The Opioid Crisis and the Need for Legal Assistance

Opioids are a class of drugs used to reduce pain, ranging from prescription opioids such as oxycodone and morphine, to illegal opioids such as heroin. In the 1990s, healthcare providers began prescribing opioid pain relievers at increased rates, leading to the widespread misuse of prescription and non-prescription opioids. This resulted in a spike in addiction, amounting to 350,000 deaths between 1999 and 2016 from an overdose involving opioids. In 2017, the Health and Human Services (HHS) Acting Secretary declared a public health emergency to address this epidemic.

Because of the alarming number of overdoses, efforts to mitigate the epidemic tend to focus on supporting healthcare providers, raising awareness about opioid misuse, and encouraging safe choices among consumers. While valuable, these endeavors bypass many of the immediate challenges faced by those suffering from addiction throughout the recovery process, as well as by their close friends and family members. As legal problems often go hand-in-hand with the slew of effects stemming from opioid addiction, there is an opening for pro bono attorneys to help combat the crisis and improve people’s lives.

Some of the legal challenges confronted by people suffering from opioid addictions include:

• Establishing or maintaining guardianships and other child custody issues;
• Eviction and other housing-related problems;
• Access to benefits such as food and medical care;
• Gainful employment opportunities where employers allow patient-specific treatment plans, including methadone treatment;
• Obtaining driver’s licenses, which are often suspended for non-driving-related reasons; and
• Other post-incarceration barriers to re-entry.

People addicted to opioids and recovering from addiction are likely to encounter at least one – if not several – of these obstacles. The consequential hardships also affect friends and family, and result in accumulated burdens on the judicial system, healthcare centers, foster care system, and more. A multi-pronged approach is, therefore, needed to address the varying demands of the community.

Medical-Legal Partnerships as an Innovative Solution

Medical-legal partnerships (MLPs) offer a practical continuum of legal assistance and support throughout the recovery process. MLPs are collaborative arrangements between legal professionals and healthcare organizations where attorneys are available on-site to assist eligible patients with needs that would otherwise not be addressed within the clinical setting. Over 300 health care organizations operate MLPs, with more currently in the planning stage. Therefore they are an established model that can be leveraged to provide more holistic services.

A best practice is for patients to be screened for legal needs and referred for legal assistance as soon as they are admitted for opioid addiction treatment. Pro bono attorneys can help train medical professionals to identify common legal problems, while doctors can train attorneys and legal staff so that they better understand addiction and the recovery process. One optimal aspect of these partnerships is that pro bono attorneys reach out to patients, rather than the other way around, so attorneys assist patients with their specific needs and offer tailored solutions. This establishes a more client-centered process, one that is difficult to attain when performing discrete functions where clients contact attorneys for help with a specific matter.

Through MLPs, pro bono attorneys are meaningfully involved in patients’ lives, as they work with medical staff to understand specific treatment plans and other personal information. This allows attorneys to better advocate for patients, particularly before those who have misconceptions about treatment for addiction. Attorneys can successfully explain that treatment plans are medical decisions made by doctors, not by judges. For example, one patient was pressured by a judge to wean off her treatment program, which combined therapy with replacement opioids to prevent withdrawal, because the judge viewed it as replacing one addiction with another. An MLP attorney informed the judge that ending treatment is a medical decision to be made solely by a doctor and argued that the patient’s recovery depended on the specific treatment plan. Ultimately, the judge changed her mind and allowed treatment to continue.

Employment is also an important area where pro bono attorneys can be of help. Patients may not realize that barriers to future employment have legal solutions, or that termination from their job could be illegal. For instance, one employee tested positive for methadone, a prescribed replacement opioid, and her employer moved to terminate her. An MLP attorney informed the employer that they cannot not fire an employee for receiving legitimate medical treatment. Increasing opportunities for employment does not end with advocating for treatment plans; assisting in other areas, such as helping to seal criminal records will open doors for future opportunities as well.

Both testimonials and research studies reveal the benefits of embedding legal assistance in medical facilities, particularly in settings like treatment centers, where patients have complicated legal histories. While MLPs have been in place for several decades, they have only recently begun focusing on substance use disorders (SUDs). As of September 2017, only four MLPs (located in Cincinnati, Ohio; Indianapolis, Indiana; Portsmouth, Ohio; and Reno, Nevada) in the U.S. specifically focused on helping people with SUDs. While many partnerships with hospitals, health systems, and health centers exist across the U.S., pro bono work can continue to expand in this area with a focus on opioid addiction.

