil Cases: A Partial Answer to the Right Question, 49 Maryland Law Review 1877. Morrissey, Siobhan (2008) Helping the Helpers, ABA Journal January 2008, 84. Mueller, Dennis C. (1979) Public Choice. London: Cambridge University Press. New Approaches to Access to Legal Services: Research, Practice, and Policy (2005) 16 Researching Law 112. Oliner, Samuel and Pearl Oliner (1988) The Altruistic Personality: Rescuers of Jews in Nazi Europe. New York: Free Press/Macmillan.

Olson, Mancur (1965), The Logic of Collective Action. Cambridge, MA: Harvard University Press. Peter D. Hart Research Associates (1993) A Survey of Attitudes Nationwide Toward Lawyers and the Legal System. Press, Aric (2007) Drawing the Line, The American Lawyer July 2007, 119. (2008) In House, The American Lawyer 3. Pro Bono Legal Service (2006) Report to the Supreme Court of Florida, The Florida Bar, and the Florida Bar Foundation on the Voluntary Pro Bono Attorney Plan. Rhode, Deborah L. (2004) Access to Justice. New York: Oxford University Press. (2005) Pro Bono in Principle and in Practice: Public Service and the Profession. Stanford, CA: Stanford University Press. (2008) Public Interest Law: The Movement at Midlife, 60 Stanford Law Review 20272084. Rhode, Deborah L. (2009) Rethinking the Public In Lawyers Public Service; Pro Bono, Strategic Philanthropy, and the Bottom Line, 77 Fordham Law Review 1435. Rosenhan, David (1970) The Natural Socialization of Altruistic Autonomy, in J. Macaulay and L. Berkowitz, eds., Altruism and Helping Behavior. Burlington, MA: Academic Press/Exsevier. Sandefur, Rebecca L. (2007) Lawyers Pro Bono Service and American-Style Civil Legal Assistance, 41 Law and Society Review 79111. Secret, Alana N. (2008) Law Firm Pro Bono Programs for Summer Associates: More Harm than Good? unpublished paper, Stanford Law School. Sievers, Bruce (2006) Ethics and Philanthropy, in Moral Leadership: The Theory and Practice of Power, Judgment, and Policy. San Francisco: Jossey Bass. 249263. Spaulding, Norman W. (1998) The Prophet and the Bureaucrat: Positional Conflicts in Service Pro Bono Publico, 50 Stanford Law Review 13951434. Teles, Steve. (2008) The Rise of the Conservative Legal Movement: The Battle for the Control of the Legal Movement. Princeton, NJ: Princeton University Press. Vongsawad, Brandon (2007) email correspondence on file with the author, November 13. Wilkins, David (2004) Doing Well By Doing Good? The Role of Public Service in the Careers of Black Corporate Lawyers, 41 Houston Law Review 191. Williams, Bernard (1972) Morality: An Introduction to Ethics. New York: Harper & Row.
cases cited
Ex Parte Sparks, 368 So.2d 528 (Ala. 1979), appeal dismissed, 444 U.S. 803 (1979). Family Division Trial Lawyers v. Moultrie, 725 F.2d 695 (DC Cir. 1985). Mallard v. United States District Court for the Southern District of New York, 490 U.S. 296 (1989).
13. 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, but this contribution is of a different type. It is based on my particular experience. For five years, from 2002 to 2007, I served as the Director of Pro Bono Affairs for the New York State Bar Association (State Bar). With 74,000 members, this is the nations largest voluntary state bar association. In my pro bono role, I worked on many access to justice initiatives with organizations and lawyers throughout the state, from large firms in Manhattan to small practices in upstate rural counties. During my tenure, the State Bar transformed its definition of pro bono to expand the kinds of service recognized. After that experience, I returned to a private practice devoted to appeals. I have done pro bono as set forth in the State Bars expanded definition, 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 philosophical and practical aspects of pro bono that I observed and experienced are the subject of this chapter.
the shifting definition of pro bono in new york state

In the 1980s, 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 results indicated that 86 percent of the civil legal needs of the poor were not being met, with such unmet legal needs falling into a variety of categories, including consumer, housing, family and domestic, employment, health, and public benefits issues (New York State Bar Association 1990). At the same time, Hon. Sol Wachtler, then chief judge of the New York Court of Appeals, appointed the Committee to Improve the Availability of Legal Services. This group was charged with the mission of devising a plan to increase pro bono participation. In 1989, the committee issued a preliminary report, and in 1990, a final report, both of which advocated a mandatory 20-hour pro bono service requirement and espoused a definition of pro bono. That definition encompassed legal services to poor persons in civil matters or in criminal matters where government-funded
counsel was not provided, activities to simplify the legal process or to improve or increase legal services to the poor, and legal services to nonprofit organizations primarily dedicated to addressing the needs of the poor (Committee to Improve the Availability of Legal Services 1990). The Chief Judge rejected the proposed mandatory requirement and called for the bar to increase pro bono service voluntarily (Wachtler 1991). As the Chief Judge explained in public statements at the time, voluntary service was more efficient than compulsory service, which called upon attorneys to practice in fields outside their expertise; clients were better served by lawyers who were willingly on their side; it was desirable to avoid a potentially divisive and time-consuming fight with the professional bar, which would likely resist mandatory service; and increased public funding of legal services programs was a better solution than mandatory pro bono (Sack 1990). When the preliminary report discussing the possibility of mandatory pro bono was issued, the State Bar created a Special Committee to Review the Proposed Plan for Mandatory Pro Bono. That committee issued a report that opposed mandatory pro bono, on the ground that adequate funding for access to justice is a societal burden that must be borne by the government; but the committee recognized that a significant role could be played by volunteer attorneys (New York State Bar Association 1989). The report was adopted by the State Bars policy-making body, its House of Delegates. In 1990, the State Bar also created a Department of Pro Bono Affairs and a Presidents Committee on Access to Justice. Finally, 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. That policy set forth an aspirational goal of 20 hours of pro bono service a year, and also encouraged attorneys to contribute to organizations serving the needs of poor persons. In 1997, the Administrative Board of the Courts adopted an almost identical policy. The Administrative Board comprised of the Chief Administrative Judge of the Courts for the State of New York, and the Presiding Justices of the four Appellate Divisions, the States midlevel appellate courtsis consulted by the Chief Judge regarding the establishment of statewide standards and administrative policies. The State Bars leadership role was apparently reflective of the national norm. Whereas the organized bar had historically offered only meager support for pro bono practice, by the end of the millennium, bar associations had become pro bonos most stalwart supporters, and pro bono figured prominently in the activities of the professional bar (Boutcher in this volume). In 2002, to gauge the level of pro bono participation, the New York State Unified Court System (Court System) conducted an anonymous, voluntary, random survey of 10 percent of the bar, or 11,762 out of 117,620 New York attorneys (New York State Unified Court System 2004, vol. 1). Forty-six percent of New York attorneys did qualifying pro bono. By qualifying pro bono, the report meant pro bono pursuant to the definitions adopted by the State Bar and the Administrative Board of the Courtsthat is, free legal services in civil matters or
bar politics and pro bono definitions 269
in criminal matters where there was no government obligation to pay for representation, to individuals who could not afford a lawyer; activities to simplify the legal process or to improve or increase legal services to poor persons; or legal services to nonprofits seeking to address the legal needs of the poor. Among attorneys who did pro bono, the average number of hours of service provided was 41. Thirty percent of lawyers said they performed other kinds of public service not considered qualifying pro bono, such as providing free legal services to nonprofits that served the public in some way, but did not address the legal needs of the poor. Immediately after the issuance of the report, 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. 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. Such complaints were expressed despite the fact that the qualifying pro bono label imposed was actually consistent with the State Bars own definition. In such discussions among lawyers and State Bar leaders, it was clear that one factor driving the debate was the surge in pro bono activities seen in the immediate aftermath of September 11, 2001. At that time, the legal communitys response was fast, comprehensive, and creative, as individual lawyers poured forth in unprecedented numbers to provide legal assistance to more than 4,000 individuals and families who were affected by the disaster (Association of the Bar of the City of New York Bar Fund 2004). 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; dealing with the loss of a home, a business, or a job; and immigration and deportation problems (2004). Because of the nature and scope of the disaster, in many cases free representation was rendered to individuals who would not have traditionally qualified for such services based on income. The response from lawyers who contacted the State Bar in some cases also reflected a dont tread on me attitude toward the Court System, which they felt was criticizing them for not doing enough pro bono. There was a fundamental sense that lawyers should do pro bono, that they were rendering generous service, and that they should be applauded for their voluntary efforts. The sentiment resonated with many of the 275 members of the House of Delegates. 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. Further, the House emphasized that pro bono must remain voluntary (New York State Bar Association 2004). Shortly thereafter, the President of the State Bar appointed an ad hoc group to create a new definition of pro bono; I served on this group (Adcock 2005).
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. Fortunately, that concept was rejected as regressive, 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. Also discussed was the idea that coaching Little League or doing church volunteer work should count, 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. In other words, lawyers, like any other citizens, can be good community servants in nonlegal ways, but that has nothing to do with the traditional concept of pro bono publico embraced by our profession. After a few informal sessions, the ad hoc group produced a draft proposal that retained the 20-hour aspirational goal, but expanded the types of service that qualified as pro bono. The draft was sent out for comment in November 2004 to all two dozen State Bar sections, numerous committees, and local bar associations. The response was swift and largely negative. Of more than a dozen responses ultimately received, by far the most detailed statement came from the State Bars Commercial and Federal Litigation Section. 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, and that would in turn dilute the highest ideals of the profession (Adcock 2005). The underlying sentiment was that the State Bar Association was moving in the fences to make it easier to hit a home run. The Commercial and Federal Litigation Section members also objected strenuously to what they perceived as a buy-out provision, allowing lawyers to donate money instead of service to serve the poor, and they noted that the American Bar Association called for more than twice the New York State aspirational goal. As is perhaps often the case when a major bar association seeks to adopt new standards of professionalism, the process of redefining pro bono involved considering the opinions of many constituencies within a profession that has become highly differentiated, in order to lend legitimacy to the end result (Schneyer 1992). After a lengthy and heated debate, 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, and lawyers were supposed to not only do pro bono, but also donate money to programs serving the poor. The essence of the original draft remained largely the same. Exactly one year after the State Bar voted to expand the definition of pro bono, the House of Delegates adopted the new definition on April 2, 2005. At the House debates, 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
service, thus echoing Chief Judge Wachtlers sentiment expressed in 1990 (Caher 2005). Such concerns were stated despite repeated assurances by the Court System that pro bono would remain voluntary. Apparently, the notion was that if pro bono was not mandatory and a broad definition applied, rendering the required service would not prove onerous, regardless of what an attorneys interest or expertise might be. This was an ironic turn of events, in two ways. First, it was the specter of mandatory pro bono that had spurred the initial definition of pro bono. Second, 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, not concerns about the imposition of mandatory pro bono obligations. The expanded definition the State Bar adopted was contained in EC 2-34 of the New York Lawyers Code of Professional Responsibility, 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 (2) not for profit, governmental or public service organizations, where legal services are designed primarily to address the legal and other basic needs of persons of limited financial means, or (3) organizations specifically designed to increase the availability of legal services to persons of limited financial means. Each lawyer also should provide financial support for such organizations to assist in providing legal services to persons of limited financial means. In addition to meeting the aspirational goals set forth above, a lawyer also should render public interest and pro bono legal service: 1. where the payment of standard legal fees would significantly deplete the recipients economic resources or would be otherwise inappropriate, by providing legal services at no fee or substantially reduced fees to individuals, organizations seeking to secure or protect civil rights, civil liberties or public rights, or to not for profit, government or public service organizations in matters in furtherance of their organizational purposes; or 2. by providing legal services at a substantially reduced fee to persons of limited financial means; or 3. by participating without compensation in activities for improving the law, the legal system or the profession; or 4. by providing legal services without compensation at a substantially reduced compensation in aid or support of the judicial system (including services as an arbitrator, mediator or neutral in court-annexed alternative dispute resolution). In addition to setting forth a definition of pro bono as an Ethical Consideration, the State Bar developed a new Rule 6.1 as part of its proposed Rules of Professional Conduct. The proposed Rule 6.1 paralleled EC 2-34, except that the numbering was
changed; an opening sentence stated that a lawyer has a professional obligation to render public interest and pro bono legal service; and a final sentence noted that the professional obligation is not intended to be enforced through the disciplinary process. Further, the proposed rules used the familiar restatement format of the American Bar Association (ABA) Model Rules, with the black-letter rule followed by extensive commentary. Among other things proposed, Rule 6.1 commentary explained that persons of limited means were those who qualify for services under Legal Services Corporation guidelines, as well as those who had slightly more income, and that uncollected fees did not constitute pro bono. The categories of service in the final State Bar definition were similar to those set forth in ABA Model Rule 6.1. The most dramatic difference was that the ABA calls for attorneys to do 50 hours of pro bono a year, with a substantial majority devoted to addressing the needs of the persons of limited means, 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. Both associations urged attorneys to give both services and money. The 50-hour goal was by far the most common number used, having been adopted by about half of the states. Some states set forth no number to guide attorneys, but of those who do, 20 hours is the lowest goal, according to ABA data (American Bar Association, State-by-State Pro Bono Service Rules). EC 2-34 and the pro bono policy of the Administrative Board of the Courts were inconsistent with each other. Therefore, after the State Bar adopted its new policy, 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. The Court System declined to do so, and in the end it had the last word. On February 1, 2008, the State Bar Association submitted to the Administrative Board of the Courts its final report on proposed Rules of Professional Conduct, including proposed Rule 6.1. On December 17, 2008, 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, effective April 1, 2009 (Office of Court Administration 2008). Although most of the rules the State Bar proposed were adopted, the one for pro bono service was not. Instead, 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. The rule simply provides that lawyers should do 20 hours of pro bono per year by representing poor persons, engaging in activities to simplify the legal process or to improve or increase legal services to poor persons, or providing legal services to nonprofits to meet the needs of poor persons. They should also give money to groups providing legal services to such persons. Long before the Court System adopted this traditional rule, in the aftermath of the definitional debate, lingering unease over the expanded definition had apparently played a role in the State Bars creation of a program that focuses solely on legal services to the poor. This was not surprising, given that the State
Bars 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 other words, according to detractors, making lawyers look and feel better was trumping the mission to serve those who needed help the most. In 2006, the State Bar developed the Empire State Counsel program to recognize lawyers who provide free legal services under the first tier of the definitionthat is, serving the needs of persons of limited means by direct service or by service to groups helping themand who give 50 hours of such service in a year and thereby meet the ABA aspirational goal. Thus, the program exalts and encourages core pro bono services in a generous amount to offset the expansive definition with the modest hourly goal.
small- versus large-firm participation

