Vol. 34, No. 1
Access to Justice
Lawyers Providing Pro Bono Services Improve Both Their Community And Their Bottom Line
by Donald W. Hoagland
Readers interested in contributing an article on legal services, pro bono, and access to justice topics should contact Kathleen Schoen at firstname.lastname@example.org or Michelle Miller at email@example.com.
Donald W. Hoagland is Senior Of Counsel to the Denver law firm of Davis Graham & Stubbs. At various times, he has been chairman or president of the Colorado Legal Aid Society, the Legal Aid Foundation of Colorado, the Urban League of Denver, and the Caring for Colorado Foundation. He wrote the chapter “Community Service Makes Better Lawyers” in the book The Law Firm and the Public Good, published in 1995 by the Brookings Institution and the Governance Institute.
The legal profession is at a critical stage in its development in the United States. A much stronger participation in pro bono work and other community service is essential to the repair of its reputation, and is an example of an even broader problem facing our country as a whole.
Recently, the Colorado community celebrated the life—just ended—of Cathlin Donnell.1 People spoke earnestly and factually about her fine career as a lawyer and her evolution into someone primarily and actively trying to make the world a better place for people to live in. As a lawyer, she was so well regarded that at the age of 31, she was appointed to be the acting U.S. Attorney for the District of Colorado. This made her the senior lawyer in the federal establishment in Colorado.
Donnell was a prominent example of the fine public and charitable motivations that can be found in a lawyer and ripened by that experience. She created a foundation to help homeless women starting over. She served on the board of The Women’s Foundation of Colorado. Celebrating her life was a sad, but sincere expression by a group of friends, many of whom were lawyers who were trying to follow her example.
At the same time as Cathlin Donnell’s memorial service, there were political candidates on national television trying to build support for their campaign by pointing out that their two opponents were lawyers—and that they were not. These heavily financed speakers assumed that by pointing out that their opponents were lawyers, they would generate support for their reelection to the highest office in this land. They made some reference to contingent-fee lawyering, but at times simply labeled their opponents as lawyers, assuming public dislike for lawyers’ money-grubbing characters.
Where are we going then, as a profession? Are these politicians right about lawyers? Maybe they are—but maybe we are improving anyway—and should be trying. Maybe it’s even in our own best interest. This article illustrates the fact that lawyers actually build their client base while serving their community.
Motivations for Pro Bono Service
The Legal Times, a Washington, D.C. newspaper, reported that large firms in Washington are engaged in extensive pro bono work.2 One reason law firms gave for serving is that it’s good for business. A firm representative stated: "It’s hard to quantify in terms of dollars, but clients are looking at it more and more. They want written reports on our program; they want to know our hours; they want a description of the major projects we have done."3 Another said, "As the legal business has gotten fiercer, we’ve made a huge effort to build our pro bono program. It’s a net benefit to the firm in terms of publicity, recruiting, associate development, and associate morale."4
Financial self-interest may not be the only motivator. Representatives of the three big firms interviewed by the Legal Times stated that, beyond the points of self-interest, "[a]ll three pro bono directors say they feel a sense of responsibility. We alone can deliver the benefit of law to sectors of society that can benefit from it."5 But it may not be just a contest between sense of responsibility and financial impact. It also may be beneficial any way you look at it. Even individual lawyers are finding that pro bono experience adds to their ability to deal with witnesses and people of all stripes in ways the protected halls of an office just don’t provide. Community service does make better lawyers, and it also may produce business.6
One good example is a lawyer originally from Colorado, now in Washington, D.C., who has had an interesting career in this context. His name is Anthony Carroll. He started in the Peace Corps and, after service in Africa, did some work in retail management in New York City. Before he concluded his Peace Corps service in 1978, he was assigned to serve as district officer to Botswana’s Ministry of Local Government and Lands. He then went to law school, graduating in 1984.
In 1986, Carroll went back into the Peace Corps as Assistant General Counsel, where he became involved in the American Bar Association Africa Law and International Health Committees. He continued his pro bono work in 1994 by advising the U.S. House, Ways and Means Committee and worked hard to develop marketing opportunities for Africa. This also resulted in generating many clients for Carroll’s law firm, including Africa’s largest textile manufacturer and several African governments.
