Law and Software

Pro Bono Considered Harmful

[September, 2015] By Andy Bartlett. Filed under: Ethics,law

Giving back is good. This truth we hold to be  self-evident. Lawyers learn the importance of service from their first days in law school. Securities lawyers take asylum cases, high-powered litigators mediate landlord-tenant disputes and fight evictions. So many important issues that need the volunteer pro-bono attorney. So much neglect, so many wrongs that need to be righted. And these challenges are often a welcome change from the day to day lawyering that these lawyers are skilled in.


Such a great idea. Everyone should do it.

This public-spiritedness could radically improve other professions. Imagine a similar pro-bono scheme to provide access to health care for the poor and uninsured. High-fee podiatrists could treat heart disease for free. Gynecologists might help with anxiety and depression, Heart-specialists could experiment with a little cutting edge oncology. They are not compromising their own high-fee specialties by offering their services to those who cannot afford it. And they get to learn so much about areas of medicine they never paid much attention to in medical school. Win-win.

This could also be a real boost to small businesses. Google and Microsoft could allow their employees some “pro bono” time to develop web sites for small businesses – for free. Maybe education too, those wonderful professors in universities could donate a day a week to teach kindergarten.

Those last two paragraphs are intended to be ironic.


Pro bono outside the legal profession

Pro bono in medicine isn’t so dysfunctional. The doctors go into poor areas and do their day job in clinics for free. Dentists pull teeth. Podiatrists help with foot issues. Psychiatrists help with anxiety and depression.

And Google is famous for the one day a week where employees could do some work of their own choosing. They invent. They create. They don’t take customers away from the small business web designers who help other small businesses with their sites. And a university professor might volunteer to go into the classroom to help the teacher, support the work of the school. But never to undermine the people who work to provide these services.


Pro Bono for Lawyers

But law is different. Law thinks it is an elite profession. Who can afford a lawyer? I can’t, and I am a lawyer. Well, I can afford representation if someone wants to sue me – but only because I can buy malpractice insurance. And not only are lawyers very expensive, many trained lawyers can’t find work. It’s not really surprising. No-one can afford a lawyer. So we live in a world where maybe 10% of people can afford a lawyer. And the rest of us may occasionally pay our dues to the profession when we make a will. Some of us may bankrupt ourselves when we find ourselves facing a lawsuit, or criminal charges. And for everything else…. there are nonprofits.


The NonProfits. Nature abhors a vacuum

[Disclaimer: I am the volunteer immigration lawyer at a non-profit. I see wonderful people who do wonderful work in non-profits. This isn’t a post about them]

Nature abhors a vacuum. And where no-one is providing legal services, the nonprofits step in. They are mostly funded by philanthropists or dead philanthropists (also known as foundations). They can hire a small number of attorneys. They can charge reasonable fees, and can supplement their income from grants. Of course, they can’t meet the need. If the nonprofits focused on the indigent and destitute, then maybe, just maybe….

But today they are the only option for anyone who can’t afford to pay $200 an hour or more to a private lawyer. And unlike private lawyers, they have very few duties to their clients. They don’t have clients. They are distributing charity. They are funded by grants awarded on the number of people in their queue. Quality of service isn’t the key here. Quantity is.  It is a similar business model to the tech companies that sell you advertising and offer you a “free” service. You are not their customer, the advertiser is. You are the product. You are not the client or customer of the legal services nonprofit. The grant provider is. You are a metric. You are just a number.

There is huge need, and it has to be filled – somehow. And that’s where pro bono comes in.  Volunteer attorneys, doing important work for nothing. Volunteer attorneys who are not doing the work they are trained to do. The clients are sometimes indigent – but not often. They have smartphones. Their children have smartphones. They are ordinary people who would happily pay a reasonable amount for legal services, if the market allowed that to happen. But they can’t. So they come to the clinics served by pro-bono lawyers.

Some of the pro-bono attorneys are solos who actually volunteer their time, but much of the work is done through lawyers who work for big law firms. And they are being paid – by the law firm – to do this “charitable” work. The law firm is doing the pro bono. And the overworked associates get to do work that they find more satisfying than endless discovery, due diligence, and whatever else they do to bill their time so highly.

And (of course) the foundations and the nonprofits are sometimes very large organizations. And they pay the large corporate law firms to manage their legal affairs. It is a very cosy arrangement.

Killing the Market

And they kill the market. Pro bono ensures that there will never be a private market for reasonable cost legal services. Pro bono ensures that people who have reasonable jobs will never be able to afford to be the “client” of an attorney. The best they can hope for is to join the queue for legal services.