Although a clearer sense of what pro bono encompasses in New York may be emerging, there are dramatic differences in how much pro bono service is rendered by attorneys in private practice, the sector that does the most pro bono. The Court Systems 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, as well as at firms with 101 or more attorneys. In between, there was far less participation, ranging from 12 to 25 percent (New York State Unified Court System 2004, vol. 1). In other words, in New York State, the participation level is much higher among very small and very large firms than among those in between. 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. Perhaps the most surreal and telling moment I encountered during the State Bar pro bono days was at a meeting of the Associations Pro Bono Coordinators Network, a group of 100 dedicated pro bono leaders throughout the state. At a meeting in New York City, 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, talent, and money. In the meantime, sitting slackjawed in amazement at the different universe being described were the upstate pro bono leaders, who used great creativity, tenacity, and optimism to try to persuade local lawyers to take difficult cases, while facing chronic stress in a ceaseless struggle for funds needed for program survival. Studies have reflected the growth of pro bono in large firms generally. The pro bono movement has had a significant impact on large-firm practice. Law offices of more than 251 lawyers do three times more pro bono than smaller offices nationwide, and in 2005, lawyers at the top 100 firms averaged 50 hours
per year (Boutcher in this volume). After all, larger firms have the resources to develop formalized programs and to hire full-time coordinators. Not surprisingly, larger firms with programs to encourage pro bono generate more volunteer service. However, solo practitioners generally also report fairly high levels of participation (Dinovitzer & Garth in this volume). There are likely a host of factors that account for the different participation levels. Large firms may have not only more resources, but also a greater sense of noblesse oblige (Dinovizter & Garth in this volume). Although solo practitioners may have to struggle to run a profitable practice, they may also have a sense of the pressing needs of the poor; expertise in landlordtenant, matrimonial, and other high-need areas of the law; and the flexibility that comes from not needing to convince other partners of the desirability of rendering services that could erode the bottom line. Although solo practitioners are to be lauded for their individual sacrifice in taking on pro bono cases, 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, but by competitive spirit. Law firms want to be among the most elite firms in the country, as indicated by The American Lawyer magazines A-List (Press & OConnor 2008). Because pro bono performance is one of the factors examined in ranking firms, firms cannot achieve the top ranks unless their pro bono numbers are strong. The value of pro bono to savvy firms comes not only in satisfying the competitive spirit, but also as a powerful tool to recruit, train, and retain idealistic young lawyers who often find their pro bono assignments the most satisfying of their careers. These lawyers may feel a pride and a gratitude toward their employer and a satisfaction in their profession that they would otherwise not experience. There are issues not only about why lawyers give, but also about how they should do so. Should they be trained in high-need areas or should they do pro bono assignments, if available, that draw upon their existing expertise? There is no single answer to that question. It depends on the lawyers, the legal community, the pro bono programs available, the pressing needs, and more. Perhaps it is not wise to try to force lawyers to give in any set way. As many options as possible should be offered to lawyers so that they will feel comfortable rendering service that helps people in need. There are questions not only about using existing expertise versus learning new skills, but also about whether it is acceptable to give money, rather than time. Although the legal aid and pro bono programs throughout the state which receive low amounts of government fundingare grateful for any gift they receive, lawyers are ethically bound to give of their talents as well. Each lawyers unique experience and skill can enrich the quality of services provided to poor persons and groups serving them. There are also issues regarding what is not covered in the expanded definition of pro bono. A personal story illustrates the point. After my State Bar stint,
I returned to the world of appeals. Drawing upon my experience in the State Attorney General Appeals and Opinions Bureau and at the Center for Appellate Litigation in Manhattan, 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. I intentionally say that I handled it for free, rather than pro bono, because my clients were middle-income professionals, not persons of limited means, so it is not clear that the representation should be deemed pro bono, even under the expanded definition, or whether it should be considered some other form of public service. In a case given the confidential name Julia BB., two trial attorneysa family law and a criminal defense lawyerhad 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 childs multiple, subtle bone fractures might be due to abuse, not to a medical condition, despite vast evidence supporting the parents cause. A two-year struggle in Family Court had exhausted the parents resources, and one of the trial attorneys asked me if I would do the appeal for free. I said yes. There were many ironies to that experience. At the time, I was serving in my role as Pro Bono Affairs Director for the State Bar. When the Association expanded its definition of 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 just deemed the policy to allow for the pro bono work I did. Moreover, unlike many employers, the Association did not provide any time off to do pro bono, so I used my free time to read the 7,000-page record and write the 90-page brief. At my next evaluation, my employer made skeptical comments about the work I did, pointedly questioning whether I had typed the brief myself, in light of hand surgeries I had had, necessitating great administrative support on the job. Finally, my requests for positive press in the Associations primary membership news publication were denied. 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.1 My experience serves as a telling example of the kinds of obstacles pro bono leaders have to confronta disconnect between lofty, abstract goals and the concrete programs and action neededeven in organizations that sincerely espouse pro bono principles.
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. Translating that philosophy into concrete action remains a daunting challenge. In the State
1. Thanks to a nomination by the trial attorneys involved in the Julia BB. case, I was later awarded a 2008 Presidents Pro Bono Service Award from the State Bar Association.
of New York, given current funding levels of legal services programs, 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, vol. 2). 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. Drawing upon that experience, 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. The education could start in law schools, 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. Although many schools offer pro bono experiences, the challenge is to inspire students to continue to serve once admitted. 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 candidates interview and addressing the importance of pro bono service in every judges keynote speech. Once admitted, all attorneys should do pro bono and donate to programs providing legal services to poor persons. Attorneys in private practice have the greatest experience in providing direct services to individual clients and thus, not surprisingly, are the ones most encouraged to render pro bono representation. However, in some cases, private practitioners face greater professional and financial demands, stresses, and mental exhaustion than counterparts in the public sector, academia, or other law-related employment. They should not shoulder the pro bono burden alone. Furthermore, 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. The most vulnerable among us do deserve assistance to navigate a legal maze, but some clients are difficult, and some causes futile. Providing information, clarity, and dignity is sometimes the best pro bono gift that can be bestowed. Although the Court System has determined that pro bono should be narrowly defined, it has done too little to promote suitable pro bono and public service opportunities for its own attorneys. 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. Similarly, the Court System and State Bar should more aggressively and creatively encourage employers in the public sector, academia, corporations, and other settings to create programs that show attorney employees ways in which they can do pro bono and public service. 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.
references
Adcock, Thomas (2005) New York State Bar Draws Fire with Proposal to Change Pro Bono Definition, New York Law Journal January 18, 2005. American Bar Association, State-by-State Pro Bono Service Rules, http://www.abanet. org/legalservices.probono/stateethicsrules.html (accessed December 21, 2008). 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 Communitys Response to the Events of September 11, 2001, 31 Fordham Urban Law Journal 831951 (2004). Caher, John (2005) Bar Group Expands Pro Bono Definition, New York Law Journal April 5, 2005. Committee to Improve the Availability of Legal Services (1990) Final Report to Chief Judge of State of New York, April 1990, reprinted in 19 Hofstra Law Review 755883 (1991). New York State Bar Association (1989) Report of the Special Committee to Review Proposed Plan for Mandatory Pro Bono, October. (1990) New York Legal Needs Study. (2004) Report of the Presidents Committee on Access to Justice Concerning Pro Bono and Actions of the NYSBA House of Delegates, April 3. (2007) Proposed Rules of Professional Conduct, report approved by the New York State Bar Association House of Delegates, November 3. New York State Unified Court System (2004) The Future of Pro Bono in New York, vol. 1, Report on the 2002 Pro Bono Activities of the New York State Bar, and vol. 2, Report and Recommendations from the New York State Unified Court Systems Pro Bono Convocations, January. Ofce of Court Administration (2008) New Attorney Rules of Professional Conduct Announced, http://www.nycourts.gov/press/pr2008_7.shtml (accessed December 21, 2008), citing to new Rules of Professional Conduct available at http://www. nycourts.gov/rules/jointappellate. Press, Aric and John OConnor (2008) Lessons of the AmLaw 100: Is the Golden Age Over? The American Lawyer April 30, 2008. Sack, Kevin (1990). Chief Judge Presses Lawyers on Legal Work for Poor, New York Times May 2, 1990. Schneyer, Theodore (1992). Professionalism as Politics: The Making of a Modern Legal Ethics Code, in R. Nelson et al., eds., Lawyers Ideals/Lawyers Practices, Transformations in the American Legal Profession, Ithaca: Cornell University Press. Wachtler, Sol (1991) Symposium on Mandatory Pro Bono: Introduction, 19 Hofstra Law Review 739744.
cases cited
Matter of Julia BB. (Saratoga County Dept. of Social ServicesDiana BB.), 42 AD 3d 208 (September 3, 2007), lv den 9 NY 3d 815 (2007).
14. conflating the good with the public good

