The Pro Bono Wire
January 24, 2013

At the conclusion of 2012, I not only made the typical, often ill-fated, personal New Year’s resolutions, but also offered up some resolutions for the pro bono/access to justice community (which I do not expect to be ill-fated). As 2013 starts, I’m doing something much riskier and offering up my predictions for what’s hot and what’s not in pro bono this year. And yes, I’m doing so with transparency and accountability: I plan to revisit these predictions a year from now to see how accurate – or not – my crystal ball has been.

In making these predictions, I need the help of our partners in law firms and in-house legal departments and our colleagues in public interest organizations. The reality is that the best way to predict the future is to create it. It is through your actions – your willingness to take risks, your continued commitment to excellence and innovation in pro bono service, and your generosity in sharing your best ideas with all of us – that these predictions about the future of law firm and in-house pro bono will rest. Together, let’s make this a superb year for pro bono.

1. Pro bono performance at major law firms will:

a. Increase substantially

b. Stay steady

c. Decrease substantially

My prediction: B – stay steady. Changes and uncertainty in fundamental aspects of law firm economics and structure are ongoing. Smaller summer and new associate classes and continuing concern about partner productivity and client demand will continue to have an impact on pro bono in 2013. The upside is that institutional commitment to and infrastructure for pro bono at law firms remains undiminished. And, as noted below, I believe that the phenomenal growth of in-house pro bono at a time when law firms are so attuned to what matters to their clients also helps.

2. The fast pace of pro bono at in-house legal departments will:

a. Continue at breakneck speed

b. Slow down

c. End, because pro bono is no longer the “flavor of the month”

My prediction: A – continue at breakneck speed. The factors that have generated so much interest in pro bono at corporations – a growth in the importance of CSR generally at major companies; the flow of firm lawyers into in-house positions; and the increasing stature and power of this segment of the legal profession – will continue unabated in 2013.

3. Global pro bono – both transnational and home-grown – will:

a. Stay steady

b. Grow at a steady pace

c. Grow dramatically

My prediction: B – grow at a steady pace, though interest in – and visibility of – global pro bono will continue to increase quickly. Increased information about sources of pro bono work and, to some extent, culture shifts in some countries, will result in more activity (although quantifying any increase is difficult in light of the lack of reliable and comparable data). However, many obstacles remain, and the political questions raised about the role of pro bono in countries like the UK and Australia where relatively high levels of public funding are substantially diminished leads me to believe that, while increased pro bono around the world is inevitable, we will not see major gains this year.

4. Law school/law student involvement in pro bono service will:

a. Increase slightly

b. Stay steady

c. Increase substantially

My prediction: C – increase substantially. Although the academy is among the most conservative (i.e., resistant to change) institutions in the legal profession, the economic pressures on law schools will begin to play out in many ways including a heightened emphasis on pro bono. While I believe that most states will take a “wait and see” attitude on the Lippman initiative that makes pro bono service a condition for entry into the bar in New York, the sheer numbers of graduating law students who take the New York bar will ensure that that change in one state will have an impact on law school pro bono all over the country. In addition, pro bono is one of the best and least expensive models to address the growing demand for more experiential learning focused on law practice and skills.

5. Pro bono service to low-income populations will:

a. Continue to decline

b. Stay steady

c. Increase slightly

My prediction: C – increase slightly. The declining financial and staff resources have impacted the pro bono referral pipeline for law firms and legal departments and will continue to do so through 2013, so an immediate substantial increase in pro bono legal services to low-income persons and families and to nonprofit organizations whose primary focus is the poor is unlikely. However, there are some hopeful trends and changes that will begin to be implemented this year that will, I believe, lead to some short-term improvement and long-term substantial gains. First, the implementation of the Legal Services Corporation Pro Bono Task Force findings and recommendations will lead to enhanced pro bono programs at LSC grantees. Second, given the dramatic impact of the economic downturn on community nonprofit groups, 2013 presents the opportunity to provide a significant amount of expert transactional pro bono services to these hard-pressed groups.

