Pro bono goes stagnant

Report sets goals to revitalize the profession’s provision of free services to the poor
By Kim MacQueen
Associate Editor

On starting a new career in the law, every Florida attorney takes an oath that includes the following:

“I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed, or delay anyone’s cause for lucre or malice. So help me God.”

In keeping with that promise, the Florida Supreme Court has set an aspirational goal of having every Florida lawyer annually contribute either 20 hours of volunteer legal service to the poor or make a $350 donation to a legal aid organization. While performing the work is voluntary, lawyers must report annually on their fee statements whether they met the pro bono goal.

If you’re not exactly paid down on that commitment, you’re not alone. Only 52 percent of Florida attorneys are, or have been, meeting the aspirational goals since 2000. During the same time period, Florida’s legal services providers report a 30 percent decline in the numbers of lawyers providing pro bono services through their organizations. And an increasing number of lawyers aren’t making good on the mandatory reporting requirement, either.

To find out why, the Florida Supreme Court/The Florida Bar Standing Committee on Pro Bono Legal Services commissioned a study -- Pro Bono: Looking Back, Moving Forward -- from Kelly Carmody & Associates, a national consultant to civil legal aid funders, paid for by a grant from The Florida Bar Foundation.

“We had strong indications of some severe drops in pro bono activity in terms of number of hours and number of cases — the statistics were a little spotty, but it was pretty evident,” says Paul Doyle, who directs the Foundation’s Legal Services for the Poor grant funding program. “There was a growing concern that we were not paying enough attention to the pro bono delivery system — that we were failing to keep it vibrant and alive — just by what I would call benign neglect.”

Florida was the first state in the nation to adopt IOTA and the first to adopt mandatory state reporting. The report credits the Florida Supreme Court, The Florida Bar, the Standing Committee on Pro Bono Legal Services, The Florida Bar Foundation, and Florida Legal Services for building a number of successful pro bono programs, showing strong commitment to expanding access to the poor, and a general participation rate of 50 percent per year.

“Unfortunately, 50 percent is far below what these institutions envisioned, far below the aspirational goal of the Florida pro bono rule, below what other states have achieved, and what below what is needed to close the justice gap,” the report states.

The Florida Bar received national recognition for its pro bono program in the early ’90s and pro bono contributions increased. But it’s gone downhill since 2001. Since then, the report states, “Case-by-case attempts to revitalize pro bono programs have been generally unsuccessful.”

It’s not just Florida — pro bono is down everywhere. The Carmody & Associates report cites a national study released in mid-2007, which found that, for every poor individual receiving free legal services, another was turned away.

Why?
Attorneys responding to the survey gave several reasons for not providing pro bono services. Chief among them was a lack of time, the reason given by 64 percent (as compared with 69 percent nationally).

“I’m pulling my hair out trying to keep up with my family and my practice,” said one single-mother solo practitioner.

“I am overworked. I have been working Saturdays and Sundays for over one year. I would do more pro bono work if I did not have responsibilities to paying clients,” said another.

Family obligations and strict billable hour requirements at their paid positions — if not a downright scorn of pro bono — were other reasons.

None of those responses came as a surprise to Foundation President Kathleen McLeroy, who coordinates the pro bono efforts for the Tampa office of Carlton Fields.

“My reaction to the report was that it basically said that lawyers in Florida may want to do pro bono; it’s just hard to juggle career and home and everything else,” McLeroy said. “They didn’t find a groundswell of folks who don’t want to do it, and to me, that’s encouraging. It just becomes a question of setting up the right opportunities for people.”

That’s another major point of the report — many local legal aid agencies aren’t doing the best job of attracting, retaining, or matching attorneys with pro bono opportunities. The study found that far more attorneys contribute pro bono services on their own (46 percent) than work through organized groups (8 percent). Many lawyers cite a lack of skills and/or experience in the areas of law that they’re being asked to provide volunteer service. “I can’t help people if I don’t know what I am doing,” one lawyer responded.

Many reported their local legal aid organizations didn’t take the initiative to contact them or keep them informed of ongoing pro bono opportunities. Still more — fully one-fourth of respondents — say they would provide pro bono legal service if asked — but they haven’t been.

“There is little notion of the need to welcome the attorney into a community of attorneys and generate excitement about being part of that community,” notes the report.

