A valued friend is about to take on a major pro bono leadership role in Baltimore City, and it’s my hope that she will continue to speak to me after I note that a) pro bono often stinks, b) we lawyers should do it anyway and c) we can do things to make it stink less.
Pro bono doesn’t stink merely because we don’t earn our regular professional fees (or any fees; Maryland Rule 6.1 denotes as “pro bono” services done without compensation or at substantially reduced compensation.) It’s better to earn than not to earn of course, but the fee or lack of it doesn’t make it “stink” alone. I don’t know any lawyer who remembered a year later that he or she took a haircut on a fee, but we never forget what it is that makes pro bono cases stink when they do stink.
The legal market, teeming with lawyers both competent and otherwise, will tend to swallow good cases and clients, especially in deep-pocket consumer cases where a court may award attorney fees in Maryland and most other states (wage collection, security deposits, consumer violations, etc.) and leave the “dogs” behind. Part of what makes a good case is a half-way cooperative client, and lawyers are understandably reluctant to take on a client who telegraphs that she or he has no respect for the lawyer, her time or her instructions. This sort of problem can be worse with clients who don’t pay and don’t have economically viable cases, in my experience.
You have a greater chance of dealing with hurt feelings cases – I don’t mean true traumas but trifling foolishness. When there’s no money in the case, it’s often about hurt feelings. When there’s money in the case, especially an injury case, attorneys will even front costs sometimes to get the case. You didn’t go to law school to process trifling foolishness.
Sometimes, the same dysfunctional causes of being unable to pay also create a specifically dysfunctional client. This is not polite to note, but is sometimes true. Why cannot the client pay? Because once you have been caught kiting checks for dope and you do 9 months in the women’s reformatory, Bank of America doesn’t want to give you full-time job. Now the client wants to sue her neighbor over a dope-drenched fistfight with injuries for which medical assistance paid the bills, and wants you or me to do it for free. Because, you know, you and I are there to assist with neighborhood beefs.
Pro bono agencies make it harder than they need to sometimes. For example, it took multiple beggings and pleadings to get one pro bono agency to sign a letter indicating that my client was their client for purposes of getting the fees waived at District Court. That waiver letter should have been exhibit A in the pitch to sell me on dedicating my time and money to the case; they should have had the letter ready to go in the packet before they found my number. Ever hear of mail merge? Getting a pro bono agency even to pick up the phone and return a call can be a major undertaking, in my experience, though this is not a universal problem.
One of the most demoralizing things about pro bono legal work, for me, is the realization that I was perhaps skilled in the minute details of a case, but macro-useless in solving my client’s real life problems. Example: in law school, my legal clinical program put in a great deal of time fighting mega landlords Stanley Rochkind and Bud Wrunkles in landlord tenant court at Eastside District Court for a pregnant tenant who had two kids and a rowhouse rental with a door with no hinging/posts, a hole in the roof, a non-working kitchen and major other problems including plumbing. We did a site visit; it was pretty wretched and was ironically less than 3 blocks from the Eastside District Court at North Avenue where we litigated. I remember how I put on my final exam for the course that I questioned our usefulness, that I thought we needed to rescue her from this disaster and that teaching her a useful skill like how to use Microsoft Excel would have been a better long-term use of our talents than beating Rochkind in one case. If Mom could get hired, she could move into a neighborhood with more-or-less code-compliant housing; we were spinning our wheels as a law school clinic because her case, not her life, was our defined problem and arena of alleged, professor-supervised competence.
If you do pro bono, the organized Bar may thank you. But if you are in private practice, you have essentially taxed your other paying clients in terms of time or implicitly in money (i.e. the pro bono cases’ overhead gets amortized among your paying clients.) Perversely, the paying clients may treat you better because paying money has a disciplining effect on both the selection of clients and their behavior going forward.
On the other hand, the fact that pro bono work sometimes stinks does nothing to relieve the attorney of the hortatory obligation to support pro bono efforts under Rule 6.1. People actually do need real help – even the people who treat their free lawyers badly. Accordingly, I offer the following humble suggestions as a solo practitioner towards making pro bono work stink less.
