MyShingle : Solo and Small Law Firm Management and Marketing

Many solos who'd like to perform more pro bono work can't do so for lack of time.  So why not multi-task, and make pro bono work part of your marketing activities portfolio?  Consider the example of lawyers profiled in this article, Creating a nonprofit helps others - and doesn't hurt business either (ABA Journal, April 2007), such as Anthony Hayes who created the non-profit organization Wills for Heroes (which provides no-cost estate planning documents for police, firefighters and emergency workers) or Wynnia Kerr who set up an animal adoption shelter in Seattle.  In setting up these organizations, Hayes and Kerr simply wanted to help their respective communities, but their groups have expanded beyond their wildest dreams.  And through their role as founders, Hayes and Kerr have gained positive visibility and developed contacts with other lawyers who have participated in their organizations.  And eventually, these connections and publicity can potentially lead to referrals or generate clients. 

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Imagine that your law firm issues the following Request for Proposals:

Busy solo practitioner seeking large firm to partner on pro bono matters for small, walk in clients with no funds to retain an attorney at full rates.  Firm must turn these clients down in the absence of pro bono support.  Matters include messy family law and custody battles, eviction proceedings, Fair Debt Collection Act matters, bankruptcy and lawsuits against small business without insurance coverage.  Benefits include court time before sometimes unqualified, nasty judges, (as opposed to civilized federal practice) and learning to prioritize issues, cut corners due to cost constraints and practice law at less than your full ability due to lack of resources.   

Now honestly, do you think you'd receive even a single response?  Yet when large corporation Intel posted an RFP for lawyers to partner on pro bono firms, biglaw came running, according to this article, Intel Recruits Firms for Pro Bono Partnering.  But don't think for even a second that the firms had thoughts of winning a plum client through working side by side with Intel lawyers on pro bono matters:

Similarly, Nixon Peabody pro bono partner Stacey Slater said her firm was motivated by the opportunity to do a good deed, not the chance of winning a new client. "That's not at all why we're doing this," she said. "This partnership will help increase pro bono on both ends."

Do these people even believe what they are saying?

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Evan Schaeffer posts here that the Illinois Bar is the latest bar to implement a mandatory pro bono reporting requirement whereby lawyers must report pro bono activity annually to the bar.  According to Schaeffer, "the Illinois Supreme Court hopes that the new reporting requirement will serve as a reminder that pro-bono work is important. In addition, it will allow information to be gathered about lawyers' efforts overall."

On the surface, mandatory pro bono reporting seems innocuous enough.  Lawyers aren't forced to perform pro bono and it's not really all that time consuming to fill out a form once a year and send it in to the bar.  In fact, over at Legal Ethics Forum, Don Burnett analyzes mandatory pro bono reporting requiremens, concluding that those who oppose them are "really disputing the core message of ABA Model Rule 6.1." (providing that lawyers should aspire to 50 hours of pro bono annually).

Even though I agree that lawyers have a professional obligation to perform pro bono because the requirements would disproportionately penalize solos.  Most pro bono requirements do not recognize that the work that many solos perform day to day is pro bono.  But at the same time, biglaw firms would be free to characterize as pro bono work at the rate of $400 an hour, marketing efforts and even a loss on attorneys fees representing high profile defendants. (under this last definition, given the firm's potential loss in connection with representing Jeff Skilling, O'Melveny, Meyers would win a pro bono award!). 

And that's what I despise about mandatory pro bono reporting.  Lawyers send in hours for any kind of pro bono work, whether it's really pro bono or not.  The bars collectsthese numbers and then uses them to give themselves a huge public pat on the back (hey, look at how much pro bono are lawyers are doing) - similar to what the ABA did last summer.   Yet as I described in my ABA post, for all the millions of hours of pro bono that lawyers allegedly perform, we've still not made a dent in providing lower and middle income people in this country with meaningful and affordable access to law.
Mandatory pro bono reporting forces me to participate in this massive PR sham, it takes the pro bono hours that  I report and uses them to make the bar look good, when frankly, when it comes to providing the poor with access to law, we still have a long, long way to go.   

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Why is it that when small firm attorneys represent court appointed indigents at rates equivalent to one third of market that the work is not classified as "pro bono," but when a large firm takes a bath on fees for representing the former governor of Illinois, an ABA committee chair recognizes that as pro bono?  Why is it that when a solo lawyer runs a blog on some aspect of legal practice that provides first rate substantive information at no cost (as in here or here or here to name a few of dozens of examples) it's called marketing, but when a large firm provides substantive information at no cost, it's deemed pro bono?

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Last Saturday, the Washington Post published this op-ed piece, Pro Bono:  A Better Alternative  by Joel Sheptow, a Stanford Law student who's participating in a student project that provides pro bono service.  Based on his experience, Sheptow proposes that rather than refer pro bono matters to already over-worked large firm associates, the bar should encourage them to give money to fund legal aid programs.  It's an idea that I endorse, though not particularly new; I wrote an almost identical piece entitled "Just Give Money" that appeared in American Lawyer in January 1993 (yes, I go back a long way with ALM). 

