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Brother, Can You Spare 20 Hours?

New York Lawyer
September 2, 2005

By Aric Press
The American Lawyer

Connie Fratianni was a model citizen. When she wasn't at her desk logging 2,200 hours as a Shearman & Sterling bankruptcy/restructuring partner, she was running a Girl Scout troop in Manhasset, New York, volunteering at her children's school, and keeping a lively e-mail correspondence going with U.S. soldiers in various war zones. But when it came to pro bono legal work, Fratianni was literally nowhere. She didn't like to even discuss her one pro bono attempt.

All that changed last year. In response to an e-mail chat with an Army captain serving in Afghanistan, Fratianni launched a drive to collect classroom supplies for Afghan children; Operation Crayola, she called it. A separate e-mail exchange with Shearman's pro bono coordinator, Saralyn Cohen, led to a request from Afghanistan to convert the fledgling school supplies project into a nonprofit outfit. Cohen brought it to Fratianni, who packed up the coloring books and picked up the tax code. A few months later, thanks to the work of eight Shearman lawyers in three offices, Operation Dreamseed was incorporated, and Fratianni went from being a pro bono MIA to a 60-hour-a-year volunteer. "I was looking for a project I could be committed to," says Fratianni. "Dreamseed touched on so many of my interests that it was the perfect storm."

It was also part of a remarkable year at Shearman, which, according to our annual pro bono tabulations, showed the biggest increase in participation of any Am Law 200 law firm. The percentage of Shearman lawyers performing at least 20 hours of pro bono work doubled in 2004, to 65.1 percent. Shearman joined a very exclusive club: There are only 18 firms with 60 percent participation rates; another 16 report 50 percent or better. So, hooray for Shearman and Co. But, please, where are the rest of you?

As we said last year, when it comes to free legal services, never have so many owed so much to so few. By some measures, the volunteer legal work by The Am Law 200 has never been greater. According to statistics included in Stanford professor Deborah Rhode's new book Pro Bono in Principle and in Practice, just three decades ago barely 6 percent of the bar made any pro bono contribution (and those included such worthy clients as friends in need and ne'er-do-well brothers-in-law). Last year, by our calculation, 36 percent of lawyers in Am Law 200 firms performed 20 hours or more of pro bono work. By our definition, that's work done for those who otherwise couldn't afford legal services. That's up from 34 percent in 2003. In all, The Am Law 200 performed 3,486,617 hours of pro bono work last year. Assuming an average hourly rate of $300, that translates into an in-kind contribution of $1.05 billion.

The litany of projects is at once familiar and ever more remarkable. Defending the damned: death row appellants and Guantánamo Bay detainees. Defending the stateless: political asylum applicants. Defending the frightened: victims of domestic abuse. Defending the defenseless: children caught in foster care systems that have no exit. These are projects that can change lives, from Morrison & Foerster creating a homeless shelter in Walnut Creek, California, to Weil, Gotshal & Manges helping a 20-year-old in New York rescue his two younger siblings from guardianship limbo. This is work, largely selfless, that lawyers will put on their tombstones.

But there's more to be done. Contributing editor Elizabeth Amon points out five categories of projects that tend to go begging. In general, there seem to be a handful of explanations--and rationalizations--for why the work doesn't get picked up: too hard, too tedious, not important enough. In a survey of 3,000 lawyers for her book, Rhode heard the litany: heavy workloads, family responsibilities, and employers hostile to pro bono work. There's also what might be called the Cool Hand Luke phenomenon: a failure to communicate. Esther Lardent, the executive director of the Pro Bono Institute in Washington, D.C., recalls a survey she ran in North Carolina a decade ago inquiring why lawyers did or didn't do pro bono work. The single biggest stumbling block she found was that no one ever asked them for help.

This is all understandable in an age when time is even more precious than money. But would we be in this state if pro bono activity were fully accepted as a core professional duty? Consider: If client confidentiality were treated the same way that pro bono is, about two-thirds of you would be doing something else for a living.

The bar has flirted with mandatory pro bono regulations with little success and considerable unintended comedy. The sound of well-fed practitioners denouncing minimum hour requirements as a violation of the Thirteenth Amendment is always good for a chuckle. If the state starts requiring 20 hours of public service work in return for a license to practice, the next step down the slippery slope will require an annual license fee. Or a mandatory donation to a legal services fund. Instead, we are left with rule 6.1 of the American Bar Association's Model Rules of Professional Conduct, which politely calls for 50 hours a year of public service work. The rule is influential, but its language has not been adopted in any of the state codes. Instead, lawyers face a crazy quilt of exhortation and regulation, with the result that pro bono is celebrated at back-patting banquets and partner meetings. Perhaps pro bono is extraordinary precisely at a time when it needs to become ordinary.

Because we think that pro bono activity is a core professional responsibility, we changed the way we calculate our pro bono scores this year. In the past we counted per capita pro bono hours as two-thirds and the percentage of firm attorneys doing 20 hours or more of pro bono work as one-third. This year, we converted to a fifty-fifty weighting because we take seriously the exhortation that every lawyer should perform some public service work every year. This change had little impact on the rankings; the firms with the highest per capita hours--Covington & Burling or Jenner & Block, for example--also tend to have very high participation rates.

