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The Pro Bono Prison
by Wendy R. Leibowitz
(A shortened version of this article was published in
the San Francisco Recorder on August 9, 2002)

Alexis De Tocqueville visited the United States in 1831, at the age of 25, to study the prison system. His book, Democracy in America, was so influential that many people still say that much about a country can be discerned from its prison system.

Analyzing pro bono work might bring similar insights. Many aspects of the legal profession are reflected in pro bono, and it might be time for an outsider to evaluate them, with an eye towards change and reform. Pro bono work, then, is the prison of the legal profession.

1. It is driven by the billable hour.

Many lawyers are addicted to measuring a work's value by logging how many hours it takes to complete. By that measurement, working on a long litigation is more valuable than a quick settlement. This, of course, is ass-backwards--the client might benefit more from a quick, negotiated settlement than from protracted litigation.

The American Bar Association, in its pro bono award system, uses only billable hours to measure a large law firm's commitment to pro bono work, and it rewards those who bill the most hours. There is, to my knowledge, no formal recognition of those who have wired up a legal services agency, which might be starving for technology to serve greater numbers of clients, or helped establish an innovative pro bono program. Even if we are slaves to the billable hour with our paying clients, shouldn't we be open to other systems to measure effective pro bono work? Is the goal to clock a lot of hours, or to serve clients so well that their situation improves so they don't need pro bono lawyers any more? Is there any metric to measure the impact or worth of the work? Is there even an attempt to ask clients how the lawyers did?

Some states are considering imposing "mandatory minimums" on lawyers to require them to devote a certain number of hours to pro bono. Note the similarity, in terminology, to prison sentences, and the lack of interest in whether more hours provide better value to society. Eventually, mandatory minimums in both actual prisons and pro bono prisons may provoke backlash and resentment.

To take an extreme case, lawyers who dedicate thousands of hours to the unsuccessful appeal of a death penalty case are doing more "valuable" work than the journalism students who interview witnesses, discover that the prisoner was innocent in the first place, and free the guy within the school year. "Those outside the justice system have accounted for the vast majority of the 85 death row inmates exonerated nationally since 1974, with students increasingly involved in those actions," according to Rob Warden, executive director of the Center on Wrongful Convictions, in an interview with the online magazine Salon.

Of course, there are many fine lawyers, in private practice and in academia, who work tirelessly on all aspects of pro bono. But young associates, who provide most of the cannon fodder on such appeals, run up high hours in large part because they are inexperienced. The more experienced attorney would require less time, but would hurt the firm's pro bono report card.

Even if well supervised, young litigators will live in the library since their hours are the only things that are tangibly recognized and rewarded by any entity. Starved for recognition, the young lawyer would be eager to bill many hours and help the firm do well on pro bono surveys. The journalism students don't clock their hours-they get results.

The ABA emphasis on pro bono hours rewards the firms that put the most inexperienced lawyers on these matters. Billable hours fit the prison metaphor perfectly: the heavier the sentence--that is, the more hours someone serves--the more serious the offense is supposed to be. Similarly, the profession believes, the more billable hours a lawyer clocks on a matter, the more serious that lawyer must be about pro bono. I wonder, given the lengthy mandatory minimum sentences for many non-violent drug crimes, which can exceed sentences for rape or armed robbery, if there is any correlation between "time served" and societal values at all.

The emphasis on hours has sadly reached the small firms and solos who might not track their hours. A lawyer in a two-person firm who assists elderly veterans on a regular basis says that his work is not important because "it doesn't take much time," especially as he has grown very experienced in dealing with veterans' benefits problems. Now that some of the forms are online, the work is even quicker. The lawyer, who insisted on anonymity, says that what the veterans really appreciate the time he spends chatting to them, which is not legal work, and thus is not billable, so it doesn't count as pro bono.

Is it really that difficult to measure pro bono work in certain areas, such as benefits cases, consumer bankruptcies, domestic violence or uncontested divorces and other family law matters, by the number of cases successfully resolved, rather than the hours spent on the work? I think that for certain areas of pro bono, a different metric than hours should be used-such as the number of cases successfully resolved--with perhaps a client satisfaction survey included.

2. Small firms and solos lead the way, but no one thinks they do.

This is true in every area of law, and it is true in pro bono as well. Most lawyers in this country practice in firms with fewer than 10 attorneys. The number of pro bono cases they handle is enormous, but no survey even attempts to capture it, so it remains largely invisible.

Just as most of the ABA's Pro Bono projects, and much of the legal media, focus on big firms, many bar associations' pro bono programs also focus on large firms. "Each month, the D.C. Bar runs a pro bono intake clinic which is staffed by a large law firm," says Carolyn Elefant, a solo practitioner in Washington, D.C. "People can come and ask legal questions and are provided with advice or referrals. I and many other solos would certainly be willing to participate in such a clinic.... However, the bar only asks large firms to staff the intake and does not ask smaller firm lawyers or solos to participate."

The big firm attitudes towards pro bono permeate the profession. One lawyer at a small firm told me that if he enjoyed the work-he teaches immigrants their rights, especially how to deal with the police--he does not consider it pro bono. Pro bono work requires many tedious hours, he said.

This lawyer actually equates pro bono with a prison term! If it's not painful and unpleasant, it's not pro bono! It's as if a prison says, "We're not a real prison, because we don't torture our inmates, but instead focus on education and drug rehabilitation, which don't count as a prison sentence."