“These facts are important, and troubling, since organized programs play a critical role in expanding access to justice for the poor — the goal of Florida’s pro bono rule.”

Another significant factor occurs among government attorneys — the fact that many are prohibited from offering services for free when they ostensibly work for “the public.” Survey respondents said some don’t know whether they’re allowed to volunteer legal services for the poor, and some agencies ban pro bono work outright.

Many government attorneys feel both that they’re already overworked, and their salaries are so low that that in itself constitutes pro bono. Those working in the budget-beleaguered court system are an interesting case in point. One attorney responded, “Overwhelmed by my work as a public defender… adding additional clients when I already have too much work to handle would be unethical.”

Still others take the position that the oath they take when they become attorneys does not, in fact, constitute promising to provide volunteer legal service to the poor, to which they are philosophically opposed.

“I believe the concept amounts to involuntary servitude,” wrote one. “Can I call a plumber and get him to fix something at my house for free?”

All told, the reasons why pro bono is down statewide weren’t a huge surprise, said First DCA Judge William Van Nortwick, Jr., who served as chair of the special subcommittee to study pro bono legal services.

“We had a lot of theories — we thought there were probably a lot of very complex causes,” he said. “It turned out the causes are complex. They relate to changes in law and changes in society.”

What to Do
The report lists several recommendations for the Supreme Court Standing Committee on Pro Bono Legal Services, The Florida Bar, The Foundation, and the judiciary going forward. It calls on the standing committee to “take a leadership role” in revitalizing pro bono and working to integrate Florida’s “patchwork” of legal services programs.

Other suggestions include stepping up pro bono marketing and communications efforts — and driving home the message that pro bono is expected of all Florida lawyers.

“Pro bono legal services provided free to the poor are part of an overall obligation attorneys assume when they take the oath of attorney,” said Chief Justice Peggy Quince. “‘Pro bono publico’ literally translates as ‘for the good of the public,’ and the Florida Supreme Court will use this report to advance the public good. It will help us strengthen our profession’s obligation to serve our communities at large and to help the poor in particular.”

Suggested changes to pro bono reporting include putting the process online, as well as increasing the alternative contribution amount to $500. Doyle said the Foundation will make available $800,000 in new grant funding for pro bono projects to be funded during the first part of 2009. Legal Services programs are being urged to focus on recruitment and communication.

And that’s just the start. Officials for the groups involved said they’d only just begun to discuss what might be done in the future to strengthen pro bono in Florida, and will likely be working on it for most of 2009. One thing is for sure, though — they’re going to have to work together to get much done.

“The overriding importance of this report, from my standpoint, is the recognition of the number of stakeholders, and that we have to act with some uniform purpose in mind to change, and to really accomplish some things that are long-term goals,” Doyle said. “Each of us — the Bar, lawyers, judges, pro bono programs, the Foundation — could strike out on our own, and maybe make some small difference. The need for a coordinated, overall effort is so telling.”

Judge Van Nortwick said the report has “given us a basis to move forward,” and serves as a reminder for why so many Florida lawyers see pro bono as an uplifting, indispensable part of their practice.

“This report comes at a time when studies by various bar groups have shown that lawyers are more unhappy in the practice of law than they’ve ever been,” Judge Van Nortwick said. “If this can help lawyers get back to their base — back to wanting to help people; back to the reasons why they went to law school in the first place — it can have a very positive effect.”

The Florida Judiciary
• Deliver a message regularly to the Florida judiciary from the Florida Supreme Court that promotion of pro bono legal services is expected of all judges.

• Revitalize local participation in promoting pro bono legal services at the circuit and county level, including a renewed expectation that promotion of pro bono legal services must involve each circuit chief judge or his/her designee, leaving the specific mechanisms used to the discretion at the circuit level.

• Deliver a message regularly to the leadership of the bar associations in Florida that pro bono legal services and its promotion are expected of them.

• Deliver a message to large firms (as defined by the local communities) that promotion of pro bono legal services to their firms‘ attorneys is expected of them.

• Encourage individuals being admitted to the Bar to attend one of the induction ceremonies to increase the number of attorneys who hear about the importance of pro bono legal services at the beginning of their legal careers.

The Florida Bar
• Deliver a message regularly from the Bar president to the membership that pro bono legal services are expected of them. Make the promotion of pro bono legal services a priority of the Board of Governors and the Bar staff.