In some ways, 2004 was an unpredictable year. The dealmaking market reignited, and several pro bono stalwarts were caught with more fee-paying work than they could comfortably handle ["The Case of the Missing Associate," July]. In part that pressure led to falling scores for firms with distinguished volunteer traditions: among them, Davis Polk & Wardwell; Skadden, Arps, Slate, Meagher & Flom; and Sullivan & Cromwell. If the past is a guide, this should be a one-year phenomenon. These firms have proven that no inherent conflict exists between business success and significant pro bono commitment. To measure it differently, the average profits per partner at the top 20 pro bono firms in 2004 were $950,516; at the bottom 20, the average profits per partner were $472,179.

The Model Rules refer to "every lawyer"--even busy ones and nonlitigators. We've chronicled for years the efforts to find opportunities for transactional and other noncourtroom types ["The New Face of Pro Bono," December 2000; "Going Corporate," September 2003]. This isn't always thrilling work. For the tax lawyer who spends his days constructing artifices to baffle the IRS constabulary, the prospect of incorporating some nonprofit youth group simply doesn't provide the same sizzle that his litigating partner receives from springing a wrongfully convicted inmate. That should leave the tax lawyer with two options: Stop complaining and do the dull work because the profession expects it, or, get some training to take on some more cocktail chatter-worthy activity, such as a political asylum case. Our experience, alas, is that too often the tax practitioner, or the trusts and estates sage, or the master-of-the-universe dealmaker, opts for the third way: nothing. Hence this year's rate of only 36 percent of Am Law 200 lawyers recording at least 20 hours of work. And proud of it. Query: In what other tributary of their professional lives do the superachievers of The Am Law 200 regard a two-thirds failure rate as acceptable?

It doesn't have to be this way. Firms can improve, if they want to. This year, we point to three: Shearman, which doubled its participation rate; and Weil and Sonnenschein Nath & Rosenthal, both of which improved theirs by more than 50 percent. Here are some of the steps they followed.

Start at the top, with real goals. At Shearman, then-senior partner David Heleniak and his management committee issued a call for a 25-hour minimum from every lawyer. At Weil, chairman Stephen Dannhauser asked litigation partner Stephen Reiss to take over the pro bono committee and armed it with several senior partners and performance goals for each office. At Sonnenschein, the firm turned to Errol Stone, a former managing partner with exemplar status, to develop an action plan that included 100 hours of billable credit for pro bono work.

Am Law 200 firms are driven, at least in part, by goals and their companion's measurements. Weil, for one, changed its timekeeping records, creating a category for pro bono hours. Previously, those numbers were blurred with other nonbillable activity. "A place like this is incredibly goal-oriented," says Reiss. "Tell someone they're behind, they'll go out and find a way to meet their goal."

Full-time help. Weil hired Miriam Buhl, a veteran of New York pro bono activities and most recently the director of the local March of Dimes, as its pro bono counsel. The idea, according to Reiss, was to treat a major firm's pro bono muscle-40,000 hours or more-as a nonprofit organization unto itself that needed management, priorities, and development. At Sonnenschein, the firm hired Terrance Norton, a former clinical professor at Chicago-Kent Law School and executive director of Chicago's legendary Better Government Association. Shearman, which long had a pro bono staff lawyer, expanded her group to three.

Treat pro bono as a practice area. Buhl, Cohen, and Norton were all charged with developing client relationships. If the lesson of the paying side was that firms could attract more work from existing clients, that same logic followed for volunteers. Norton, for instance, held a reception for a small group of agencies where they could explain their programs and meet Sonnenschein lawyers. Part of this was client outreach and part an internal message. The lawyers "could see the firm was really serious," Norton says. "Once they realized that, they turned to pro bono in a pretty big way. We discovered a kind of pent-up demand that was sometimes tough to fill."

Ask the lawyers what they'd like to do. At Shearman, Cohen surveyed the U.S. offices and then went looking for work that satisfied the varied interests. That was a wide gamut, from wanting to get into the war crimes tribunal support program Shearman has run in Africa to finding family law opportunities in northern California. "Sometimes we'd have to remind them: 'You're a lawyer. You can help,' " Cohen says. "They might say, 'I'm not sure I can do that, I don't want to make a mistake.' And we reassure them that they can make a huge difference in someone's life. 'You're such an asset!' "

Not every firm's pro bono efforts need to be redeemed. Some never seem to falter. Holland & Hart is a 270-lawyer firm headquartered in Denver and secure on The Am Law 200 ["Happy Campers," August 2001]. It ranks fifth on our pro bono scorecard and first in participation rate, with 85 percent of its lawyers performing 20 or more hours of pro bono work. For David Broadbent, a real estate partner based in Salt Lake City who chairs the firm's pro bono committee, the firm's success starts at orientation for the new lawyers. "I explain to them why we do the work. And why they should do it. We try to tell them how to find the matters, how to establish contacts in the community," he says. "We tell them that we expect them to do the work. This is part of our values as a firm. This is who we are."

Managing partner Ed Flitton says he wishes he had a magic formula for others to follow. He attributes Holland's record to the firm's sense of what it is and what it wants to be. He says that when the management committee sees a lawyer going more than one year without pro bono work, they might "send a message of encouragement." They don't even give billable credit. "When the people beside you are doing it, you tend to want to also," he says. "It's a source of pride for us."

There is more than enough pride, and work, to go around. Whether there are enough firms willing to take their professional responsibilities seriously remains an open question.