So what happens when an idealistic (or unemployed) young lawyer decides to work for ordinary people – with reasonable fees? The idealistic or unemployed lawyer will fail. Attractive cases – that require  a significant amount of challenging work – will be taken by the bored associates from the law firms. Bread and butter cases will be taken by the non-profits. The phone won’t ring. No-one will refer. And people will continue to wait a long time to be seen by a charity to get legal help. And if anyone sees a lawyer charging reasonable fees, they wonder why. What’s wrong with her? There must be something wrong if she isn’t charging the “market rate.”

The idealistic lawyer will also starve because everyone knows she doesn’t exist. Everyone knows lawyers are too expensive. You’re not going to look for legal advice until you are desperate because you know that all the lawyers are going to charge you a fortune. So you will never even think to look. You will never find the idealistic lawyer who bucks the system. And that lawyer will eventually close up shop and go do something else. Learned helplessness. The system is broke and we all know it.


Now imagine a world where nonprofits provide timely free services to indigent people. But dental assistants, teachers, factory workers, programmers and others – who can afford cellphone contracts, who buy health insurance, who get their cars serviced and repaired, can go to a lawyer to get a reasonable service for a reasonable fee – just like they would go to a plumber or a car mechanic. And in this world, the demand is met by skilled lawyers who are experienced in landlord/tenant, or eviction, or asylum because that is what they do. It would be an entrepreneurial world. Lawyers could provide access to justice as their day job, just as plumbers provide access to water, and mechanics provide access to transport.

Imagine a world where the big law firms use their “doing good” budget to innovate rather than remove competition. They could fund the work of solo asylum lawyers, and allow their own associates to go work with these lawyers.

Imagine a world where foundations were interested in providing quality care. And they provide poor people who need legal services with “vouchers” for 10, 20, 30 hours of legal services. And the people who need the services get to choose where to spend these vouchers. They would go to the organizations that provide the highest quality service. Where they are clients, not numbers.

It’s easy if you try

I wrote this blog post deliberately as an “edgy” challenge to something that all lawyers accept as good. Pro bono is good. But Pro bono as we do it now has unintended consequences. The lawyer who spends 40 minutes helping someone in a clinic feels good afterwards. But the person she “helped” has not been empowered. It’s a band-aid and we can do better.

I’ve also been more than a little unfair to securities lawyers. Some of my best friends are securities lawyers. There is nothing wrong with a securities lawyer providing some basic representation for someone who has no help. It is triage. Like “is there a doctor in the house” – any help is better than no help. But in medicine, after the emergency, the patient gets to see the right person.

I also have to declare an interest. I choose to work with ordinary people. I charge reasonable fees. And the people who are my clients love the idea that they can fire me. They don’t. But they could. I hear horror stories about the experiences they have had with nonprofits – never getting to see an attorney, just the assistant or paralegal. Work not done, or done in a rush. And the sad thing is that the people who are overworked in the non-profits are the good guys. They work there for all the right reasons. But in the world of “imagine” they wouldn’t have to work for the nonprofit in order to do what they love. They would be the best of the new social entrepreneurial lawyers.

The fewer the clients you have, the higher your fees have to be. And in a shrinking and ever more expensive market, this will just get worse. But you can earn a decent living with reasonable fees if the phone rings. Lets suppose you charge $50 an hour. And your typical case takes 10 hours of time. 4 clients a week give you an income of $100,000 a year. If you want to charge a competitive rate to a plumber – say $100 an hour, then you need just 2 new clients every week. But if the clients can’t find you, and the system channels them into the charity legal services queue, you may only get 4 clients a month. And to keep your income you have to double your fees.

The system is rigged. It’s a shell game. It works in the interest of the big law-nonprofit-foundation “cartel.” It suits the players. It is not deliberate. There is no conspiracy here. It is just the unintended consequences of people doing good who end up doing very well. But it is bad news for the rest of us. Everyone knows that private attorneys are very expensive. And the system makes sure that will always be the case.

After law school I saw dedicated and passionate baby lawyers eat the poison pill,  compromise their dreams of service, and reluctantly take the traditional lawyer path, simply because there are no “jobs” working with ordinary people on challenging “ordinary” legal problems. In the end,  graduates have to pay the tuition fees. And they have to eat. In another era they might have hung out their shingle and opened a practice in the high street.

I don’t believe big law will change. And I don’t believe the executive directors of nonprofits want to give up their multi million dollar budgets or their power and influence. Change would be a disaster for both of them. But change will come. Modern philanthropists -particularly from the tech industry – understand that you solve problems by thinking outside the box. Maybe one of them will want a better metric for success than just a head count. And maybe they will be able to create a market for legal services that looks to quality.

But I like to imagine that change comes when people are empowered. When people who need legal services stop and ask why the choice is between crazy hourly fees and soup kitchen law. And then they might look for alternatives. And once people start looking, markets have a way of forming around them.







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