While attorneys in the Netherlands and France are no strangers to pro bono, the facilitation of pro bono activities rarely comes from the firms in which they work. That’s where the Pro Bono Institute comes into play. Over the course of the last several months, PBI, in partnership with Latham & Watkins LLP, has been working with Dutch and French attorneys, law firms, and bar associations in an effort to promote the institutionalization of pro bono abroad.
Unlike the United States, pro bono practices abroad are generally initiated by the individual attorney, and, in some isolated cases, by the country’s national bar association or by private organizations like France’s Droits d’Urgence (Droits d’Urgence is a non-governmental organization that provides free legal assistance to the poorest members of society). The Paris Bar is another organization that has initiated pro bono programs over the course of the last several years, with the most notable being their recent partnership with the World Bank¾a project designed to implement a network of law firms willing to provide pro bono legal assistance to the World Bank for its varying programs to combat global poverty. This month, Latham & Watkins and PBI participated in video conference calls with the leaders of the bar in the Netherlands and France to assess the current state of pro bono work, and to identify obstacles and successes, as well as future steps to enhance pro bono service and culture abroad.
The global pro bono project was created to identify impediments to pro bono work abroad, and ultimately to generate and implement successful models that will help stimulate an international law firm pro bono culture. Latham & Watkins LLP and the Pro Bono Institute are working with top officials and key pro bono contacts throughout the world in an effort to make pro bono work a critical component of the international law firm community. If your firm is interested in becoming involved with the global pro bono project, please contact Esther F. Lardent of the Pro Bono Institute.
The following article appeared in the May 2002 edition of the Dutch publication, Advocatenblad.
The Return of Pro Deo
Advocatenblad, May 3, 2002
The United States experiences a gap between supply and demand of legal services that is unparalleled in other Western countries. Pro bono work only begins to cover some of the unmet demand. What is more, according to Esther Lardent, a prominent advocate of pro bono work in the United States, pro bono work allows law firms to do more than provide access to justice, it allows them to enhance their profile and marketability in a competitive market.
PETER J. VERMIJ
The American gap between supply and demand of legal services is probably the largest in the Western world. According to a recent American Bar Association (ABA) report, only one in twenty indigent Americans receive the kind of legal assistance he or she requires. It is often said that the country with the highest density of lawyers spends approximately as much on subsidized legal aid as on military brass bands. Members of the legal profession fill this gap by providing legal services free of charge – this is commonly referred to as “pro bono.” Every year, American lawyers donate millions of hours of their time to clients who cannot otherwise afford a lawyer. According to the ABA, pro bono work reduces the gap between supply and demand of legal services from 95 to 80 percent.
Advocates of pro bono assert that pro bono work is about more than providing legal services to those who would otherwise go unrepresented. According to these advocates, there would still be good reasons for law firms to provide legal representation pro bono in the unlikely event that President Bush were to decide to fund the deficit in legal aid subsidies this year. Large law firms use pro bono projects to enhance their profile in the market – for (potential) clients, but even more so for high-quality talent. Participating lawyers discover through pro bono work what happens in the poorer neighborhoods of the cities they live in. What is more, subsidized legal aid also benefits from the involvement of large law firms in pro bono work. Without the influence of pro bono lawyers, advocates say, subsidized legal aid would suffer from routine and frustration; the court appearance of a powerful pro bono lawyer in a routine landlord-tenant dispute creates a whole new dynamic.
Is pro bono work anything other than an outdated form of charity? In the Netherlands, the sixties and seventies saw the end of what was known as the “pro Deo-lawyer.” Charity was seen as outdated while access to justice was considered a hot political issue that the government was willing to pay for. Although the system of government-funded legal aid has eroded somewhat since that time, the principle that access to justice is essential for the rule of law continues to prevail in the Netherlands.
At the beginning of this year, Stibbe (a large law with offices located in Amsterdam, Brussels, Paris, London and New York as a result of various mergers) announced that it intends to donate two thousand pro bono hours per year. This amounts to approximately four and a half hours per lawyer per year. Managing partner Allard Metzelaar stated that the idea had originated with Stibbe’s own lawyers and that it stemmed primarily from concerns for social justice. Stibbe’s announcement made some waves but most reactions were skeptical. Although it was accepted that big law firms could engage in charity, the notion that pro bono services could also be an asset when competing for large Anglo-Saxon clients met with stern disapproval. “Unnecessary” and “a little ostentatious,” stated Mr. M.W. Guensberg, dean of the Dutch Bar Association, in this magazine. “Not credible,” concluded columnist M. Kaaks, a little less diplomatically.