Diversion Programs as an Effective Tool for Recovery

Diversion programs, another experimental method of aiding recovery, mitigate the current mass incarceration problem in the United States and provide better resources to those battling addiction. Many different types of diversion programs exist; for example, drug courts act as alternatives to incarceration, where participants are transferred after pleading guilty to a drug-related crime. Through other diversion programs, participants are diverted at the point of arrest and enter the program instead of being charged with a crime. The average national completion rate for treatment courts is 60 percent, approximately two-thirds higher than probation.

One such experimental court, the Opiate Crisis Intervention Court, is a judicially supervised triage program in Buffalo, New York that links participants with medication and behavioral treatments within hours of their arrest. Drug court participants have biweekly appearances before a judge, and they receive medication and residential treatment if needed, as well as random drug testing and other social services. They are incentivized with rewards, including the reduction of court costs and gift cards.

These courts offer meaningful opportunities for pro bono attorneys to play a direct role in someone’s life. Drug court teams are typically comprised of a drug court judge, a prosecuting attorney, a defense attorney, a probation officer, treatment representatives, and a law enforcement representative. While the judge makes final determinations regarding a range of consequences, such as reduced supervision requirements, transfers to more intensive levels of care, or punitive sanctions, the drug court team meets in a collaborative setting to review each case and contribute information about participants’ progress. Because of individualized treatment plans and clinical needs, pro bono attorneys are able to advocate for patients by explaining specific information that may otherwise go unnoticed by the rest of the team. Whether it is through working in a drug court as part of a team, advocating for the expansion of similar programs, or helping funnel people into treatment centers early in the process, providing access to an attorney and representation is crucial in assisting recovering addicts.

Potential Pro Bono Opportunities

Attorneys have a unique ability to support people addicted to opioids – as well as their families – in substantial capacities. The range of pro bono opportunities is broad and deep, with options for both small and large-scale projects and those that would appeal to litigators and transactional lawyers. Options for meaningful pro bono work include, but are not limited to:

• Helping administer advice clinics run by legal services providers by offering guidance to those experience addiction, as well as to their families and to the community. Pro bono attorneys would help people identify common legal problems and provide resources to those who need individualized advice;
• Working with a public defender’s office, representing people recovering from addiction and advocating for their individualized needs;
• Working with a prosecutor’s office, figuring out the best program for people recently arrested due to opioid-related crimes while aiming to divert them from the criminal justice system into diversion programs;
• Filing lawsuits against pharmaceutical companies on behalf of states, cities, legal organizations, and citizens affected by the opioid crisis, or writing amicus briefs in support of these lawsuits (subject to business and other conflicts);
• Helping grandparents and children whose parents are addicted to opioids or recovering from addiction by partnering with children’s hospitals, foster homes, or schools; and
• Assisting nonprofits that provide services to people affected by the opioid crisis with a variety of transactional matters, ranging from compliance with laws and regulations to advice regarding government grants and contracts.
• Combatting fraudulent treatment and recovery centers.

Conclusion

Much of the conversation surrounding the opioid crisis focuses on overdose-reversal drugs, medication-assisted treatment, and best policies for decreasing the number of people addicted to opioids. Sometimes, the “very basic things that could go a long way to accessing treatment and maintaining recovery” are forgotten. It is difficult for low-income patients to successfully recover if they don’t have basic necessities, such as housing, education, childcare, employment, or transportation, or if they face significant legal barriers to obtaining these necessities. Fulfilling these basic needs can be daunting on one’s own, and it is an area where pro bono attorneys can make a vast difference in someone’s life. There is an opportunity to suit the interests and talents of every pro bono lawyer.

Hat tip to PBI intern Arlyn Upshaw for her help with this post.

A Conversation with Annie Helms – Rolling Meadows Domestic Violence Help Desk

In 2016, the Rolling Meadows Help Desk was created when a group of lawyers at Allstate**, Discover**, DLA Piper*†, and Illinois Tool Works united to help a local nonprofit organization, Between Friends, assist domestic violence survivors at the Rolling Meadows Courthouse. The courthouse is located 25 miles outside Chicago in suburban Cook County, Illinois.  With the expert training and support of LAF, lawyers from each of the partner organizations regularly staff four-hour shifts in the Between Friends office, helping victims fill out paperwork, explaining the court process, and ensuring that no survivor goes through the process of obtaining a protective order alone.

In honor of Domestic Violence Awareness Month, we spoke to Annie Geraghty Helms of DLA Piper about the program.

Why did the firm choose to focus on domestic violence?

AGH: Initally, we started exploring opportunities for lawyers who lived and worked in the suburbs to do pro bono work. What we heard in the community was that there was a real need in the courthouse to assist domestic violence survivors. When I presented the idea to the companies, they were enthusiastic right off the bat! They absolutely wanted to focus on domestic violence and to assist at the courthouse.