1) We, the working lawyers who pay bills, bear professional liabilities and stand answerable to Bar Counsel, should not hesitate to acknowledge at all times and all places that pro bono work often (though not always) “stinks.” If “stinks” is too coarse a word, then “possesses unpleasant and distasteful attributes.” Any moral scold with a safe job funded by the government who looks down on us working lawyers for identifying honestly the unpleasant aspects of dealing with his agency’s clients should meet with a caustic response cc-ed to his mother. If anything, pro bono agencies might do well to sell/give to donors cute ceramic skunks or dumpsters as fundraiser “gimmes” the way that PBS will give you a DVD of Riverdance or whatever it is if you donate $500.
2) When we attorneys take pro bono work, we should not hesitate to ask what we are going to get out of it for ourselves. Obviously, some chance of real aggravations and zero prospect of a full fee are part of what we can expect to get. But pro bono work can help an attorney develop new skills, new knowledge and new appreciation for how fortunate we are. It’s easy to remember the “stinks” aspect of pro bono work but a lot of people really do need help against real injustices. Sometimes, “what’s in it for us” is a chance to know that at the end of our lives, which all of us are approaching at the rate of one year per year, we did indeed do something useful and decent and meaningful. That doesn’t stink at all.
3) We should bill our pro bono clients our regular rate and then mark off the pro bono adjustment (to zero, if applicable) on regular bills, unless this practice should violate local law or rule. Getting the bill will increase the respect of the client for the lawyer, which will make the entire experience more valuable to both – even if the bottom line of the bill is a zero.
4) We should encourage and, at the Bar level, insist on as much uniformity in pro bono agency administration and service delivery as possible. When you want to secure an interest in personal property, you file a UCC-1. When you want to make a pro bono referral in a given state, the case should have that state’s PB-1 form including all of the information needed or useful (and no more) to make that referral. This PB-1 form (or a redacted or partial form, as applicable) should form the basis of a filing fee waiver petition uniformly in all state courts and should be easily harmonized with federal in forma pauperis forms. While in Maryland the Public Defender has largely given up on making sure that its prospective clients are indigent rather than employed, comfortable and merely reluctant to pay, the Public Defender should be included as the largest pro bono law firm in the jurisdiction and should at least arguably use the same form.
5) The medieval Jewish sage Maimonides once noted that the highest form of charity was not to give in a grumpy way (my paraphrase for my admittedly and unattractively grumpy tone) but to give freely in a way that would reduce or eliminate the future prospect of needing charity, such as to assist someone in the formation of a business, a capital loan, teaching a useful trade, etc. In that vein, we should view actions designed to prevent the need for pro bono litigation or other work as being on the same level, if not higher, than the pro bono work itself. This is not easy in one major sense: it’s far easier to count the number of pro bono cases assigned than to count the number prevented (or mitigated to de minimis issues) in a jurisdiction in, say, a year. While the Bar and the courts do promote public education about the law, we don’t do enough to recognize good efforts to prevent some legal harms (in part because if we have a hard time measuring it, it’s going to be hard per Peter Drucker to manage it.)
In some cases, a cash donation to a specific prospective client would do more good than X hours given to some agency or that cash given to that agency. Sometimes, clients have bigger problems than their cases and solving the problem efficiently will solve the case.
6) We should insist – politely, but firmly – that pro bono “leaders” and “spokespeople” have real experience in the private bar. It should be among the questions we ask before we agree to accept client #1 from an agency, and we should ask ourselves when we read of a new appointment at some pro bono agency, “Interesting – has __________ spent her whole career working outside of the private bar, or does she have some experience with what we do?” This is not a rude question; we expect leaders of the postal service to have postal experience.
7) Finally, we should charge something, anything, unless to do so would violate ethics or render the client truly unable to secure counsel. While it may be a pain in the neck to bill the client at $8.00/hour, it will increase the dignity and respect of the client for you to get a bill, marked down $232/hour from the usual $240/hour. It keeps the client from being able to abuse you over nonsense, or to treat you as his or her mental health professional (you don’t deserve the hassle and the client doesn’t deserve an untrained mental health volunteer.) If you decide to tear up the bill or refund the miniscule fee at the end of the case, that’s on you; the goal is to keep the “swap” dynamic so that malignant, surplus neediness doesn’t get in the way of getting the job done well.
Also, for clients who find it a source of mortification to need free legal services, the bill may increase the self-respect of the client – a worthy goal and topic in itself.
Most of the foregoing ideas are not new. I think the only one that is original to me, and it may not be, is the PB-1 form.
