Wisconsin Lawyer: As I See It: A Passion for Pro Bono: What’s Stopping You?:

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    As I See It: A Passion for Pro Bono: What’s Stopping You?

    Not enough time? Not enough money? Too uncomfortable? It’s easier than you might think to clear the hurdles to doing pro bono work.

    Colleen D. Ball

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    The State Bar of Wisconsin recently reported that about 630,000 state residents face at least one significant legal problem a year, and more than half a million of them do so without legal assistance.1 No doubt the situation is worse in Milwaukee, which, with a 29.4 percent poverty rate, is one of our nation’s 10 poorest cities.2 Meanwhile, the Wisconsin Legislature eliminated state funding for civil legal services to low-income persons for the 2011-13 biennium. This makes Wisconsin one of only four states to deny financial support for civil legal aid to the indigent.3

    Now, hold up your right hand. Look Wisconsin Supreme Court Rule (SCR) 20:6.1(a) straight in the eye, and answer truthfully: Have you complied?

    Colleen D. Ballwi ballc opd gov Colleen D. Ball, U.W. 1991, is working to develop a pro bono program for the Office of the State Public Defender. She also coordinates the Appellate Practice Section’s pro bono appeals program.

    Perhaps a refresher course is in order. SCR 20:6.1 states the following: “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.” A lawyer meets this responsibility by providing a substantial majority of those legal services, without compensation, to 1) persons of limited means, or 2) organizations that are designed to address the needs of persons of limited means.4

    According to Tim Pierce, the State Bar ethics counsel, this rule applies to all of us, whether we practice law at private firms, corporations, governmental agencies, or public interest firms, although individual lawyers’ positions may preclude certain types of pro bono work. Some lawyers embrace the idea wholeheartedly and pour themselves into pro bono projects. Others comply reluctantly or not at all.

    Ethics rule aside, why should you give away your legal services? The answer, in part, is that “justice should be the same, in substance and availability, without regard to economic status,”5 and some people cannot afford a lawyer, let alone justice. But pro bono work can also benefit you. This article is for lawyers who hesitate, whatever the reason, to do pro bono work. Grab a cup of coffee. Silence your cell phone. Close your email, and open your mind to the possibilities for doing something new, creative, and rewarding in your professional life.

    “I’m too busy”

    If you are in private practice, you probably have a billable-hour target, and you probably spend free time developing the book of business needed to make partner. You also might have a spouse, children, and aging parents. You are busy. No one will try to convince you otherwise. Just understand that SCR 20:6.1 does not carve out an exception for “busy” lawyers. On the contrary, comment 1 to the rule states that regardless of workload or prominence, you should provide legal services to persons unable to pay.

    HurdleOf course, you are less likely to feel “too busy” if you are employed at a firm that supports pro bono work.6 Did you know that Quarles & Brady offers hour-for-hour credit, with no cap, to lawyers doing pro bono work for the indigent? Mike Gonring, the firm’s pro bono coordinator, says that Quarles is the only Wisconsin firm and one of the few firms nationwide to offer such a generous policy.7 More typical, but still very generous, is Godfrey & Kahn’s policy, which encourages attorneys to do 50 hours of pro bono work annually and provides billable-hour credit up to 50 hours and, with approval, more. Sarah Huck at Reinhart Boerner Van Deuren adds that on top of billable-hour credit, her firm provides the infrastructure and covers all the costs necessary to do pro bono work.

    If you are lucky enough to work at a firm that provides such encouragement, then taking something like a civil rights or unemployment compensation case will not impinge on your family time or your social life. But you might not be so fortunate. Small and medium-sized firms often do not have formal pro bono policies. Mike Brennan, managing member of Gass Weber Mullins LLC, says that his firm neither has a pro bono policy nor gives billable-hour credit for such work. Nevertheless, many of the firm’s lawyers find time to take cases on assignment from, for example, the federal district court, the State Public Defender appellate division, or the Wisconsin Supreme Court.