Why is this program meaningful?

AGH: When you volunteer at the Help Desk, it is hard not to be struck by how vast the problem of domestic violence is. It touches so many people, and it looks similar across different socioeconomic, race, and language dividers. Domestic violence exists everywhere. To be able to do something meaningful to help people pull themselves out of it is very gratifying. I think the help we can offer at the desk by volunteering for a few hours is tangible and real.

Since the program began, have there been any lessons learned?

AGH: Yes. When the help desk started, the job of the volunteer was to sit down with the domestic violence survivor, help her with the paperwork to get a protective order, and help get that paperwork filed with the clerk and sheriff. We were helping people for an hour or so and then sending them off to attend an emergency hearing on their motion for a protective order on their own, which felt very strange. It felt like we were cutting the assistance off in the middle.

Eventually, it was the judges in the domestic violence courthouse who suggested a change. They indicated that they could tell lawyers were involved in preparing the petitions because they were very well done. But they wondered why they had not seen any of the lawyers in the courtroom. We agreed that it would be helpful for the petitioners and lawyers alike if the volunteers accompanied survivors to court for their emergency motions. Although the volunteers are not able to stand up in court because that would mean filing an appearance and remaining with the case longer term, they do now sit down in the courtroom with the survivor and wait with them until their case is called. We then refer the survivor to Between Friends for further services so they are not left on their own after the hearing. This has made a difference on several fronts. It’s not only better for the survivor, who now has a steady presence there with her in court, but also for our volunteers, because they understand more about the court process and because they will know if the petition for an emergency protective order is granted.

The other way in which having a lawyer makes a difference is that, rather than having the survivor stand up in court and relate the details of her personal life, the judge generally just reads the narrative that our volunteers prepare with the petition. This narrative already includes details that the court needs in order to grant the petition, and it saves the survivor the pain of retelling her story.

Are there any special sensitives or trainings required for volunteers who are helping people who have experienced trauma?

AGH: We have a full training that is about three and half hours long. It goes through the nuts and bolts of domestic violence law. It also includes some information about the cycle of violence and some things that you might see that are a little bit unusual because of the abuse. For example, domestic violence survivors sometimes have become so habituated to a situation that they believe their relationship is normal. So, when asked about abuse, a client may not provide details about the abuse that might appear very significant to anyone else. Sometimes, this can make it seem that the survivor is scattered or not being forthcoming. Knowing that, to the survivors, these details are so normal they do not stand out helps us as volunteers to do a better job of listening without judgment and of drawing out the facts necessary in order to prepare a solid petition. This understanding of behaviors that may not feel logical is covered in the training, alongside the nuts and bolts of the law.

Thank you to Annie for sharing her time with us and for all the meaningful work she and her colleagues have done and continue to do at the Rolling Meadows Domestic Violence Help Desk.

If you would like to hear more about the Help Desk, tune into Annie’s episode of the Pro Bono Happy Hour podcast.  Additional domestic violence experts have been featured on the podcast:

• Amy Barasch, Her Justice
• That’s Not Love featuring Spencer Cantrell, Jewish Coalition Against Domestic Abuse

If you are interested in learning more about the pro bono opportunities available and how to get involved, check out our recent webinar, Assisting Survivors of Domestic Violence.

* denotes a Law Firm Pro Bono Challenge^® signatory

** denotes a Corporate Pro Bono Challenge^® signatory

† denotes a Law Firm Pro Bono Project^® member

Pro Bono and the Death of the Billable Hour

How should we treat our pro bono hours? Traditionally, as an incentive and motivator for attorneys to participate in pro bono, the gold standard was for law firms to treat time spent on pro bono matters the same as time spent on billable matters. At firms with billable hour requirements, pro bono matters would count towards reaching hourly goals. However, we have recently seen a trend of firms of moving away from the billable hour as a tool to evaluate performance of attorneys by either minimizing their importance or doing away with billable hours altogether. For firms that are distancing themselves from this traditional practice, what other ways are there to engage and encourage their attorneys to do pro bono work?

Firm Culture and Messaging

Reaffirming the firm’s commitment and dedication to pro bono is a meaningful tool to engage attorneys. In addition to writing and speaking about the importance of pro bono and access to justice, it is critical that firm leaders visibly participate in pro bono in order to set an example and be positive role models.