Professor L.H.A.J.M. Quant, professor of legal practice at the University of Amsterdam, was less severe in his judgment. “Since the supply of subsidized legal assistance is declining,” he wrote in NRC Handelsblad (a national newspaper), “Stibbe is merely fulfilling its ethical responsibility by providing legal services for free.” However, Professor Quant nonetheless agreed with the idea that the use of pro bono services for advertising purposes exceeds the limits of decency in a civilized society. “It becomes questionable when charity is turned into a marketing tool,” Professor Quant wrote. Finally, Professor Quant noted the “pressure from foreign clients who would only use Stibbe if former death penalty convicts or grateful poor people lined the halls of the Stibbe-tower.”
Esther Lardent, President of Georgetown University’s Pro Bono Institute in Washington, DC agrees with the Professor Quant’s point regarding civilized societies. Ms. Lardent is known as the “Queen of Pro Bono” because of her well-known efforts to encourage law firms to pursue pro bono work. “It is of course outrageous that in this country a mother is threatened with the loss of her child, just because of the size of her wallet” Ms. Lardent explains. “During lectures, I often show a cartoon in which a lawyer says to his client: ‘You have a strong case Ms. Jones, but how much justice can you afford?’ That is exactly what happens in the U.S.”
On the other hand, Ms. Lardent disagrees with the notion that unpaid legal representation should be denied merely because the law firm’s motive is not solely altruistic. “Of course, it is commonly suggested in this country as well that law firms do not only pursue pro bono work out of idealistic motives and that they may actually abuse the process. However, personally I do not care why people pursue pro bono work. In fact, I am pleased if people realize that pro bono work is more than a draw on the bottom line. People always have mixed motives, and this is not limited to pro bono work. I take good care of my children, not only because I love them but also because of how I feel when they enthusiastically run to the door when I come home. Our personal interests play an indirect role in everything we do. I just look at the result. Are more people being helped? Is the world improving? If so, I think it is a good thing.”
Pro bono work has a long tradition in the United States. As early as the beginning of the previous century, lawyers promised to dedicate part of their time to charity. According to Ms. Lardent, the current American pro bono culture has its origins in that period. Another driving force over the past several decades has been a severe shortage of alternative forms of legal assistance for those who cannot afford a lawyer. Although American law guarantees assistance to anyone who is charged with a criminal offense, no such guarantee exists for civil cases. Threatened tenants, misled consumers and assaulted women must rely on help from the Legal Services Corporation (LSC), which was established by the federal government in 1974. Every year, this privatized institution spends more than $330 million in tax revenues on legal assistance in approximately one million cases. In addition, roughly the same amount is spent by local governments throughout the country.
A few years ago, the ABA requested Ms. Lardent to chair a committee to investigate the demand for legal assistance. The committee concluded that the Legal Services Corporation needed to provide assistance in twenty times more cases than it actually did – 95 percent of the demand for legal services was not met. The problem was exacerbated, Ms. Lardent explains, by the fact that there was little left of the American pro bono tradition that had been thriving ten years earlier. “In some cities, including progressive cities like Washington, DC, a strong pro bono practice had continued to exist and one hundred pro bono hours per year was not an exception for many lawyers. In many other cities, however, law firms were often praised by their local bar associations although they would donate only five hours per lawyer per year.”
The ABA, a national organization of all local bar associations, took the initiative to reverse the trend. According to the ABA, every self-respecting law firm should spend at least three per cent of its billable hours on pro bono work. In 1993, the ABA and the Pro Bono Institute established “The Pro Bono Challenge” to render this concept more attractive. Law firms that accept the Pro Bono Challenge promise to make every effort to donate at least three percent and preferably five percent of their billable time. This dual goal gives law firms that already actively provide pro bono services a new goal. Simultaneously, law firms accepting the Pro Bono Challenge promise to firmly establish pro bono work within their firm, for example by also guaranteeing the participation of a majority of partners. As Ms. Lardent explains, “if it all boils down to a small group of people, it will collapse very quickly.”
The Pro Bono Challenge focuses primarily on the biggest law firms – and, indirectly, on their European partners. “Big law firms shape attitudes” Ms. Lardent argues. “Moreover, if rich and successful law firms are not willing to make part of their time available, who would?” One in five of the approximately 850 big U.S. law firms has currently accepted the Pro Bono Challenge and their efforts are indeed increasing. Most law firms have accepted the lower, three percent goal, even though this target is not always met. “To persuade law firms to participate, we had to promise not to publish their names,” Ms. Lardent says with some regret. “Unfortunately, this limits our options to ensure compliance with the stated three percent target.”
Local bar associations further assist law firms to turn good intentions into actual results. For example, the 10 members of the Washington, DC Bar Association Pro Bono Project pairs lawyers from 32 large law firms and two governmental departments to local legal aid organizations. Project leader Maureen Syracuse explains that most of the law firms would probably quit if there was not a constant flow of manageable pro bono projects. The selection of appropriate matters would take more time than bringing those matters to a satisfactory conclusion.
