By Margaret Benson
Chicago Volunteer Legal Services
Pro bono, as a concept, is stronger than ever. Pro bono, as a solution, is also stronger than ever. Pro bono, in practice, continues to limp along.
Why this disconnect? No one in the legal community, either local or national, dares to suggest that pro bono is not awesome. That's like suggesting that kittens are not adorable. The problem is that, while most people agree that kittens are adorable, many would not have one in their home. Pro bono is like an adorable kitten — we love it, but not in our professional homes.
How do we get attorneys to bring their pro bono kittens home?
It's time to figure out the reason for the disconnect and make pro bono a reality instead of an ideal.
One problem might be the issue itself. What does access to justice mean and how does it relate to the average attorney?
In many cases, it doesn't relate to them at all. The lack of access to justice does not directly impact most attorneys. Why should an attorney swamped with work, billing demands or looking for paying clients, make time for pro bono?
While there is plenty of evidence to support the fact that the lack of access to justice is a crisis, few attorneys experience it unless they practice in or near courtrooms that hear cases involving low-income people. Eviction, collection, mortgage foreclosure, divorce and guardianship courts are swamped with pro se litigants struggling through court rules, procedures and the law.
Ask the judges and court clerks who attempt to mete out justice despite prohibitions against providing legal help to folks who are stumbling around, mangling their cases. Ask reputable attorneys who see relatively straightforward legal issues become tangled into Gordian knots due to the ignorance, fear and hostility of the unrepresented. Consider the less-than-reputable attorneys who take advantage of pro se litigants. Consider the long-term effect on society as people give up on our legal system.
Consider what happens when frustrated people shut out of the legal system either turn to self-help or sink deeper into an economic morass and burden the country's already fragile safety net.
Attorneys who don't practice in these courts and who don't come face-to-face with the great mass of unrepresented clients may need convincing. We need to communicate it the private bar. That brings us to …
Disconnect reason No. 2: Most attorneys have not been invited to participate in the access to justice crisis discussions. Legal service providers, law firm pro bono coordinators and bar leaders have been chewing on this issue for ages. It's time (actually, it's past time) to involve more of the people who are expected to shoulder the bulk of the pro bono work.
Many who develop and promote this concept are pro bono professionals, immersed full time in the world of pro bono. Many of the other participants come from academia and Big Law. While these people should continue their work, enlisting rank-and-file practitioners to join the process is more likely to produce realistic, functional pro bono.
At a minimum, we need to invite solo practitioners and attorneys from small and midsize firms to help formulate effective pro bono policies and strategies. This also means involving attorneys from diverse practices such as divorce, real estate, commercial and business, probate, etc. A workable pro bono strategy for an attorney that exclusively handles family law, may not be feasible for someone who has a business or commercial practice. Attorneys from every practice type need to help craft solutions.
Including the rank-and-file practitioners is challenging. Many of the people involved in promoting pro bono do not have strong relationships with the people they are trying to recruit. However, the private bar's pro bono participation will not be expanded until all levels of the private bar buy in to the need and get involved in the efforts to find a solution.
Legal aid is all about inclusion and that means that all sectors of the private bar should be represented in high-level discussions. Legal aid programs nationwide have policies to ensure that representatives of client communities have a say in setting program priorities and strategies. Many have traditionally included clients on their directing boards. Legal aid attorneys and their supporters strongly believe that clients deserve a voice. However, many of these same attorneys have failed to include the private bar in any discussion of pro bono.
How do we get busy, disinterested attorneys to join in the pro bono discussion? Meet practitioners at the bar and committee meetings they attend. Talk to them in the courtrooms and settings where they practice. Consider hosting focus groups. Work with smaller bar associations whose members tend to be solos or in small practice settings.
Pro bono proponents need to do a better job of communicating the need for pro bono and in developing strategies that work for all attorneys. Let's make the practice of pro bono as popular as those cute, cuddly kittens.