Goals and Benchmarks

Firms should consider including pro bono participation in their professional milestones and benchmarks, especially as they transition from billable hours. Attorneys may find it difficult to adapt to more abstract evaluation methods when they can no longer quantify performance with objective means, such as billable hours. Requiring attorneys to set a pro bono goal to work towards provides a clear, concrete, and achievable aspiration. In addition, when attorneys are self-identifying performance areas for improvement, pro bono may be able to strategically fill identified gaps and help develop targeted skills and core competencies.

Supervision and Reviews

Attorney evaluations and reviews are critical measures of performance beyond objective hour requirements. Rigorous and constructive feedback ensures a high-quality work product while presenting opportunities for attorneys to receive credit and recognition for their work. Additionally, attorneys can evaluate their own performance based on the constructive comments they receive. Consider using pro bono professional staff and other pro bono leaders in the review process if they have knowledge of the attorney’s work. Self-evaluations should include questions about pro bono as well. These tactics allow attorneys to think deeply about their own performance, including their pro bono involvement, and how they are measuring up.

Metrics

There are alternative methods for quantifying pro bono work beyond using billable hours as a measuring tool. Rather than counting hours, firms could set a record number of pro bono matters or encourage attorneys to devote a certain percentage of their time to pro bono. Law Firm Pro Bono Challenge ® signatories commit to contribute either 3 or 5 percent of their billable time to pro bono work. By joining the Challenge, your firm can institutionalize its firm-wide commitment to providing pro bono legal services to low-income and disadvantaged individuals and the organizations that serve them.  To learn how your firm can become a leader in law firm pro bono, please contact us.

The Law Firm Pro Bono Project is available to provided tailored assistance to firms in addressing these and other questions related to law firm pro bono. Please contact Elysse DeRita to schedule a confidential consultation or if you have any questions.

*Hat tip to PBI intern Madeline Jenks for her assistance with this post.

When Skills Meet Needs

A recent Stanford University-led study found that a majority of adults over the age of 50 highly value “prosocial” behaviors, actions that are positive, caring, helpful and of benefit to others. The study also found that one third of older adults exhibit a need for a purpose that is beyond themselves. This one-third equates to more than 34 million people who dedicate their time to addressing the needs of others and making the world a better place. As a benefit, those who engage in prosocial behaviors reported a more positive outlook on life and positive effects on health.

Like the Stanford’s study, Pro Bono Institute perceived the need arising for boomers to get involved in prosocial activity. Pro bono work would address unmet needs for legal representation and also be personally fulfilling and meaningful to late-career attorneys. Law firms are particularly appropriate structural allies for facilitating their experienced lawyers’ participation as they step down from full-time firm responsibilities to expanded pro bono activities, either as continuing members of the firm or as firm-supported alumni working primarily with legal services organizations.

In 2005, the Pro Bono Institute launched our Second Acts® project, an innovative initiative, in partnership with our core constituencies of major law firms, in-house legal departments, and public interest organizations, to support transitioning and retired lawyers who are interested in second volunteer careers in public interest law. Late-career attorneys have a wealth of skills, knowledge, and experience that, when utilized, can have a sizable impact on economic and social justice. Helping firms to create transition pathways and policies that fit within their institutional culture can have a variety of benefits, including improving the firm’s overall pro bono program; enhancing loyalty and firm reputation both internally and externally; offering increased mentoring, supervision, and training for junior attorneys; and providing a mechanism for balancing staffing levels and minimizing disruptions. Recently, we updated our original research about how firm’s incentivize their late-career attorneys to do pro bono work. We found that since our 2006 research, the number of firms reporting having Second Acts program® has doubled. These firms reported making a wide-range of support available to senior/transitioning attorneys to perform pro bono work.

Additionally, we found that over half of the respondents from firms without Second Acts® programs are interested in implementing such an initiative. Fifty-six percent of firms without programs indicated that such a program would increase overall pro bono performance, hours, and impact.

We recently published a tool kit, It’s Never Too Late: Boomer Lawyers and Law Firm Pro Bono, which is intended to provide general background, guidance, and inspiration. In addition to an infographic detailing our survey results, the toolkit includes the following resources:

• Models for Participation and Practical Considerations
• Model Policy for a Law Firm Second Acts® Program
• Model Proposal to Firm Management for a Second Acts® Program

With adequate training and support, late-career lawyers would not only bring a major increase in pro bono capacity, but also expertise, leadership, moral support, and new perspectives that would be of great benefit. The Law Firm Pro Bono Project is available to provide tailored assistance to firms in addressing these and other questions related to Second Acts® and late-career lawyers. Please contact Elysse DeRita to schedule a confidential consultation or if you have any questions.

Has your firm or organization implemented a Second Acts® initiative to engage transitioning and retired attorneys in meaningful pro bono work? Leave a comment to share your experience.

