Letter from Esther: A Commitment to Service: The Right Time/The Right Place
The Wire
May 2009

Earlier this month, I participated in two moving events that, while not directly related to pro bono service as we in the legal profession would define it, provided important lessons and opportunities for the future of pro bono.  On May 18, I traveled to Boston to see my friend and mentor Brooksley Born receive one of the John F. Kennedy Presidential Library’s Profile in Courage awards.  Created in 1989 by members of President Kennedy’s family, the award annually honors public servants who have demonstrated the political courage to do what is right, rather than what is expedient.  In addition to highlighting the work of extraordinary women in Nigeria who brought peace and a freely-elected government to that troubled nation, this year’s awards went to two lawyers – Brooksley, who served as Chair of the Commodities Futures Trading Commission in the late 1990’s and Sheila Bair, now Chairman of the FDIC.  Both issued unpopular warnings about, respectively, unregulated financial contracts, such as derivatives and credit default swaps, and the dangers of the subprime lending bubble in housing – two conditions that were responsible, in great part, for the current economic meltdown.  These two women dared to defy conventional wisdom, as voiced by the most powerful and respected government officials in the administration and Congress, and, in doing so, faced unease, resistance, and even enmity in the political and business spheres.

In doing so, they did what lawyers do best.  They looked at the facts, they analyzed the state of the law and regulations, they saw what others could not or would not, including the likelihood of a financial debacle, they framed solutions, and they spoke out, despite the fact that their words and actions made them highly unpopular and controversial.  Although neither did so on a purely pro bono basis (though both certainly sacrificed financially by choosing government service), their contributions – now finally recognized and applauded – made me think about how much the perspective and expertise of creative and courageous lawyers is needed now.  We have a new President and administration that have set out bold goals for much-needed reform of the Federal government in many spheres.  As pro bono advocates, we have seen how troubled and ineffective so many Federal efforts are – the adjudication of immigration claims, the flawed system for providing benefits to wounded veterans, the opaque and slow process of securing financial support and insurance coverage for the elderly, the disabled, and poor children, the lack of an effective program to provide affordable and decent housing to the poor, the appalling lack of due process for detainees in Guantanamo and other facilities – all are failures of our legal system and our government that must be addressed if our nation and our people are to prosper.

To date, for the most part, pro bono work has been undertaken in adversarial proceedings before various administrative bodies and courts on behalf of individual clients or classes of clients.  The opportunity may exist, however, to undertake, on a pro bono basis, what Brooksley Born and Sheila Bair did to bring critical analysis and intelligence to bear to improve the efficiency, effectiveness, transparency, responsiveness, and humanity of the judicial and quasi-judicial processes that have a major impact on the lives of the poor and disadvantaged.  What if pro bono lawyers offered to assist Federal immigration authorities in rethinking and improving the quality and outcomes of immigration proceedings?  Could lawyers in private practice help to reshape what all agree is a broken veteran benefits system?   Using pro bono to improve government, rather than simply attacking its deficiencies, will not be easy.  Many in government will bridle at the presumption of outsiders who bring a new perspective.  Existing statutes may be a very real barrier to offering pro bono service to governmental entities.  Conflicts may arise.  And the forces of stasis and inertia may frustrate even the most creative and energetic pro bono efforts.  However, as the Profile in Courage Awards demonstrate, divergent viewpoints, knowledgeable voices, and legal skills are essential – and often in short supply – so the effort to bring pro bono help to a highly motivated, but under-resourced administration offers real hope.

The second event that prompted this letter was a May planning event for an Obama administration initiative – its Summer of Service – that will be formally announced in June.  I was privileged to meet Michelle Obama who keynoted the event and to tell her, on your behalf, of the extraordinary pro bono contributions of lawyers, law firms, and legal departments, even in a severe economic downturn.  The planned initiative is not just an indication of the importance of service to this administration and to the President and First Lady.  It is, I believe, a reflection of a change in attitude among the people of the United States and, perhaps, the world.  The economic downturn has caused all of us to rethink our core values, to recognize that an economy characterized by the deepest division and economic inequality is neither wise nor sustainable, and that our futures are intertwined.  Connectedness, engagement, empathy, and service are the enduring values of our time…and all time.  Like our neighbors, lawyers have embraced these values.  Indeed, we were ahead of our time in doing so.  The growth of pro bono, I realized at this event, offers a model for the corporations, nonprofit groups, and government agencies which are involved in this summer of service.  We have – however imperfectly – figured out how to create the infrastructure and skills, how to define the roles, and how to marshal the volunteers to best match legal needs with volunteer skills and interests, and we have much to teach the rest of society in that regard.

The lesson about pro bono that I drew from these two events?  Our work and our expertise are needed more than ever before, and we may find new, more collaborative ways to make a very real difference.   In other words, hope and change!