    So how do you balance work, personal, and pro bono obligations? For starters, you might occasionally trade in a couple of after-work drinks or long lunches for a few hours at the Dane County Bar’s Family Law Assistance Center or Marquette Law School’s Volunteer Legal Clinic. The benefits may surprise you. Studies show that people who give away time to help others feel like they have more time than people who spend the same amount of time on themselves. It seems counterintuitive, given that the people who donated their time actually had less of it. According to Professor Cassie Mogilner at the University of Pennsylvania’s Wharton School of Business, “Spending time on others makes one feel more effective, more capable and competent. And basically, when more happens in a particular period of time, then that period of time is perceived to be longer.”8 You will also likely be happier. A recent study, reported in USA Today, found that two of the keys to happiness are altruism and having a nonneurotic spouse.9 Doing pro bono work could get you halfway there.

    “I can’t afford it in this economy”

    Many lawyers assume that pro bono work will hurt their law firm’s bottom line. After all, it would seem that if lawyers engage in pro bono work, their firm will end up donating attorney, secretary, and paralegal time to work that does not generate a fee or cover costs. But the calculation is not so simple.

    Steven Schulman, a pro bono partner at Akin, Gump, Strauss, Hauer & Feld LLP in Washington, D.C., explains that many law firms have high fixed costs for such items as salaries, real estate, and information technology, which they pay for whether or not lawyers in the firm do pro bono work. “Large firms with diverse practices have a certain amount of excess capacity built into them,” said Schulman. “We anticipate that certain practice groups won’t be busy during certain times of the year. We expect lawyers to spend nonbillable time engaged in training and networking, for example. When large firms take on pro bono work, they’re not turning away paying clients, and therefore the hours spent on pro bono are in most cases not costing the firm anything. They’re often taking advantage of built-in excess capacity.”

    Akin Gump lawyers receive unlimited billable-hour credit for approved pro bono matters. Although not required to do pro bono work, they are encouraged to do at least 60 hours per year. In 2011, the firm’s lawyers averaged 83 hours apiece. The benefits to the firm include lawyer training, law firm cohesion, retention of lawyers, and diversification.

     Pro bono work does entail costs, however. Schulman explains that many firms spend significant sums on out-of-pocket costs for pro bono matters, particularly large-scale “impact litigation,” although some of those costs may be recovered in successful judgments or settlements. (“Impact litigation” is litigation aimed at changing public policy or addressing social justice issues.)

    Marc Kadish, director of pro bono activities and litigation training at Chicago-based Mayer Brown, notes that over the past few years “BigLaw” firms (firms with more than 500 lawyers) have slimmed down. Litigation associates are working at more than 100 percent capacity (that is, they are exceeding their billable-hours requirements), so there is not as much “excess” as there was before the recession. Busy lawyers have less time to do pro bono work. Even so, Kadish maintains, a robust pro bono program makes financial sense. Firms big and small, fleshy or lean, must invest resources in training new lawyers. Pro bono work offers the opportunity for learning by doing, which Kadish believes is the best way to learn law.

    Mayer Brown’s Seventh Circuit Project is a case in point. “A big corporate client is not going to let a first-year associate argue its case to the Seventh Circuit,” Kadish explained. “We take appeals in habeas corpus cases in order to give young associates a chance to brief an appeal, do a moot court, and then argue before the Seventh Circuit.” The firm invests 300-500 hours of attorney, supervisor, and paralegal time for each appeal and has already done approximately 150 of them. “It’s invaluable hands-on training,” Kadish said.

    Pro bono coordinators like Kadish and Gonring note that law firms’ pro bono work is becoming increasingly important to their clients’ sense of corporate social responsibility. It is not unusual to see a prospective client inquire about a firm’s pro bono work. “The right answer may not get you the business,” Kadish said. “But the wrong answer will exclude you.” Mayer Brown makes a point of inviting corporate clients to collaborate on certain pro bono projects. Kadish explains: “Asking an in-house attorney to help with a moot court for a Seventh Circuit appeal presents an interesting pro bono opportunity for our clients and gives us a chance to introduce our associates to them.”

    Sure, this makes perfect sense for big firms that have the “excess capacity” to absorb the costs of pro bono programs, but what about medium-sized and small firms and solo practices? Jeff Brown, the State Bar’s pro bono coordinator, can help. The Bar has malpractice insurance coverage for attorneys who take referrals through its pro bono program or who volunteer at clinics that it cosponsors. And it has some funding to reimburse volunteer lawyers for out-of-pocket costs that courts are not allowed to waive even if a client is indigent.