The Numbers Are In!

The Law Firm Pro Bono Project recently published its Report on the Law Firm Pro Bono Challenge® which found that 129 firms collectively demonstrated increased totals in pro bono hours, average hours per attorney, average pro bono percentage, and attorney participation rates. In 2017, signatories reported performing 4,988,525 hours or pro bono work, the largest annual amount since the inception of the Challenge Report in 1995. The annual Report examines the pro bono activities of signatories to the Challenge which serves as a unique and inspirational standard for law firms. In a time when threats to the rule of the law, uncertainty, disruption, and outrage are prevailing sentiments, these statistics represent the notable and meaningful efforts by signatories to promote access to justice.

Meeting the Goal

In 2017, a majority of firms met or surpassed their challenge goals. Sixty-four percent of firms either performed the same amount or increased their pro bono hours from 2016 compared to 56 percent of firms who performed the same amount or increased hours in 2016. Thirty-one firms (24 percent) reported significant expansion (in excess of 20 percent from 2016) in 2017, demonstrating that major growth is feasible.

The Essence of Pro Bono

The Challenge asks firms to devote a majority of their pro bono time “to persons of limited means or to charitable, religious, civic, community, governmental, and educational organizations in matters which are designed primarily to address the needs of persons limited means” (Principal 3). In 2017, 68 percent of all pro bono time was devoted to those of limited means and the organizations that serve them. This marked the fourth straight year in which the percentage of time devoted to those with limited means met or exceeded 65 percent.

Partners versus Associates

Challenge signatories acknowledge their institutional, firm-wide commitment to provide pro bono legal services. They agree that they “will use [their] best efforts to ensure that a majority of both partners and associates in the firm participate annually in pro bono activities.” Participation rates in 2017 slightly increased for both partners and associates: 68 percent of partners and 86 percent of associates participated in pro bono, with an overall attorney participation rate of 77%.

Does Size Matter?

Law Firm Pro Bono again analyzed pro bono statistics by firm size this year. Firms with headcounts of more than 1000 attorneys reported the highest pro bono percentage (4.65 percent). However, firms of all sizes reported an increased pro bono percentage on average over the previous year. Pro bono hours per attorney and attorney participation rates by firm size was also analyzed. Firms with headcounts of more than 1000 attorneys also reported the highest average pro bono hours per attorney by firm size and attorney participation rates by firm. It is important to note that firms in all size categories reported statistically similar data.

We are thankful to all signatories, for their commitment and support of the Challenge. To learn more about the state of law firm pro bono, check out the complete Challenge Report, including analysis of the data, detailed graphs, and more. If your firm of 50 or more lawyers would like to join the Challenge and become visible pro bono leaders, please contact Law Firm Pro Bono Project Assistant Elysse DeRita.

Pro Bono at the Border and Beyond

Lawyers are stepping up to meet a need once again, as the pro bono community has been mobilizing on the behalf of those in DHS custody along the border. There has been an amazing response by pro bono lawyers to address issues from family detention to reunification, arising from the separation of families at the United States’ borders. PBI reached out to Ellyn Josef of Vinson & Elkins*† and Karen Grisez of Fried, Frank, Harris, Shriver & Jacobson*† to discuss their work at the border and beyond and how others can get involved.

Where and what is the greatest need?

KG: The greatest need for direct service right now is near the border at the places families are being apprehended and detained. Right now, those are the Karnes and Dilley detention facilities. Both are near San Antonio and are holding families detained together, as well as some women whose children have been taken away from them and put into ORR (Office of Refugee Resettlement) custody.

There is also a need for representation of separated children in their own cases. Many of those children have been moved to other parts of the country. Some of the moms have already been deported and the goal may be reunification with them. Spanish speakers are particularly needed for these cases.

There are other needs for systemic litigation as well as policy work, developing country conditions materials, expert declarations, etc. It is expected that remote work in support of the direct representation teams on the ground will also be needed soon.

EJ: We are deep in the organizing and piloting right now, and things are really in flux. Even where the most need is changes by the day. Right now, I think the great need is going to be in Credible Fear Interview (CFI) prep, bond hearings, and asylum.  It looks like we will be back to long family detention, like in the early days of Karnes and Dilley, so bond hearings and asylum all over the country will be very important.

I’m not licensed in or located in Texas, how can I help?

KG: Not being licensed in Texas isn’t a problem to volunteer there. Representation in immigration matters requires only being admitted to the bar of the highest court of any state or D.C. It is a federal system so you don’t need to be admitted in the local jurisdiction.

Note: All types of opportunities are available for work in this space.

I’m not an immigration lawyer, is there anything I can do?