An Essay
john henry schlegel 1

Essayer is French for to try. An essay, then, is a trial, an attempt to understand somethingin this case an attempt better to understand the pro bono movement among the legal profession, and the movements supporters. 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. And yet, these effortsnow dating back at least 100 yearsseem not to succeed (Rhode 2005). There are, I suppose, lots of reasons for the lack of success. This collection and the conference that gave birth to it have explored at least two of themthe 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 movements core concepts, the public interest. In the interest of full disclosureprobably an impossibilitythe reader should know that my devotion to critique comes from my travels with Critical Legal Studies, and my devotion to reflexivity from my travels with Law and Society. Deborah Rhode, writing about pro bono, offers the following sensible thought: When attorneys talk about pro bono, they generally speak in shorthand. Publico has dropped out of the discourse. We can afford to lose the Latin, but not the concept (Rhode in this volume:263). 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. The public interest is anything but easy to capture, a snark even among legal terminologys many such creatures. Rhode, like many legal practitioners and scholars, explicitly relies on Rule 6.1 of the American Bar Associations Model Rules of Professional Conduct to supply content to the entire traditional phrase pro bono publico. And for her purposes, examining lawyer compliance with this rule, it is the appropriate standard of measurement. However, for the time being, I would like to ignore the ABAs rule and think critically about the proposition that the public good could possibly be self-evident.
1. This piece is for Abbie Gorin, who taught me much about the public interest while pursuing a career devoted to seeking it.
Let me start with six examples, culled from papers in this collection and the talks that preceded them. Each presents a situation where some people, though not necessarily the author, 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. In one prominent case, 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, California (Cummings & Southworth in this volume:199). *** 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). *** 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, 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. It appears less common for attorneys to mobilize their insights from a tenant-oriented perspective, 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). *** [M]any lawyers have included in their reports . . . work that is of questionable public value, such as bar association activities; favors for friends, clients, and family members; and cases where fees turn out to be uncollectible (Rhode in this volume:253). *** [T]he American Lawyer recently clarified its standard to exclude board service, cases that generate fee awards that are not donated to legal aid, and work for well-endowed government and nonprofit institutions that does not address the needs of the poor or protect civil rights. Many lawyers, however, 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. (Rhode in this volume:253). ***
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, or are drafted for matters that hold no interest. A typical illustration involved an associate who repeatedly received assignments such as drafting a letter to the Internal Revenue Service . . . on behalf of the Catholic Church that the supervising partner attended. These projects drive her crazy, since she cannot bill for them, they take lots of time . . . and she then doesnt have time to work on pro bono projects that she really cares about (Rhode in this volume:256257 quoting Cameron 2007:2). What can we learn from these examples? Consider, first, 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, as the chart shows, the good work is work representing the little people of the world in their fights with the bigger people of the world. At the very least, the activities seen as not worthy of the laws special concern are undertaken by people who have more assets, economic or social, than do those seen as worthy of the laws special protection. This doesnt seem to me to be wrongafter all, each as I have posed it is arguably a private interest. 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. When economic or social differences make it less likely that one side will be able to secure counsel, it is a good thing for lawyers to equalize access to justice. However, such a basis for choice is literally only a matter of pro bono. The value publico that Rhode reminds us should not be forgotten is an entirely separable matter. Now, one could of course decide that any activity implied by the ideology of the rule of law is, by definition, an activity undertaken in the public interest, and so dispose of this separable matter with a wave of the hand. There are two problems with doing so, however. First, it is arguable that this ideology is mostly a justification for the protection of the interests of lawyers as a social classor
worse, if we extend it to the defense of property as Hayek and his followers would have us do, a justification for the protection of the interests of lawyers and their wealthy clients as a joint class (Hayek 1955; Hager 1999). 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. Second is a more technical, perhaps less profound, objection. As Roscoe Pound (19111912; 1921), channeling Jhering (1913; 1915), made clear over 90 years ago, when comparing interests one must compare them on the same plane. One cannot compare a public interest with a private interest without unfairly influencing the result by the sheer act of naming. The public interest will almost always trump the private one; that is the nature of an interest being public. The repeated failure of constitutional jurisprudence to scrupulously follow this rule is not a good reason to ignore it. (See, e.g., Kelo v. City of New London). Indeed, 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 one looks carefully at the question of where the public interest might lie in the six examples supplied, I think the matter is not as wholly obvious as these examples seem to imply. Start with the first. 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, often leading to bankruptcy, on the part of pre-existing small retailers in the area, especially clothing and toy retailers. The effect on grocery stores is much less clear, because grocery purchases are significantly location-dependent, except among the very mobile upper-middle class and those who comb newspaper supplements for bargains. There is some evidence that Wal-Mart causes a dampening of local wages, though whether this is because of the actual level of wages or the virulently anti-union attitude of the firm is not clear. 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. On the other hand, for individuals of the economic class of its employees, Wal-Martthrough its absolutely relentless costcuttingreduces the price of both necessities (clothing and food) and modest discretionaries; it stretches budgets, not enormously, but somewhat. For such individuals this may be a significant psychic benefit as well.2 What, then, of the public interest? It is not obvious, to me at least, that the public ought, as a principle, protect old, embedded retail investment. Nor should it be particularly solicitous of new retail investment. Retail comes and goes with fashion, financing alternatives, and transportation opportunities and costs.
2. Any statement about Wal-Mart inevitably brings forth strident objections from partisans of another view. I reach the forgoing conclusion from reading materials such as Bianco 2007, Vedder & Cox 2007, and Fishman 2006.
A community might choose to preserve its old shopping quarter or not, but this is in its own separate, nongeneralizable interest. 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, to confuse publico with polis. Were the wage matter reasonably clear, 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. Even then, however, there would be the countervailing, equally public interest in providing low-cost goods to all citizens. 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. The second case, small property owners and large developers, seems to me to be less complicated. It is at least possible to believe that local developers will be more concerned with a community than will out-of-town developers, though acting on the basis of such a hunch raises the question of whether the commerce clause is an example of the public interest. But the question of large developers as against small property owners raises no such concerns. 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, as a general matter. That is, of course, what is being talked about when discussing the public interest. Probably in some cases it is one, and in other cases the other. However, what we face is a separate, nongeneralizable interest of particular communities with particular objectives at particular times. These are concerns that lawyers might find it worth fighting for, but surely are not to be lauded in the name of acting in the public interest. The third case, tenants and landlords, is more difficult analytically. Landlords need tenants; without them investments will fail. Tenants need landlords; without them housing will be unavailable. I was once a tenants lawyer; I know where my heart is. But that is not the question here. Can landlords be maliciously rapacious? Of course. Can tenants be maliciously destructive? Surely. But, being incapable of categorical generalization, neither question is one of public interest. The only possible question of public interest is the minimum quality of the housing available in a community. Here, then, the issue becomes clouded, for the higher the minimum quality, the higher will be the rent because both the capital costs and the taxable value will be the higher. 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, such a choice would clearly be in the public interest, 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. Short of such a utopia, I, at least, have a hard time identifying where the public interest might lie as between tenants and landlords. The clear short-run benefit to tenants from raising the quality of their housing for the duration of a lease,
should there even be such, is not exactly a public interest, however good it may be for the tenants. The same is true of tolerating low-quality housing for the purpose of allowing a landlord to make a few more mortgage payments. So, here again, a lawyers following his or her heart with free legal services is probably a good thing, but not likely to be a specially lauded thing. Then comes fourth, the choice between bar association activities and other work of public value. This is as easy a question as that of landlords and tenants is hard. I must again reiterate that American Bar Association fiat is anything but decisive here. I am not particularly enamored of bar associations in any role other than as purveyors of continuing legal education, but no one asked me. Yet surely bar associations ought to be considered part of a vibrant civil society, just as would be the case with Rotary clubs, Polish veterans associations, garden clubs, YMCAs, Planned Parenthood, the Humane Society, the League of Women Voters, or the Womens Christian Temperance Union. Can such organizations, alone or in concert, have a meretricious effect on civic life? Without question. But in the general case, supporting a vibrant civil society is most probably a matter of the public interest. Activity by lawyers that supports such entities is of equal value when weighed against any other unnamed work of public value. The fifth pairing, the needs of the poor as against those of a well-endowed government, is as difficult a comparison to unravel as bar association activity is easy. Again, I know where my heart is; I worked in Legal Services for five years, most of it on public assistance questions, not landlordtenant matters. But again, this is not the relevant question. Surely here the phrase well-endowed is doing a lot of work, though perhaps no more than poor, as against low income. Now, I live in the Buffalo, New York area. Perhaps my suburban town, the Town of Amherst, is well endowed, but in general, at the local, county, and state level, government here is best described as poor, but suspiciously profligate. One might say the same thing of the federal government. So, I would like to even things up by simply discussing government generally as against low-income people generally. As between these two it seems to me impossible to identify a superior interest, other than by fiat, a possibility that I have ruled out. Indeed, it seems to me that the need to make the government well endowed and low-income people poor suggests just this conclusion, else there would be no need to pretermit the question by loading the dice, as it were. In a well-run society, concern for the circumstances in which low-income people find themselves seems a matter of plain humane concern for others. Concern for government is likewise a matter of providing support for political life. To legislate a preference is, of course, a prerogative of participants in political life. But to found those legislative preferences on the assumption, which I suspect is usually made, that participation in political life is self-interested whereas concern for low-income people is not, is to ignore the tangles of human motivation that novelists have long (and often only
partially successfully) attempted to unravel. Again, the public interest is hardly self-evident. And so we have come to the last example, personal preference as against service to a particular churchan example of self-interestedness, if ever there were one. Being an employee is the pits; everyone knows that. Still, again, such is not the question. Religious organizations are a classic part of civil society, valued as such. Supporting them is in the public interest. Some random preference of a particular hardworking 30-plus-year-old law firm associate may be crucial the further welfare of civil society, but taken as the general case, such a preference is anything but likely to be world-shaking. Your good editors, objecting to my style of slash-and-burn intellectual agriculturemy tendency to appear on the scene as the avenging angel, wreck havoc, and, my work done, leave the onlookers fulminating angrily, shaking heads bewilderedly or laughing uproariouslyhave asked several pointed questions in the interest of their readers. Let me start by explaining the intellectual influences that I identified at the outset that have informed these comments, before driving my analysis further. The earliest empirical work on the legal profession dates back to efforts by Charles E. Clark and Emma Corstvet (1938) and Karl Llewellyn (see Twining 1973:349350) in the 1930s on the legal needs of middle-class persons. This work is the antecedent of scholarship now understood to be in the Law and Society tradition.3 The first major work on the legal profession by a person plausibly identified as a part of that tradition is Hursts The Growth of American Law: The Law-Makers (1950). Much scholarship has followed his quite detailed survey, generally work in the law-in-the-books and law-in-action mode that is associated with Roscoe Pound (1910). This work tends to accept the proposition that norms of professional behavior are instituted to benefit the public, broadly conceived. It usually descries deviations from the law on the books that are discovered through research into the law in action. In the late 1970s two other strands of work began to appear. Both might be seen to have participated in an understanding of professional behavior best captured by Magali Sarfatti Larsons The Rise of Professionalism: A Sociological Analysis (1977), a book that argued that norms of professional behavior are largely instituted not to benefit the public, but to benefit the profession. One strand is more quantitative (Heinz & Laumann 1982; Heinz et al. 2005) and the other more historical or interpretative (see, e.g., Abel 1989; Schneyer 1989; Mather et al. 2001), but both, like the Poundian-influenced work, are anything but pleased with the findings that confirm Larsons argument. Thus, all three bodies of work, whether reformist in tone or not, are suffused with the notion
3. For overviews of the history of the Law and Society movement see, Mather 2003 and Garth & Sterling 1998.
that in a well-run world lawyer behavior would be otherwise. Their authors may thus not unreasonably be seen as supporters of the pro bono project. None have yet suggested that it is a bad idea and should be scrapped. The group of scholars associated with Critical Legal Studies (CLS) were also influenced by Larsons work, if only zeitgeistlichly. Several of these scholars criticized professional norms for serving the interests of both elites and the profession, not poor people (Kairys 1982; Simon 1984). A nearby body of CLS work spent much time deconstructing the way law deployed the distinction between public and private spheres of action, both for labeling certain behavior as publicly regarding so as to protect it from criticism as self-regarding, and for labeling behavior as private in order to protect it from governmental regulatory intervention (Horwitz 1982; Kennedy 1982; Klare 1982). Again, the conclusion drawn from this rhetorical criticism was directed toward demonstrating that such manipulation was for the protection of various dominant societal interests. Scholars associated with CLS never turned the movements deconstructive critique on the use of the language of publicness in support of otherwise subordinated intereststhe implicit message of the pro bono project. Because I believe that doing so is important for advancing both the project of critique and that of pro bono, in the first part of this essay I have extended the CLS critique to make that connection explicitlyto interrogate the deployment of pro bono publico on behalf of other than elite interests. Doing so will, I am sure, annoy, if not outrage, pro bono advocates. Still, it seems to me best to recognize that an unwillingness to critique vigorously ones own deeply held beliefs will only make them seriously vulnerable to such critique when offered by others. More or less implicit in my interrogation of examples from the standard pro bono discourse presented earlier are three observations. First, I have passed over arguments in defense of pro bono activity in terms of equalizing the playing fieldthat notions of fair play, rule of law, and scales of justice demand that unrepresented people have the benefit of counsel, if they cannot afford lawyer services. I have no particular objection to our societys providing free legal services to the relatively disadvantaged, indeed to all individuals and groups. However, 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. If this is the case, 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, and so is in the interest of lawyers as a social class (Larson 1977). 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.
Second, before providing pro bono legal services to any group in society, one might best consider the question of the likelihood that the provision of such services will make an economic or social differencethat 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. 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 obviously an undertaking that will mostly redound to the legitimization of those structures of oppression that the pro bono projects partisans seem most determined to reduce, if not eliminate (Piven & Cloward 1971). Another reason for tossing this idea of an equal playing field overboard. Third, and derivative from the nature of bureaucratic law practice, is the troubling intersection of the quality of service rendered and the self-interest of those rendering it. No one wants to be one of the patients on whom a surgeon learns the craft; everyone wants an experienced professional. Surely this is the case in law as well. Consider the many individuals now facing foreclosure.4 The lawyers who could best provide representation in foreclosures are the already experienced counsel who represent mortgagees. It is silly to expect such counsel to risk losing existing clients because of those clients dissatisfaction over their attorneys representing mortgagors; after all, the employees and families of creditors lawyers need to eat too. And this is not even to mention the obvious conflicts of interest, whether limited to one or extending to many possible mortgagees, that will curtail the possible extent of specialist representation, should existing clients not object. And so here a discussion of the public interest needs to confront two alternatives, neither of which is particularly attractive. Greenhorns are less likely to know how to proceed with a foreclosure action, and so are more likely to offend crucial judicial officers to the detriment of their clients. Poor but passable counsel is often worse for clients than no counsel at all, 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. Thus, before volunteering, 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. 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. Counsel who are relatively more experienced in foreclosures face all of these considerations and one more. On the other side of the aisle sits the audience that
4. This possibility for pro bono representation was helpfully drawn to my attention by an anonymous outside reader.
will watch the actions of relatively more experienced counselmortgagees! Steady business is of great attractiveness for any lawyer, 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 problem presented by this temptation that of trimming sails in the hope of a favorable windcannot be dealt with simply by invoking notions of professional responsibility. All attorneys worthy of the name are experts in rationalization of actions taken and not taken. So, here self-interest needs to be considered. Before volunteering, 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. And then there is the problem of overlooking patterns of misbehavior by individual mortgagees that, if brought to light, would benefit many clients, but not potential employers. Let me recap the discussion thus far. By having isolated many possible public interests in these six examples, I hope to have identified the kinds of problems that inhere in treating as self-evident propositions about where the public interest may lie. 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, such as might claim the attention of lawyers seeking to act pro bono publico. Still, there is more work for me to do here. I need to dig further into questions of both good and public. Both of these terms bring forth deep conflicts of meaning in particular circumstances. In American culture, good is a warm, all-encompassing notion. We may argue about whether something is good, but here differences of opinion are tolerated. Thus, it is possible to say that ice cream is good, at least for some large portion of the population. It is significantly more difficult to say that the provision of ice cream is in the public interest. Implicating the public, and thus the possible exercise of the coercive power of the state, is quite a different thing. So, consider again the good. What this concept means is hardly an obvious, uncontentious matter. There is a long history in ethics, morals, religion, and politics that ought to demonstrate that identifying the good is not done easily. Conflicts run deep. For example, why is it that pro bono activities should be directed toward the poor and/or marginalized, rather than the working and middle classes? Given that most of law is about moneythat is, propertyand that, Charles Reich (1964) to the contrary notwithstanding, it does not seem that the new property has supplanted or even begun to reach parity with the old, the default beneficiary of the pro bono movements protection is not obvious. The cost of legal services has been recognized as a barrier for the working and middle classes since Clark and Corstvet and Llewellyns work in the mid-1930s (see also Reginald Heber Smith 1919), and at the least laws central concern for money is vaguely relevant to the needs of this portion of the populace. Given the laws concern and the extraordinary cost of attention to persons, as shown by Cynthia Feathers 800 hours of appellate work
