Formerly known as inMotion, Inc.

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July 17, 2009

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Mixed blessings

By David Marcus

On the face of it, Big Law's pain should be pro bono's gain. Dozens of large law firms have told their incoming associate classes not to show up this fall. Instead, the firms will pay their deferred hires one-third to one-half of the $165,000 they stood to make as first years, often on the condition that they spend the year working for a nonprofit organization or a government agency. Many of the firms have already announced that they will repeat the exercise with associates who would have started in the fall of 2010.

The deferrals mean that hundreds if not thousands of recent law graduates who planned on going to work for law firms are now poised to volunteer full time at pro bono institutions. That should be welcome news to nonprofits that have seen the demand for their services increase at the same time as donors and foundations have scaled back their funding.

Instead, the influx of labor may be a mixed blessing. Stanford Law School professor Deborah Rhode published a detailed analysis of the current state of public interest law in the Stanford Law Review last year. About 80% of the institutions she surveyed collaborate extensively or moderately with the private bar, relying heavily on pro bono counsel for major litigation and in some cases serving as a clearinghouse for pro bono work. But only one-quarter of the institutions said they could benefit from more volunteers. Now they must figure out a way to do so.

There are roughly 1,000 pro bono legal service institutions in the U.S. by Rhode's estimate, and they fall into two categories. Some are effectively public interest law firms that range in size from the Legal Aid Society, which has almost 850 lawyers and 600 staff members in New York and handles a broad range of legal issues, to small shops with a much tighter focus and only a few dozen employees.
Others are clearinghouses that screen cases and hand them off to law firms that staff and manage them. Law firm associates work on the matters, generally at their firms, while senior lawyers train and supervise them.

Sending young associates to pro bono organizations rather than having them work on matters at their law firms creates several challenges. First, volunteers need training. "The institutions are not set up to do mass training, but the people who are deferred will go work at the pro bono organizations and become staff members," says Stuart Gold, a partner at Cravath, Swaine & Moore LLP who helps run the firm's pro bono program. "You can't take everyone because you need to have staff to train them." And those staffs tend to be overworked in the best of times.

Furthermore, says David Lash, who heads pro bono at O'Melveny & Myers LLP in Los Angeles and used to run Bet Tzedek, a pro bono institution there, "there are a lot of hard dollar costs associate with 'free' lawyers: malpractice insurance, health insurance, computers, office space, support staff. At a time when legal aid organizations are very financially challenged, it's tough to come up with $5,000 to $10,000 for a 'free' attorney."

And, Rhode adds, pro bono institutions must manage morale issues raised when they're asked to incorporate deferred law firm associates at the same time as many of them are laying off experienced lawyers because of lack of funding. "The irony is, as the head of one legal services organization put it, that they're facing this perfect storm of decreased funding from all sources, and when they're having to lay off their own staff, they're getting offers of non-­experts, of associates from large law firms. They want the person they had to lay off three weeks ago."

Finally, there is the contrast between the large number of deferred law firm associates looking for work and the relatively modest capacity of nonprofits to absorb them. With 690 lawyers, the New York City Law Department is one of the largest places such lawyers could work. (Though not a pro bono group, the Law Department is a nonprofit.) According to a spokeswoman, volunteers entail no extra costs for the Law Department, which has copious office space, doesn't pay malpractice insurance and will include volunteers in its existing training programs. Nevertheless, the agency has thus far taken on only 14 deferred or furloughed lawyers who will volunteer for three months to a year, though it is still receiving applications.

Smaller institutions have far less room. InMotion Inc. has a legal staff of 14 and provides legal services to low-­income women in New York by connecting them with law firms that make their attorneys available pro bono. "What we ended up concluding is that the opportunity we can offer to deferred associates is comparable to the one we offer to law students, but full time," says Catherine Douglass, inMotion's executive director. "We decided that at the very most we could incorporate and use well two or three people, who would be of great benefit to us because they would be here five days a week for a year, as compared to our law student volunteers, who are only part time and who come and go each semester." But inMotion cannot give deferred associates their own caseloads or allow them to represent clients in court, Douglass says.

No consistent policies or practices have yet emerged as firms try to respond to these issues, says Scott Cummings, professor, University of California at Los Angeles School of Law, who's working with Rhode on a survey of law firm pro bono directors. Still, he adds, "firms with established pro bono infrastructure are probably a better setup to think about and implement the coordination functions."

Firms have already realized the need to provide deferred lawyers with pro bono training. Says Gold: "By the end of this summer, I will be able to give a class in getting support orders, because I'm supervising two groups of associates who are going to court and getting support orders."

Howrey LLP, a Washington-based law firm, is teaming with the Georgetown University Law Center in an effort to create a more formal training program they will launch this fall. Says Deborah Epstein, who directs Georgetown's domestic violence clinic, "We are trying to see this challenge as an opportunity to develop a collaboration where the graduates who either have found themselves with deferred offers or are still looking [for a job] can go to Howrey in a postgraduate fellowship for six months to a year to work on pro bono legal services." The school and the firm will team up to offer training at Georgetown.

Howrey will have a few full-time employees help manage the cases, says Robert Ruyak, the firm's managing partner and CEO, while its senior associates will supervise the recent graduates—an opportunity for the older lawyers to learn how to manage junior lawyers, he says.

"It's a great two-sided coin," Ruyak says. "We get a lot out of it with a modest investment. Pro bono organizations always feel that they can't do more than they can supervise. We're taking over the supervising. Just get us the cases, and we'll track them."

Despite the challenges, pro bono institutions could reap significant benefits in the years to come from the deferred associates they take on. "I think that the long-term impact could be very profound," Lash says. "We could be raising a very large pool of meaningful volunteers in this generation of lawyers. In 10 years, we may see this as having been a really important turn of events in the delivery of legal services to the poor."