Every year the Florida Bar asks me to tell it the number of hours of pro bono work I did in the past year. I am not required to do any, but I have to report those hours that I did. Since joining the Bar in '87, I have a grand total of zero hours of pro bono work. I have always felt a little guilty about it (but since I am not really practicing law--I worried about not really being up to the challenge), but now I don't feel so guilty thanks to Ted Frank's description of the potential costs of jury trial lasting nine months regarding an $800 dispute.
I do recognize that there may be some worthy pro bono cases (where the social benefits are greater than the social opportunity costs and not all pro bono services involve litigation), but perhaps the incentives to provide the free work (training for litigators, feeling good, or looking good on reports) are geared towards over provision of free services. If so, we are imposing more on society in terms of opportunity costs than the cases themselves are really worth. This looks like a good dissertation topic too.
Martin, as I just mentioned at my website, even if a subset of pro bono cases may cause more harm than good, I hope we can all agree that some lawsuits are good for society and that poor people deserve to have representation for their valid claims.
Trust me, society need not worry about a plague of frivolous pro bono suits on behalf of the indigent. I pointed out earlier this year:
In the last survey, the average NYS lawyer reported doing less than 20 hours per year of service for the indigent -- and that included a large increase related to 9/11.
So, please don't discourge pro bono work. Instead, help lawyers select worthy cases and, more important, join the fight to break the lawyer monopoly on access to the courts and civil justice, by helping to provide all Americans who want or need to represent themselves with adequate self-help resources. [See Pro Bono is Not the Answer to the Access Problem; and Improving Self-Help.
Promoting self-help law should be most attractive to libertarians, as well as to consumer advocates.
Posted by: david giacalone | October 14, 2004 at 08:16 PM
I'm very proud of three of the cases I did pro bono: one, small-scale, successfully on behalf of an illegal immigrant seeking asylum after her family was massacred in inter-tribal warfare; another, large-scale, as part of a team successfully fighting to defend the right of Californians to hold a recall election. Another, where I worked on the briefs, was covered on overcriminalized.com and was the occasion of Acting Solicitor General Paul Clement's first oral argument.
In other pro bono cases I've worked on, I was bothered that no one worried about whether the "bono" was really for the public good, as opposed to just "free."
I give a day's income to the local legal aid society every year, and that pays for a week of a full-time lawyer for them. That week has to help the poor more than if I were to donate a day's work for them, or even a week's work for them, because that full-time lawyer has a comparative advantage over me in understanding social-security disability litigation or child custody disputes or landlord-tenant law. If I were to give a week's time, I could maybe provide overkill help to a single individual with a single problem, while the legal aid lawyer will be much more efficient with her or his docket. But the measurements of American Lawyer and the bar prefer the day's time to the day's pay.
The bar imposes other inefficiencies that hurt the poor: imagine if all the money and time spent on bar exam preparation were instead spent on services for the indigent? If the third year of law school were replaced by the legal equivalent of the medical residency program? (We'd have better trained lawyers, too, plus fewer lawyers feeling trapped by their law school loans.)
Posted by: Ted | October 15, 2004 at 08:22 AM
I don't want to discourage pro bono work. I just think we should discourage the incentive structure which causes the waste of litigation resources (like the case Ted mentioned in his original post). I also do recognize that there are socially valid pro bono cases.
I still think it is an interesting question as to determining the overall worth of the pro bono reporting system. Does it make people choose wisely and internalize costs or does it export the training costs of young litigators to other parties. it may be as was suggested by David, that this is not a big problem. What troubles me from an academic (and not necessarily pedantic!) point of view is that lawyers like UCL don't seem to understand the economics of the particular case that started the discussion. Perhaps this is case is not representative, but it does serve as an example of the over use of resources. If there are other benefits which aren't mentioned (such as UCL's firm gets a better reputation that allows them to negotiate from a stronger position or UCL gets a better reputation, and the increase in reputation generates additional clients) these benefits still have to offset the additional costs imposed on society.
Posted by: Martin | October 15, 2004 at 10:12 AM
Thank you both for replying thoughtfully and usefully, Ted and Martin.
I see the encouragement or requirement of pro bono as based on each lawyer's ethical responsibility to society -- as "payment" for the license to practice and its privileges, protections. I admire Ted's annual donation to legal aid and would never want to discourage such largesse. Still, I can understand the notion that the responsibility to serve the public good be done hands-on. As my posts on pro bono and access to justice state, the service does not have to be litigation -- indeed, much of the needs of the indigent for legal services require no filing of lawsuits. Creating mechanisms that filter out unmeritorious cases, and that encourage mediation and the efficient use of resources, are worthwhile pursuits. The lucky indigent who does get free legal services, should not get unlimited resources poured into his or her lawsuit. Legal aid and legal services organizations have learned how to provide adequate, no-frills legal services.
Pro bono was not meant to be a substitute training program for law firms. Although such benefits do encourge more volunteer work, that work should still be performed efficiently, with the focus on benefitting the indigent client. I would not include public relations benefits for the firm as part of the calculus when measuring positive social benefits of volunteer service to the poor.
I believe the reporting requirements, sworn to or affirmed by the lawyer or firm, are meant to encourage the actual performance of pro bono services -- although they are very imperfect tools for assuring lawyer honesty and diligence.
For the past couple of decades, I've been recommending that law school be cut back to two years, with a year of "residency". So, Ted's point is well taken. However, I'm not sure that we could then do away with bar exams completely.
Please note, as Ted points out at my weblog, that the number I gave above, 850 hours, is actually 85 hours. Like Ted, I still think the overall point remains valid, as even 85 additional hours is an implausible goal, and is based on the false premise that lawyers are necessary for solving every legal problem.
Posted by: david giacalone | October 15, 2004 at 11:19 AM
The lawyers who perform the most pro bono work tend to be the sames ones who are most quiet about it -- the Florida Bar, however, has been advertising its pro bono drive for consumption primarily by members of the public. There is also a case to be made that in some respects, the middle-class is most in need of "pro bono" work, given that it is probably hit hardest by skyrocketing legal fees.
If attorneys really want to perform a public good, have them drop the barriers to competition and cut their rates in half for paying clients. Oh, and it would be helpful if they ceased and desisted from the foul language and abusive tactics so commonly used during litigation.
Really, of all the silly, hypocritical, absudities, the "pro bono" movement must take the cake.
Posted by: Phil | October 29, 2004 at 02:42 PM