(Feathers in this volume), the attempt to shoehorn the poor into the laws careas I quite enjoyed doing in the late sixties and early seventiesmight be a less plausible activity than it is a fun one. At the least, it is one on which the profession could be of two minds. Next return to public. For some people, most often public means good; for others, most often private has the same valence. For many, the valence shifts depending on the subject. This ought to be apparent from the common confusion between polis and publico, noted earlier. Etymology suggests that the former has its roots in the Greek word for city (state), whereas the latter is from the Latin word for the people, probably meaning the adult people, or maybe only free male adult people. The state, even in a representative democracy, is not the people, however difficult it is for state actors to recognize the distinctionmuch less however difficult it is for advocates of popular (or unpopular) interests to recognize that they are not ipso facto identifying the states interest. The common usage asserting that the state has been captured by the special interests makes this reasonably clear. Thus, it ought to be obvious that the outcome of the political process doesnt define the public interest, but only the interest adopted by the stateat 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, a proposition that none of the pro bono projects partisans is likely to assent to. Nor can inequality, formal or otherwise, or its current dysphemism, oppression, provide an unproblematic baseline for identifying the public interest, at least unless one seriously believes that existing elites will joyously jump into the tumbrels. If there simply is no stable referent to either good or public, then identifying the public interest becomes extraordinarily difficult. Here, I wish to make clear that I should not be taken to assert that there cannot be a public interest, but rather to emphasize that establishing such an interest is a contentious activity that, as I hope I have shown earlier, simply cant be done by labeling. After all, if public is to be taken seriously as publico, then by definition there cannot be a public interest in any circumstance where some members of the public do not recognize it. And conflicts run deep on many questions about the public interest. For example, it is not obvious why, as Granfields (2007) data seem to indicate, working in criminal defense is seen by some lawyers to be in the public interest, but in prosecution seemingly is not. Indeed, one might suspect that it would be precisely the reverse; after all, criminal law is allegedly designed to express the values of the polis, however these might differ from those of the publicus. Why is protection of poor renters in the public interest, 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. Deep conflicts such as these cannot be made to go away by fiat as the ABAs rule 6.1 tries to do. The focus in subsection (a) of the rule on service to persons of
limited means or organizations that help such persons is by its terms undercut by the provision of subsection (b) approving of other services, while the qualifying phrase a substantial majority in subsection (a) is the tombstone marking a dispute that could not be resolved, but could be compromised. And in any case, lawyers are long practiced in the art of undermining legislative fiatand why not. After all, legislation only marks the relative strength of opinion among representatives at some remove from, and with significantly different interests than, those represented. 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. 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. After all, these disputes are about just what such professional responsibility, if any, requires. Indeed, given the history of claims about the decline of professionalism at the bar in nineteenth- and early twentiethcentury America, one might be careful before invoking professional obligation at all (Kronman 1993). Most calls for increased professionalism have been none-too subtle-complaints about new members of the trade who were dclass, ethnically or socially or religiously (Auerbach 1976). 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). So, when looked at critically, the claim of professional obligation is a quite obvious legal formalism, suspect as such by anyone with a legal education. And no employee of a lawyer would want it seen otherwise, at least until wages were safely secured. Now, none of my cautions should be taken to be, or are intended as, barriers to the pro bono project. 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, I do recognize that most people wish to load the question of valorization of interests with their strategically favorite term. Still, I believe, and so have based my critique above on the proposition, that the public interest is an answer and not a question, the conclusion reached at the end of a activity of judgment, of fully defended taste. Thus, establishing the public interest is a matter of suggesting relevant criteria and arguing about their application, knowing full well that it would be impossible to obtain universal agreement and yet proceeding with the argument anyway. So, it is the failure of the pro bono projects 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. If so, why should anyone care? Just this. As a species, lawyers are not particularly dumb, though, of course, they may be pigheaded or even ideologically blinded.
Smelling a problem within an argument that assumes it to be obvious where the public interest may lie, lawyers might not be persuaded by that argument, any more than they might not be persuaded by bits of legal formalism designed to settle important substantive disagreements. If so, their failure to jump on the pro bono bandwagon might be somewhat more understandable. So, I do think that my cautions suggest a possible explanation for the story implicit in many of the chapters in this volume, for example those of Adcock, Feathers, and Rhode and those underlying the research of Boutcher, Granfield, and Schmedemann. This is the story of the Little Engine That Could. Pro bono partisans keep pressing forward, but never quite reach the lawyer behavior that they wish to see. And so they try harder each time. I believe that now over 75 years of research into the law in action demonstrates that law follows culture, and if not, culture modifies law. If I am right, 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. Thus, the strategy of trying harder is not likely to be effective. In any case, becoming significantly more reflexively self-critical might help one understand why the pro bono project has proven to be so difficult to execute. It also might suggest that the old country advice Work for the best; hope for the better; be happy with the good could be a plausible attitude with which to approach this worthy project. And, as I tried to make clear at the outset, the attempt to gain an even partial understanding (probably all humans can ever do) is the point of writing an essay.
references
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cases cited
Kelo v. City of New London, 545 U.S. 469 (2005).
15. state, market, philanthropy, and self-help as legal services delivery mechanisms
richard l . abel
Bill Clinton is famous (or notorious) for promising to end welfare as we know it. Whether or not he succeeded, the boast expressed a tectonic shift in attitudes toward the state, possibly comparable to earlier great transformations, to use Polanyis phrase (1944). In societies with little or no division of labor, people produce most of the goods and services they consume (and barter for the rest). The market transforms this arrangement, enormously increasing the variety and quality of what can be enjoyed. Prior to the twentieth century, the primary method for redistributing goods and services to those who could not buy them was philanthropy: soup kitchens, poor houses, charity hospitals, foundling homes. The Great Depression and World War II changed all that. The British welfare state marginalized charity, assuming the obligation to end poverty or at least ameliorate its most conspicuous hardships. In the United States two decades later, Medicare and Medicaid severely undermined doctors feeling of responsibility to treat patients unable to pay. Governments that had begun to offer free primary and secondary education in the nineteenth century extended this to the university and added food, housing, transportation, communication, culture and recreation, unemployment compensation, health care, child care, and pensions. Almost simultaneously, however, this provoked a conservative backlash, driven in part by the fiscal crisis of the state, compounded by a taxpayer revolt. The only thing unusual about Clintons proposal was that he was a Democrat rather than a Republican. But his program differed little from Tony Blairs New Labor or its contemporary socialist and social democratic counterparts throughout continental Europe. The hegemony of the statewhich seemed inevitable after World War IImay turn out to be little more than a brief interlude between the dominance of market and philanthropy before World War II and again today. These generalizations apply equally to legal services. Before the midtwentieth century, the market delivered legal services to businesses and middle-class and wealthy individuals. Charity supplemented this in a highly piecemeal fashion. Ethno-religious immigrant organizations and good government progressives created municipal legal aid schemes in the larger cities, but these often denied representation in bankruptcy (under pressure from chambers of commerce advocating on behalf of creditors) and divorce (in response to churches, especially in cities with large Catholic populations) (Katz 1982; Abel 1985). In England, judges could assign dock briefs, requiring any barrister who happened to be in
court to defend an indigent accused; the Poor Persons Procedure provided solicitors in civil cases. The legal profession resisted both market forces (competition from outsiders and among insiders) and state intervention (salaried legal aid in the United Kingdom, state payments to private practitioners in the United States). Civil legal aid expanded in mid-century partly in response to divorce, which threatened the morale of troops in World War II and rapidly increased after the war. The U.S. Supreme Court recognized a constitutional right of poor people to the waiver of filing fees in divorce cases (Boddie v. Connecticut) and to representation when charged with felonies (Gideon v. Wainwright) and then most misdemeanors (Argersinger v. Hamlin). Lyndon Johnsons War on Poverty included federal funding for legal services almost as an afterthought. The convergence of all these developments produced an astronomical growth of legal aid. In 1965, total national expenditure on civil legal aid in the United States was $5 million. At the end of the Carter administration, just 15 years later, it had reached $300 million. But Reagans 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). When this failed, Reagan managed to cap the federal budget, which has remained at approximately the same level for nearly 30 years: a two-thirds cut in real dollars. Categorical exclusions by the Legal Services Corporationprecisely the kind of politicization of law for which the free world used to condemn communist countrieshave left an increasing proportion of needy clients without representation (Brennan Center 2000). There have been similar reductions in legal aid budgets in many other countries, including those with the strongest programs: England, Canada, the Netherlands, the Scandinavian countries, and Australia. The most stunning contemporary development, however, is the concomitant rise of pro bono legal services, the focus of this volume. Lawyers have always rendered some services for little or no fee. In the past, however, the providers typically were solo and small-firm practitioners, the recipients were acquaintances of influential referral sources (or deadbeats), and the motive was the expectation of future paying work (Levin in this volume; Lochner 1975). Now, by contrast, the providers typically are the largest commercial firms, the recipients are social change organizations or the clients of cause lawyers, and the motives are a combination of political commitment, status competition, and efforts to recruit recent law graduates (Cummings 2004). Furthermore, the quantity of pro bono services (measured by lawyer hours) now exceeds that delivered by the Legal Services Corporation (Sandefur in this volume), and the disparity may well grow. Large firms in other common law countriesnotably England, Canada, and Australiahave also expanded their pro bono activities, if not as rapidly. This trend has been far less pronounced in the civil law worldperhaps because of the different roles of lawyers in adversarial and inquisitorial systems, citizens divergent attitudes toward the state, and the greater role of other civil society institutions, especially the church.
state, market, philanthropy, and self-help as legal services delivery mechanisms 297
This essay seeks to do three things: (1) contrast four mechanisms (state, market, philanthropy, and self-help) for delivering a wide variety of services (including legal services); (2) speculate about reasons for the shifts over time among these delivery systems; and (3) offer some preliminary hunches and hypotheses about the relative strengths and weakness of the different legal services delivery systems. Table 15.1 offers an overview of the four mechanisms, the juxtaposition of which suggests a number of insights. At any given historical moment, only some mechanisms are even imaginable (vividly illustrating Gramscis concept of hegemony). A political poster first published in the 1970s showed children climbing on a schoolyard jungle gym, 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. That inversion of priorities seems just as inconceivable today. New York City schools, faced with a budget cut of $180 million, turned to parent auctions, raising $15,000 to $150,000 (depending on school size); a gifted program on the Upper West Side took in $245,000 (Medina 2008). But despite its seeming inevitability, the configuration can change very rapidly. Consider personal security. Before the emergence of the state, individuals relied on their own arms or those of the groups to which they belonged (kinsfolk, co-residents, age-mates). The state claimed a monopoly of force, criminalizing such behavior as vigilantism. World War II was fought through universal (male) military service. Just a half-century later, however, the United States military is all-volunteer, male and female, and outnumbered in Iraq by private contractors (Miller 2007). Private security guards exceed public police in the United States, and there is growing enthusiasm for self-help (both individual gun ownership and collective action by militias). The four mechanisms differ significantly across many variables. Consider the classic sociological distinction between universalism and particularism. Police purport to serve and to protect all (as the motto on their patrol cars proclaims in many American cities). They must respond to every call, a disproportionate number of which come from poorer communities. Private security forces serve the privileged few. Advocates of gun ownership argue that it democratizes self-defense (but only for those willing and able to buy and use guns). The quality of state services (e.g., public schools) tends to be relatively uniform (if often low); sometimes this is constitutionally mandated (Serrano v. Priest). The quality of educational services delivered by the market (e.g., private schools) varies enormously. Some autodidacts shame experts; others vividly confirm that a little learning is a dangerous thing. Public services and charity are almost always overwhelmed by demand; the market, by contrast, not only responds to demand by increasing supply but often must create demand for its services and products (e.g., cosmetic surgery, personal trainers, designer water, Hummers, the latest cell phone). Supply and demand are most closely correlated in societies with little division of labor; where self-help is the norm, people produce only what they need (but have few reserves in times of scarcity).
table 15.1 comparison of delivery mechanisms Good or service National security Policing State Armed forces (conscription) Police Market Volunteer armies; mercenaries Private security; gated communities Philanthropy Aristocratic armies; clans; gangs; militias Volunteers (sheriffs deputies; NYC-Guardian Angels) Self-help Self-defense
Self-defense; gun ownership; vigilantism; security devices (window bars, locks, house and car alarms) Education Public schools; Head Start Private schools; tutors; private Free education, e.g., YMCA; Home schooling; autodidacts loans; book publishers literacy programs; needprogram; vouchers; government loans; veterans benefits; libraries based scholarships Health care Public hospitals; Medicare/ Health insurance as employment Charitable hospitals; ERs; Self-doctoring (including Medicaid; school nurses; prison fringe benefit; direct advertising free clinics; single-disease alternative medicine); health care; military health care of diagnostics, elective surgery, foundations; informal websites; diet; exercise prescription medicine sector care (family) Care for the Nurseries; nursing homes; Home health care; home day Extended family; Nuclear family nonproductive extended-stay hospitals and care (both by undocumented neighbors (children, elderly, rehab; shelters; after-school workers); appended to workplace disabled) programs Income Negative income tax; welfare; Employment; investment; Charity; panhandling; Savings maintenance social security; unemployment savings family compensation Law Legal aid; Judicare; court-appointed Private lawyers charging by the hour Public interest law firms; Pro se litigants; legal forms; lawyers; regulatory agencies; or task; contingent-fees; litigation pro bono legal software; books and ombudsmen; activist judges lenders; legal insurance; legal websites; unbundling clinics; paralegals
As Veblen (1925) argued, market consumption typically elevates the consumers status (especially above that of the producer). Charitable and (to a lesser extent) state services can stigmatize recipients (food stamps at supermarket check-out counters, free lunches at schools), while elevating the donors moral standing above that of the recipient. Self-help purports to be egalitarian. The market rations by means of price, whereas state and philanthropy do so by creating queues (and defining desert), and self-help does so by means of ability and initiative. The state offers consumers the greatest security, at least where the good or service is a right: legal representation for those accused of crimes, or housing and medical care in other countries. The market offers security to those who can afford its commodities, while letting the rest go without. Philanthropy consigns recipients to the whims (and resources) of benefactors. The current recession is wreaking havoc on foundations and their recipients. 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, not choicescavenging food in refuse containers, sleeping in doorways). Although the market boasts of its efficiency, the services it delivers often cost more than those provided by the state, philanthropy, or self-help (because of profit and market imperfections, including monopoly rents). The markets invisible hand purports to be self-regulating, but its failures have once again been exposed by the subprime-induced financial crisis. State activities are regulated by (often inefficient) bureaucracies and are ultimately responsive to politics, which deprives some recipients through bias or lack of clout and over-rewards others (e.g., through pork, earmarks). Philanthropy and self-help are effectively unregulated. Rapidly growing income inequality profoundly distorts market delivery of goods and services, increasing pressure on the other three alternatives. Ever fewer people can afford to buy medical care or legal services. Decisions about what services to deliver to whom are most centralized when the state provides them and are progressively decentralized by philanthropy, the market, and self-help. State and philanthropy offer recipients the least choice; self-help offers the most; and the market confers choice in proportion to disposable income (and knowledge). The earnings of providers vary most in the market, where CEO-to-worker pay ratios now exceed 400:1. State employees enjoy job security and fringe benefits but earn relatively little; those working for philanthropies typically do worse on both dimensions but may derive what Jerry Brown called psychic rewards. The range of earnings in both the state and philanthropic sectors is tightly compressed, compared to the range in the market. Collective bonds among philanthropic providers tend to be most intense (out of a sense of mission and self-sacrifice); 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). Self-helpers are extreme individualists (though they may unite in defense of autonomy, as they have in the National Rifle Association).