    In the end, solo-practice and small-firm lawyers must develop expertise, build client relationships, and establish reputations in the community, too. Maybe they can’t donate 18,000 hours of time like Quarles did last year or send a team of lawyers to a developing country to help with microfinancing-loan projects, as did Mayer Brown. They can, however, invite in-house counsel to spend an afternoon working on a pro bono project. The indigent client will get legal help, and the lawyer will get bonding time with her paying client – the in-house lawyer.

    To all in-house lawyers reading this article, congratulations for asking about pro bono work on your requests for proposal. Here is another idea: invite lawyers or law firms to work on a pro bono project with you. You provide the pragmatic, business mindset, and your law firm provides the resources, infrastructure, and experience. Think big – like drafting the first freedom-of-information law for Yemen.10 Or think little – like donating a few hours to the Marquette Legal Initiative for Nonprofit Corporations. But do ask. Your lawyers probably won’t say “no.”

    “What will my clients think?”

    This can be a delicate subject. Some lawyers worry: “What if my client, Big Corporation, finds out that I’m representing a person charged with an abhorrent crime – an alleged child molester – pro bono? How will that look? Will the corporation keep giving me business?” There is really only one way to address this concern: ask in-house attorneys at some of Wisconsin’s most coveted corporate clients.

    Here’s what Bernie McCartan, vice president for the claims legal division at American Family Insurance, has to say: “In our justice system, people accused of crimes are entitled to a defense, so it would not offend my sensibilities to know that a lawyer has represented someone charged with a heinous crime. However, I suppose some companies that sell goods and services to the general public could be sensitive to the possibility that the public might draw a connection between the criminal defendant’s lawyer and the corporation. In my view, that’s a stretch.”

    Curt Paulsen, vice president and general counsel for Safway Services LLC, has a similar view: “Criminal defendants are entitled to representation. I suppose there could be a case where the public draws a negative connotation from a firm’s representation of a notorious criminal, but it shouldn’t be that way. Like politics and religion, pro bono work is personal to the lawyer. I wouldn’t think negatively of the lawyer for representing a criminal pro bono.”

    Tim Saviano, litigation counsel at We Energies, goes a step further: “I hire law firms all the time, and it wouldn’t bother me if my lawyer represented a criminal defendant pro bono. In fact, if a lawyer’s pro bono work gives him more litigation experience, then it also gives him an edge. When I worked at Foley & Lardner, a senior partner asked me to represent a man convicted of child sexual assault on a [federal] section 1983 claim against his prison guards. It gave me the chance to run a two-day trial in federal court. It was a great experience.”

    So, if you are worried about your reputation, don’t fret. If you defend a criminal pro bono, your clients will still respect you. In fact, your grit just might impress them.

    “I sit on nonprofit boards”

    Sitting on the board of nonprofit organizations is important work. However, the goal of SCR 20:6.1(1)(a) is to provide legal services to persons of “limited means” or organizations that serve persons of limited means. So do all nonprofit-board services count? ABA comment 3 on these provisions suggests the answer is “no.” Persons of limited means are people qualified to participate in programs funded by the Legal Services Corporation or people whose financial resources are slightly above those guidelines but who still cannot afford counsel. Organizations that serve persons of limited means include shelters for homeless people, domestic violence organizations, and food pantries.

    The Pro Bono Institute, which runs the Pro Bono Challenge (can your firm contribute time equal to 3 percent of your firm’s billable hours or 60 hours per lawyer to providing legal services to the poor?), says that nonprofit-board work does not count, if the nonprofit can afford to pay for routine operating expenses. The test is whether the organization’s payment of standard legal fees (which might be lower than a particular firm’s typical charges) would deplete the organization’s economic resources or be otherwise inappropriate.11

    The next question is whether, by “sitting” on a nonprofit board, the lawyer is providing “legal services” within the scope of SCR 20:6.1. The answer may be “no” if the lawyer is crafting a mission statement or an advertising campaign, but “yes” if the lawyer is reviewing an insurance contract or providing litigation counsel to defend the nonprofit against a lawsuit.

