It should come as no surprise that in a year when many firms scrambled to find clients to bill, the number of unbilled pro bono hours worked by law firm associates went up-way up. In a new article in The National Law Journal, professors Scott Cummings of UCLA Law School and Deborah Rhode of Stanford Law School tell us that the top 200 firms in the American Lawyer's rankings (colloquially called the Am Law 200) boosted their pro bono hours by 15 percent in 2009. But despite this jump, which represents a five-hour increase on average per associate, Cummings and Rhode are concerned about the state of Pro Bono in the legal profession. They argue that it's not just about the hours.
Following our discussion of changes in fee structures, Unlikely Allies in Billable Hour Reform, perhaps now, it is time to discuss reforms in measuring the non-billable pro bono hour. Cummings and Rhode report that hiding behind those positive numbers, the pro bono programs at some firms have cut back on quality. According to their survey of pro bono programs in this recession-time economy, some firms "reported reluctance to take on expensive litigation, such as death penalty cases and employment discrimination class actions." Additionally, increased staff turnover may have led to double-billing as new associates re-invented the wheel for a pro bono case they picked up from a laid-off colleague; turnover can also lower the quality of representation.
These recession-specific issued led Cummings and Rhode to a deeper underlying problem with pro bono programs: the metrics by which firms are ranked currently cannot account for quality. They reported that none of the firms they surveyed "had formal mechanisms for gauging satisfaction among nonprofit organizations that referred or co-counseled cases" or "engage[d] in systematic analysis of the social impact of their efforts." Unlike a typical attorney-client relationship, if a pro bono client is unsatisfied with a firm's work, the client has few mechanisms for recourse. When payment is foregone, firms focus on three other objectives: "training, recruitment and reputation as determined by rankings." Until the rankings change their metrics to better reflect the social good that is accomplished by a firm's pro bono work and until that level of detail becomes critical at the recruitment stage, firms are free to act as though the social impact of pro bono hours are as fungible as the cash that comes from billable hours.
Building a Better Legal Profession (BBLP) is an organization based at Stanford Law School. BBLP is a national grassroots movement that seeks market-based workplace reforms in large private law firms. For more information, visit BBLP's Web site at www.betterlegalprofession.org.