Both state and market purport to guarantee quality: the state through regulation, the market by means of competition. Philanthropy often delivers services through amateur or inexperienced providers (sometimes more caring but often less expert). There are no standards for self-help, other than personal satisfaction. For both the state and the market, work typically constitutes a careera lifetime commitment with different combinations of security and increasing material and psychic rewards. Work for oneself is a calling whose rewards are wholly intrinsic; for that reason, the emotional investment may be all the greater (Booth 1999). Philanthropic work often is episodica prelude before beginning a career or a coda after completing it (although Weber argued that honoratiores should behave altruistically throughout their lives (1978)). If the work is paid poorly or not at all, engagement may be lower. For youths, internships exemplify what Erik Erikson (1959) identified as a psychologically valuable moratorium between demanding stints of higher education and worka time to experiment with activities, residence, and acquaintances. For the elderly, volunteering may ease the transition from full-time work to retirement while augmenting the network of kin and acquaintances created over a lifetime. At any given historical moment, each good and service will have a distinctive configuration of delivery mechanisms. Despite sectoral differences in the proportions of services delivered by each mechanism and the pace at which this changes, we can identify a common sequence through three phases: a transition from selfhelp to the market (supplemented by philanthropy); then state displacement of both market and philanthropy; and now state contraction in favor of the market, philanthropy, and self-help. Adam Smith explainedand applaudedthe first transition, from self-help to the market. Specialized production increases efficiency, allowing consumption to grow in quantity, quality, and variety. Through this transition, self-production of each good and service identified in the table declined dramatically (while never disappearing). Armies and police replaced self-defense; schools replaced families as cultural transmitters; university-trained physicians replaced self-doctoring by means of home remedies; and institutions replaced families in caring for and supporting dependents. Charityby the wealthy, aristocratic, religious, or civic-mindedresponded to the frequent instances of market failure. During the second great transitionbeginning in the late nineteenth century and accelerating greatly after World War IIthe state displaced both the market (socialist production) and philanthropy (social democratic redistribution). Fire departments replaced insurance companies. Free public education was extended upward to the university (anticipated by the GI Bill of Rights) and downward to preschool (Head Start). Cities established hospitals. The English National Health Service offered free health care to all; Medicare and Medicaid did the same for elderly and indigent Americans. Transportation was subsidized: urban mass transit, intercity rail, and interstate highways. The state maintained the incomes of the poor, disabled, elderly, and temporarily unemployed. All of this was much
more pronounced in Europe than in the United States, which mythologized frontier self-sufficiency and strongly distrusted the state. We are now experiencing a third transition. Faith in the states capacity to deliver goods and services has been deliberately undermined, severely eroding the willingness of taxpayers to finance them. After the fall of the Berlin Wall, actually existing socialism survives only in North Korea and Cuba, which few national leaders other than Hugo Chvez and Evo Morales still see as a model. Free market ideology is hegemonic. Philanthropyoften faith-based in the United Statesis thriving, fed by staggering concentrations of wealth and encouraged by generous American tax laws. And reaction against the dependence inherent in the division of labor has been growing for decades, voiced in the 1970s by Ivan Illich (1977) and reinforced by environmentalist pressures for selfsufficiency (e.g., in food and energy production and transportation). Although no one proposes to eliminate national armed forces, they are increasingly dependent on private contractors, who are more numerous than U.S. military forces in Iraq. Private police have long outnumbered public police in the United States. More parents are turning to private schools, assisted and encouraged by government vouchers as well as the deteriorating quality of public schools (completing a vicious circle). Public universities are increasingly dependent on external funding for research, rapidly rising tuition for teaching, and alumni donations. A growing proportion of the population supplements public health care with private insurance, and conservative politicians want medical savings accounts to replace public insurance. The state has closed many custodial institutions (orphanages, mental hospitals, public hospitals) while expanding others (prisons) often by relying on private entrepreneurs. The state has contracted out many other services: custodialwork, food provision, garbage collection. Previously public utilities such as gas, electricity, and water have been privatized. As social security fails to keep pace with inflation, the elderly are more reliant on private pensions and savings. Underfunded public schools depend on money and labor contributed by parents, only some of whom have the necessary time and cultural capital. Private enterprise pays for street maintenance through Business Improvement Districts. 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). Transitions among the four mechanisms delivering legal services exhibit similar patterns. In societies with relatively undifferentiated legal systems Africa offered many examples until recentlypeople negotiated and litigated for themselves (supported by kin and other collectivities) (Abel 1969). As legal professions secured a monopoly over representation in court and over certain lucrative transactions (such as conveying real property or distributing decedents estates), they sold their services in a protected market, extracting rents that created both a sense of obligation to represent some indigent clients and the
financial ability to do so. 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). Now that state legal aid budgets have been declining in real dollar terms for decades, while market, philanthropic, and selfhelp mechanisms have been expanding, we urgently need to compare the strengths and weaknesses of the four delivery mechanisms. The following is an unsystematic, incomplete, and tentative set of hypotheses. 1. Expertise is most variable when delivered by the market: you get what you pay for. (A famous New Yorker cartoon showed a lawyer behind his desk asking a client: How much justice can you afford, Mr. Pitkin?) Big firms hire graduates with the best academic credentials, keeping only the few who perform exceptionally well, whereas a distressingly large proportion of solo and smallfirm practitioners are incompetent (Abel 2008). The quality of legal aid lawyers varies more narrowly around the middle. Although they specialize in the distinctive problems of their poor clients, turnoverspawned by low pay and status, frustration with routine work and limited prospects for career advancement deprives legal aid of accumulated expertise. Large-firm pro bono lawyers have high generalized legal expertise but little familiarity with the clients particular problems (or, often, with the relevant law and legal institutions). Self-help is the obverse: laypersons are intensely familiar with their own problems and the institutions they confront but ignorant of the law. 2. Centralization decreases from state-controlled legal aid (where Congress intrusively limits LSC spending), through philanthropy (dominated by a few large foundations, like the Open Society Institute and Ford, and pro bono by relatively few large firms), to the market (megafirms and boutiques serving large businesses and wealthy individuals, solo and small-firm practitioners serving small businesses and nonwealthy individuals), and finally to self-help. Centralization allows the state to target resources (e.g., to the poor through means tests) but also lets it deny services to politically unpopular or powerless clients (e.g., the undocumented, or consumer class actions) or causes (e.g., abortion, challenges to welfare reform). Judicare makes it harder for the state to control the large number of private lawyers it reimburses, who also oppose budget cuts and categorical exclusions (Abel 2003). Pro se litigants tend to be fiercely individualistic (to the dismay of judges) but find it virtually impossible to organize politically. 3. Political independence. The state is the least independent legal services provider. Ever since Nixon signed the Legal Services Corporation Act in 1973, Congress has imposed increasing restrictions on federally funded legal aid (Brennan Center 2000). 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). Large-firm pro bono programs are influenced by financial concerns (and hence may contract during recessions), political orientations, the pet causes of law firm partners, and the career anxieties of associates (who invest most of the time), as well as by conflicts
of interest with fee-paying work (both actual and positional) (Shapiro 2002; and see Cummings & Southworth in this volume). The market responds to the profit motive, producing each firms mix of substantive areas and the kinds of personal injury clients contingent-fee lawyers accept. Individuals engaging in self-help are most autonomous. 4. Motivation and career incentives. 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. The neediest are often the least capable. Self-help tends to be a one-shot effort, with no accumulation of experience (although some pro se litigants with chronic problems, e.g., parents of special-needs children, seek to mobilize or offer their services to others, while recidivist criminals and prisoners serving long sentences may gain lots of experience as jailhouse lawyers). Pro bono lawyers tend to be very enthusiastic (since rewards are intrinsic); but fee-generating work may take priority because pro bono activities typically distract from, and may impede, career advancement. A few committed lawyers leave their large firms to pursue public interest work full-time. The satisfaction of those who stay tends to rise over time, as lawyers acquire greater responsibility, earn increased material rewards, and deepen relationships with clients. These benefits (and demands) make pro bono less attractive. Solo and smallfirm lawyers develop routines that reduce effort but increase boredom. Although this may endow pro bono with the attraction of variety, these lawyers generally lack the financial security to invest much time in nonpaying work. Hence their pro bono activities often are financially motivated. Legal aid lawyers often begin their jobs with a strong ideological commitment, 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. 5. Clientele: identity, source, relationship. Pro se litigants may have fools for their clients, but the relationship is intimate, permanent, and unmediated by a referral source. Large-firm partners (though not associates) have ongoing, often intimate, relationships with their wealthy individual and corporate clients. Referrals usually come from within their own networks: old school ties and club memberships, former associates who became house counsel, and satisfied clients. By contrast, large firms rely on public interest lawyers to refer pro bono cases, often having little direct contact with those clients. The client relationship ends with the case and rarely leads to another. Legal aid lawyers have transitory, often impersonal relationships with a mass of poor walk-in clients (frequently referred by equally anonymous former clients). 6. Substantive areas. Self-help and legal aid deal exclusively with personal plight matters: crime, divorce, housing, immigration, employment, discrimination, debt, bankruptcy, welfare benefits, education, and wages. Accident victims may negotiate their tort claims alone, but litigation is too daunting. 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). Because large firms
deal exclusively with commercial matters, their pro bono work usually is unrelated to their private practice. 7. Strategies. Because of the complexity of litigation (outside the small claims court), self-help is reactive and largely limited to uncontested matters, negotiation, drafting, and administrative agencies. Legal aid focuses almost exclusively on reactive litigation, which quickly becomes routine (Katz 1982). 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, which resulted in numerous restrictions on what LSC-funded offices can do. The base of the private practice hierarchy resembles legal aid; the apex, however, tends to be proactive and largely transactional. For the latter, pro bono work tends to focus on large-scale litigation, especially appellate test cases. 8. Demographics. Women and minorities are overrepresented in legal aid. There is some evidence that minorities also do more pro bono work (Dinovitzer & Garth in this volume; Lempert et al. 2000). Large-firm partners are disproportionately white men. I would hypothesize that pro se civil litigants are relatively well educated, whereas prisoners filing collateral attacks or challenging conditions of confinement are poorly educated men, and often racial minorities. 9. Constituencies. The legal profession traditionally was united in opposing self-help; bar associations lobbied for expansive definitions of the lawyers monopoly and vigorously prosecuted unauthorized practice of law (Rhode 1981). But such blatant self-interest increasingly embarrasses the upper echelons of the profession. Until the 1970s, most legal professions prohibited advertising and price-cutting (if they did not manage to suppress all intraprofessional competition). Most American lawyers (wrongly) feared losing work to salaried legal aid lawyers (and barred them from handling personal injury cases for that reason), whereas most English lawyers (rightly) hoped state legal aid payments would expand their market. Today, the professional legal elite strongly advocates both legal aid and pro bono (as forms of legitimation). Because none of the four delivery mechanisms alone can begin to satisfy the unmet need for legal services, we need to identify theoretically and test empirically the distinctive strengths and weaknesses of each in order to determine the optimal mix. The state must take primary responsibility. We can no more rely on bake sales to ensure justice than to guarantee security. (Reagans first Attorney General, Edwin Meese, notoriously declared that pro bono and law student volunteers could adequately replace legal aid.) Just as private arbitration only supplements public courts, so the other three mechanisms can only supplement legal aid. 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.S. Supreme Courts ideal of equal justice under law. Only the state can mount a national program targeting the neediest and endow them with a right to representation.
But where will we find the political will to pay for these services? To the electorate, law seems less essential than the other services the state funds (however inadequately): health care, education, housing, food, transportation, police, and prisons. Compared with illness or natural disasters, many legal problems appear voluntary: the moral hazards of the undeserving poor, avoidable outcomes of misconduct or improvidence. As a remedy, law also seems more political than medicine or schoolingespecially to the politicians whose decisions legal aid lawyers challenge. Decades of tort reform propaganda have successfully stigmatized tort victims and their lawyers. The pervasiveness of lawyer jokes both evidences and reproduces the unpopularity of their butts (Galanter 2005; Abel 2007). Because legal aid is means-tested, 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). In England, the Law Society and the Bar Council became surrogate pressure groups for legal aid, which reimburses private practitioners for representing poorer clients. But though the organized English profession often forestalled budget cuts, critics stoked public resentment of supplier-induced demand and bloated payments to fat cat Queens Counsel. Because legal aid (for these reasons) always is even less adequately funded than other starved state services, low levels of pay and reimbursement produce representation whose quality is often deficient (although some lawyers practice at the very highest levels). Markets have the greatest capacity to respond to fluctuating consumer demand. Professions emerge by distorting markets, limiting the number and identity of suppliers and restricting intraprofessional competition. Reducing these imperfections could greatly improve access to justice (although all labor markets are sticky, especially those where training is long and costly). We should drastically contract or even eliminate the monopolies lawyers enjoy (although we would then need to regulate the quality of the lay substitutes). Markets also motivate producers to educate consumers about their needs and seek third-party funding (state or private insurance) for those unable to pay. 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, distribution of estates, or divorces funded by selling the marital residence). 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). Self-help constitutes the largest untapped reservoir of legal services, because it is produced by sweat equity with little or no opportunity costs. We accept, indeed encourage, do-it-yourself health care, education, gardening, auto maintenance, home improvement, and culture (e.g., garage bands, pottery). Self-help increases the producers overall sense of competence, which may be transferable to other activities and emulated by other people. Because principal and agent are
identical, there are no agency problems. But despite Americans attachment to the frontier myth of self-sufficiency, the enormous advantages (and hence growth) of the division of labor severely limit the legal services individuals can perform for themselves; and efforts to increase self-help carry substantial risks because of the complete lack of quality control. Philanthropic activities enjoy vastly greater insulation from political interference compared with state services. Volunteers can even invoke First Amendment protections. Only private lawyers could have mounted the necessary multi-year challenge to the Bush administrations open-ended detention of hundreds in Guantanamo Bay. Indeed, when Charles Cully Simpson, Assistant Secretary of Defense for Detainee Affairs, attacked pro bono lawyers for doing this and urged their corporate clients to fire the firms subsidizing it, he so clearly transgressed professional norms that he quickly was forced to resign. Philanthropy taps the talents (and resources) of lawyers and firms, which would not otherwise be available to poor or unpopular clients, while those lawyers get the opportunity to embody and express the professions highest ideals. But because of the episodic nature of pro bono services, the mismatch between legal needs and expertise, and the tension between philanthropy and the firms bottom line, fulltime cause lawyers with stable funding, ongoing relations with clients, 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, advancing our painfully slow progress toward equal justice under law.
references
Abel, Richard (1969) Customary Laws of Wrongs in Kenya: An Essay in Research Method, 17 American Journal of Comparative Law 573626. (1985) Law without Politics: Legal Aid under Advanced Capitalism, 32 UCLA Law Review 474642. (2003) English Lawyers between Market and State: The Politics of Professionalism. Oxford: Oxford University Press. (2007) review of Galanter (2005), 57 Journal of Legal Education 130142. (2008) Lawyers in the Dock: Learning from Attorney Disciplinary Proceedings. New York: Oxford University Press. Booth, Wayne (1999) For the Love of It: Amateuring and its Rivals. Chicago: University of Chicago Press. Brennan Center (2000) Restricting Legal Services: How Congress Left the Poor with Only Half a Lawyer. New York: Brennan Center for Justice. Cummings, Scott (2004) The Politics of Pro Bono, 52 UCLA Law Review 1149. Erikson, Erik (1959) Identity and the Life Cycle. New York: International Universities Press.
Galanter, Marc (2005) Lowering the Bar: Lawyer Jokes and Legal Culture. Madison, WI: University of Wisconsin Press. Illich, Ivan (1977) Disabling Professions. London: Marion Boyars. Katz, Jack (1982) Poor Peoples Lawyers in Transition. New Brunswick, NJ: Rutgers University Press. Lempert, Richard O., David L. Chambers, and Terry K. Adams (2000) Michigans Minority Graduates in Practice: The River Runs through Law School, 25 Law and Social Inquiry 395506. Lochner, Philip (1975) The No-Fee and Low-Fee Legal Practice of Private Attorneys, 9 Law and Society Review 431473. Medina, Jennifer (2008) Bids for Botox? Auctions Go Deep to Aid Schools, New York Times May 3, 2008, B9. Miller, T. Christian (2007) Contractors Outnumber Troops in IraqThe Figure, Higher than Reported Earlier, Doesnt Include Security Firms, Los Angeles Times July 4, 2007. Polanyi, Karl (1944) The Great Transformation: The Political and Economic Origins of Our Time. New York: Farrar & Rinehart. Rhode, Deborah L. (1981) Policing the Professional Monopoly: A Constitutional and Empirical Analysis of Unauthorized Practice Prohibitions, 34 Stanford Law Review 1112. Shapiro, Susan P. (2002) Tangled Loyalties: Conflict of Interest in Legal Practice. Ann Arbor, MI: University of Michigan Press. Thrun, Sebastian and Anthony Levandowski (2009) Four Ways for Detroit to Save Itself, New York Times January 3, 2009, A17. Veblen, Thorstein (1925) The Theory of the Leisure Class: An Economic Study of Institutions. London: George Allen & Unwin. Weber, Max (1978) Economy and Society: An Outline of Interpretive Sociology. Berkeley: University of California Press.
cases cited
Argersinger v. Hamlin, 407 U.S. 25 (1972) Boddie v. Connecticut, 401 U.S. 371 (1971) Gideon v. Wainwright, 372 U.S. 335 (1963) Serrano v. Priest, 5 Cal.3d 584 (1971)
index
AALS. See American Association of Law Schools (AALS) ABA (American Bar Association) Accreditation Standard, 4647 Canon of Ethics, 27, 32 Center for Pro Bono, 5, 36, 105, 137 Commission on Professionalism, 34 contingent fee criticism, 3 debates on pro bono service, 29, 3234, 74, 15759 ethics education, 3335 founding of, 27 Law Firm Pro Bono Challenge, 5 Law Student Divisions resolution on pro bono graduation requirement, 40 legal education and pro bono service, 44 mandatory law school pro bono service, 6 Model Code of Professional Responsibility, 34, 3234 Model Rules of Professional Conduct, 4, 34, 25253. See also Model Rule 6.1 Montreal Resolution, 33 Private Attorney Involvement Project, 36 1930s actions on legal aid, 29 Special Commission on Professional Standards, 34 Standing Committee on Delivery of Legal Services, 174 Standing Committee on Pro Bono and Public Service, 5, 1112, 75, 138, 15556 survey of pro bono activities, 11 Young Lawyers Division, 40 Abbott, Andrew professional identity, 54, 211 restrictions on supply of professional services, 1045 Abel, Richard, 3, 19, 295307 class distribution of legal aid services, 95, 295 domestic violence shelter resources, 95 empirical research on legal profession, 285 expertise variations among providers of pro bono service, 302 growth in large law firms, 139, 159, 187 impact of pro bono service on law students, 53 judicare, 302 Kenya, delivery of legal services in, 301 lawyer jokes, 305 market for legal services, 102 market promotion as aspect of pro bono service, 115 pro bono publico, differences in understanding of, 157 restrictions on supply of professional services, 1045 ABF (American Bar Foundation), 75 Access pro bono, 8289 Access to justice, 7, 12, 3233 Adcock, Cynthia federal funding for legal aid, 296 history of law student pro bono service, 13, 2552, 102, 157 institutionalization of law school public service, 53 Adcock, Thomas, 26970 African-American lawyers. See Black lawyers After the JD (AJD) study, 100102, 101n5 Dinovitzer, Ronit, 57n4, 118 elite strategy of pro bono service in early lawyer careers, 11826 rates of pro bono service, 1067 Age of lawyers who perform pro bono service, 16162 Aid to Families with Dependent Children, 108 AIDS discrimination practice by public interest lawyers, 196 foundation, 220 Volunteer Lawyers Project, 217
