By Latonia Haney Keith
McDermott Will & Emery
In the current legal aid crisis, the bar and the judiciary are focused on developing new strategies for increasing pro bono service. Over the last several months, Marc Kadish,director of pro bono activities and litigation training at Mayer Brown, and Maria Minor, professional development and pro bono manager at Neal, Gerber & Eisenberg, have been working with the Illinois Supreme Court's Commission on Professionalism and Minimum Continuing Legal Education board to consider the merits of a proposed rule that would allow attorneys who participate in pro bono to secure Continuing Legal Education (CLE) credits. If this moves forward, Illinois will be only the eighth state to adopt such a rule, following Delaware, Colorado, Minnesota, New York, Tennessee, Washington and Wyoming.
Recently, the commission met with a group of pro bono attorneys from several law firms in Chicago to seek our reactions to the proposed rule. As this inevitably led to a friendly debate, after the meeting, I sat down with Minor and Greg McConnell, pro bono counsel at Winston & Strawn, to bring out some of the pros and cons of the proposed rule.
As the impetus behind the rule is to incentivize attorneys to engage in pro bono work, a philosophical division arose during the meeting as to whether granting CLE credit is the appropriate mechanism for increasing pro bono participation. "In my experience, most attorneys accept a pro bono matter principally because of the intrinsic value they place on pro bono service," McConnell said.
As a result, whether this value comes in the form of using one's unique talent to assist an underprivileged individual or as a response to the higher ideals of the legal profession, he argued that the benefit of acquiring CLE credit will serve not as an inducement, but as a post hoc reward for those who are already actively involved in pro bono.
"Providing CLE devalues the experience by suggesting that pro bono participation necessitates a sweetener," McConnell said. "This will ultimately lead to diminished long-term participation as the value appeal of pro bono loses favor to inducements which run in short supply."
Minor disagreed, saying CLE for pro bono work speaks to those who strive to combine nonbillable efforts to make a busy life more manageable and to those who face institutional barriers to pro bono. "For those who think that they can't do pro bono because they aren't experts in mortgage foreclosure, or criminal defense, or special education, this helps send the message that pro bono can also be an educational avenue to expand horizons."
Another concern arose as to whether the rule undermines the laudable goals of Illinois' CLE requirement. Minor noted that the commission requires that CLE fulfill the educational and professional development purposes of continuing legal education "through exposure to new areas of law, expanding the scope of an attorney's experience with cultures and communities and shaping an individual's views." She, therefore, argued that one may be hard pressed to identify an activity better suited to broaden and shape an attorney's views, whether a newer or seasoned attorney, than doing pro bono legal work. Through pro bono involvement, young lawyers can develop sound legal judgment and unique (and early) training and experienced attorneys can find renewed energy in their daily practice by stepping outside their areas of expertise or client base. "I firmly believe that pro bono is an ideal avenue to enhance and broaden one's legal skills — not just specific areas of the law, but the very basics of the profession, including client communication, negotiation and ethics," Minor said.
Though McConnell does not dispute that time devoted to pro bono can be an experiential or substantive learning opportunity, he questioned whether the majority of contributed pro bono time actually meets general CLE guidelines.
If, for example, an attorney handles an asylum application in each of three successive years, he views time expended in the second and third years as a poor fit for CLE purposes. Similarly, if a matrimonial practitioner undertakes divorces on a pro bono basis, such work is likely indistinguishable from his commercial work and again seems a poor fit for securing CLE credit. If one takes the perspective that every pro bono matter offers a new experiential learning opportunity, as it is rare in our profession that there are truly "routine" cases, it can be difficult to avoid arguing that the same philosophy applies to each new client-chargeable matter. "From my perspective, it dilutes the important message that CLE is essential to the modern practice of law," McConnell said. He advocates for the existing model through which our legal aid organizations make CLE credit an almost de rigueur component of any training.
So, where do I come out in this debate? Frankly, I'm not sure. As we do not yet have empirical data supporting the premise that granting CLE credit increases pro bono participation, our time and energy in this crisis may be better spent elsewhere. On the other hand, given the extent of our crisis, even if the increase in participation is minimal, it is hard to argue that it wouldn't be worthwhile.