Carroll’s involvement in a responsible fashion in coping with the plight of third-world countries has in fact brought him into contact with private-sector organizations that need sophisticated representation. He has been able to do that while avoiding conflicts of interest and with a continuing interest in both the public and private sectors. His leadership should inspire others to move in a similar direction—both internationally and domestically.
Colorado’s Response to Pro Bono Needs
In Colorado and elsewhere, the responsiveness of lawyers to the needs of the underrepresented community has not been strong. Bar associations have worried about whether they should make pro bono or community service work compulsory, but have stopped short of doing that. In Colorado, we have created the concept of volunteer pro bono and community service work at fifty hours per year. There has been extensive debate about whether pro bono service should be made mandatory, but most lawyers in Colorado oppose that concept.
Mandatory reporting of pro bono activities was tried in other states, but it is not popular among lawyers. Florida has mandatory reporting, but Florida lawyers are not required to perform pro bono service. Instead, the state has an aspirational rule for lawyers to provide at least twenty hours of pro bono legal service per year or to make an annual contribution of at least $350 to a legal aid organization. The New York State Bar recently took a close look at mandatory pro bono service in that state. A 2002 survey was conducted to determine who was providing at least twenty hours of legal services per year to the poor. The study found that New York lawyer participation was 27 percent, the same as it was in the Bar’s 1997 survey. Despite this, the New York Bar went on record as opposing both mandatory pro bono service and mandatory reporting of pro bono activities.
In Colorado and other states, all of these efforts have been necessary because of the insufficient and inconsistent level of service. For example, Colorado pro bono service has varied greatly in different counties. Figures collected by COLTAF from 1998 through 2004 reveal the number of eligible attorneys, the number who took cases, and the number of cases that were placed.7 According to Metro Volunteer Lawyers, in the metro Denver area, of the approximately 8,000 eligible attorneys in the Colorado Bar, only approximately 600 had taken cases. The number of cases placed was about 1,500. Moreover, the number of cases taken has gone down slightly over the past four years.8
Jonathan Asher, Executive Director of Colorado Legal Services, has reported that it has become more and more difficult to get lawyers to take small cases.9 On the one hand, according to the Uncompahgre Volunteer Legal Aid program, of the eligible attorneys in that program (from 65 to 71 between 1998 and 2004), close to three-quarters have taken cases, and the number of cases placed through the program is approximately the same as the number of eligible attorneys.10 On the other hand, in the El Paso County Bar Association Pro Bono program, of the 700 to 800 eligible attorneys, the number of attorneys taking cases has declined steadily since 1998, from approximately 10 percent to 2 percent. As a result, the number of cases placed also has decreased rapidly from a high of 108 in 1999–2000 to twenty in 2003–2004.11
Looking broadly at the other areas of the state, there is more of a decline in attorneys taking cases than an increase, and the number of cases placed also has declined in almost all areas.12 There is clearly a wide range of quality and intensity in the local leadership trying to stimulate lawyer participation in pro bono work. Although, there is a fifty-hour aspirational standard in Colorado, it is not producing a significant increase in legal services to the poor.
David Butler, chair of the Access to Justice Commission ("Commission"),13 reports that, in general, Colorado’s level of pro bono service has been below state needs. One Commission response has been to establish local Access to Justice Committees in the twenty-two districts around the state. Approximately half of the Colorado districts now have such committees at work. Butler is hopeful that the participation of lawyers will be stimulated beyond what it has been in recent years.14
The most recent good news is that the Colorado Supreme Court has approved a new rule, effective January 1, 2005, that awards lawyers continuing legal education ("CLE") credit for doing pro bono work.15 This is a major step in the right direction. Now, lawyers who take pro bono cases may gain benefit not only by increasing their client base, but also by helping to meet their CLE requirements.
Encompasses Pro Bono Service
The discussion of legal services to the poor usually distinguishes something called pro bono service from "community service." Community service often is found to consist of membership on boards of directors of organizations across a wide spectrum. Some of these boards are prestigious and generally favorable to the community, but also give the lawyer a position of prominence and association with the business leadership of the community. Community activities also serve in forming and assisting small corporate bodies, whose purpose is to provide housing, education, medical services, or other assistance to the poor. Such community service should be thought of as comparable to the delivery of legal services to the poor. Thus, the term "community service" does encompass pro bono legal services, as well the constructive forms of institution-building that we see here and abroad.