310 index
AJD. See After the JD (AJD) Alabama Code of Ethics, 27 Albiston, Catherine R. & Laura Beth Nielsen nonprofit public interest advocacy, 191 public interest practices in law firms, 186, 191, 191n11 Alderson, Arthur S. & Francois Nielsen, 144 Alfisi, Kathryn, 254 Alliance for Justice, 222 Altruistic and disinterested motivations for pro bono service, 1415, 11517 American Association of Justice, 173 American Association of Law Schools (AALS) ethics education, 33 goal of pro bono service, 6 legal aid clinics in law schools, 31 pro bono service and legal education, 45 American Bar Association. See ABA American Bar Foundation (ABF), 75 American Civil Liberties Union, 185, 220 American Immigration Lawyers Association Citizenship Day, 173 Andreoni, James, 251 Andrew, Claire & Manuel Velasquez, 83 Aneiro, Michael, 26061 APBCo (Association of Pro Bono Counsel), 137 Argersinger v. Hamlin, 296 Arizona mandatory pro bono service, 38 Rule 6.1, 159 Arnold, Thurman, 221 Arnold & Porter, 1, 22122 Aron, Nan, 191 Arup, Christopher, 8 Ashar, Sameer M., 193 Association of Pro Bono Counsel (APBCo), 137 Astin, Alexander, Linda Sax &, 77 Asylum cases, 1, 216 Atkinson, Robert, 8, 54 ATLA, 173 Attica Prison riot, 220 Attorney of the Morning program, 23148 Attorneys fees ABA Canon of Ethics, 27 disposition of fees in pro bono cases by large law firms, 201 fee-shifting statutes as contributing to growth of private public interest firms, 19091, 199 See also Contingent fees Auerbach, Jerold, 3, 139, 290 Australia, 8, 109 Bagenstos, Sam, 190, 203n22 Baldy Center for Law and Social Policy, 2 Ball, George, 21819 Baltagi, Badi H., 144n7 Bank of America, 252 Bar associations role in increasing pro bono participation, 17375 Barber, Elinor, Robert K. Merton &, 212 Barrett, Christopher B., 95 Barrow, Sue & Ritz Zimmer, 95 Barry, Margaret Martin, 29, 32 Batson, C. Daniel, 25152 Battistoni, Richard M., 77 Baumgartner, R. M., T. A. Heberlein &, 160 Behar, Leon I., 158 Berger, Marilyn, 218 Berle, Adolph A., 14748 Berlin, Edward, 188 Bernabei, Lynn, Debra S. Katz &, 191, 19495 Bernabei & Katz, 195 Bezdek, Barbara, 38 Bianco, Anthony, 282n2 Billable hours in competition with pro bono hours, 149 Black lawyers Paul, Weiss, Rifkind, Wharton & Garrison, 22021 private public interest law firms, 18889 public service careers of, 200201 rates of pro bono service, 12025 Blair, Tony, 295 Blankenberg, Erhard, 115 Blau, Peter M. & Richard A. Schoenherr, 142 Blom, Grand Bratton, 193n12 Bloom, Anne, 191, 19597 Board of Education, Brown v., 189, 221 Bocarsly Emden Cowan Esmail & Arndt LLP, 200 Boddie v. Connecticut, 296 Boon, Andrew & Avis Whyte, 12, 156, 172 Booth, Wayne, 300 Bottom line and pro bono service, 25166
index 311
Bouman, John, 257 Bourdieu, Pierre, 15, 11518, 126, 213 Boutcher, Steven A., 15, 13553 organized pro bono services by large law firms, 100, 107, 155, 183 professional goal of pro bono service, 158 Bradway, John S., 2830 Brady, David, 144 Brennan Center, 296, 302 Brest, Paul, 252, 259, 26263 Britain. See England and Great Britain Bronstad, Amanda, 253 Brooklyn Law School, 43 Brosnahan, James J., 21920 Brown v. Board of Education, 189, 221 Brownell, Emery, 31 Browning, Lynnley, 103 Buffalo, New York Baldy Center for Law and Social Policy, 2 housing crisis, 23148 Bureau of Justice Statistics, 110 Burke, Debra analysis of pro bono service, 136 empirical studies of large law firms, 142n4 professional identity, 55 Bush, President George W., 306 Business creation and pro bono programs, 103 Caher, John, 271 Calderon, Lewis S., 43 California private attorney general fee provision, 190 Southern Californias pro bono and public service programs, 42 See also Los Angeles; San Francisco Cameron, Susan, 257 Canadas legal aid practices, 8, 109 Cappellari, Lorenzo, 76 Cardin, Representative Benjamin, 38 Cardin requirement, 38n9 Carle, Susan D., 187, 190 Carlin, Jerome, 172, 189, 290 Carlyle, Thomas, 213 Carnegie Foundation Educating Lawyers, 47 Justice and the Poor, 29 Carpanzano, Marielena, Paul Ruggiere &, 16162
Carter, President Jimmy, 218 Cary, E. Gil, 254 Catholic lawyers excluded from Wall Street firms, 212 Caudell-Feagan, 37, 39 Cause-based public service, 3035 Center for Law and Social Policy, 222 Center for Pro Bono, 5, 36, 105, 137 Charisma and pro bono practice in large law firms, 21130 Charitable donations, restrictions on, 302 Charn, Jeanne & Jeff Selbin Office of Economic Opportunity (OEO), 31 Chatten-Brown & Carstens, 199 Chavez, Hugo, 301 Chemerinsky, Erwin and public interest debates, 9 Chen, Via, 260 Chevron, 204 Chicago Miner, Barnhill & Galland, 199 pro bono service study, 74, 100 Chicago-Kent School of Laws Saving Our Society program, 40 Child care, 298 Child custody representation, 166 Christensen, Barlow F., 115 Church volunteer work, 270 Cialdini, Robert B., 251 Citadel case, 222 City of New London, Kelo v., 282 Civic pro bono, 8289 Civil rights and liberties American Civil Liberties Union, 185 Civil Rights Attorneys Fees Awards Act, 190 Civil Rights movement of 1950s and 1960s, 212 fee-shifting provisions of Civil Rights Act of 1964, impact of, 190 large law firms pro bono dockets, 198 Lawyers Committee for Civil Rights under Law, 217, 224 Lawyers Committee for Human Rights, 21617, 220 Lawyers Constitutional Defense Committee, 222 Marolis & McTernan, 188
312 index
Civil rights and liberties (cont.) public interest lawyers practice, 19394, 196 Traber & Vorhees, 196 Civil Rights Attorneys Fees Awards Act, 190 Civil Rights movement of 1950s and 1960s, 212 Clark, Charles E., 285, 288 Clark, Herbert, 219 Clary, E. Gil, 73, 80, 85 CLEA (Clinical Legal Educators Association), 47 Cleary Gottleib, 21819 CLEPR (Council on Legal Education for Professional Responsibility), 31 Client relationship in pro bono service, 23943, 303 Clinical legal education and student pro bono service, 2552 Clinical Legal Educators Association (CLEA), 47 Clinton, President Bill, 43, 295 Cloward, Richard A., Frances Fox Piven &, 287 Cnaan, Ram A., 76 Coal mine disaster, 222 Columbia University Law School Private Public Interest and Plaintiffs Firm Guide, 186, 19394 pro bono and public service programs, 41 Commercial law, 193 Community Legal Resource Network, 167, 172 Community orientation and pro bono service, 84 Community service learning and pro bono service, 7689 Community-based public service, 2630 Conflicts of interest organized civil pro bono programs and, 99n3, 1034, 19899 private public interest law firms dockets as influenced by large law firms positional conflicts, 19899 Congress of Industrial Organizations, 188 Connecticut, Boddie v., 296 Connecticut Rule 6.1, 159 Conscience constituents, 225 Consortium on Legal Services and the Public, 109 Constitutional right to civil counsel, 9 Consumer protection counseling by organized pro bono programs, 100 large law firms pro bono dockets, 198 public interest lawyers, 193, 199 Contingent fees as contributing to growth in plaintiffs firms, 189 introduction of, 3 Cooper, Cynthia L., 167 Corstvet, Emma, 285, 288 Coumarelos, Christine, 109 Council for Public Interest Law, 193 Council on Foreign Relations, 218 Council on Legal Education for Professional Responsibility (CLEPR), 31 Country lawyer, 18788 Court-appointed counsel for indigent criminal defendants, 166 Cox, Wendell, 282n2 Credit availability as contributing to growth in plaintiffs firms, 189 Crider, S. Todd, 158 Criminal matters ABA Canon of Ethics, 28 appointed counsel for indigent defendants, 189n4 Norris firm, 189 public interest lawyers practice, 193 Crises and law student pro bono service, 2552 Critical analysis of pro bono service, need for, 27993 Critical Legal Studies (CLS), 279, 286 Culture of commitment, 213, 227 Cummings, Scott bars ethical rules, 3, 5 cause lawyers, 156, 2034 clinic model for pro bono programs, 234 conflicts of interest and organized civil pro bono programs, 103 differences in pro bono movements, 148 geographic differences in pro bono contributions, 6
index 313
growth in pro bono service, 8, 138, 160 institutionalization of pro bono service, 13536, 183, 187, 225, 231, 255 limitations on pro bono service, 11 nonprofit practice and growth of private public interest firms, 191 organized civil pro bono programs, 99100, 107 private public interest law firm, 16, 183209 pro bono publico, differences in understanding of, 157 professional goal of pro bono service, 158 public good, 157, 280 public interest organizations, 257 recognition for pro bono services, 117 recruiting rewards of law firms, 103, 139, 296 study of Los Angeles law firms, 18384, 188 volunteerism and pro bono service, 7374 Curran, Barbara, 109 Curriculum-based public service, 4649 Currie, Albert, 109 Daniels, Stephen & Joanne Martin Chicago lawyers pro bono service study, 100 recruiting rewards of law firms, 103 Darly, John M., 252 Davis, Martha, 32, 53 Dean, William J., 226 Death row clients represented, 165 Debevoise, Eli Whitney, 21617 Debevoise & Plimpton, 21617 Definitions of pro bono, 13738 in elite law firms, 160 New York experience, 26777 pro bono publico, 157, 183, 25253 redefining pro bono service, 16871, 175 solo and small firm practice, 15657 Delaney, Martha & Scott Russell just-world perspective, 83 Delivery mechanisms for legal service, 295307 Democratic Party reform movement, 220 Department of Justice, 221 Dezalay, Yves & Bryant G. Garth
on pro bono service as legitimizing system, 117 Dhillon, Lovely, 167 DiMaggio, Paul J., 141, 214 Dinovitzer, Ronit, 15, 11534 After the JD study, 57n4, 100102, 101n5 benefits to law firm of pro bono service, 140 demographic analysis of pro bono service providers, 304 institutionalization of pro bono service, 148 plaintiffs bars growth, 189 professional identity, 54 Dipasquale, Cynthia, 258 Disabled care, 298 Discovery practices as contributing to growth in plaintiffs firms, 189 Disinterested acts, 11617 Division of labor in legal field, 117, 131 Divorce organized pro bono programs and, 100 pro bono services by divorce lawyers, 16364, 303 Dobbin, Frank, John R. Sutton &, 142 Doe v. Unocal, 204 Dolovich, Susan, 53 Domestic violence shelters, resources for, 95 Dudley, Tilford E., 28 Duke University Law School, 30, 34, 41 Early lawyer careers and elite strategy of pro bono practice in, 11534 Eckholm, Erik, 7 Economic justice, 32 Economic perspectives, 95179, 196 Economides, Kim & Majella OLeary, 214 Edelman, Scott, 261 Educational services, 298 Eisenberg, Nancy, 254 El Centro practice, 196 Elder care, 298 Eldred, Tigran W. & Thomas J. Schoenherr clinical education funding, 32 mandatory pro bono service debate, 34 Elite strategy of pro bono practice, 11534 Elster, Jon, 251 Empathy in housing client cases, 23943
314 index
Empirical research housing crisis in Buffalo, New York, 23148 influences for pro bono service, 1213, 13536 institutionalization generally, 141 institutionalization of pro bono in large law firms, 14250 law schools impact on pro bono service in practice, 7392, 139 legal profession, history of empirical research on, 28586 legal services markets and pro bono services, 1057 private public interest law firm, 19396 pro bono service generally, 12, 13536 Employment discrimination fee-shifting statutes as contributing to growth of private public interest firms, 190 large law firms pro bono dockets, 198 public interest lawyers practice, 193, 196, 199 England and Great Britain British welfare state, 295 legal aid system in, 8, 10910 market promotion as aspect of pro bono service, 115 Engler, Russell, 43 English National Health Service, 300, 305 Entrepreneurs of pro bono work, 213, 213n8 Environmental Defense Fund, 224 Environmental law practice large law firms pro bono dockets, 198 by public interest lawyers, 19394, 199 Epstein, Cynthia Fuchs benefits to law firm of pro bono service, 140, 183, 214 charisma and shaping of pro bono service in large law firms, 1617, 21130 private public interest firms, 188 professionalism and pro bono service, 55 Equal Justice Conference, 137 Erichson, Howard M., 3 Erie County Bar Association, 231 Erikson, Erik, 300 Erikson, Kai, 222 Erlanger, Howard & Gabrielle Lessard, 3738 Ethics-based public service, 3546 Experience level of pro bono lawyers, 28788 Expertise variations among providers of pro bono service, 302 Eyler, Janet & Dwight E. Giles, 77 Failinger, Marie A., 38 Family values causes of private public interest law firms, 194 Faulkner, Shannon, 222 Feather, N. T., 83 Feathers, Cynthia, 18, 26777, 28889 Federal Communications Commission, 221 Federalist Society and public interest debates, 9 Fine, Gary Alan, Adam King &, 213n8 Finkelstein, Marcia, Louis A. Penner &, 76 First Amendment protections, 306 Flom, Joseph, 221 Florida State University School of Law, 39 Food distribution to hungry through public and private funding and labor sources, 95 Ford Foundation centralization of pro bono service, 302 and clinical education, 3132 Interuniversity Consortium on Poverty Law, 37 Milbank, Albert as chairman of, 217 Fordhams pro bono and public service programs, 41 Foreign countries legal aid systems, 95, 109 Forger, Alexander, 217 Fortas, Abe, 221 Frank, Jerome and method of teaching law, 28 Freeman, Richard B., 77 Frey, Bruno S. & Lorenzo Goette, 80 Fried Frank, 212n7 Friedson, Eliot and pricing of professional services, 104 Friendly, Henry J., 21819 Frumkin, Peter, 252, 254, 25859, 262 Furco, Andrew, 77 Future of pro bono service, 251307
index 315
Gaetke, Eugene R. and lawyers as officers of the court, 102 Galanter, Marc analysis of pro bono service, 136, 211 empirical studies of large law firms, 142n4 golden age of civic professionalism, 187 growth in large law firms, 139, 150, 159, 187 lawyer jokes, 305 recruiting rewards of law firms, 103 retirement transition, volunteer legal service as, 254 Gamson, William, 214 Garrison, Lloyd K., 22021 Garrison, Wendell Phillips, 220 Garrison, William Lloyd, 220 Garth, Bryant G. benefits to law firm of pro bono service, 140 demographic analysis of pro bono service providers, 304 elite strategy in early lawyer careers, 15, 11534 institutionalization of pro bono service, 148 prestige of pro bono service, 132, 188n2 pro bono service as legitimizing system, 117 professional identity, 54 Gauthier, David, 251 Gay rights activists and pro bono advice, 1 Gender equity large law firms cause, 221 private public interest law firms cause, 194 Gender patterns in pro bono service, 12021, 304 Geographic differences in pro bono service, 6, 1056, 14647, 14950 George Washington University, 28 Georgetown Outreach, 40 Georgetown University Law Center Georgetown Outreach, 40 Pro Bono Institute, 13738 Gertner, Jon, 262 GI Bill of Rights, 300 Gideon v. Wainwright, 296 Giles, Dwight E., Janet Eyler &, 77
Glass ceiling, 217 Glendon, Mary Ann law school pro bono service, 6 A Nation under Lawyers, 43 Goal-setting for pro bono service, 25962 Gocker, James Clarke housing crisis in Buffalo, New York, 17, 23148 public good, 280 volunteerism, 73, 99 Goette, Lorenzo, Bruno Frey &, 80 Good lawyering and pro bono service, 5372 Goodwin Procter and homeless childrens educational access, 1 Gordon, Robert attorneys relation to state, 7 public interest law, 191 Gorin, Abbie, 279n1 Gould, Jay, 22223 Government. See State Government funding of legal aid, 108 Government immunity restrictions as contributing to growth in plaintiffs firms, 189 Gramsci, Antonio, 297 Granfield, Robert attributions regarding social problems, 83 criminal defense work, 289 impact of pro bono service on law students, 53 institutionalization of pro bono service, 213, 255 introduction to book, 122 law schools effect on public service commitment, 67 mandatory pro bono service in law schools, 1314, 5372, 102 motivations for pro bono service, 1011, 8586, 172, 204, 254 pro bono service study, 75, 8081, 136, 183, 197, 232 Granovetter, Mark, 223 Great Britain. See England and Great Britain Great Depression, 295 Greene, William H., 144 Greshin, Benjamin, 158 Groves, Robert M., 160 Guantanamo Bay detainees represented, 1, 165, 221, 306
316 index
Haberman, Clyde, 220 Habitability cases, 238 Habitus, 116 Hackett, Susan and in-house counsels pro bono service, 11 Hadley, Morris, 217 Hadsell & Stormer, 183, 19496, 2034 Hager, Barry M., 282 Hall, John, 217 Hallman, Ben, 160, 255, 261 Halpern, Charles, 22122 Hamilton, Fowler, 21819 Hamlin. Argersinger v., 296 Handler, Joel F. organized pro bono programs in large law firms, 13940, 159 private public interest law firm, 183, 193 Harrington, Michael, 225 Harris, Brent, 25556, 25861 Harvard Law School case-dialogue method of training lawyers, 28 Harvard Legal Aid Bureau, 28 Interuniversity Consortium on Poverty Law, 37 Private Public Interest and Plaintiffs Firm Guide, 186, 19394 student pro bono programs, 37 Harvey, David, 233n2 Harvey, Hal, Paul Brest &, 252, 259, 262 Hawaii mandatory pro bono service, 38 pro bono and public service programs, 42 Hayek, Frederick von, 282 Head Start, 300 Health care services, 298 Heberlein, T. A. & R. M. Baumgartner, 160 Heinz, John P. Chicago lawyers pro bono service study, 74 division of labor in legal field, 117, 168, 189 empirical research on legal profession, 285 growth in large law firms, 139, 189 institutionalization of pro bono service, 136 mandatory pro bono, 203 practice context of lawyers who perform pro bono service, 161 prestige of pro bono service, 132, 188n2 social structure of legal profession, 70 Hewlett Foundation, 259 Higginbotham, Leon, 189 Hill, Lynn Wooford, Judith L. Maute & Oklahoma City Volunteer Lawyer Center, 99100 value of pro bono service, 9798n2 Hirsch, Ronald L., 100n4 Hispanic lawyers rates of pro bono service, 12025 Hobson, Wayne, 139 Hodgkinson, Virginia A., 77 Hoffman, Martin L., 254 Hoffman, Susie, 258 Hoffmann, Elizabeth, 82 Hogan & Hartsons advice to gay rights activists, 1 Holocaust survivors represented, 220 Horwitz, Morton J., 286 House Un-American Activities Committee, 188 Houseman, Alan W. class distribution of legal aid services, 95, 138 Legal Services Corporation, 96, 108 restrictions on federal legal services programs, 187, 191 Housing cases Buffalo, New York, crisis, 23148 funding and labor sources, 95 large law firms pro bono dockets, 198 New York City housing court, 23435 public interest, 28384 public interest lawyers practice, 193, 196, 200 self-help, 303 Hsiao, Cheng, 144 Huge, Harry, 222 Hughes, Hubbard & Reed representing families of uniformed victims of 9/11 attacks, 1 Human rights cases. See Civil rights and liberties Humes, Edward, 137 Hunton & Williams representing asylum seekers, 1 Hurley, Lawrence, 166 Hurst, James Willard, 285
index 317
Identity politics, 226 Illich, Ivan, 301 Illinois Supreme Court Rule 756(f), 159 Immigration American Immigration Lawyers Association Citizenship Day, 173 asylum cases, 1, 216 pro bono services, 167 services by nonlawyers, 104 Income maintenance, 298 Indiana Universitys pro bono and public service programs, 42 Indirect services, 161n5 Inexperienced pro bono counsel, 287 Information Exchange, 37 In-house counsels pro bono service, 11 Institutionalization of pro bono in large law firms, 1078, 13553 Integration of pro bono service and law school curriculum, 6468 Interest on Lawyer Account Fund (IOLA), 39n11 Interest on Lawyers Trust Accounts (IOLTA), 7, 110 International Longshore & Warehouse Union, 188 Interuniversity Consortium on Poverty Law, 37 IOLA. See Interest on Lawyer Account Fund (IOLA) IOLTA. See Interest on Lawyers Trust Accounts (IOLTA) Iran-Contra scandal, 220 Isomorphism, 214 Issues entrepreneurs, 21130 Jackson, Elton F., 82 Jacobs, Dennis, 9, 263 Janoski, Thomas, 79 Jepperson, Ronald on institutionalization, 14041 Jewish lawyers excluded from Wall Street firms, 212 large law firms with pro bono practices, 22021 Jhering, Rudoph von, 282 Job setting satisfaction of lawyers, 12831 Johnson, Earl, Jr., 98 Johnson, Jane, 38
Johnson, President Lyndon, 212n7, 221, 296 Jones, Ashby, 260 Judicare programs, 110, 166, 302 just-world perspective, 83 Justus, Jolie L., 160 Kairys, David, 286 Kamin, Mitchell, 256 Kansas Rule 6.1, 159 Katz, Debra S. disinterested behavior, 251 legal professionalism in context of day-in-court workplace, 23132, 238 poverty law practice analysis, 235 private public interest law firms, 191, 19495 reactive litigation, 304 Katz, Jack, 295 Katzmann, Robert, 6, 69, 183 Kaufman, Dennis A. mandatory pro bono service, 34 Montreal Resolution, 33 prohibition on fees for legal practice, 26 Kaye, Judith S. & Jonathan Lippman, 162 Kelleher, Karen E., 46 Kelly, Michael multiple ideas of profession, 10 small firm study, 156, 164, 195, 200 Kelly Carmody & Associates, 162 Kelo v. City of New London, 282 Kennedy, Bobby, 222 Kennedy, Duncan, 286 Kennedy, President John, 212n7, 220 Kilwein, John Legal Services Corporation, 96, 108 Pittsburgh public interest law firms, 195 King, Adam & Gary Alan Fine, 213n8 King, Martin Luther, Jr., 220 Klare, Karl, 286 Klein, Jewel and legal aid programs in law schools, 3132 Koenig, Thomas, Robert Granfield & law schools effect on public service commitment, 6 motivations for pro bono service, 254 Kolker, Carlyn, 160, 202, 253 Kramer, John, 25, 38, 54
318 index
Kransberger, M. Elizabeth, 191, 19495, 202 Kritzer, Herbert, 189 Kronman, Anthony T. attorneys relation to state, 7 attorneys responsibility to serve marginalized groups, 137 commercialization of large law firms, 147 law school pro bono service, 6 The Lost Lawyer, 43 mandatory professional obligations, 290 public office service by lawyers, 187 service-to-society ethos, 211 Kuntz, William Francis, Gerald Walpin & and public interest debates, 9 Kutak, Robert and Special Commission on Professional Standards, 34, 158 Labor law and public interest lawyers practice, 193 Lamont, Michelle, 127 Lancaster, Ryon, 146 Landlord-tenant cases. See Housing cases Landon, Donald D., 156, 188 Langdell, Christopher Columbus, 28 Lardent, Esther benefits to law firm of pro bono service, 140, 160 history of pro bono service, 33, 36, 38 Large law firms amount of pro bono service in, 117, 11920, 12526 charisma and pro bono practice in, 21130 disposition of fees collected in pro bono cases, 201 institutionalization of pro bono in, 100105, 1078, 13553, 155 job satisfaction of lawyers in, 12831 motivation for pro bono service, 1011 New York bars redefinition of pro bono service, 27375 popularity of pro bono service in, 5 Larson, Magali Sarfatti empirical research on legal profession, 211, 285 lawyers as social class, 286 restrictions on supply of professional services, 104 Lash, David, 258 Lash, Karen, 254, 258 Laumann, Edward O., John P. Heinz & division of labor in legal field, 117, 168, 189 empirical research on legal profession, 285 institutionalization of pro bono service, 136 Law Firm Pro Bono Challenge, 5 Law School Consortium Project, 167, 193n12 Law schools, 67 integration of pro bono service, 4849, 6471 history of student pro bono service, 2552 mandatory pro bono service, 5372, 13839 priming for pro bono service, 7392 professional socialization through, 2592 Lawyer-aristocrats, 187 Lawyering for the good and pro bono service, 5372, 184, 197 Lawyers Alliance, 214 Lawyers Committee for Civil Rights under Law, 217, 224 Lawyers Committee for Human Rights, 21617, 220 Lawyers Constitutional Defense Committee, 222 Lawyers Guild, 225 Lazerson, Mark H., 235 LDF (National Association for the Advancement of Colored People Legal Defense and Education Fund), 185 Lee, Kyungmook, Peter D. Sherer &, 149 Legal aid services decreases in, 78 and pro bono service, 95113 See also Legal Services Corporation (LSC) Legal Aid Societys Servant of Justice Award, 221 Legal needs survey, 109 Legal service delivery mechanisms, 295307
