The hidden costs of pro bono
April 19th, 2013 by Briana Cummings
A friend of mine hired a lawyer to help him create a trust in which to put some of his earnings. The lawyer charged $800/hr.
Another friend needed a lawyer to appear with him (for a few hours) at his administrative hearing to help him contest his termination. The fee was $20,000.
The fee for a lawyer to advise a friend on a single provision in his mother’s trust was $1,500.
An attorney in my office once described the sense of guilt she sometimes feels when she looks at the total amount due on the invoice she is about to send out. “Don’t feel guilty!” a colleague told her. “Everyone else charges that much. You deserve it too!” If clients are willing to pay it, why should lawyers charge less?
Legal fees of $1,500 or $20,000 – or even $300 – are so out of touch with the cost of most goods and services in our economy that it’s as if they existed in a different currency. Legal fees like this equate a few hours of legal services with taking a family vacation, making a down payment on a house, or hiring a home healthcare worker for an elderly parent.
I am not the only one whom it strikes as deeply problematic that legal services are accessible only to those who can afford a private jet or a summer home. As the “gap” in access to legal services widens, calls for more pro bono commitments by lawyers have grown more strident. Four years ago the American Bar Association created annual National Pro Bono Week, and states have followed up with their own. The Chief Justice in Pennsylvania recently called on lawyers to devote more hours to pro bono work. New York’s 4th Judicial Department is launching an appellate pro bono project. State bar associations present Pro Bono Service Awards. The letter admitting me to the California bar urged me to do my pro bono bit.
Pro bono is not the answer
To put the access-to-justice problem in perspective, consider that around 83% of Americans have access to the food they need. Around 84% of Americans have access to healthcare. These rates are unacceptably low, but they make America look positively utopian next to rates of access to legal services. Only 20% of poor Americans and a vanishingly small proportion of middle-class Americans have access to legal services. The U.S. ranks 66th out of 98 countries in accessibility of legal services.
Most people in this country have access to the food they need because they don’t need to afford a private chef to be able to eat, and most people in this country have access to medical services because health insurance covers what they cannot pay out of pocket.
For some reason, however, (explained in many sources not covered here), the emphasis on solving the access-to-justice problem — at least from bar associations and legal insiders — has not been on lowering legal fees or creating legal insurance schemes or some such solution. Instead, as noted above, it has been to exhort lawyers to work for FREE.
Problem 1: “Pure” pro bono work is financially unsustainable
Main Street lawyers – primarily solo or small-firm practitioners – . . . consistently express the belief that pro bono is ‘an elitist claim to good works. . . . [They] regard ABA mandates about pro bono to be just another mandate from elite Wall Street attorneys who “feel they can tell all practitioners what to do.”
~ Professor Luz Herrera, “Rethinking Private Attorney Involvement through a Low-Bono Lens”
I cannot afford to work for free. Most lawyers, unless they have a rich spouse or a trust fund, cannot afford to work for free.
“Free” legal work must be subsidized by someone. Large firms subsidize their pro bono services with fees earned from high-paying clients. Solo and small-firm attorneys – who are far and away the biggest source of legal services for low-income clients – usually do not earn high enough fees on any individual matter to offset purely pro bono services. They therefore depend on reduced-fee (“low bono”) arrangements to sustain their practice. They may charge only a little, and they may continue to perform legal services after the client has become unable to pay for them, but they can’t operate by charging nothing to anyone at any point.
These subsidies for free legal work are extremely limited. A small-firm lawyer can only give away so much of her time and resources. A large firm can give away only so much of its time and resources as it can offset with fee-earning work. Needless to say, when the economy is bad, their ability to provide free legal services goes down precisely when it is most needed.
Problem 2: The supply of pro bono services does not meet the demand
Again, small-practice attorneys – on whom most of the poor and middle class depend for legal services – are limited in the amount of time they can devote to pro bono work because they must personally subsidize any pro bono services they provide.
Not-for-profit, government-funded legal services offices do not fill the gap. Not only are government funds limited (as we all now know all too well), but, in addition, government funders expressly prohibit their donees from taking on certain kinds of cases. For example, Legal Services Corporation (LSC), the primary funder of legal aid organizations, restricts the organizations it funds from filing class actions, recovering attorneys’ fees, representing undocumented people, and suing government agencies. A friend of mine who works in a non-profit organization that represents victims of domestic violence is prohibited by her organization’s funder from representing anybody against whom the Administration for Children’s Services (ACS) has taken any action.
And, of course, one of the principal restrictions on most not-for-profit legal service providers is that they cannot represent anyone earning above a certain very low income threshold (usually between 125 and 200% of the federal poverty line, depending on the location of the organization).
Because of all these limitations, legal aid organizations serve one-third to one-half as many poor people as do private solo and small-firm practitioners.
The end result of all of this is that pro bono services are unavailable for most low-income clients and almost all middle-income clients.
Problem 3: Pro bono services, even when provided by private attorneys, have hidden costs for the public and for clients.
When a big corporate lawyer who does mergers and acquisitions every day takes on a pro bono asylum or death penalty case, she requires training in the new field of law. She requires written training materials and supervision by lawyers with expertise in the new field. Her firm requires a third party to connect it to pro bono clients.
The intermediaries serving these functions – providing the training and supervision, researching and writing the practice manuals, and generating client referrals – are usually independent non-profit organizations. That is, they are organizations subsidized by favorable tax treatment. Currently, the big firm lawyers receiving this training do not finance this infrastructure – the public does.
And the costs do not end there. A friend of mine who works in a non-profit legal organization told me that her organization preferentially hands cases over to outside pro bono attorneys in big law firms over staff attorneys at the non-profit organization. Unfortunately, the big firm lawyers – being relatively inexperienced with these kinds of cases – usually make a lot of mistakes that the staff attorneys then have to go back and fix anyway. This not only greatly increases the time and resources for any particular matter, but also the risks to the client.
To give a sense of just a fraction of the costs involved each time a lawyer is trained in a new area of law (sometimes for the purpose of taking on only one or two cases in that area): Several months ago I participated in a reentry clinic – a clinic providing legal remedies to help those with criminal justice backgrounds obtain jobs, professional licenses, housing, etc. I met with one client that day. Because it was my first reentry client ever, two attorneys and a staff person from the organization that had organized the clinic met with me for an hour before I met with the client, and met with me again for one hour after the meeting to debrief and provide guidance about further steps. At the end of the day, five licensed attorneys and one additional staff person had spent three hours (eighteen hours, including fifteen lawyer hours, collectively) basically just on the intake for a client whose legal issues were no more complex than navigating a few administrative agencies and employment applications. Normally, a client intake takes half an hour for an initial screening; one or two hours for a more thorough assessment of whether to take the case.
Training these big-firm lawyers for occasional dips into different areas of pro bono practice for 40 hours per year is not only expensive, but also inefficient. These recurring training and supervision costs do not exist for solo and small-firm practitioners providing legal services in areas they are already practice on a regular basis as part of their practice.
Free legal services have their place. But if the law profession’s unique focus on “free” services — as opposed to, say, economies of scale, streamlined procedures, insurance schemes, or other economic solutions — as the principal means of meeting the demand for access to critical legal assistance, seems impractical or puzzling, I recommend reading more about the historical origin of the profession’s pro bono mantra.