By: Steve Grumm

New Pro Bono Data Are Interesting, But…

Recently the American Lawyer released its annual pro bono report, which showed that BigLaw pro bono hours dipped markedly in 2010.  From AmLaw’s overview:

“Average pro bono hours for lawyers at Am Law 200 firms plummeted 8 percent in 2010 to their lowest level in three years, reversing a decade of steady growth. The overall average percentage of lawyers who did more than 20 hours of pro bono work dipped 5.2 percent.”

The Pro Bono Institute’s Esther Lardent, writing last week in the National Law Journal, took issue with the “melodramatic headlines” used in reporting those numbers.

“The ‘doom and gloom’ headlines overlook some important facts and figures….  Although it is true that major firms contributed significantly fewer hours of pro bono service in 2010 than in the previous two years, it must be noted that 2010’s law firm pro bono hours were still the third highest in history. That — after the worst recession in living memory and profound, destabilizing and continuing changes in virtually every aspect of the finances and operations of major law firms — is, in context, an accomplishment.”

…The Real Story Is…

Lardent is right.  The pro bono number changes are largely a function of fluctuations in 1) staffing and 2) fee-paying business at law firms.  (Law firms had downsized their ranks of attorneys by 2010, so the pool of potential pro bono volunteers was smaller.  And then, fee-paying business started to pick up, making BigLaw attorneys busier and leaving less time to volunteer.)  Does this explain all of the drop-off?  Maybe not.  But it explains a good bit of it.  And Lardent’s point above should not be lost: 2010’s hours were the third highest historical total.  Not too shabby. 

Another thing that should not be lost is pro bono’s end goal.  Most pro bono advocates devote their time to helping poor people achieve meaningful access to the justice system.  These advocates rely on the support of legal services providers and pro bono clearinghouses to best serve clients.  And right now, the real threats to access-to-justice are 1) the underfunding of Legal Services Corporation grantee organizations and 2) the continued slumping of non-LSC sources (chiefly, IOLTA revenues and state appropriations) which affects LSC grantees, non-LSC providers, and pro bono clearinghouses alike.

A National Law Journal piece published earlier this week highlights the financial troubles plaguing the legal services community, particularly in light of a threatened drastic slashing of LSC’s appropriation:

Pressure on the budgets of legal services programs has been building for three years, since the recession began to eat away at their various sources of funding. It began with the drop in interest rates, cutting into the money from lawyer trust accounts known as IOLTA funds, and it continued with state reductions.

The latest federal proposal by U.S. House Republicans is a 26% cut in congressional funding for the Legal Services Corp. (LSC), which with $404 million in funding makes grants to 136 groups across the country. The proposal follows a 4% midyear cut approved by Congress in April.

Directors of legal services said they’re facing painful choices, as they’re forced to make plans for scaling back their organizations to levels that existed in the 1990s

As LSC had noted in a July 6 press release, the proposed 26% slash in its funding being considered by the House could have a drastic impact on providers and their client communities:

Funding for the Legal Services Corporation (LSC) would be cut by 26 percent in Fiscal Year 2012 under a proposal announced by the House Appropriations Committee [on July 6th]. The Committee bill proposes a $300 million budget for LSC—rolling back LSC funding to a level not seen since 1999.

LSC’s preliminary estimates show that about 235,000 low-income Americans eligible for civil legal assistance at LSC-funded programs would be turned away if the Committee proposal were enacted.

…

LSC-funded programs by the end of 2011 project net staff reductions of 445 employees, including more than 200 attorneys, because of layoffs and attrition, according to survey responses provided by 121 of the 136 LSC-funded programs.  In the responses, 57 percent of the programs project budget deficits for 2011 totaling more than $19 million. Forty-two percent of the respondents said they had imposed a salary freeze, and 31 percent anticipate reducing employee benefits this year.

Some would argue that any cuts in legal services funding can be offset by the contributions of pro bono advocates.  They cannot.  Pro bono attorneys rely on legal services providers and clearinghouses to identify client communities, conduct intake, diagnose clients’ legal problems, and in some circumstances to begin handling cases before the pro bono attorneys take the reins.  Even after that point, many pro bono volunteers look to the legal services community for continued support, technical assistance, and training.  I experienced this firsthand while working as an attorney in a pro bono clearinghouse, and I hear it over and over again from pro bono counsel at law firms.

A large-scale slashing of legal services funding can not simply be offset if volunteer attorneys bump up their hours.  That is a short-sighted “solution” that demonstrates ignorance about the legal services infrastructure, and which will do little to help poor people achieve justice. LSC President Jim Sandman put it succinctly in a recent interview:  “The biggest challenge facing legal services today is lack of funding.”  Pro bono, Sandman went on to note, is a “critical supplement” to the work that legal aid lawyers do.  And he’s right.  But pro bono is not a substitute for adequately funding legal services providers.

…And Here’s What’s Next for the Access-to-Justice Funding Debate…

The LSC funding rollback to $300 million made it through the full House Appropriations Committee’s markup, and it very well could be passed by the full House in the next several days.  Undoubtedly legal services proponents in the Senate and the Obama Administration will push for a more robust appropriation.  And the National Legal Aid & Defender Association, among others, is on the case.

Nonetheless, it is very troubling that at a time when client need is so high and resources are already strained, legal services funding is on the chopping block.  Now is the worst possible time to slash the vital funding that will allow legal services providers to maximize not only their own resources, but also to leverage the pro bono resources that play a signficant role in ensuring that “equal access to justice” is an achievable end, not an empty slogan.