    All lawyers who serve on the boards of well-endowed nonprofit museums, schools, theaters, and the like deserve a genuine thank-you. Keep up the good work. But please don’t turn a blind eye toward people of limited means. It is time to roll up your sleeves and serve such individuals.

    “I’m a government lawyer”

    Like their colleagues in private practice, lawyers who work for governmental agencies are busy, too. Funding and staffing shortages require many to work extra hours on behalf of their clients and communities. Their overtime reflects a strong commitment to public service. Still, there is no pro bono exemption for civil servants. More than 2,000 Wisconsin lawyers are employed by governmental agencies, and SCR 20:6.1 applies to all of them.

    The challenge is figuring out what kind of pro bono work government lawyers can do without violating laws like Wis. Stat. sections 19.45(9), 757.22(1), and 978.06(5) and SCR 60.05(7), which prohibit Wisconsin judges, judicial employees, the Wisconsin Attorney General, and full-time district attorneys (including deputies and assistants) from engaging in the private practice of law. Then there are the practical and legal questions regarding any pro bono work that is not within an agency’s mandate: Must a government lawyer take vacation time to do pro bono work? Can she use governmental resources? What about getting malpractice insurance?

    These seem like insurmountable hurdles, especially because it appears that no Wisconsin governmental agency has developed and adopted a formal pro bono policy. (If that assumption is wrong, please send the Wisconsin Lawyer a copy of your agency’s policy.) Yet somehow government lawyers in other jurisdictions have managed the feat. Hawaii’s policy, for example, permits government lawyers to do work that does not create an attorney-client relationship, such as coordinating and staffing legal clinics, offering research assistance or expert advice to legal aid providers, and preparing educational materials on issues important to low-income and disadvantaged people. It also authorizes de minimis use of office equipment and supplies and flexible work-schedule arrangements (without having to take vacation time), provided that the pro bono work does not interfere with the attorney’s regular work.12

    Federal lawyers, no doubt because of Executive Order 12988, which directs agencies to facilitate pro bono work, appear to be far ahead of their Wisconsin counterparts. The Interagency Pro Bono Working Group is a resource for federal agencies trying to develop pro bono policies and announces suitable opportunities to government lawyers.13 It has connected federal-government lawyers with pro bono programs in Chicago, New York, and San Francisco. Nine federal agencies in Washington, D.C., staff the D.C. Bar’s monthly Saturday morning walk-in advice-and-referral clinics. And in 2010, the assistant attorney general for the federal Civil Division authorized division lawyers to take up to 30 hours apiece of administrative leave for pro bono activities that cannot be accomplished outside of business hours.14

    So, Wisconsin government lawyers, if the State Bar will cover your malpractice insurance and your out-of-pocket costs, and if your boss will give you administrative leave, what can you do to serve low-income individuals?

    “Pro bono clients are difficult and demanding”

    Indeed they can be, especially if they are uneducated, and they think they have rights. Guess what? Paying clients are also demanding. They know they have rights. They also know that if you don’t do their bidding, they can hire your competitor down the street, which means that you will likely make yourself available to them 24/7 – even on days such as your wedding anniversary. Indigent clients don’t have that leverage. Says Mike Gonring, “Dealing with difficult and demanding clients is excellent training for younger lawyers.” The trick to avoid becoming their general counsel is to manage the attorney-client relationship well. Based on her own experience with pro bono appointments, Kathy Donius, associate general counsel at Rockwell Automation, recommends the following: “Set appropriate boundaries, enter an engagement letter defining the scope of representation, and be sure to send a closeout letter.” 

    “I don’t know that area of law”

    We understand. You concentrate in mergers and acquisitions. You’re clueless about family law, felonies, and foreclosures. If you undertake this sort of representation, you could make the client’s situation worse or … gulp … set yourself up for a malpractice claim.

    The truth is, most organizations that refer pro bono clients to law firms are also willing to provide training or handholding to a lawyer willing to help an indigent client for free. Eric Van Schyndle, a commercial litigator at Quarles, had never heard of Wis. Stat. chapter 980 (governing the commitment of sexually violent persons) before he took a pro bono appeal involving the law. The case eventually landed in the Wisconsin Supreme Court. “We received immensely helpful assistance from State Public Defender attorneys with chapter 980 experience,” Van Schyndle said. “I enjoyed the experience so much that I am eager to get back to that court.”