The point to be emphasized is that community service, including pro bono lawyering, often contributes to a firm’s bottom line. Competition in Denver for promising law school graduates from branches of major big-city firms is making hiring those graduates more expensive for Colorado firms, and thus is increasing the pressure for more billable hours. However, it is hoped that a law firm’s commitment to community service involving pro bono work also will make such a firm more attractive to desirable clients.
Among the heroes in this connection is Bob Golten, Director of the Center for International Human Rights Advocacy at the University of Denver. This Center is a prime example of how advanced, including in particular legal, education can be used to meet international human rights needs by giving students the opportunity to participate in interdisciplinary research and real-life advocacy work that assists people around the world.16
Another fine undertaking, also at the University of Denver, offers opportunities for both undergraduate and graduate students to have exposure to development and post-war challenges in nontraditional destinations. Called "International Service Learning" or "ISL,"17 these programs combine academic study with volunteer service, allowing students to work alongside people in developing or disadvantaged parts of the world, such as Bosnia, South Africa, India, and Belize. These students participate in a rich intercultural experience and spend their time grappling with tough issues, not just peering genteelly at the Eiffel Tower and the Westminster Cathedral.
At this point in the evolution of the world’s societies, it is time to redefine the "community" in which we might perform community service. We should now regard the entire world as one community. Technology has made information about what is going on in one part of the world available in every other part of the world. The attraction of terrorist activity is clearly stimulated by knowledge of the disparity that exists between the condition of life in a country like the United States and the condition of life in the Middle East, Africa, and third-world countries.
The experience of people like Anthony Carroll shows that lawyers can have a key role in building employment opportunities so young people in third-world countries might have alternatives when confronted with terrorist organization recruitment efforts. In his efforts in Africa, Carroll found that when he was following Peace Corps inclinations, he wound up in positions of responsibility that helped him develop a clientele in the private practice of law. More important, he was able to help improve the conditions of life for the people he was serving. In this and other ways, community service by lawyers contributes to a better world and to making the legal profession into one of high regard.
All of us should recognize the need to become more generous and constructive. Lawyers who involve themselves in community service are doing their share. In doing more than practicing law, they may have an impact on a broad spectrum of activities and interests—both locally and internationally. By considering community service a global as well as a local effort, lawyers can help reduce antagonism toward the United States abroad (and toward the legal profession at home), while serving their profession and building their client base. The opportunity exists for lawyers to make a positive difference in the future of our worldwide community. Let’s all try.
1. See "In Memoriam," 33 The Colorado Lawyer 48 (Dec. 2004).
2. Braverman, "Pro Bono Flourishes at D.C. Firms," Legal Times 1 (Sept. 6, 2004) at 13-14.
6. See Hoagland, "Community Service Makes Better Lawyers," in Katzmann, ed., The Law Firm and the Public Good (Wash., D.C., Brookings Institution, 1995).
7. These figures are based on data provided to the Colorado Lawyers Trust Account Foundation ("COLTAF"). COLTAF collects statistics annually from each of the Colorado pro bono programs to assess legal services grant needs.
8. Statistics provided to COLTAF, supra, note 6, by Metropolitan Volunteer Lawyers.
9. Telephone conversation with Jonathan Asher (Oct. 2004).
10. Statistics provided to COLTAF, supra, note 6, by the Uncompahgre Volunteer Legal Aid program.
11. Statistics provided to COLTAF, supra, note 6, by the El Paso County Bar Association Pro Bono program.
12. Supra, note 6.
13. See accompanying report of the Access to Justice Commission below.
14. Telephone conversation with David Butler (Oct. 2004).
15. See the new rule in the "Court Business" section of this issue at page 137. The rule also can be accessed from the Supreme Court website at http://www.coloradosupremecourt.com. Watch for more information on the rule in a future issue of The Colorado Lawyer.
16. For more information on the Center’s programs, see http://www.du.edu/intl/humanrights.
17. For more information on the ISL programs, see http://www.du.edu/intl/isl.
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