KG: Trainings are being put together now in jurisdictions all over the country to help equip lawyers not experienced in this subject matter. You are WAY BETTER than a pro se person and can definitely learn enough to make a difference. One Justice is putting together a website with all these trainings listed and APBCO members are sharing info at the local levels too.

EJ: There is a training on  in Austin that will be livestreamed and recorded on CFI and bond hearings that we are sharing far and wide, so we will have a cadre of lawyers ready to go.  I would encourage people to find trainings on bond and asylum.

Thank you to Ellen and Karen for taking the time to speak with us on this important issue. If you are looking to get involved, there are many resources available , such as:

• AILA
• Kids in Need of Defense
• RAICES
• Immigration Justice Campaign

Have you been volunteering in this space? Do you have a recommendation on how to get involved? Leave us a comment!

^* denotes a Law Firm Pro Bono Challenge^® signatory

^† denotes a Law Firm Pro Bono Project^® member

Salary Wars and Law Firm Pro Bono

Here we go again.  In early June, Milbank, Tweed, Hadley & McCloy*† announced that it was increasing starting salaries to $190,000.  (Law firms made significant changes to the associate compensation scale in 2007, just prior to the Great Recession, and in 1999, in advance of the dot-com crash.)  Predictably, Milbank’s move triggered similar raises with firms announcing matching (or more generous) compensation scales, even raising the salaries for their summer associates who just arrived from law schools.  This pattern may continue, as “salary wars” are once again being waged at major law firms across the United States.

As of now, decisions about compensation are still pending at many firms.  Whatever action law firms take, it is critically important that they preserve and protect their commitment to pro bono.

Especially during the first round of the salary escalation in 1999-2000, firm practices with respect to pro bono varied widely.  The size of the salary increases (and of the corresponding increases in compensation for other lawyers), the speed with which firms adopted new associate compensation, the large number of firms that matched that standard, the profound changes in the structure of associate compensation that evolved from the salary increases, and the actions that firms took to accommodate the unplanned additional costs resulting from the domino effect of the salary increases impacted all aspects of  law firm economics and practice for years thereafter, and, to some degree, we are still experiencing those effects.

We have lessons learned to draw on to ensure that the financial and psychological aspects of salary escalations do not negatively impact the pro bono culture and performance that so many firms have worked diligently to develop.

The Pressure to Bill More Hours

In response to the news articles regarding higher associate compensation levels, a number of sources have both predicted and documented that corporate clients will strongly resist higher billing rates for new lawyers.  The higher salaries – and the additional financial burdens they place on law firms – are likely to create pressure to bill more hours.  As billable hour targets have increased and hardened over the past decade, the treatment of time spent on firm-approved pro bono matters vis-à-vis time spent on work for paying clients has become a critical issue.  Even in those firms that have indicated that they are not increasing billable hour requirements despite associate salary increases, the unspoken message – if not clearly, strongly, and repeatedly rebutted in policy and in practice – may be that pro bono time is simply not on a par with work done for paying clients.   Accordingly, the Pro Bono Institute’s Law Firm Pro Bono Challenge^®, adopted by many major law firms and used as an industry standard, specifically requires that each signatory “ensure that the firm’s policies with respect to evaluation, advancement, productivity, and compensation of its attorneys are compatible with the firm’s strong commitment to encourage and support substantial pro bono participation by all attorneys” (Principle 5(b)).

Lessons Learned:   Allaying Associate Concerns and Preserving a Strong Pro

Bono Culture

This month’s associate salary increases do not necessarily constitute a sharp break with previous law firm policies and practices.  Indeed, in many respects, the salary adjustments are a continuation of changes that have already taken place at many large law firms. And, in the interim since the first round of salary escalations of 1999-2000, the pro bono culture and infrastructure at many large law firms has been significantly strengthened.  There is greater awareness of the importance of pro bono and its benefits to the firm, its lawyers, and the community and pro bono clients.

Nevertheless, the recent increases have prompted concerns about the manner in which big firms operate and the potential impact of the increases on the pro bono culture of law firms and the willingness of associates to participate in pro bono work.  Because perception can be as powerful as reality, it is essential that top firm leadership address the issue of pro bono in the context of these salary increases, unequivocally reconfirm their personal and institutional commitments to pro bono practice, and assess and reconfigure the firm’s pro bono efforts to maximize their impact.  Firms that have not yet joined the Law Firm Pro Bono Challenge® initiative should do so now to make their commitment as clear and public as possible.  Firms may want to review, and, if necessary, revamp their pro bono policies to make their commitment to pro bono explicit and understood.

