Paying for pro bono

The WSJ has an interesting story about law firms paying social organizations like Lawyers Without Borders to get referrals of “pro bono” work. The WSJ Law Blog wonders how lawyers should feel about paying for pro bono work.

I’m going to put aside the kickback issue. (A comment to the Law Blog post sensibly notes that the pro bono organizations might be serving as information intermediaries.) Also, it seems pretty clear why the firms want the work – as the WSJ article says, they’re using it to recruit lawyers. And it notes that in this day of lawyer media, things like pro bono work are more transparent than ever, including as a factor in law firm rankings.

The question is: why is this a recruitment selling point? One answer from Esther Lardent, the president of the Pro Bono Institute at Georgetown University Law Center (and, fwiw, my law school classmate):

The big firms are "having to dig deeper to differentiate themselves. Dedicating to pro bono is a way for a firm to say 'Our culture isn't entirely about maximizing profits, but about something bigger.' "

Is this really about workload? A firm not obsessed with money is not obsessed with billables. Or maybe public interest work is just easier, less demanding, more interesting.

But I actually don’t think that’s what’s going on. I think that the children of the baby-boomers, and their children, think that just helping businesses make money is not fulfilling.

But Robert Barro in today’s WSJ, discussing how Bill Gates’ charitable work is actually worth far less than his work for MS, notes:

A conservative estimate, in a model where software serves as a new variety of productive input, is that the social benefit of Microsoft's software is at least the $44 billion Microsoft pulls in each year. When capitalized with the same ratio (22) that the market applies to earnings, this flow corresponds to a valuation of $970 billion. Thus, through Microsoft's future operations, Mr. Gates is creating a benefit to the rest of society of about one trillion dollars -- or more than 10 times his planned donations. And this counts only the likely future benefits, giving no weight to the past.

Putting this in a global perspective, he says, if you want to alleviate world suffering, make the world richer, as has been happening big-time in, say, China and India.

And you don’t have to be Gates to be involved in this good work. How about being Gates’ lawyer, and doing the intellectual property, transactional and other work that has enabled his production of social wealth?

Now, you might say, law is uniquely about justice. Gates does software, not justice. Lawyers do justice. And that’s about more than just who can pay for it.

Fine, but without the market as an allocator, how do we decide who gets how much justice? According to the WSJ article:

many lawyers are more interested in what they see as challenging or high-profile issues, such as asylum cases, voting-fraud class actions and reviewing tax-reporting requirements for organizations like Teach for America Inc.

On the other hand, according to René Kathawala, the pro bono counsel at Orrick, Herrington & Sutcliffe,

areas where demand for lawyers outstrips supply include landlord-tenant disputes, welfare matters and low-profile divorce cases, which his firm occasionally handles.

So is this really after all about interesting work rather than social justice?

Anyway, if you're really interested in social justice, you might try working full time for social action, not getting paid $160,000 to feel good. Say you can't pay your tuition loans? You didn't have to go to Yale, did you?

I would add that there’s a third type of social justice work that might make more sense than any of the two categories just mentioned: enabling small entrepreneurs and property owners to stand up to efforts to put them out of home or business. In other words, you might try litigating for liberty.

Finally, if the availability of legal representation for the poor troubles you, and I believe it should, how about taking care of the problem at the source: restructuring the legal profession so that we produce a wide variety of practitioners, at all price levels, to more broadly meet people’s need for lawyers. That would involve drastic revision or even elimination of lawyer licensing laws, as I’ve argued in Lawyers as Lawmakers: A Theory of Lawyer Licensing, 69 Mo. L. Rev. 299 (2004), draft here.

Comments

[Robert Schwartz]

1. They need to be able to smooth out workloads. If they want to be able to carry enough associates to handle peak times, they will have a few sitting around in slack times. Right now, for instance, bankruptcy is not busy, but rather than fire the bankruptcy lawyers they paid so much to hire a few years ago, they can put them to work in pro bono.

2. Meaningful trial experience is very hard to come by in the modern world. Trials have gotten so expensive that they are rare. Pro bono gives the resident surgeons a chance to practice on charity patients.

[Kate Litvak]

I suspect pro bono here functions as a form of soft bribery. The goal is go collect brawny points for being respectable community members, so that nobody dares to peek into the bizarre stuff that's going on between law firms and elected judges, local politicians, regulators, you name it. In this respect, pro bono is similar to corporate charity, where the goal is often to gain political favors. (This, by the way, says good things about our society – I’d rather see charity as a career-advancement device than marriage or inheritance).

I should also note that law firm pro bono is less troublesome than corporate charity because in the former, the decisionmakers stand to lose their own money, whereas in the latter, they spend other people's money.

P.S. Larry, give my generation some credit. I have never heard a young lawyer seriously saying that s/he chose a firm X because it does more pro bono. Maybe people say so around the press, but in private conversations? C'mon.

[vnjagvet]

Let me know, Larry, what you think of this foundation model.

Details at the Benjamin Franklin Legal Foundation website.

http://http://www.benlegal.com/pages/1/index.htm