index 319
Legal Services Corporation (LSC) coordination of legal services, 110 creation of, 36 cuts in support for, 1089, 138, 157, 226, 302 eligibility guidelines used in definition of pro bono service, 296 Forger, Alexander, 217 large law firms pro bono service as reinforcing program, 198 need for legal assistance, 7 number of people eligible for services funded by, 155n1 Private Attorney Involvement, 8 Raven, Robert, efforts to save, 219 restrictions on cases handled by, 43 survey of legal needs, 110 Legal Services for Children, 220 Lend-Lese Administration, 218 Lerner, Melvin J., 251 Lessard, Gabrielle, Howard Erlanger &, 3738 Levandowski, Anthony, Sebastian Thrun &, 301 Levin, Leslie C. loss-leader marketing of pro bono service, 118, 183, 188, 203, 296 solo and small firm pro bono service, 6, 15, 15579 Liability insurances contribution to growth in plaintiffs firms, 189 Liman, Arthur L., 220 Linowitz, Sol attorneys responsibility to serve marginalized groups, 137 The Betrayed Profession, 43 commercialization of large law firms, 147 service-to-society ethos, 211 Lippman, Jonathan, Judith S. Kaye &, 162 Liptak, Adam, 262 Little League coaching as pro bono, 270 Llewellyn, Karl, 285, 288 Lochner, Philip R. differences in approach ot pro bono work, 136 Erie County, New York study, 163 loss-leader marketing of pro bono service, 118, 159, 183, 18788, 296
Loder, Reed E., 25152 Logan, Frank, 217 Logan, John R. & Harvey L. Molotch, 233n2 Loose coupling of policies and practices, 141 Los Angeles Chatten-Brown & Carstens, 199 OMelveny & Myers, 201 Louisvilles pro bono and public service programs, 41 Low bono service, 10, 156, 156n2, 16667 Loyola, Chicagos pro bono and public service programs, 42 Loyola, Los Angeles pro bono and public service programs, 41 Loyola University, New Orleans, 37 LSC. See Legal Services Corporation (LSC) Luban, David, 28, 43, 190 Luks, Allan & Peggy Payne and selfless action, 252 Lusky, Suzanna on Canadas practice, 8 MacCrate Report, 69 Malpractice insurance and pro bono service, 174 Mandatory pro bono service Code of Professional Responsibility, 4 and law school pro bono service, 38, 5372 opposition to, 163n6 support for, 10 Mansbridge, Jane, 252 Margolis, Ben, 188 Margolis & McTernan, 188 Margulies, Peter, 11 Market as delivery mechanism for legal service, 295307 Market-reliant legal aid and pro bono service, 95113, 184, 196 Marks, Feinberg, Fried & Burch, 195, 200 Marks, Raymond F., 157, 159, 187 Marshall, Thurgood, 221 Martin, C. L., 160 Martin, Joanne, Stephen Daniels & Chicago lawyers pro bono service study, 100 recruiting rewards of law firms, 103
320 index
Marwell and domestic violence shelter resources, 95 Maryland analysis of pro bono service, 162 Legal Services corporations Child Custody Representation Project, 166 mandatory pro bono service, 38 Mather, Lynn cash flow in small and solo firms, 156, 18788, 203 communities of practice, 10, 15, 70, 136, 172 divorce lawyers, 17, 163 introduction to book, 122 professionalism through collegial control, 10 study of legal profession, 285 Maute, Judith L. ABA debates on pro bono service, 74 Alabama Code of Ethics, 27 expectations for pro bono service, 214 history of pro bono service, 3, 3233, 157 Model Code drafts, 34 Oklahoma City Volunteer Lawyer Center, 99100 value of pro bono service, 9798n2 Mayer, Martin, Sol Linowitz & and service-to-society ethos, 211 McCarthy, John D., 215 McDermott, John E. & Richard Rothschild, 190 McFadden, Robert D., 219 McLaughlin, Joe, 222 McTernan, John, 188 Medicaid, 295, 300 Medicare, 295, 300 as model, 110 Medina, Jennifer, 297 Meese, Edwin, 304 Menkel-Meadow, Carrie, 54, 254 Merton, Robert K., 21214 Mertz, Elizabeth, 6 Meyer, John W. & Brian Rowan, 141, 148 Michigan Rule 6.1, 159 Milbank, Albert, 21718 Milbank, Tweed, Hadley & McCloy, 21718 Millemann, Michael, 43, 254 Miller, T. Christian, 297 Mills, C. Wright, 214 Minnesota Justice Foundation, 37, 81 Missouris pro bono service, 162 Model Rule 6.1 generally, 45 large law firms institutionalization of pro bono service, 137, 146 meaning of pro bono, 25253 as narrow construction of pro bono publico, 183 small and solo firms pro bono practice, 157, 16871 Modell, Jennifer, 162 Molotch, Harvey L., John R. Logan &, 233n2 Monopoly in legal services as reason for pro bono service, 115 Montreal Resolution, 33 Moore, Andrew, 104 Moore, Nancy and mandatory pro bono service debate, 35 Moorhead, Richard & Pascoe Pleasence and legal needs surveys, 109 Moral obligation for pro bono service, 115, 127 Morales, Evo, 301 Morrison & Foerster, 21920 Morrissey, Siobhan, 261 Morsch, Thomas and in-house counsels pro bono service, 11 Motivations for Attorney in Morning program, 23637 for pro bono service, 1011, 8587, 115, 303 for volunteer service generally, 8485, 87 Mueller, Dennis C., 251 Mukasey, Michael, 219 Mulherins legal needs surveys, 109 Musick, Marc, John Wilson &, 7980 NALP (National Association for Law Placement), 75, 19394 NALP (National Association for Legal Career Professionals), 13738 NAPIL (National Association for Public Interest Law), 37 Narratives of professional identity, 5556 National Association for Law Placement (NALP), 75, 19394 National Association for Legal Career Professionals (NALP), 13738
index 321
National Association for Public Interest Law (NAPIL), 37 National Association for the Advancement of Colored People Legal Defense and Education Fund (LDF), 185 National Bar Associations 1940s pro bono service, 29 National Council on Legal Clinics, 31 National Law Journal public interest debates, 9 rankings of law firms and pro bono achievements, 5 National Lawyers Guild, 188 National Legal Aid & Defender Association, 36 National Legal Aid Association, 31 National Science Foundation, 216 National security, 298 National Urban League, 220 Nelson, Robert L. commercialization of large law firms, 14748 growth in large law firms, 139 law school pro bono service, 6 professionalism, 10 public interest practices in law firms, 186, 193, 232 New Approaches to Access to Legal Services, 255, 260 New Deal years, 212, 22021 New England School of Law, 43 New York Association of the Bar of the City of, 21719, 226 bar politics and pro bono definitions, 158, 26777 charisma and large law firms pro bono practice, 21330 Commission on Government Integrity, 218 mandatory pro bono service, 38, 158 New York City schools, 297 New York Legal Aid Society, 217, 223 New York Public Library, 217 New York University School of Law, 39, 41 Nielsen, Francois, Arthur Alderson &, 144 Nielsen, Laura Beth, Catherine R. Albiston & nonprofit public interest advocacy, 191
public interest practices in law firms, 186, 191, 191n11 Nixon, President Richard, 34, 36, 302 Noblesse oblige and pro bono service, 117, 126, 214 Nonprofit public interest organizations and private public interest law firms, 183209 Normative perspectives on pro bono service, 13, 1718 Norris, Schmidt, Green, Harris, Higginbotham & Associates, 189, 195 North Dakota and mandatory pro bono service, 38 Northeastern United States law firms rate of pro bono service, 142, 149 pro bono and public service programs, 42 Northeastern Universitys Law School Consortium Project, 193n12 Northwestern University School of Law, 30 Nova Southeastern University, 43 Obama, President Barack, 199 OConnor, John, Aric Press &, 274 Office of Economic Opportunity (OEO), 31 Ogilvy, J.P. & Robert Seibel and Council on Legal Education for Professional Responsibility (CLEPR), 31 Oklahoma City Volunteer Lawyer Center, 99100 OLeary, Majella, Kim Economides &, 214 Oliner, Pearl & Samuel Oliner, 254 Oliner, Samuel, Pearl Oliner &, 254 Oliver, Christine and institutionalization of pro bono service in law firms, 141 Olson, Mancur, 254 OMelveny & Myers, 201 Omoto, Allen M., 76 Open Society Institute, 302 Law School Consortium Project, 193n12 Organized civil pro bono programs, 99111 Palay, Thomas analysis of pro bono service, 136, 211 empirical studies of large law firms, 142n4 growth in large law firms, 139, 150, 159, 187 recruiting rewards of law firms, 103
322 index
Parker, Stephen, 7 Parsons, Talcott and legal professionalism, 102, 211 Pastore, Clare and constitutional right to civil counsel, 9 Paterson, Alan and class distribution of legal aid services, 95, 110 Patterson, Robert Porter, Sr., 219 Patterson & Belknap, 219 Paul, Weiss, Rifkind, Wharton & Garrison, 22021 Payne, Peggy, Allan Luks & and selfless action, 252 PBS NY (Pro Bono Students New York), 39 PBSC (Pro Bono Students of Canada), 89 Peace Corps, 212n7 Pearce, Russell history of Model Rule 6.1, 137 MacCrate Report, 69 public service as volunteering on behalf of nonpaying clients, 187 Penner, Louis A. & Marcia Finkelstein, 76 Pepper Hamilton, 137 Perkins, Rod, 217 Perle, Linda E., Alan W. Houseman & class distribution of legal aid services, 95 Legal Services Corporation, 96, 108 Personal injury law and public interest lawyers practice, 193 Persons of limited means, 16869 Philadelphia firm of Norris, Schmidt, Green, Harris, Higginbotham & Associates, 189, 195 Philanthropy as delivery mechanism for legal service, 295307 Phillips, Damon Jeremy and recruiting rewards of law firms, 103 Pincus, William, 31 Piven, Frances Fox & Richard A. Cloward, 287 Planned pro bono, 165n7 Pleasence, Pascoe, Richard Moorhead & and legal needs surveys, 109 Plimpton, Francis T. P., 216 Polanyi, Karl, 295 Police abuse cases and fee-shifting statutes, 190 Policing services, 298 Poor Persons Procedure, 296 Pope, Carl, 257 Porter, Aaron, 189, 195 Porter, Paul, 221 Pound, Roscoe, 3, 282 Poverty law history of pro bono service, 32, 3538 housing crisis addressed by volunteer lawyers, 23148 legal aid systems and, 95 New York State Bars experience with pro bono programs, 26777 public interest, 28485 Powell, Walter W. institutional theory, 149 isomorphism, 214 mandatory pro bono, 203 New Deal era government recruitment of lawyers excluded from elite law firms, 213 professional value of pro bono service, 157, 158n3 social movement activism and pro bono service, 139 sociological neoinstitutionalism, 141 Power track satisfaction of lawyers, 12831 Press, Aric, 253, 274 Priest, Serrano v., 297 Priorities in pro bono service, 25962 Prisoners rights cases, 196, 221 Private Attorney Involvement, 8 Private public interest firms, 183209 attorneys fees of, 200204 case selection, 197200 definitions, 18486 design, 19396 development, 18692 ideology of lawyers in, 197 marketplace of ideals, 196204 pro bono practice in, 200204 Private schools, 297 Private security forces, 297 Pro Bono Challenge, 137, 159 Pro Bono Institute, 5, 2012 Pro bono publico defined, 183, 25253, 27993 Pro Bono Students America, 44 Pro Bono Students New York (PBS NY), 39
index 323
Pro Bono Students of Canada (PBSC), 89 ProBono Net, 214 Products liabilitys contribution to growth in plaintiffs firms, 189 Professionalism civic professionalism, 54, 183, 187 golden age of civic professionalism, 187 Parsons, Talcott and, 102, 211 pro bono service and, 5456 social construction of, 1012 workplace setting context of, 23133, 238 Project Group, 37 Property rights law, 2023 PSLawNet, 19394 Public accommodations cases, 190 Public interest, 27993 Public interest law See also Private public interest firms Public service debate over meaning of, 910 pro bono in interest of, 183248 pro bono publico defined, 183, 25253, 27993 strategic philanthropy and bottom line, 25166 Queens Counsel, 305 Race patterns in pro bono service, 12021 private public interest law firms causes, 194 Raven, Robert, 219 Raymond, Nate, 155 Reagan, President Ronald, 36, 138, 296, 304 Recruiting lawyers and pro bono service programs, 103, 159, 201 Reduced-fee pro bono service, 156n2, 162, 16566, 170, 174 Reed, Alfred Z., 28 Regan, Francis and class distribution of legal aid services, 95 Reich, Charles, 288 Renaissance of Idealism, 261 Renaud, Tricia, 165 Rhode, Deborah attorneys responsibility to serve marginalized groups, 137 attributions regarding social problems, 83
bottom line and strategic philanthropy, 25166 charities providing legal aid to poor, 28 colonial days of legal service, 26 culture of commitment, 213 decline in pro bono service, 148 ethics education, 3335 institutionalization of law school public service, 53 law school pro bono service, 6, 45, 4748 law schools effect on public service commitment, 7 limitations on pro bono service, 11 moral obligation for pro bono service, 115 motivations for pro bono service, 18, 8586, 172, 25166 nonlawyers legal services, pro bono service as reaction to, 1045 nonprofit advocacy groups, 191, 198 presidency of AALS, 45 pro bono publico, differences in understanding of, 157 pro bono service study, 74, 8081 public interest, 279 public interest practices in law firms, 186 recruitment strategy, pro bono service as, 201 strategies for increasing pro bono service, 5 unauthorized practice of law efforts, 304 Richardson, Eliot, 217 Rifkind, Simon, 220 Righteous cases, 2034 Roberts, Albert R. & Barbara W. White and domestic violence shelter resources, 95 Roberts, Chief Justice John, advice to gay rights activists, 1 Robertson, Donald and Britains practice, 8 Robinson, Barbara Paul, 217 Rockefeller family, 222 Rockefeller Foundation, 218 Roe v. Wade, 194 Romero, Anthony, 257 Roosevelt, President Franklin Delano, 212, 21920 Rosenhan, David, 252 Rothschild, Richard, 190, 256 Rowan, Brian, John W. Meyer &, 141, 148
324 index
Rubenstein, William B., 190 Rubin, Anat, 2012 Ruebhausen, Oscar, 216 Ruggiere, Paul, 16162, 172 Russell, Scott, Martha Delaney & and just-world perspective, 83 Russell Sage Foundation, 21617 Rutgers, Newarks pro bono and public service programs, 42 Ryan, Governor George, 160 Sack, Kevin, 268 Salience hierarchy, 55 Same-sex marriage, 221 San Francisco charisma and large law firms pro bono practice, 21330 Legal Aid Society of, 219 Sandburg, Brenda, 160 Sandefur, Rebecca empirical analysis of pro bono service, 135, 184, 211, 25455, 296 geographic differences in pro bono service, 6 market-reliant legal aid, 14, 95113 piecemeal provision of pro bono service, 138 poor as recipients of pro bono service, 74, 187 Santa Clara Law Schools Pro Bono Recognition Program, 40 Sarat, Austin agendas of private public interest law firms, 11, 199 cause lawyering, 185, 193, 195 civic professionalism, 54, 183, 187 economies of private public interest law firms, 196 Saunders, Paul, 258 Saute, Robert, 223 Sax, Linda & Alexander Astin, 77 Scheingold, Stuart agendas of private public interest law firms, 11, 19597, 199 cause lawyering, 185, 191, 193 civic professionalism, 54, 183, 187 economics of private public interest law firms, 196 Schleef, Debra impact of law school on pro bono service, 54 law schools effect on public service commitment, 6 law students narratives of pro bono, 70 Schlegel, John Henry, 19, 27993 Schmedemann, Deborah A., 14, 7392, 102 Schneyer, Theodore., 270, 285 Schoenherr, Richard A., Peter M. Blau &, 142 Schoenherr, Thomas J., Tigran W. Eldred & clinical education funding, 32 mandatory pro bono service debate, 34 Scott, W. Richard, 140 Secret, Alana N., 257 Section 8 housing cases, 238 Seibel, Robert, J.P. Ogilvy & and Council on Legal Education for Professional Responsibility (CLEPR), 31 Selbin, Jeff, Jeanne Charn & and Office of Economic Opportunity (OEO), 31 Self-help as delivery mechanism for legal service, 295307 Seron, Carroll loss-leader marketing of pro bono service, 118, 183 New York City housing court, 23435 practice context of pro bono service, 136 solo and small firm lawyers, 156 study of New York City lawyers, 163 Serrano v. Priest, 297 Settlement practices as contributing to growth in plaintiffs firms, 189 Shapiro, David L., 187 Shapiro, Susan P., 236 Shearman & Sterling, 22223 Sherer, Peter D. & Kyungmook Lee, 149 Shriver, Sergeant, 212n7 Sievers, Bruce, 262 Simon, William, 187, 197, 286 Simpson, Charles Cully, 306 Simpson Thatcher, 218 Skadden, Arps, Slate, Meagher & Flom, 198, 221 Skadden fellowships, 221
index 325
Slumlord caricature and volunteer lawyers pro bono service in housing cases, 24142 Small law firms, 15, 15579 housing crisis in Buffalo, New York, 23348 job satisfaction of lawyers in, 12831 loss-leader marketing of pro bono service, 11718 New York bars redefinition of pro bono service, 27375 pro bono as public service work, 188 rate of pro bono service in, 11920 Smigel, Erwin, 150, 200, 212 Smith, Adam, 300 Smith, Jeff, 40n13 Smith, Reginald Heber colonial days of legal practice, 2627 conflicts of interest and legal aid, 103 cost of legal services as barrier, 288 Justice and the Poor, 3, 29 Snyder, Mark, 76, 80, 85, 254 Social construction of legal professionalism, 1012 Social justice and pro bono service, 54 Social Security, 305 Social value substance satisfaction of lawyers, 12831 Sociological Institutionalism, 14042 loose coupling, 141 Solicitation of business by lawyers, 27 Solo law firms, 1516, 15579 housing crisis in Buffalo, New York, 23348 job satisfaction of, 12831 loss-leader marketing of pro bono service, 11718 New York bars redefinition of pro bono service, 27475 pro bono as public service work, 188 statistics of pro bono service, 56, 11920 Solomon, Rayman L. and commercialization of large law firms, 148 Sossin, Lorne, 115 South Central Farmers, 204 Southern Californias pro bono and public service programs, 42 Southern Methodist Universitys pro bono and public service programs, 41
Southworth, Ann private public interest law firms, 16, 156, 183209 pro bono and legal professionalism, 231, 233, 239 Spaulding, Norman W. conflicts of interest and organized civil pro bono programs, 1034, 198 professional calling, 54 State attorneys relation to, 7 as delivery mechanism for legal service, 295307 State differences in pro bono service rates, 1057 Sterling, John, 222 Sterling Professorships, 222 Stern, Gerald, 222 Stets, Jan & Debra Burke and professional identity, 55 Stevenson, Brent, 256 Stevenson, William, 216 Stinchombe, Arthur L., 214 Stone, Harlan and commercialization of large law firms, 14748 Stone, Michael E., 233n2 Stormer, Dan, 203 Stotland, Janet, 256 Stover, Robert impact of pro bono service on law students, 5354 law schools effect on public service commitment, 6 Strategic philanthropy, 25166 Stryker, Sheldon and professional identity, 55 Stuckey, Roy, 48 Stukas, Arthur, 80 Stull, Elizabeth, 165 Substantially reduced fee pro bono service, 17071 Sullivan, William, 48 Sutton, John R. & Frank Dobbin, 142 Teles, Steve, 262 Temporary Assistance for Needy Families, 108 Texas, analysis of pro bono service in, 162 Thatcher, Thomas, 218
326 index
The American Lawyer, 5, 14243, 160, 255, 274 Third Circuit Court of Appeals, 189 Thornton, Margaret, 8 Thrun, Sebastian & Anthony Levandowski, 301 Title II, 190 Title IX attorneys fees provisions, 190 funding for legal aid clinics, 3132 Touro Law Centers pro bono and public service programs, 41 Traber & Vorhees, 19495, 195n19, 196 Treuthart, Mary Pat, 54 Trubek, David commercialization of large law firms, 147 government actors as public interest law targets, 193 professionalism, 10 public interest goals of lawyers, 19091 public interest law firms, 19495, 202, 232 Truman, President Harry, 21920 Tuesday Night Clinic, 224 Tulane University Law School, 25, 38 Turati, Gilberto, 76 Tweed, Harrison, 217 Twining, William, 285 Unauthorized practice of laws relation to pro bono service, 1046, 304 Unbundled service provisions to increase pro bono service, 174 Union affiliation by private public interest law firms, 199200 United Nations delegate, 219 United States, Yates v., 188n3 United States Strategic Bombing Survey, 21819 University at Buffalos Baldy Center for Law and Social Policy, 2 University of Denver College of Laws legal aid dispensary, 29 University of Maryland, 3738 Law School Consortium Project, 193n12 University of Minnesota externship model, 30 first student pro bono project, 37 University of New Yorks Law School Consortium Project, 193n12 University of Pennsylvania, 25, 28, 39 University of South Carolina, 39 University of Southern California Law School, 2930, 185n1 University of Tennessee legal aid program, 28 University of Virginia, 43 Unocal, Doe v., 204 Velasquez, Manuel, Claire Andrew &, 83 Valparaisos pro bono and public service programs, 41 Value of pro bono service, 9798 Vance, Cyrus, 218 Veblen, Thorstein, 299 Vedder, Richard, 282n2 Veliz, Philip, Robert Granfield & and mandatory pro bono service in law schools, 1314, 5372, 102 Vielmetti, Bruce, 159 Vietnam War, 223 Virginia prohibition on fees for legal practice, 26 Rule 6.1, 159 VLP (Volunteer Lawyers Project), 231 Vodnik, Michelle, 40n12 Vojdik, Valerie, 222 Volunteer Lawyers AIDS Project, 217 Volunteer Lawyers Project (VLP), 231 Volunteerism government funding of legal services distinguished, 99, 1089 law schools impact on pro bono participation in practice, 7393 Volunteers of Legal Services, 214 Vongsawad, Brandon, 257 Vorhees, Traber &, 19495, 195n19, 196 Voting rights cases and large law firms pro bono dockets, 198 Wachtler, Sol, 26768 Wagner, Senator Robert F., 220 Wainwright, Gideon v., 296 Wales legal aid system, 10910 Wall Street firms, 211 Wal-Mart, 28082
index 327
Walpin, Gerald & William Francis Kuntz and public interest debates, 9 War on Poverty, 212, 212n7, 296 Warren, Mary, 222 WASP establishment, 211 Watergate and ethics education, 3335 Weber, Max, 215, 300 professional calling, 54 Weeden, Kim, 104 Weiner, Bernard, 83 Weisbrod, Burton A., 185 Weisbrot, David, 8 Weisburg, Henry, 222 Welfare reform and restrictions on Legal Services Corporation (LSC)-funded lawyers, 109 West Virginia coal mine disaster, 222 Westphal, James D. & Edward J. Zajac, 141 Whistleblower cases, 196 White, Barbara W. and domestic violence shelter resources, 95 White, Lucie, 72, 183 Whittier College of Laws Seek Justice program, 40 Whyte, Avis, Andrew Boon &, 12, 156, 172 Wilkins, David, 72, 193, 200201, 254, 25657, 262 William Mitchell College of Law, 7892 Williams, Bernard, 251
Wilmer Cutler Pickering Hale and Dorr representing detainees, 1 Wilson, John, 76, 7980 Winston & Strawn, 160 Wisconsin analysis of pro bono service, 162 judicare program, 166 lawyers pro bono contributions, 161 Women lawyers rates of pro bono service, 12025 Work substance satisfaction of lawyers, 12831 Workplace context for pro bono service, 6 World Bank, 217 World Jewish Restitution Organization, 1 World Trade Center attacks, representation of families of uniformed victims of, 1 World War II, 212, 295, 300 Wu, Ping X., 144n7 Yale Law School, 28, 22324 Yates v. United States, 188n3 Yeazell, Stephen C., 189 Zajac, Edward J., James D. Westphal &, 141 Zald, Mayer N., 215 Zeisler, Cristin, 258 Zemans, Frederick H., 95 Zimmer, Ritz, Sue Barrow &, 95 Zucker, Lynne G., 141