6. Pro bono at mid-sized law firms will:

a. Stay the same

b. Improve slightly

c. Decline

My prediction: B – improve slightly. C, however, is also a very real possibility. In an increasingly competitive and cost-conscious market for legal services, many of the largest companies in the world are consciously seeking more affordable and flexible compensation schemes from smaller and regional firms. Those clients’ focus on pro bono service and on values as well as value may well mean a heightened focus on pro bono, among other things, at mid-sized firms. However, it is also possible that pressures to bill and increased billable hours may dampen pro bono participation and performance.

7. The American Lawyer will revamp its pro bono ranking system by:

a. Eliminating the number of firm lawyers doing more than 20 hours per year as a factor in rankings

b. Including the factor but increasing the hourly threshold to at least 50 hours per year

c. Reducing the percentage of the overall firm pro bono score that is attributable to the “20 hour” factor

My prediction: None of the above. PBI has had a number of discussions with the leadership of The American Lawyer to communicate our concern that the weight given to the “20 hour” portion of their scoring is, in our view, counterproductive-incentivizing the wrong approach to pro bono and making it easier for a small number of firms to “game” the rankings and, therefore, the A-List.

8. Pro bono measurement and metrics will:

a. become an integral part of strong pro bono efforts at firms/departments

b. be put in place at a small number of pioneering firms/departments

c. be rejected as inappropriate for pro bono programs

My prediction: B – pioneering efforts will take root. As many of you know, PBI has been working closely with our pro bono partner, Deloitte FAS, to develop a customizable process, materials, and toolkit to help the law firms and legal departments with whom we work to track, analyze, and assess the social good impact and business benefit generated by their pro bono work. This effort is a first in the pro bono and legal services/public interest community. It is challenging, but we believe it is also essential to the continued viability and effectiveness of pro bono. Early in 2013, Merck, our live lab, will put their tailored effort in place, followed by a law firm live lab. It is my hope that 2013 is the year in which law firms and legal departments, as well as their public interest/legal services partners, will recognize and embrace the importance of this initiative. In legal departments and their companies, metrics is the mantra of the moment, and more nonprofit legal groups are realizing that the absence of measurement and analysis is impairing their ability to demonstrate their value and, most important, may be keeping them from doing the best possible legal advocacy for their clients. Implementing the initiative will take time, but 2013 will be a pivotal year.

9. Pro bono policy work will:

a. Continue to be a very small percentage of pro bono work

b. Decline due to the increased workload of firm and legal department policy and lobbying staff

c. Come into its own

My prediction: C – come into its own. Given the growth at both large firms and legal departments of policy advocacy staff, approaches, and capacity and the recognition of the limits of litigation and the courts to effectuate broad change, it is my sincere hope that 2013 – a year in which many of the pivotal issues of our time will be scrutinized and implemented – will see a surge in pro bono advocacy efforts. In state and local governments, at agencies, and on Capitol Hill, we will see regulatory and oversight action in areas such as gun safety, immigration, health care, climate change, education, and many more topics that are essential to this nation and to pro bono clients of all stripes. Partnering on policy advocacy is more challenging and far less common, but this is the year it can come into its own.

10. Larger pro bono coalitions and collaborative projects will:

a. Become the dominant model of pro bono service

b. Grow in importance and use

c. Rarely be used

My prediction: B – grow in importance and use. In our Regional Convocations and meetings with law firms and legal departments throughout 2012, we increasingly heard interest in addressing persistent issues of unfairness, systemic inadequacy, and the justice gap through the vehicle of large, strategic collaborations involving a wide range of stakeholders in the legal community and beyond. The collaborative/macro approach to pro bono problems is not in lieu of service to individual clients. Indeed, understanding how the legal system works – or doesn’t – for individuals – through traditional pro bono service is an essential element of these collaborative projects. One of our major goals this year is to serve as a convener, catalyst, and honest broker in bringing this approach to fruition in several communities.

So there you have it – my top 10 predictions. The rest is up to you, our readers, friends, partners, and supporters. We welcome your thoughts and reactions, both with respect to the likely outcome of these predictions and on other areas of pro bono practice that we have missed. Have a great 2013, and remember, we are here to help!