Predictably, the idea of money in lieu of pro bono is no more popular now then it was back then when I wrote on it.  In today's post, Esther Lardent of the biglaw funded Pro Bono Institute responded with this Letter to the Editor boasting about the major firms' contribution of 3 million hours of pro bono service and conclusions that "pro bono is not an inefficient response to [the] dismal reality" that the U.S. provides inadequate funding for civil legal services.  What Lardent doesn't mention in her letter is that if large firms stopped running pro bono services, she'd be out of a job, because the Pro Bono Institute provides consulting services and support to biglaw pro bono projects.

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What if you went to a client and boasted that in the past year, you spent 300 hours working on his case?  The client would probably respond, "So what, what kind of results did you get me?"  Yet apparently, the American Bar Association (whose efforts at blogging the ABA annual meeting are a little bit pathetic) believes that this type of hourly standard is the best way to measure lawyers' pro bono activities.  At least, that's the impression I gathered when I read this ABA Press Release (July 28, 2005)  boasting that 66 percent of lawyers gave away free legal assistance to people of limited means, volunteering an average of 39 hours a year.  Well, that's alot of hours, but it tells me nothing worth celebrating.  Because in spite of all that time (20,592,000 hours, assuming 66 percent of 800,000 lawyers performing 39 hours a year), there's still a substantially unmet need for legal services. 

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This Press Release (PR Newswire 8/4/05) proudly proclaims that "for the first time in the history of bioethics, a major global law firm, (that would be Milbank, Tweed) makes its legal resources available, pro bono publico, for the analysis of biotechnology and its impact on women."  The release goes on to describe that Milbank will be providing a range of pro bono legal services to the Women's Bioethics Project, a Seattle-based non-profit and non-partisan think tank. Milbank services will include legal research, analysis, and counsel on a wide range of bioethics issues, including women's health, reproductive technologies, and the emerging field of neuro-ethics. 

You can correct me if I'm wrong - but I just don't see how this is pro bono.  Rather, it sounds more like a marketing idea (and a clever one at that) to bone up on hot issues while working for a well respected entity like the Women's bioethics project and to make contacts in the potentially lucrative bioethics field.   The only pro bono element to this project, as far as I can tell, is that Milbank won't get paid...in the near term.

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According to this Press Release, the Chief Judges of the D.C. Circuit will be honoring eight Washington D.C. law firms for commitment to pro bono as evidenced by meeting a benchmark of 40 percent of lawyers performing 50 hours or more of pro bono service.  But sadly, though I'm a member of the DC Bar, neither I nor any of my solo colleagues qualify for such honor despite the fact that many of us have met or exceeded the fifty hour pro bono commitment for which the large firms are being honored.  And the reason we're excluded is because we're solo; according to the press release, only firms of 25 attorneys or more are eligible to enter the so-called "40 for 50" Competition to begin with.

Seems a little inconsistent with what this type of event is supposed to accomplish.  According to this quote from Chief Judge Hogan in the Press Release:

"To realize the idea of 'justice for all' we must realize that all must play their part. Although this award recognizes law firms, our true intention is to recognize those who donated their time and talent -- the firm leaders who fostered meaningful pro bono programs, the attorneys who took on cases when their workloads were already full, and the support staff who no doubt served a needed role."

So, the bar wants everyone to play its part in realizing "justice for all" - and yet it refuses to acknowledge the efforts of solo and small firm attorneys who help bring about justice day by day, whether through performing pro bono outright or reducing rates to serve clients who could not otherwise afford legal services.  And in many instances, we provide that pro bono when our workloads are already full - and without support staff to help out.

To add final insult to injury, the tag line at the bottom of the Press Release says that the Judge's reception is a private event.  Meaning that no one from the bar or the public, outside of the press, can watch these large firms bask in glory or learn of their accomplishments, despite the fact that the judges hosting the reception are on the public payroll.  Why is that?  Are the achievements not worthy of public display?  Or is the reception not so much an award but rather a quid pro quo where big firms cash in on pro bono service by obtaining one-on-one access to the federal judges at an exclusive ceremony.  Sounds harsh, but let's face it - that's how it looks from the outside peering in.

Come on DC - let's follow the example of the Florida Bar Association which honors lawyers for real pro bono service, regardless of the size of their law firm.  Take a look at Local Attorney Honored for Pro Bono Work which reports on the FBA's award to small firm attorney Jacqulyn Mack for pro bono service that included work with Legal Aid of Manasota and Florida Rural Legal Services Inc, serving as a guradian ad litem, acting as a legal advocate for children in court cases and has co-chairing the annual "law week" event in South County that teaches fifth-graders about the legal system.  Isn't that the kind of pro bono service that we want to honor and inspire - the kind that's borne out of a sense of professional responsibility and not an opportunity for professional gain?

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Bob Ambrogi reports here on the pro bono work of a two attorney firm, Moran and Gottlieb and links to this story about the firm in the Poughkeepsie Journal.  Subsidizing their pro bono work with revenues from paying clients, Moran and Gottlieb maintain a free telephone hotline to field questions from anyone who cares to call them.   And once a week, Gottlieb dispenses free legal advice at a local homeless shelter.   Moran and Gottlieb's efforts should inspire other solo and small firm lawyers to do our share as well.

