Law students are taught the importance and desirability of pro bono work, and rightfully so. Pro bono service has obvious benefits to our students, to young lawyers, and to society. In 2012, New York emphasized its commitment to pro bono by becoming the first state to require pro bono service for bar admission. In law school, while discussing the value of pro bono service, we can also provide our students with tools to evaluate all the pro bono requests they may receive once they enter legal practice.
While in law school, students are bombarded with opportunities to volunteer – sometimes for credit, sometimes for bar admission requirements, and sometimes simply for the pleasure of helping others. After graduation and admission to the bar, new lawyers are similarly bombarded with opportunities to take on free legal work and perform pro bono services. State and local bar associations and local not-for-profits, as well as individual clients, are frequently searching for free lawyers. How do experienced lawyers evaluate these opportunities? And what can we teach students in order to help them evaluate the risks and benefits of pro bono opportunities once they are admitted to the bar?
Experienced lawyers know what questions to ask. They know how to assess the risk, the time commitment, and the potential benefit to clients of the pro bono work. Students need to learn how to assess pro bono opportunities. A search of available resources for students to assist them in independently scrutinizing pro bono opportunities yielded little pertinent information. Many schools have online information about the individual school’s available programs. As described below, some schools address post-graduate pro bono for those students seeking jobs in biglaw.
Yale Law School has information on “Critically Evaluating Pro Bono Policies” https://law.yale.edu/student-life/career-development/students/career-guides-advice/critically-evaluating-pro-bono-policies for law students interested in summering at big law firms. The information provided is useful to the small number of law students nationwide who end up in large firms with significant pro bono programs with dedicated directors of pro bono. The questions posed (like “has the firm received accolades for its pro bono work?”) don’t often apply to students and new lawyers working in firms with fewer than ten attorneys. Harvard likewise provides a guide in “An Introduction to Pro Bono in the Law Firm Setting” https://hls.harvard.edu/content/uploads/2008/07/guide-pro-bono.pdf that addresses opportunities in large law firms. These large firms have likely vetted their pro bono partners, assessed the merits of the work, and selected not-for profits or clients with whom to work. Students selecting a firm based on their commitment to pro bono ought to be congratulated, but still represent a select few of the annual law school graduates. According to NALP’s job statistics, http://www.nalp.org/uploads/SelectedFindingsClassof2017.pdf, 28.1% of entry level law firm jobs were in biglaw for the class of 2017, while over 35% were at firms with fewer than 10 attorney.
The available resources focus on the 28% of students entering firms who enter biglaw. While the pro bono evaluation resources are dedicated to those accepting the 28% of jobs in biglaw, what about everyone else? We can step in and fill the void by teaching our students how to evaluate the pro bono opportunities and programs.
We teach legal ethics. We teach professionalism. We teach legal writing. In each of these classes, we can and should do more to teach students to think critically when evaluating pro bono clients, pro bono matters, and not-for-profit legal service providers. Young attorneys and soon-to-be law graduates planning on working in private practice should at least be taught the questions to ask, to use the answers to evaluate the risks associated with the opportunities, and, in fact, to try to pair with local legal service providers or courts to benefit from some of the protection provided by an umbrella organization. Even then, however, new attorneys should evaluate the support provided by the legal services provider. Some legal service providers simply complete intakes and assign pro bono cases to volunteer attorneys. The attorneys then represent the clients with varying amounts of support from the legal service providers.
To that end, here is a non-exhaustive list of questions students and recent graduates can be taught to ask in order to evaluate the risks and benefits of certain pro bono opportunities:
- How many appearances does this type of matter usually require?
- Does the legal services provider have meeting space for meeting with the client?
- Under whose malpractice insurance does this matter fall?
- Is the program of the type (“sponsored by a nonprofit organization or court”) such that the relaxed conflict of interest rules of 6.5 apply?
- If there are costs incurred (filing, copying) who bears them?
- What kind of continued support does the legal services provider offer? Is there continued oversight by a staff attorney of the legal services provider?
- Who is ultimately responsible for the case – the volunteer attorney or the legal services provider?
- What if the volunteer needs to step down and cease working on a client, case, or matter? Will the legal services provider step in? Are there procedures in place? Do the provider’s policies add additional burdens to those already in place in the state’s procedural rules for withdrawal? If the attorney can no longer ethically represent the client, will the legal services provider step in?
- Even if the attorney is responsible for the matter, if it veers into areas wherein the attorney has less experience, is there someone at the legal services provider who can help?
The above questions are largely geared to pro bono matters managed and assigned by not-for-profit legal services providers, but can be tailored for other situations. While there are no right answers to the questions, the specific answers in any situation will assist recent law graduates in assessing volunteer opportunities and determining which ones suit their current needs and abilities. Failure to ask these questions, and our failure to teach our students to ask them, can lead new volunteer attorneys into unintended costly, long, and time-consuming relationships with pro bono clients and service providers. Instead of sending our students blindly out into the world of pro bono, we can help them develop an appropriately clear-eyed devotion to it.
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