Law firms that have raised associate salaries and/or increased or hardened billable hour benchmarks cannot and should not remain silent on the subject of pro bono.  Associates, who will benefit from the salary increases, understand that their productivity will be highly scrutinized.  Partners, who, consciously or unconsciously, may resent or question the new salary levels, may be more likely to send negative messages to associates about pro bono.  Even at major law firms with the strongest pro bono cultures, lawyers will often draw unwarranted conclusions in the absence of clear messaging and reaffirmation of support for pro bono.

Firms that already provide parity for time spent on pro bono work – the vast majority of law firms with which we work – should reaffirm that parity.  Even if they have not provided parity in the past for pro bono time, firms should now commit to providing billable hour benchmark parity for pro bono work to signal their support at this pivotal time.  Providing parity, as many firms have discovered and documented, does not negatively impact financial performance; rather, it ensures robust and effective pro bono participation.

In addition to announcing or reconfirming pro bono parity, firms should ensure that their procedures and actions are consistent with the policy.  Including pro bono work in strategic plans, business plans, self-assessments, and evaluations and specifically requiring every lawyer (at every level of seniority) to review her or his pro bono performance reinforces the firm’s message.

Compensation changes may accelerate the changes in staffing models already underway at many firms.  Associates are not the only attorneys creating value: staff attorneys, managing attorneys, discovery attorneys, and project managers all provide valuable services, often at lower cost.  The rising costs of associates will place added pressure on firms to revisit current staffing levels and models. Firm pro bono policies and practices need to keep pace to ensure that they address current firm demographics and categories of attorney personnel to promote maximum pro bono involvement and inclusiveness.

While firm leaders undoubtedly feel pressure to ensure profitability despite the amplified financial obligations resulting from these salary increases, the most important lesson from the earlier rounds of salary wars is that under no circumstances should firms retreat from their commitment to pro bono and their policy of giving generous credit for pro bono work.  Firms that backed away from their pro bono commitments found that they paid for that misstep – with negative publicity, sharply diminished pro bono hours, and lower associate and partner morale and rankings.  Many admit regretting that decision and subsequently changed course.  The performance and reputational damage, however, lingered.

Firms that increase starting associate salaries to the $190,000 level (or the commensurate increased level in their communities) are keeping pace with their competitors and the market.  They are not gaining a competitive advantage.  Experience and academic research indicate that, particularly for this generation of associates, commitment to pro bono service can be a critical differentiator and a vitally important recruitment tool.   Downgrading pro bono in this highly competitive environment would be a mistake.

Firms and markets that elect not to follow the trend of increasing associate salaries may avoid the resulting financial pressures, but they will face the question of how they can continue to compete for the best and the brightest recruits despite their lower salaries.  Quality of life and work issues – flexibility; autonomy; inclusion; training, mentoring, leadership, and professional development opportunities; interesting work; and, yes, pro bono – have been demonstrated to be the most compelling qualities that new lawyers seek.  Firms that opt out of the salary escalation should particularly highlight their continuing and strengthened pro bono commitment as a competitive advantage.

To be sure, the most recent round of associate salary increases may be cause for concern for pro bono champions.  However, they also offer the opportunity for firms to recommit to pro bono and to rethink and reshape programs, refocus firm leadership’s attention on pro bono, develop new approaches that address structural problems related to pro bono administration and increase efficiencies, and, ultimately, strengthen pro bono and the impact that our work can have on our communities and our pro bono clients.  After the dust has settled, in order to attract and retain the best legal talent law firms must differentiate themselves from their competitors.  Pro bono offers a meaningful vehicle to demonstrate a firm’s core values: commitment to its attorneys, its community, access to justice, and the highest ideals of the legal profession.

As with all other aspects of law firm pro bono practice and administration, the Pro Bono Institute’s Law Firm Pro Bono Project is available to provide assistance to firms addressing the new challenges to pro bono presented by rising associate salaries.

^* denotes a Law Firm Pro Bono Challenge^® signatory

^† denotes a Law Firm Pro Bono Project^® member

Pro Bono Summer Reading

Summer is finally here! No, it’s not technically yet, but it feels like it should be! There is no time like the present to get your summer reading in order and we have recommendations for you. This summer, we are focusing our suggestions on criminal justice reform and its many issues, including mass incarceration, racial disparity in prosecuting and sentencing, and the criminalization of poverty. PBI has been directly involved in criminal justice reform efforts through our Minnesota Collaborative Justice Project. The Project involves stakeholders from more than 25 organizations working together to reduce recidivism and dramatically improve the experiences and outcomes of formerly incarcerated men and women to enable them to lead full and productive lives.

