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Pro Bono: Where We've Been and Where We're Going

Thomas A. Gottschalk is Of Counsel to Kirkland & Ellis LLP. [Editor's Note. From 1994-2006, Tom served as Executive Vice President, Law and Public Policy & General Counsel at General Motors Corporation and as an associate and partner at Kirkland from 1967-1994. As Co-Chair of the Corporate Pro Bono Advisory Board, he presided over a remarkable period of growth in in-house pro bono. An active pro bono participant at Kirkland & Ellis where his first case was a pro bono matter, Tom returned to the firm, now more than 1,400 lawyers strong, and as Chair of the Firm's Pro Bono Committee is working to enhance Kirkland's pro bono program. This article is adapted from remarks he prepared for a session on this topic at the Pro Bono Institute's 2008 Annual Seminar and Forum on In-House Pro Bono.] Particularly over the past decade, there has been a substantial increase in major law firms' engagement in pro bono. I would cite six developments that have contributed to this increase, beyond the basic strength and foundation of pro bono – i.e., the willingness and sense of professional responsibility of many lawyers to help the indigent and underrepresented and to mitigate the continuing great unmet demand for volunteer legal services. They are: 1. The Pro Bono Institute's Law Firm Pro Bono ChallengeSM. The Institute's efforts in raising awareness, facilitating and encouraging firms' institutional support of pro bono, along with the efforts of other public interest groups, such as Equal Justice Works, have made a real difference. 2. The American Lawyer's A-List. In its rankings, the American Lawyer gives a great deal of weight to pro bono – equal to firm profitability and twice the weight given to the remaining two factors, associate satisfaction and diversity. 3. Local bar aspirational pro bono targets. A number of metropolitan bar associations have adopted pro bono goals/targets, such as 50 hours annually per lawyer on average, and local offices of major firms have adopted these targets. 4. Legal services providers. Many more providers see the potential and benefits in partnering with major firms and are more aggressive in seeking assistance and offering opportunities of interest. 5. Younger lawyers. Newer lawyers, particularly litigators looking for more "on their feet" trial experience or first chair client relationships earlier in the careers find that experience, less likely in large paying client matters, in their pro bono service. 6. Law schools. The increased emphasis on pro bono service and clinics at law schools kindles continuing interest in pro bono on the part of recent graduates. Within law firms themselves, a number of trends are apparent which contribute to their increased pro bono service: * Having committed to the Pro Bono Challenge, and accepted targets for pro bono hours per attorney, many more law firms have made pro bono service an institutional and management priority. *Law firms also recognize that a strong pro bono program is proving to be a positive factor from a recruiting standpoint, although participation still depends on individual interest and initiative to a large degree. *Many, if not most, large law firms give full credit for professional hours worked for pro bono clients as they do for billable hours in associate compensation and progression. *Firms are now better at pro bono management – assuring training, quality control, knowing what is going on, insisting on partner involvement and supervision of pro bono matters *Firms are appointing pro bono partners to devote all or most of their practice time to developing and running the pro bono practice, maintaining strong relationships with legal service providers, finding pro bono opportunities for the lawyers, providing training and other support, and promoting a pro bono culture. *Pro bono enforced "at gun point" or through use of an economic club does not, ultimately, work. Moreover, pro bono "carrots" work better than a pro bono "stick." *Firms are more sophisticated about pro bono today. True conflicts of interest are not really much of a problem in many pro bono engagements, although positional or issues conflicts (involving paying clients) can raise concerns. Unpopular clients (e.g., accused rapists) or politically "sensitive" or "incorrect" causes or groups can cause internal friction. *A narrower definition of pro bono, excluding many types of public and community service from being recognized, may have the perverse effect of discouraging attorneys in firms from pursuing such service because of the relative lack of credit and recognition. With respect to where we are going, I would note nine trends or issues to watch. 1. Transactional practices. We need to find ways to better utilize the skills and expertise of non litigators, such as the attorneys who specialize in corporate/merger & acquisitions and private equity, in pro bono work. 2. Globalization. There is great interest and growing success in finding ways to effectively provide pro bono representation in countries with evolving legal systems and developing economies. 3. Senior lawyers. There is also great interest in using retired and semi-retired lawyers more in pro bono service. The Institute's Second ActsSM project is working to develop models of participation, and, combining issues 1, 2, and 3, the International Senior Lawyers Project provides global transactional matters for senior lawyers. 4. Partner participation rates. There is a need to increase partner participation in pro bono to levels that mirror or approach that of associates. Hopefully, this should occur naturally as newer lawyers active in pro bono progress in their firms. 5. Maintaining flexibility. We should not become too rigid or precise in pro bono definitions and rankings. We should find ways to encourage other forms of community involvement as well by attorneys and should consider ranking firms in tiers rather than by specific, annual individual pro bono numerical scores. 6. Partnerships. There are great benefits in more sophisticated pro bono partnerships between firms and legal services providers. They permit the development of deeper expertise in areas of pro bono concentration within firms. 7. Beyond traditional practices. Pro bono service should be extended into public policy work, including lobbying and public advocacy for legal and policy initiatives, e.g., in immigration, which have the potential for more comprehensive benefits to large populations. 8. Working with the courts. There should be more collaborative engagement with the courts, especially the state courts and, more particularly, "problem solving" courts dealing in family and juvenile issues. This work should also count as pro bono. 9. Working with clients. As corporate legal staffs have signed on to the Corporate Pro Bono Challenge, law firms and their corporate clients are developing ways to partner and support each other's efforts. In summary, much has changed for the good in pro bono over the past decade, but there will always be much more that can be accomplished and needs to be.