Public Interest

4 Reasons Solo And Small Firm Lawyers Can, And Often Do, Participate In Pro Bono Work (And Debunking Other Pro Bono Myths)

Pro bono work doesn't have to trade off with billable hours.

By David Lash  
on
David Lash

David Lash

Despite the outsized prevalence of pro bono work being done by attorneys from big law firms, the volunteer role of small firms and sole practitioners is, and historically has been, critical to the delivery of legal services to the poor. Statements to the contrary notwithstanding (see Back In The Race: No Bono — 4 Reasons Why Solo And Small-Firm Lawyers Minimize Pro Bono Work), there are many reasons why this is so.

When it is suggested that some attorneys refrain from participating because the areas of need are incompatible with their own breadth of expertise, a critical point is being missed. The most effective pro bono work is both referred to the private bar by experienced legal aid organizations and supervised by expert legal services attorneys. They are specialists, they work regularly with novices, they leverage their skills and background by providing oversight, guidance and mentoring. Combining the willingness of a good lawyer to help and the expertise of legal aid lawyers overwhelmed with cases and desperately in need of assistance, is an effective teaming of skills and resources. Small firm practitioners need not worry about never having handled an eviction defense case or a foster benefits appeal. They will get all the assistance they need and their participation will have a meaningful impact on the lives of the client they volunteer to serve.

It is a fallacy to assume that small firm lawyers are not in a financial position to engage in pro bono work “because every hour spent doing pro bono work is an hour that could have been spent billing existing clients or developing business.” True, small firms and solo practitioners have less ability to share their work responsibilities, juggle their matters, and rely on others than do lawyers in large firms, and that certainly may impact their ready willingness to handle pro bono matters, but that is an incomplete picture. Every attorney finds time to do the things that are most important to them. If they can create time in their busy schedules to work-out or cook healthy meals, they can find at least some time to help indigent clients. Each hour spent is not necessarily an hour that would otherwise have been devoted to a paying client. If it is important enough, lawyers will stay a little later or arrive a little earlier than they otherwise would have. The correlation of hours is highly suspect.

Other than having less money, and perhaps less experience with the legal system, most pro bono clients treat their attorneys as do any other type of client. They do not suck dry the time of their attorneys just because they are not paying for it. Good client intake, with help from an expert legal aid organization, more often than not yields clients who are grateful, who understand they otherwise never would have been able to access the high-quality legal representation they are being given. They are as respectful of time and effort as are commercial clients, no more and no less.

Most commercial clients are proud that their attorneys are engaged in the community and doing meaningful pro bono work. Lawyers proudly, and rightly, market their pro bono successes, often to their commercial clients who, just as often, take note. Clients are rarely resentful that the poor got free services for completely different types of cases while the commercial clients may have paid a hefty fee. Apples generally are not contemptuous of oranges.

Lawyers who provide brief service and advice to cold-call prospective clients who simply cannot afford to hire them indeed are engaged in legitimate pro bono work. Any contrary indication is the result of misunderstanding. Advising low-income would-be clients, and helping them navigate a legal issue or procedure, is a valuable service that when performed by a solo practitioner is every bit the pro bono assistance that a legal aid organization or a big firm would give.

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While IOLTA funding for legal aid organizations across the country has fallen dramatically due to diminished interest rates, a combination of state bars, local governments, philanthropists, and legal aid organizations themselves have launched life-saving campaigns to try to make up for at least some portion of those lost funds. In California, for instance, new filing fees have been tapped for legal aid support, the legislature has been lobbied for more general-fund assistance, educational efforts have increased awareness of the impact and economic advantages of funding legal aid organizations, pilot project funding for the Shriver Civil Right to Counsel Act has been made permanent, campaigns have been launched to ensure that lawyers put their trust accounts in the highest-bearing interest rate banks available, and state bar dues bills have included new opportunities by which the private bar can provide support. Increased foundation fund-raising, and solicitation of more support from both the law firm and local business communities have yielded successes. True, these measures do not make up for the precipitous drop in interest rates, but those who care about the delivery of legal services to the poor have not sat idly by. A call to action is warranted, indeed, but there are platforms already are in place from which additional efforts can grow.

Some lawyers may be concerned about being unable to separate the truly needy who present meritorious cases worthy of attorney time and heart from those who are milking the system. But to allay those concerns, potential pro bono volunteers need look for comfort no further away than their local legal aid organizations. The strength of pro bono volunteers is built directly on the shoulders of our expert, full-time, fully dedicated legal services attorneys whose organizations and knowledge distinguish the fair from the unfair. Lawyers with the desire to fulfill our profession’s highest calling and provide access to justice for the indigent should direct their efforts to working in concert with their local experts. They will find professional intake staff who are skilled at evaluating cases for both pro bono eligibility and substantive merit. They will find lawyers whose job it is to supervise and lend outstanding and long-cultivated knowledge about the particular subject matters at issue. And with greater funding, greater numbers of those experts can be hired, and greater numbers of well-screened, well-supervised pro bono engagements will be the result. Private bar attorneys who do not rely on legal aid groups for pro bono referrals are missing the most effective, efficient and significant opportunities to touch the lives of those in need in the most meaningful of ways.

Finally, regardless of misperceptions and in addition to the pro bono work of major law firm lawyers, who annually contribute collectively as many as 5 million hours of representation of the poor, there are many thousands of lawyers working alone or in small firms who diligently serve indigent clients. They work with legal services lawyers, they do intake, they handle small cases, they team with others to handle larger engagements, they attend clinics, they work through bar programs, they volunteer through their churches, mosques and synagogues, they help low-income friends, and more. In other words, these lawyers are, and always have been, a vital part of the system of delivery of legal services to the poor. They do not minimize pro bono work nor are their pro bono services themselves minimized. They do what they can, they answer the profession’s highest calling, likely in the same numbers and percentages as other attorneys. They are to be thanked.

David A. Lash serves as Managing Counsel for Pro Bono and Public Interest Services at O’Melveny & Myers LLP. He can be reached at [email protected]. The opinions expressed are his alone.

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