Ms. Syracuse’s Pro Bono Project arranges for lawyers to provide free legal consultation at various organizations. In addition, the project offers courses to educate the volunteers on relevant subject matters. “At this moment, thirty lawyers receive a one-day training in social security benefits in the room next door,” Ms. Syracuse states from her office in downtown Washington, DC. “The next couple of months they will provide assistance during the weekly consultation hours at various aid agencies. If necessary, they will provide assistance in individual cases from beginning to end.” Every year, six hundred lawyers pursue one of the twenty courses that are organized by Ms. Syracuse. Subjects include divorce, social security and tenants’ rights. A few years ago, the Bar Association of Washington, DC also initiated a new form of pro bono work that is aimed at law firms that feel more comfortable handling economic matters, such as real estate, tax or bankruptcy. Under this program, law firms adopt not-for-profit organizations that work to revitalize poor neighborhoods. These organizations not only help small retailers to survive but they also advise on complicated agreements with real estate developers. As Ms. Syracuse explains, “such organizations cannot afford to retain big law firms by themselves but with quality assistance they can really make a difference for entire neighborhoods.” One such plan that was drafted with the participation of a local not-for-profit organization is about to be put into effect in a poor neighborhood of Washington, DC.
Moreover, Esther Lardent stresses, indigents are not the only beneficiaries of pro bono work. Besides providing some comfort to the participants’ consciences, law firms also derive tangible benefits from pro bono work. Indeed, one could argue that this benefit to the bottom line fits into a broader trend that would probably raise an eyebrow or two in the Netherlands while not causing any embarrassment whatsoever in the U.S. For example, many American advertisements on television show companies whose employees try to improve the world during business hours. Some bring food to poor countries, others collect money to fight breast cancer and yet others help children from troubled neighborhoods with their homework. According to Ms. Lardent, these advertising campaigns are based on extensive marketing research. “Most consumers have indicated that when they are faced with the choice between two equal products, they will purchase from the firm that gives something back to the community, either by donating goods or by becoming active themselves.” Ms. Lardent believes that pro bono work qualifies in both respects. In this regard, she believes that large corporate clients should select “socially responsible” law firms in a manner that is similar to individual consumers preferring community friendly companies. In this vain, Ms. Lardent’s own institute similarly requests legal departments of multi-national firms to only work with outside law firms that have accepted the Pro Bono Challenge.
Ms. Lardent explains that eye-catching pro bono matters also contribute to marketing efforts in yet another way. “There is only one American law firm that has ever been portrayed in People Magazine and that was because of its pro bono activities. At another firm, a victory in a pro bono matter resulted in a headline on the front page of the Wall Street Journal. That is of course the dream of every law firm – to be applauded in a newspaper that is read by every potential client. Our deputy chairman is a managing partner of a law firm in Florida and she is convinced that every dollar spent on pro bono work is as good as ten dollars spent on marketing.”
According to Ms. Lardent the most important contribution of pro bono work is related to the market for scarce legal talent. Every year, only a limited number of exceptionally bright students graduate and the competition to hire them is fierce. Offering high salaries is by itself not sufficient to interest those students because competitors simply offer similar compensation packages. Ms. Lardent believes that a good pro bono program is the ideal way for a law firm to hire and keep young and enthusiastic lawyers. “Most young lawyers hardly see any daylight during their first years with a firm. Hidden away in a small office, they write memos that others only partially read before discarding them. A pro bono matter will take these lawyers out of the office, will give them a chance to speak with colleagues and will give them the possibility to gain interesting experience. Without such projects, it would take years for them to see the inside of a court room.”
Despite the advantages of pro bono work, Ms. Lardent stresses that the Pro Bono Institute has no intention of replacing subsidized legal assistance with voluntary work. Providing legal assistance to indigents is a legal specialization that could not exist without the knowledge and experience of specialized lawyers. However, Ms. Lardent is pleased to find that even in Europe, where governments have a bigger role in financing subsidized legal assistance than in the United States, there is increasing appreciation for the benefits of pro bono work.
Ms. Lardent explains that in her previous job she was charged with finding lawyers to assist in death penalty cases. “It’s the most complicated part of the American law system, and fatal errors are easily made. I was often asked why I retained lawyers who had never seen the inside of a courtroom before. I answered those questions by explaining that I wanted those lawyers to experience the nature of our so-called “death penalty system.” In addition, I explained that inexperienced lawyers are more willing to ask “dumb questions.” Although they sometimes apologize profusely, the truth is that many of these questions are not dumb at all. Specialized lawyers occasionally develop tunnel-vision and a fresh look sometimes allows the case to take a whole new direction. We ought not to relegate the legal assistance to indigents to a special group of lawyers who are less well-paid. The entire legal profession should feel a collective responsibility for providing such services.”
© Peter J. Vermij