By Martin Pritikin

Law360 (April 26, 2020, 8:02 PM EDT )

Martin Pritikin

There is little to celebrate about the economic downturn that has resulted from the stay-at-home orders designed to limit the spread of COVID-19. But there could be one silver lining: an opportunity for lawyers to engage in pro bono services at an unprecedented scale.

So why should firms focus on pro bono services at a time like this? Not only because it is the right thing to do, but because it is a sensible investment that would not likely be made at any other time.

The State of Pro Bono

The recent economic crisis will heighten the need for legal services, with an inevitable increase in bankruptcies, foreclosures and unemployment disputes, as well as individuals and small businesses struggling to navigate access to various state and federal stimulus resources.

The American Bar Association's Model Rule 6.1 provides that every lawyer "has a professional responsibility to provide legal services to those unable to pay," and the ABA exhorts lawyers to provide at least 50 hours of pro bono services per year. Most states have adopted a similar requirement or aspirational goal. However, according to a national ABA survey from 2017, nearly half of attorneys had not provided any pro bono services in the prior year, and nearly 20% had never provided such services at any point in their careers.

This is not to say that existing levels of pro bono representation are due to limited demand. A 2017 report from the Legal Services Corporation found that 86% of low-income Americans' civil legal problems received inadequate or no legal help, including more than half of the instances in which they actually approached an LSC-funded legal aid organization for assistance.

The Current Crisis Facing Law Firms

In light of these figures — and with funding for legal aid hardly on the rise these days — the only practical way the justice gap can be narrowed is if attorneys in private practice increase their levels of pro bono participation. But now hardly seems like the time for law firms to be volunteering their attorneys' services, with many firms themselves struggling to stay afloat in the wake of the rapid downturn in billable work.

Indeed, almost as soon as the restrictions began, midsize and even large firms, in an effort to mitigate the drain on cash, started announcing furloughs, layoffs or pay cuts at all levels of employees, from equity partners down to administrative staff. Reported pay reductions for associates have ranged from 10% to 25%, with equity partners taking even bigger hits.

Encouraging Pro Bono

Lawyers in private practice often cite being too busy as a reason why they don't engage in more pro bono work. But now that there is likely not enough work to go around for associates to hit their billable hours targets, firms should — rather than simply have them work less — encourage them to spend more time on pro bono work than they otherwise might when they're swamped.

Boosting pro bono hours benefits not only the clients who receive legal services, but the associates and the firms themselves.

Pro bono work can provide associates with the opportunity for heightened responsibility — developing case strategy, advising clients, drafting key documents and negotiating with opposing counsel — that they are less likely to get when working on higher stakes billable work.

The firms enjoy having more experienced and valuable workers, and may be able to justify giving them more responsibility — and billing them out at higher rates — once the market for billable work rebounds. And few firms are shy about milking their pro bono endeavors for whatever public relations value they can get from them.

One might assume associates facing pay reductions would want to work commensurately fewer hours rather than work on unpaid matters. But it behooves associates in an uncertain market to develop skills that will make them more valuable to their employers going forward. And of course, helping people who need help actually feels good, and can be its own reward.

Structural Changes Needed

Altruism aside, the reality is that associates will be more likely to engage in pro bono work if their contributions are concretely recognized and rewarded. Some firms credit pro bono work hour-for-hour for purposes of meeting minimum billable hours requirements, but many do not. Firms that don't already do so should revise their policies to count pro bono hours, at least up to a certain number of hours if not to an unlimited extent.

Firms could go a step further and consider crediting pro bono hours worked this year toward minimum hours requirements in 2021, when the market will hopefully have recovered and the potential for bonuses will be more than just a distant fantasy.

Of course, the discussion so far has addressed associates, but one of the best ways to spur associates to get involved in pro bono work is if partners do it as well. "Do as I say, not as I do" is a mantra that rarely works well in parenting, and is no more likely to work in a professional environment. Partners volunteering their time demonstrates an organizational commitment to the public good, and serves as a model for newer attorneys to emulate.

If firms really want to innovate, they could consider entering the so-called low bono gray zone between their standard billable engagements and free legal services to the poor. That is, they could offer sliding scale pricing for modest means clients, and arrange for their attorneys to conduct limited scope representation for matters in which full representation may be too expensive or impractical.

Larger firms may not want to sully their brand by offering discounted rates to smaller clients — something typically done only by small firms or solo practitioners. But it could actually prove to be a good way to help more junior associates develop their business development skills at a point in their careers when they are more likely to have connections through friends or family with budding entrepreneurs or small businesses than they are with general counsels of Fortune 500 companies. If associates can begin to establish and build client relationships earlier in their careers, it could help them develop into the rainmakers of the future.

---

Martin Pritikin is dean and vice president of Concord Law School at Purdue University Global.

"Perspectives" is a regular feature written by guest authors from the access to justice field. To pitch article ideas, email expertanalysis@law360.com.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the organization, or Portfolio Media Inc., or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

For a reprint of this article, please contact reprints@law360.com.