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In this prior post, we discussed whether discounts given by solo and small firm lawyers on work performed for low income clients might count as pro bono.   For those who don't endorse that idea, consider this:  big law firm Skadden Arps wants to claim that its work to bring a school district into compliance with the American Disabilities Act is pro bono, not withstanding that the firm is seeking $9 million in attorneys fees.

According to the this article, Pro Bono Case May Bring Windfall, ABA e-report (2/4/05), Skadden and another civil rights firm in the case spent 20,000 hours in lawyer and paralegal time on the case and are seeking fees of $9 million.  I did the math and even subtracting $1 million for costs, $8 million over 20,000 hours comes to an average of $400/hour.  And that average presumably includes paralegal time.  In fact, the article notes that one of the Skadden partners involved in the case has a billing fee of $810 an hour.  Moreover, apparently, because of the amount of resources, the firm went all out in many of its pleadings, using a "cannon ball" to respond to a "tennis ball."

So how is $400 an hour pro bono whereas a solo charging $50 or $75 an hour is not?  If someone has an explanation, I'd love to hear it.

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This article, Internet Attorney:  More Than Pro Se, New Factor Network (1/17/05) reports on the Chicago-Ken College of Law's Access to Justice (A2J) program that includes a sophisticated computer system for pro se litigants to file complaints and pleadings.  But it also includes other toosl such as a "Logic Learner" that teaches litigants how to construct consistent arguments; the "HonorInsider" that provides "inside" information about the judge who will hear the case, including his or her preferences and courtside behaviors; and a "Story Builder" to construct fair and coherent case representations.  Finally, an "e-mediator" facilitates collaboration and negotiation between opposing parties who wish to resolve issues themselves.

So why should MyShingle, a site for current and would-be solo and small firm attorneys care about A2J?  First, it sounds like A2J can offer some valuable information to solo attorneys - such as inside information on judges or ways to construct fair case representations.  Second, it's primarily solo and small firm lawyers who serve on the front lines of the law and are the ones who encounter those clients who don't have the funds for full service representation.   We can help these clients by alerting them to resources like A2J - or even offering unbundled services at a reduced cost in conjunction with A2J (for example, even after the client follows the A2J tutorial, a lawyer might still, for a modest fee, agree to review the client's pleading before filing). 

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This article, Solo and Small Firm Attorneys Lack Time for Pro Bono, NYLJ (12/13/04) reports on some of the obstacles that solo and small firms face in meeting the recommended 20 hours/year of pro bono.  The article lists the four top reasons lawyers gave for not participating in pro bono programs:  the demand of time and resources; lack of expertise; lack of support staff; and lack of malpractice insurance for pro bono work.  The article notes that bar groups can help address some of these issues, as they may provide malpractice coverage for pro bono work as well as informational resources to learn a new area.

But the article expresses a view that I've always had with respect to solos and pro bono:  that many are already effectively meeting that obligation by forgiving bills or allowing installment payments:

Several small firm attorneys said they put substantial resources into "low bono" or "stealth pro bono" or "pro bono in disguise": the client who cannot pay. Some consider it a form of community service.

Wiseman described one case in which a client paid him $10 a month toward a $4,000 bill until he forgave the remainder.

"I do consider that, frankly, a form of pro bono," he said.

"My personal definition [of pro bono] is people who can't afford our regular rate," said Copp.

King, who chairs the Schenectady Bar Association's pro bono committee, distinguishes pro bono from sliding-scale fees. She said her bar committee would discuss a "modest means" status for clients who do not qualify for legal aid but cannot afford a lawyer.

A reduced-rate system also provides a motive to settle litigation, said Adam Levy, of Levy, Santoro & Santoro, a four-attorney Putnam County firm.

"If you're paying your lawyer, you want it to be short and sweet," he argued.

Reduced-rate legal services do not qualify as pro bono under the current statewide definition, but some bar groups are working to change that.

Without the willingness of solo and smaller firms to cut fees to accomodate people of lesser means, many would go unserved since their incomes are too high to qualify for legal aid and their cases are simply not "sexy" enough to attract the interest of a large firm pro bono program.   So the bars should formally recognize our contribution.  On the other hand, some small firms do manage to perform pro bono in the traditional sense as reported in this companion article, Small Firm Make Pro Bono Mandatory.

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For various reasons, I do not endorse mandatory pro bono requirements, even as I, personally, have made a point of taking on several pro bono matters each year during my sixteen years of practice. I just don't think the bar can force attorneys to undertake what is a personal moral obligation. But to the extent that bars persist in mandating pro bono, at a minimum, the requirements should not unduly burden solos - or disparately ease the burden on large firms. The Mississippi proposed pro bono requirement described here in Mississippi high court proposes rule changes on legal services to poor , AP (11/6/04) doesn't meet that criteria by allowing law firms to collectively satisfy the pro bono obligations of their members. Solos can't delegate their pro bono obligation to other lawyers, so why should biglaw attorneys have that ability?

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