by 12:15- Panel 2 on Today’s Pro Bono Efforts. Panelists are Richard Zorza, Jeanne Charn, Scott Cummings, David Grossman, and Katherine Hudgins.
12:15 – Introductory remarks by Alex Smith. Importance of pro bono for access to justice forces us to evaluate how much good existing pro bono efforts are doing and how it can be improved. The second panel today will discuss these questions.
12:17 – Zorza Introduction: today’s discussion evidence of how much access to justice discussion has changed, shows move away from previous dead end discussions to real concrete discussions about how to improve access to justice.
12:19 – Cummings: project is motivated by a desire to underline what we don’t know about effectiveness of access to justice pro bono. A great deal of scholarship focuses on how pro bono works (who does it, how much, etc). However, unintended effect of current rankings focused measurement focuses attention too much on quantity (how many hours etc) and too little on quality and effectiveness. Goal is to get beyond numbers to evaluate quality and cost, to filter through numbers to capture important but under-discussed elements of pro bono.
12:21 – Cummings: much confusion about what pro bono is intended to achieve: benefit the poor or benefit lawyers by giving the opportunity to do good and to gain experience. Untested empirical assumption that pro bono helps clients, currently relatively unsubstantiated.
12:23- Cummings: pro bono may contribute nearly one half of lawyers providing public interest legal services. Big firms play a key role. Importance of where you work to determining how you think about pro bono and what area you choose to work in. Pro bono deeply institutionalized in large law firms.
12:25 – Cummings: we have a pretty good sense of what contributes to support pro bono in law firms (internal firm support and incentives, firm culture) and how bar practices support pro bono. In short, we know a lot about the input side of pro bono services. Much less about output, about pro bono outcomes. What are we getting for all of these pro bono hours.
12:27 – Cummings: we know that pro bono makes lawyers happy but not how much, despite common refrains, pro bono makes good business sense for law firms. There are also systematic quality concerns related to pro bono work, partially as a result of limited partner supervision of associate’s pro bono activities.
12:30 – Cummings: Does pro bono augment services provided by legal aid and other public interest institutions and thereby increase overall quality of legal support to needy?
12:32 – Cummings: proposes pro bono case tracking system in order to collect data to measure outcomes and the effectiveness of pro bono practices, encourage firms to report actual costs and benefits of pro bono (lost billed hours, transactional costs, recruitment and retention, fee collection, overall pro bono budgets).
12:33- Charn: if we look at legal aid system in the US we see that pro bono is a much, much larger component than in other countries.
12:34-Charn: Experiences at HLS during emergence of access to justice movement, which began as part of larger anti-poverty efforts. Legal services seen as tool for fighting poverty. Legal aid in the UK began post-WWII alongside emergence of Welfare State and NHS, not part of anti-poverty. Instead, UK legal services related to citizen access, to rule of law/equality before law. In the US we vacillate between the original instrumentalist outcomes rationale and the UK’s value-based rule of law rationale.
12:36 – Charn: Why is legal services suffering? In the US focus is on the poor and redistribution, who generally lack political voice. In the UK, legal services part of of general middle class entitlement system and therefore defended by middle class. In countries were legal services part of general entitlement system focus is largely on cost, as with programs such as health care and pensions.
12:39- Charn: More questions need to be asked about line drawing, about which programs public should subsidize. We need to look at different kinds of legal needs and different kinds of legal questions.
12:41-Charn: normative debate doesn’t get us anywhere. Instead we need to ask more concrete questions about cost, effectiveness, and need. Future of legal services should be looked at policy question, to be studied by traditional tools of policy analysis such as cost-benefit analysis and data analysis, i.e. the sorts of approaches lawyers aren’t always very comfortable with.
12:43-Charn: too much focus on pro-bono, “bar needs to take care of its own soul.” Beyond what the private bar can contribute, we need to treat legal services more like entitlement. Also ask needs of middle class citizens. Ask how market-based solutions can help address legal services needs. That is to say, ask questions that people ask in debates about health and pension entitlement programs (as in UK).
12:46-Grossman: Law school clinics can play a major role in providing legal services to the poor. HLS has done good work in this respect, one of the largest provides of legal services in Boston area.
12:49-Grossman: need to use pro bono more strategically, to effect large scale changes in institutions and not merely serve individual needs.
12:50-Grossman: problematic that most school clinics approach legal services primarily in terms of education and training. Great pedagogical approach but by encouraging students to focus closely on small case load service to community is undermined. HLS very lucky to have Dean dedicated to delivery of legal services. At some schools clinicians feel pressure to justify their place in academy by focusing more on teaching and scholarship and less on delivery of legal services to community.
12:53-Grossman: Harvard Legal Aid Bureau’s current foreclosure project focuses on building a movement. Aim is to focus more on building power and producing social change, focus is less on vindication of individual legal rights. “Sword and Shield” approach, both defend people in movement facing eviction while also actively working towards increasing the political voice of those facing foreclosure. As a model for pro bono this means focusing on less on traditional legal approach and more on movement building.
12:56-Grossman: A full civil-Gideon would be ideal, but for now movement building and “limited assistance” model of legal aid are important solutions.
12:59-Hudgins: Discussing experience in Office of Appellate Defense in South Carolina. Involvement primarily with criminal legal services. Before we talk about obstacles to civil legal services, important to highlight progress. South Carolina has made important progress in centralizing and coordinating criminal legal services. There was some resistance from public defenders to centralized oversight. Important example for the civil legal services question, which also suffers from problems of disorganization and lack of coordination and quality assurance.
1:04-Hudgins: Funding is most important obstacle. Even with centralized State funding there is still great reliance on County budgets, which often causes underfunding.
1:07-Hudgins: Experimentation with lawyer rate setting in South Carolina very problematic. In particular, setting of flat rates for cases fundamentally limits amount of time lawyers can afford to dedicate to any single case.
1:08-Zorza: Question to audience “what could we do different about pro bono system?”
1:09-Dean Minow: real possibility of identify best practices through establishment of a centralized hub, a centralized coordinator. This does mean giving up autonomy and having the common purpose of meeting needs of poor people, which isn’t necessarily the goal of many people doing pro bono work.
1:10-Charn: systematization can be excessive but we are very, very far away from that. Enormous room for greater systematization and centralization.
1:14-Engler question: need to do more research about the relative benefits and harms of limited intervention and deeper intervention.
1:16-Zorza: In addition to outcomes, policy makers need to think about what make it easy or difficult for lawyers to contribute to pro bono efforts.
1:21-Charn: Civil Gideon problem is going to be off the charts unless we do something about costs. Discussion here has to be part of larger discussion about reshaping legal profession and legal education.
1:23- HLPR EIC Lisa Sullivan question: if intangibles are so important to pro bono (lawyers feeling like they are part of the fight and clients feeling like they are being supported and empowered) how much should we be concerned about more measurable forms of effectiveness?
1:25-Grossman: even intangibles can be measured in some form and shouldn’t diminish are concern with getting a more rigorous study of outcomes.