    It is worth noting, however, that volunteering a few hours at the Milwaukee Justice Center or a bankruptcy clinic often involves little beyond filling out forms for pro se litigants or referring them to an organization that handles their type of problem. No particular area of expertise is required, but the client benefits and feels that someone has listened.

    If you’re still reluctant to step outside your comfort zone, then volunteer in your field. Real estate lawyers might consider the Dane County Foreclosure Prevention Task Force or one of many foreclosure mediation programs around the state. Trusts and estates lawyers – how about drafting wills and powers of attorney for low-income hospice-care patients or nursing-home residents? Bankruptcy lawyers can volunteer at the Eastern District Bankruptcy Court help desk. If you do family law, Legal Action of Wisconsin’s Volunteer Lawyers Project could use your help. Do you practice health or public-benefits law? Contact ABC for Health or the Center for Patient Partnerships in Madison, or ask if you can draft qualified domestic relations orders for Legal Aid Society clients. Use your niche to make a difference.

    Conclusion

    Note what’s missing from this article: inspiring anecdotes about the lawyer who helped an abused woman obtain a restraining order, a disabled worker receive Social Security benefits, or a family prevent foreclosure on their home. This piece is not meant to tug on your heartstrings. It is an appeal to your creative instincts, your sense of well-being, your need to network, your drive to be a better lawyer. One of the poorest cities in the country is right here in Wisconsin. SCR 20:6.1(a) is staring you in the face. The possibilities are limited only by the size of your imagination. What’s stopping you?

    Endnotes

    1 State Bar of Wisconsin Access to Justice Committee, “Bridging the Justice Gap: Wisconsin’s Unmet Legal Needs” at p. 7 (pdf), available at www.wisbar.org/forMembers/ProBono/Pages/Pro-Bono.aspx.

    2 Bill Glauber & Ben Poston, Milwaukee’s poverty rate stands at 29.4%, Milwaukee J. Sent., Sept. 19, 2012, available at www.jsonline.com/news/wisconsin/city-poverty-rate-stands-at-294-0o6u31a-170447236.html.

    3 http://wisatj.org/projects.

    4 The rule continues by spelling out what additional services a lawyer may provide pro bono to meet the rest of her 50-hour target. See SCR 20:6.1(b).

    5 Lewis Powell Jr., U.S. Supreme Court Justice, address to ABA Legal Services Program, ABA Annual Meeting, Aug. 10, 1976.

    6 Many Wisconsin law firms, large and small, generously provide pro bono legal services. Unfortunately, space limitations prevent mentioning all of them.

    7 See Quarles & Brady’s and Godfrey & Kahn’s pro bono policies at www.wisbar.org/formembers/probono/pages/resources.aspx.

    8 See “Pressed for time? Give Some of Yours Away,” Harvard Business Review’s HBR IdeaCast at http://blogs.hbr.org/ideacast/2012/08/pressed-for-time-give-some-of.html.

    9 Elizabeth Weise, “Keys to happiness: Altruism and a non-neurotic spouse,” USA Today, Oct. 4, 2010, available at http://content.usatoday.com/communities/sciencefair/post/2010/10/keys-to-happiness-non-neurotic-spouse-altruism/1.

    10 Rebecca Lowe, “Can Corporates Do Pro Bono?” 7 In-House Perspective, no. 3, 2001, at 15.

    11 Law Firm Pro Bono Project, “What Counts? A Compilation of Queries and Answers,” (Pro Bono Inst. 2008), available at http://www.probonoinst.org/images/pdfs/what%20counts%202008.pdf.

    12 Hawaii Bar J. 22 (Oct. 2009).

    13 John C. Cruden, “Promoting Pro Bono Services by Government Attorneys,” 53 Federal Law. (Nov./Dec. 2006).

    14 Legal Services Corp., “Report of the Pro Bono Task Force,” (Oct. 2012), http://www.dlapiper.com/files/upload/04385_LSC_Appendix_Government_Lawyers.pdf.




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