As you probably know, Leslie Levin delivered the Howard Lichtenstein Distinguished Professorship of Legal Ethics Lecture on November 12, 2008 at Hofstra University School of Law. Two publications have already emerged from this lecture, one of which is Pro Bono Publico in a Parallel Universe: The Meaning of Pro Bono in Solo and Small Law Firms, 37 Hofstra L. Rev. 699-735 (2009).
The descriptive portion of this article contributes substantially to our understanding of the ways in which pro bono legal work is performed and perceived differently by different segments of the bar. To make a scholarly study short, Leslie demonstrates that lawyers in small and solo practices have more limited access to the institutionalized mechanisms through which lawyers in large firms deliver legal services to poor people. Leslie details how local bar associations have productively pitched in to organize pro bono efforts. More important, however, Leslie shows how lawyers in small firms and solo practices often perform different kinds of undercompensated legal work, such as reduced fee (or “low bono”) work for clients who cannot afford customary rates. She then explains how traditional discussions of pro bono work in the literature and among the organized bar too often minimize the pro bono efforts of small firm and solo lawyers.
Two points are particularly well taken. First, Leslie highlights the many marketing and recruiting advantages that large firms derive from vibrant pro bono programs. It’s unfair then to assume that such programs, which often assist the very poor, are somehow more charitable than ad hoc efforts of small firm lawyers to throw a break to friends and families of middle class clients. Second, Leslie notes the recurring situation in which lawyers begin representation for a paying client who then falls upon hard times. Even in those cases when lawyers could escape such situations, many continue to pursue a cause knowing they are unlikely to be paid. Yet these lawyers are often unwilling to report this as pro bono work for fear they will be thought weak professionals who have violated the cardinal principles of law office management.
All in all, Leslie beautifully summarizes the too scant literature that addresses how pro bono work for the small firm and solo lawyers, who constitute 63% of private practitioners, really is different than it is for the elite bar. And, reminding us once again that all descriptive efforts are intrinsically normative, Leslie’s decision to shine the light where she does is particularly significant since this largely understudied form of pro bono work constitutes more pro bono work than is done by any other group of lawyers.
But Leslie does not stop with description, offering in the final section of her article, several sensible suggestions for reform. ABA rules, she argues, should be amended to give lawyers credit for work done for clients whose limited income is not quite low enough to qualify them to receive legal services work. Lawyers should be given credit for “reduced fee” work, perhaps work done for 50% or less of customary rates, as well as for free legal services. There should be no pro forma ban on calling work pro bono simply because the lawyer expected a fee when she first took on the client. Small firm and solo lawyers should be encouraged to organize themselves into communities of practice, which might then transfer a pro bono ethic to members of the community. Local and specialty bar associations might prove particularly useful partners in building pro bono opportunities. All in all, much more attention should be paid to the way in which the conceptions of pro bono held by the elite bar should not dominate the approach to pro bono taken by the profession as a whole. After reading this article, who really could disagree? Congratulations Leslie.