3. The work is not client-centered.

Some non-profit organizations that participate in pro bono programs don't need the hours of attorneys, especially inexperienced attorneys, as much as they need money. "Frankly, we could use a big, fat check," said the head of a housing agency in a large city on the eastern seaboard. The agency regularly must absorb low-level associates eager to get training at the non-profit's expense. The head of this agency concedes that she accepts the inexperienced associates because she wants the connection to the large firms they provide-in the hope that the big firms will write her a large check. She considers training the big firm associates a marketing expense.

"The pro bono case probably gives back more to the volunteer lawyer than it delivers to the client," says Ron Staudt, a professor at Chicago-Kent College of Law who has studied pro bono work extensively. "It is also probably true that lots more money to hire more full-time specialists would be hugely more efficient than getting M&A experts in Manhattan to do a default divorce each."

The American Bar Association does not count any financial contribution to any organization as pro bono work. The rationale is that they can't distinguish between the check written to the opera company as opposed to a check written to a legal services agency. I've never understood why they couldn't. And financial contributions, unlike billable hours, can be verified.

4. Putting clients in charge: Attitudes towards what work benefits the poor are changing, and so should the tools used to measure them.

Take agricultural workers, whose pay and working conditions have not improved much since the 19th century. For years, the standard legal approach has been retroactive litigation, with lawyers suing for back pay after employers had already cheated the workers out of the wages they were due. Such cases take years to litigate, and most of the workers who are owed money can't be found by the time a judgment is rendered.

But a well-run media campaign succeeded in getting a group of tomato pickers in Florida called the Coalition of Immokalee Workers their first raise in 20 years.

Steve Hitov, now the managing attorney in the Washington, D.C. office of the National Health Law Program, Inc., advised the Coalition during their street theater performances and a 230-mile March for Dignity. A general strike, and a hunger strike, succeeded where years of litigation had failed. It was the clients who took charge, says Mr. Hitov. "I was not perceived in any way as the voice of the client," he says. He believes that the concept of the attorney as the client's voice-the bedrock of pro bono--is condescending. Even when the agricultural workers testified before Congress, they spoke for themselves, using Spanish-language interpreters, not lawyers, he noted.

Mr. Hitov, who has spent his life in legal services, regards his work with the Coalition as the most rewarding work he has ever done. Little of it, if done by a lawyer in private practice, would count as pro bono work.

5. There is little reliable data on pro bono, so any data that does exist is pounced on, without questioning the underlying methodology.

When it comes to accurate information about almost any aspect of the legal profession, good data is scarce. That goes double for pro bono, and that statistic is as accurate as any "survey" you will stumble across that purports to deal with pro bono. A proper survey starts with a representative sample. Since no legal "surveys" do so, they are really no more than informal polls, like the online polls at news Web sites: "Should we declare war on Iraq? Vote here!" That kind of survey.

The most prominent "survey" of pro bono is published by the American Lawyer magazine. It focuses solely on large firms' self-reported billable hours. I used to work on "surveys" for the magazine, so I know how flawed they are. The pro bono "survey" reflects the hours reported by 50,000 of the approximately one million lawyers in the US-as represented by the firms' own tabulations and definitions of pro bono work. (The magazine states that it is using the ABA's definition of pro bono, but accepts any data supplied by the firms). Even that data is flawed, as the magazine acknowledges. "Many firms do not track pro bono hours, or do not report them." The magazine's disclaimers are legion. In July 2001, for example, it stated, at www.law.com/special/professionals/amlaw/amlaw100/amlaw100_pro-bono.html:

We determine our pro bono scores by weighting and then combinig [sic] two factors -- two-thirds of the score comes from the average pro bono hours per lawyer, while the remaining third is the percentage of lawyers with more than 20 hours. Calculations are based on U.S. offices only and do not include pro bono work done by lawyers in non-U.S. offices of Am Law 100 firms. Baker & McKenzie reported figures for its Chicago office only. Some firms track only some of the pro bono information that leads to our sorting method; those firms are ranked 91. Firms that did not disclose information at all received a score of zero and a rank of 100.

Is that all clear now? Olympic figure skating judging is fairer and more objective than this. The AmLaw survey is simply an extremely complicated way of ignoring clients and results and playing around with billable hours.

But data of any kind is so scarce that some experts welcome the American Lawyer's pro bono polls. "The time-keeping tools of large law firms may be soft and sloppy, but they probably represent the same level of accuracy as the bills to their important clients," says Chicago-Kent's Professor Staudt. "The surveys do not pretend to gather data from the small and mid-sized firms.… As far as [the surveys] go, they may be the best data it is possible to acquire about large firm direct [legal] service donations.… It is probably good for the profession and those who need pro bono services to have some kind of competition among the big firms for high positions on the pro bono survey lists. It is more professional and more inspiring to have these firms competing to help out than to see the huge profits per partner competition that is the center of the usual American Lawyer Large Firm Survey."

I'll grant you that if there's a way to look better than the firm across town, it's better to have firms compete to do good rather than to do well. But the worst aspect of these surveys is that they do not teach anyone about what a well-managed pro bono program is, or reward innovation in pro bono (which might cut down on the billable hour total), or recognize anything but hours billed. Its small definition of pro bono work feels very restrictive. It feels like a prison.

I applaud every attorney who manages to lift his or her head from billable work to do any pro bono. But the current state of pro bono affairs does not seem to be improving matters for the indigent, and isn't that the purpose?

Tocqueville fulfilled his original assignment and published The U.S. Penitentiary System and its Application in France. It was influential in prison reform circles in Europe. It changed things. Does our pro bono work change things for the better for needy clients and the non-profit organizations that serve them? If so, encore! If not, let's break out of this prison.


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