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private lawyers and the public interest

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private lawyers and the public interest

edited by robert granfield lynn mather

Copyright 2009 by Oxford University Press, Inc.

Chapter 6.Pro Bono as an Elite Strategy in Early Lawyer Careers 115

list of tables and figures

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preface and acknowledgments

xii preface and acknowledgments

1. pro bono, the public good, and the legal profession

robert granfield and lynn mather

2 private lawyers and the public interest

pro bono and the legal profession

pro bono, the public good, and the legal profession 3

4 private lawyers and the public interest

ABA Model Rule 6.1 Voluntary Pro Bono Publico Service

pro bono, the public good, and the legal profession 5

6 private lawyers and the public interest

pro bono, the public good, and the legal profession 7

the state, pro bono, and the public interest

8 private lawyers and the public interest

pro bono, the public good, and the legal profession 9

10 private lawyers and the public interest

the social construction of legal professionalism

pro bono, the public good, and the legal profession 11

12 private lawyers and the public interest

pro bono, the public good, and the legal profession 13

14 private lawyers and the public interest

pro bono, the public good, and the legal profession 15

16 private lawyers and the public interest

pro bono, the public good, and the legal profession 17

18 private lawyers and the public interest

pro bono, the public good, and the legal profession 19

20 private lawyers and the public interest

pro bono, the public good, and the legal profession 21

22 private lawyers and the public interest

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2. shaped by educational, professional, and social crises

26 private lawyers and the public interest

the era of community-based public service (preworld war ii)

shaped by educational, professional, and social crises 27

28 private lawyers and the public interest

shaped by educational, professional, and social crises 29

30 private lawyers and the public interest

shaped by educational, professional, and social crises 31

the era of cause-based public service (1960s and 70s)

32 private lawyers and the public interest

shaped by educational, professional, and social crises 33

34 private lawyers and the public interest

shaped by educational, professional, and social crises 35

the era of ethics-based public service (1980s2005)

36 private lawyers and the public interest

shaped by educational, professional, and social crises 37

38 private lawyers and the public interest

shaped by educational, professional, and social crises 39

40 private lawyers and the public interest

New York University Fordham

1990 1991 1991 1992 1992

Mandatory Public Service

Hawaii Southern California

Mandatory Pro Bono Voluntary (Referral Model)

Mandatory Public Service