Pro Bono: Balancing pro bono needs and wants

By Margaret C. Benson
Chicago Volunteer Legal Services Foundation

Balance. It’s a trendy word, if not a trendy need. These days there is a lot of talk about finding your balance — a balanced diet, a balanced lifestyle, a balanced spirit.

Lawyers talk about the work-life balance, worrying that it’s too often tipped in favor of work.

There are a lot of articles claiming to help attorneys figure out how to generate billable hours while not losing themselves in the process. Work is important, but so is family, exercise, eating right, eight hours of sleep, and, of course, pro bono.

But this article isn’t about that kind of balance.

Lawyers are also familiar with the legal concept of balance. There’s the balance between the rights of an accused against the rights of the victim and the right of society to be safe.

There’s balancing the equities — a concept we first hear about in law school and spend our careers struggling to understand.

But this article isn’t about that kind of balance either.

This article is about the need for balance
in the pro bono world.

The need for balance between the pro bono that attorneys want to do against what legal aid programs need on behalf of their clients. This type of balance is rarely addressed. But it needs to be.

Pro bono is popular these days. There’s no doubt about it. The American Lawyer helped bring it to the foreground of the legal world when it started annually measuring pro bono hours produced by the big firms. Bar associations recommend minimum pro bono hours. Illinois joined a trend when it imposed its pro bono reporting requirement. Pro bono is in and a lot of lawyers want to do it.

But what can they do?

Not every attorney is a litigator. Some non-litigators are willing to go to court, but many choose transactional work because they do not want to go to court, ever.

Other attorneys chose their line of work because they have no affinity or, let’s be honest, ability to work with clients. Some attorneys just aren’t into people.

And what about the pro bono programs? Some handle individual cases, some do impact litigation and others help with transactional matters. The 2005 Illinois Legal Needs Study established that many low-income people need help with housing, family, and consumer issues. It also proved that pro bono is an essential part of the legal services delivery system. But that balance issue rears its ugly head.

Ask pro bono programs and many will tell you that divorce and related family law issues like custody, visitation, child support, and domestic violence overwhelm them. What do a lot of attorneys think about this type of legal work? Ick.

Mortgage foreclosures and related real property cases are inundating the courts and legal aid programs.

Large law firms are conflicted out of these cases because they represent the banks and lending institutions. Even if they don’t, they hope to in the future. The bottom line is they won’t take a case against financial institutions that may, someday, pay them the big bucks.

Solo and small-firm attorneys can’t get involved in complex litigation that lasts years, especially when they have to go up against big firms who paper them to death.

Ask bankruptcy judges about need. Yes, people need help filing simple Chapter 7 cases, but a lot of bankruptcy attorneys will handle those pro bono.

The problem comes when a client files pro se and messes up that simple case and finds himself defending an adversarial complaint filed by a creditor. Solo and small-firm bankruptcy attorneys won’t or can’t take bankruptcy litigation. Big-firm bankruptcy attorneys represent creditors and are conflicted out. So, low-income clients who desperately need an attorney to represent them in pending litigation have nowhere to turn.

In addition to her blindfold, our American symbol of justice holds scales because justice must be balanced. Pro bono must be balanced. Legal aid programs struggle to accommodate the needs of attorneys, law firms, and corporate partners who want to do pro bono but don’t want difficult, time-consuming cases or less than saintly clients.

Legal aid programs don’t talk about this problem in public because they don’t want to look a gift horse in the mouth. But then again, sometimes that old nag is really a Trojan horse - not a gift but a burden.

Attorneys: think about balance the next time you complain because you haven’t gotten a decent pro bono case in some time.

Law firms and corporate law departments: think about balance the next time you look for a discrete pro bono project that won’t
cost your staff too much time. Think about expanding what you are willing to do. Take some cases or clients outside of your comfort zone. Help balance those scales of justice and prevent them from tilting so much toward us instead of our clients.