• Encourage and support development of pro bono projects for members of the Bar‘s committees, sections, and the Young Lawyers Division.

• Strengthen the Practicing with Professionalism seminars by having a presentation about pro bono legal services at every seminar, and personalize it by having a pro bono attorney talk about his or her experience.

• Incorporate pro bono legal services into the Mentoring Program when it is developed.

• Recommend change to emeritus attorney rule to include attorneys on inactive status.

• Implement online reporting for the pro bono report. Send follow-up notices to attorneys who do not complete the pro bono report and implement a consequence for noncompliance.

The Standing Committee
• Take a leadership role in revitalizing the pro bono legal services system.

• Coordinate a statewide campaign for pro bono legal services.

• Develop pro bono plans and projects with The Florida Bar‘s sections, committees, and the Young Lawyers Division.

• Draft a rule change with The Florida Bar to expand the emeritus attorney rule. Develop a recruitment process and streamlined certification process for retired and inactive attorneys to provide pro bono legal services. Collaborate with the pro bono programs to maximize the use of retired and inactive attorneys for pro bono legal services.

• Recommend change to Pro Bono Rule 4-6.1 to increase the alternative contribution amount to $500.

• Recommend revisions to the pro bono reporting section of The Florida Bar‘s annual membership form to simplify it, make the category descriptions more accurate, and include an easy way for attorneys to obtain information about pro bono legal services opportunities.

Voluntary Bar Associations
• Take a leadership role in revitalizing pro bono legal services. Maximize interaction between voluntary bar associations and pro bono programs to benefit from the association members’ propensity to volunteer.

Law Firms
• In firms that are generally supportive of pro bono legal services, mentor associates about the importance of pro bono legal services and ensure the time to do it. Change policies to count pro bono hours as billable hours.

• Deliver a message of the professional and economic benefits of pro bono legal services from managing partners of supportive firms to firms that do not support pro bono legal services yet, and from solo practitioners who provide pro bono legal services to those who do not.
• When promoting pro bono legal services to other firms and attorneys, have active pro bono attorneys talk personally and passionately about the satisfaction they derive from it.

Pro Bono Programs
• Create a recruitment campaign that utilizes pro bono attorneys, maximizes one-on-one interactions, and uses exciting marketing materials.

• Have pro bono attorneys give presentations at law schools about why they provide pro bono legal services and the types of cases they do on behalf of the poor.

• Recruit Florida law school graduates who have performed pro bono legal services or interned with legal aid organizations.

• Recruit new attorneys soon after their admittance to the Bar.

• Coordinate a message from government attorneys who provide pro bono legal services to government attorneys who do not that pro bono legal services can be personally satisfying and rewarding for them.

• Develop pro bono legal services policies with government agencies that do not have them and publicize the authorization for pro bono legal services for those agencies that permit such service.

• Develop a full range of pro bono opportunities with all levels of representation, a variety of areas of the law, and convenient times.

• Develop a wide range of supports and incentives to make pro bono legal services as easy and rewarding as possible.

• Review recognition efforts to ensure that as many attorneys receive recognition in as many ways as possible. Give increased recognition to the firms of the attorneys who provide pro bono legal services.

• Collaborate, through the Florida Pro Bono Coordinators Association, on projects that improve local pro bono programs and the statewide system of pro bono legal services.

• Increase the commitment and passion of staff and management of pro bono programs to revitalize programs’ quality and quantity of pro bono legal services.

Florida Legal Services
• Continue leadership roles with the Florida Supreme Court, The Florida Bar, and the Standing Committee.

• Continue development of the statewide pro bono legal services Web site and encourage its use.

• Continue and expand development and support of pro bono projects with large firms and with sections, committees, and the Young Lawyers Division of The Florida Bar.

• Expand staff for coordinating the implementation of the report’s recommendations, particularly for the Standing Committee.

The Florida Bar Foundation
• Expand staff to focus on pro bono legal services development.

• Hold all pro bono programs to higher standards. Review ABA Standards with the programs and develop written expectations.

• Fund pilot projects of the pro bono programs to test the effects of a variety of efforts on increasing pro bono legal assistance.

• Fund increased staffing at Florida Legal Services for coordination of implementation of the report’s recommendations, and fund a statewide campaign for pro bono legal services.