Executive Summary

The United States has one of the best justice systems in the world, but unfortunately millions of Americans cannot access it because they cannot afford to do so.1 There has been a sharp rise in demand for legal services over the past few years, as economic turbulence has caused the number of people living below the poverty line to soar.2 In these difficult times, many people are seeking legal services for the first time. Some face homelessness because of an eviction or foreclosure. Others are seeking protection from an abusive spouse, or are fighting for custody of an abused child. They may be Iraq or Afghanistan war veterans who have returned home to economic strain and unique legal issues of their own. Or they may be elderly citizens who have fallen victim to fraud and have lost their life savings.

Yet more and more people are faced with the prospect of navigating the legal system alone.

The Legal Services Corporation (LSC) is the largest single funder of civil legal services in the country. Its grantees, along with a network of other legal services non-profits, face the challenging task of providing legal counsel to tens of millions of Americans who cannot otherwise afford a lawyer. Despite the sharp increase in those seeking assistance in recent years, LSC and its grantees are under considerable budgetary strain because of reductions in funding from a number of sources.

In the face of this great demand, and in light of the budgetary pressures on legal aid, one critical means of increasing the supply of legal services is through assistance from pro bono counsel. Large and small firm lawyers, government attorneys, in-house counsel, retired lawyers, law students, and even many non-lawyers are eager to assist by donating their time. And, although pro bono volunteers cannot replace the excellent work of legal services lawyers, many of whom are subject-matter experts in the unique issues faced by the poor, the private bar can make important contributions to closing the justice gap.

In August 2011, LSC created a Pro Bono Task Force comprised of judges, corporate general counsel, bar leaders, technology experts, leaders of organized pro bono programs, law firm leaders, government lawyers, law school deans, and the heads of legal services organizations, to consider how to effectively increase pro bono involvement by all lawyers. (For a list of Task Force members, see page 30). The Task Force divided into five working groups: Best Practices Urban; Best Practices Rural; Obstacles; Technology; and Big Ideas. Each working group spent months conducting interviews, identifying significant practices, and sharing ideas, and ultimately, the Task Force reported its findings and recommendations to the LSC Board of Directors. This report presents those findings and recommendations and suggests steps that LSC, its grantees, and the legal profession can take to help shape pro bono programs into a reliable, organized system that will efficiently deploy additional resources to the core civil legal issues impacting low-income Americans.

Specifically, the Task Force has compiled the following recommendations to LSC and its grantees, as well as a set of requests for the legal profession as a whole. In reviewing these recommendations and requests, readers should keep in mind that pro bono programs will not be effective without significant infrastructure, guidance, and support from legal services agencies. Thus, although pro bono programs can be an effective means of narrowing the justice gap, they cannot exist unless legal services organizations are adequately funded to support them.

Recommendations to LSC and Its Grantees

Recommendation 1

LSC Should Serve as an Information Clearinghouse and Source of Coordination and Technical Assistance to Help Grantees Develop Strong Pro Bono Programs. Specifically, LSC should:

  1. Create a professional association specifically for pro bono managers at LSC grantees. In collaboration with organizations like the National Association of Pro Bono Professionals, LSC should bring these professionals together for training, relationship-building, and support.
  2. Recommend that Congress create a Pro Bono Innovation/Incubation Fund, modeled on the successful Technology Initiative Grant (TIG) program, and aimed at encouraging innovations and best practices in pro bono. We recommend that this grant be a newly funded program, with mechanisms for evaluation built in, and that funding for it not be taken out of critically needed, existing funds for LSC grantees. We also recommend that private donors consider supporting this program.
  3. Develop a Pro Bono Toolkit which includes noteworthy practices in pro bono and provides high-level, web-based training to LSC grantees’ pro bono managers and program directors. This toolkit should build on existing resources for pro bono programs, be focused on making pro bono a reliable and sustained resource for the community, and:
    1. Include a plan for evaluating pro bono programs, including guidance on best practices in metrics and evaluation. LSC can do this by helping to create clear data collection standards and methods; creating systems for grantees to share best practices for data collection and analysis; and educating grantees and program evaluators on how to use metrics and evaluation to their benefit (for example, to secure new funding for full-time pro bono staff).
    2. Provide guidance on offering effective volunteer support, such as quality screening, training, mentoring, and recognition of volunteers.
    3. Help grantees provide a range of pro bono opportunities to engage all segments of the bar, including small firm and solo practitioners; emeritus, senior, and inactive lawyers; government lawyers; and in-house counsel, with attention to the differences between lawyers in rural, suburban, and urban areas. This tailoring should focus first on client need.
    4. Include mechanisms for engaging non-lawyers as pro bono volunteers, including law students, paralegals, administrative personnel, students in other professional schools, and others.
    5. Use pro bono lawyers to assist pro se litigants.
    6. Encourage collaboration and resource sharing among pro bono programs, including those at LSC grantees, other providers of legal aid, law firms, government lawyers, the judiciary, bar pro bono programs, and in-house legal departments.
    7. Use technology to support pro bono programs by encouraging immediate, systemic adoption of up-to­date technology by all of its grantees. LSC could help in this process by encouraging: i.
      1. Innovation through competition, such as through newly funded competitive challenge grants; ii.
      2. The creation and sharing of collaborative environments that can serve as virtual legal networks, or “one-stop-shops,” enabling pro bono lawyers to volunteer for and coordinate work on cases, obtain training and access to case management tools, and provide services to clients online, even from a distance; and iii.
      3. Efficiency and resource-sharing by developing collaborative, statewide pro bono platforms. h.
    8. Use pro bono to decrease overall demand for funded legal services.
    9. Offer guidance on developing a strong pro bono culture, including by hiring full-time pro bono managers and establishing advisory committees to help oversee and support pro bono programming.
    10. Encourage efforts to ensure that pro bono programs are adequately resourced, both at the federal and state level and also through private sources.

Recommendation 2

LSC Should Revise its Private Attorney Involvement (PAI) Regulation to Encourage Pro Bono. Potential changes to the regulation, which requires LSC grantees to spend 12.5% of their funding in support of pro bono legal services, should focus on providing greater flexibility in how the regulation governs: (a) resources spent supervising and training law students, law graduates, deferred associates, and others, especially in “incubator” programs; (b) resources invested to enhance screening, advice, and referral programs, even when those programs do not result in cases for LSC grantees, but when they support pro bono programs; and (c) the application of LSC case-handling requirements to PAI matters referred to pro bono attorneys.

Recommendation 3

LSC Should Launch a Public Relations Campaign on the Importance of Pro Bono. To begin, LSC should convene a small committee, perhaps including Task Force members, to examine the feasibility of such a campaign, as well as to answer questions related to scope, funding, and implementation. In doing so, LSC should partner with other national stakeholders who also are interested and invested in this issue.

Recommendation 4

LSC Should Create a Fellowship Program to Foster a Lifelong Commitment to Pro Bono. Specifically, LSC should work with law schools and law firms to create a new civil legal services fellowship program for recent graduates designed to bridge the gap between firms and legal services organizations. It also should consider the feasibility of a similar program for senior or emeritus lawyers. Again, LSC should begin by convening a small group to develop a work plan and garner support. LSC Report of The Pro bono Task force, October 2012 | iv

Requests for Assistance from the Legal Profession

The Task Force recognizes that, although LSC has an important leadership role to play in encouraging pro bono, none of the recommendations in this report can be implemented without strong support from bar leaders, the judiciary, policymakers and, indeed, the legal profession as a whole. We therefore call for assistance from all of these stakeholders to encourage and support efforts to effectively engage the private bar. As members of the Task Force, we also recognize that our work begins rather than ends with this report – and we remain enthusiastically committed to assisting LSC and its grantees in carrying out these recommendations. Specifically, we ask of:

  1. Bar leaders and the judiciary:
    1. To the Extent Permitted, Recruit Pro Bono Lawyers. Support and Applaud Their ProBono Efforts. We ask that judges and bar leaders use their influence, consistent with applicable judicial rules of conduct, to recruit new pro bono lawyers, especially in rural areas and among solo practitioners, to draw attention to the crisis in legal services, to applaud the effort of pro bono lawyers, and to advocate for additional funding at the state and federal levels.
    2. Use Bar Associations to Encourage, Support, and Celebrate Pro Bono.
    3. Amend Attorney Practice, Judicial Ethics,and CLE Rules to Support Pro Bono, for example, by providing CLE credit for pro bono (as is already done in some states), permitting judges to ethically advocate for pro bono involvement, allowing private lawyers to take on limited-representation matters, relaxing certain conflict of interest rules, and allowing certain lawyers (e.g., government, in-house, and emeritus attorneys) to provide pro bono support in jurisdictions other than where they are admitted to practice.
    4. Create or Strengthen State Access to Justice Commissions (AJC’s) to consolidate and support pro bono efforts.
  2. The legal profession as a whole: Recognize the importance of providing every American with access to our justice system and the role that pro bono lawyers can play in offering that access. At the same time, recognize the cost of developing and maintaining effective pro bono programs and ensure that legal services agencies are adequately funded for that purpose.

1 According to the 2011 World Justice Project Index, the civil justice system in the United States is independent and free of undue influence, but it remains inaccessible to disadvantaged groups, ranking 21st out of 66 countries examined, http://worldjusticeproject.org/sites/default/files/wjproli2011_0.pdf, at 23. With regard to the relative cost and availability of civil legal assistance, the United States ranked 52nd out of the 66 countries examined. Id.; http://www.abajournal.com/magazine/article/ unequal_justice_u.s._trails_high-income_nations_in_serving_civil_ legal_need/, citing http://worldjusticeproject.org/rule-of-law-index/ (discussing the findings of the World Justice Project Index).

2 Associated Press, Poverty in United States Soars to Levels Not Seen Since 1960s, Fox News Latino, July 22, 2012, http://latino.foxnews.com/latino/news/2012/07/22/poverty-in-united-states­soars-to-levels-not-since-since-160s/; Editor, How America’s Losing the War on Poverty, Tri States Public Radio, Aug. 4, 2012, http://www.tristatesradio.com/post/how-americas-losing-war­poverty.