In 2015, we highlighted Just Mercy: A Story of Justice and Redemption, a memoir by Bryan Stevenson about his career reforming America’s justice system and helping to free the wrongly convicted. One such case that Stevenson worked on was the wrongful conviction of Anthony Ray Hinton.  In 1985, Hinton was convicted of capital murder and sentenced to death row. He maintained his innocence while burdened with the lack of resources for adequate representation and served 30 years on death row until his exoneration and release in 2015. Earlier this year, Hinton published his memoir, The Sun Does Shine: How I Found Life and Freedom on Death Row, detailing his resilience and hope during his time in prison and his journey to freedom. As Stevenson notes: “No one I have represented has inspired me more than Anthony Ray Hinton and I believe his compelling and unique story will similarly inspire our nation and readers all over the world.”

The United States imprisons more of its residents than any other country, which has led to overcrowding and the growth of for-profit prisons. Mass incarceration has been exacerbated by the country’s “tough on crime” policies that originated almost 50 years ago and continue today.  To dive deeper into these issues, check out Locking Up Our Own: Crime and Punishment in Black America by James Forman, Jr. Through his research and personal experience as a public defender in Washington, D.C., Forman documents the war on crime, which originated in the 1970s and was supported by many officials and influential leaders in the African-American community.  Forman writes movingly about people trapped in terrible circumstances – from the men and women represented to officials responding to sky-high crime rates. His work enriches our understanding of the rise of mass incarceration and its disproportionate impact on people and communities of color.

Friend of PBI Lauren-Brooke Eisen, of the Brennan Center’s Justice Program at NYU School of Law, also explores the issue of mass incarceration and for-profit prisons in her book, Inside Private Prisons: An American Dilemma in the Age of Mass Incarceration.  Eisen focuses on the role that private prisons play through the lenses of inmates and their families, prison employees, law enforcement officials, and more, while weaving in historical perspective and quantitative information. Private prisons make billions of dollars, create infrastructure, and provide jobs in otherwise rural communities. In the past two decades, the profits from private prisons have increased more than 500 percent.  While private prisons are not going away, Eisen aims to answer the question of how do we improve them? Interested in learning even more about issues related to private prisons and “poverty penalties? Check out our webinar, Ferguson, Fines, and Fees, which explores the costs associated with being a low-income offender and the fees that fund the criminal justice system. The webinar is available on demand—so you can listen to it anywhere—even on the beach!

If you need to get out of the sun for an afternoon to bask in some air conditioning, we also have two movie recommendations to help you beat the heat this summer. Don’t miss the classic and Academy Award-nominated The Shawshank Redemption. The tale explores prison life, and the challenges of reentry. Also, be sure to check out Ava DuVernay’s Academy Award-nominated Netflix documentary, 13TH. DuVernay mixes interviews and video footage to document how structural racism within the criminal justice system has done –and continues to do –profound damage to communities of color.

If you make it through these recommendations, you can also check out some of our past favorite pro bono related reads, such as the Pulitzer Prize-winning Evicted by Matthew Desmond. As all of these books and movies demonstrate, there are a wide variety of opportunities for pro bono lawyers to get involved and make a meaningful difference – from individual representation to impact litigation to policy advocacy and legislative reform. We hope you’ll be inspired to get involved.

Loaned Lawyers: A Win-Win-Win

Want to make a meaningful difference and improve access to justice? Looking for new ideas for professional development? Are you interested in new pro bono opportunities? A rotation or externship program may be the solution.

Also known as secondments, an externship or rotation is when a law firm “loans” a lawyer to an outside organization. The attorney will typically work in a legal services, public interest, government, or other host organization full-time while still employed at their law firm. On the Pro Bono Happy Hour, we spoke with Amy Barasch, Susie Hoffman, and Becca Naylor about how loaned lawyer programs are a win-win-win for lawyers, law firms, host organizations, and clients.

TRIVIA QUESTION: What pro bono leader participated in such a program as a law firm associate? Keep reading to find out!

A significant upside of loaned lawyer programs is the support that they give to host organizations. One such organization is Her Justice, a nonprofit that provides legal services to women living in poverty in New York City. Her Justice has benefitted from externship programs and works with four law firms that loan associates to them. Executive Director Amy Barasch, spoke to us about working at the organization and how the extra help provided by externships is “terrific for us [Her Justice] to expand our capacity” and  the lawyers get a chance to develop “skills that any lawyer needs to have.”

For example, Amy shared the story of Alice M., who came to Her Justice for assistance with a divorce from her abusive husband.  She was represented by a staff attorney and an extern from Fried, Frank, Harris, Shriver & Jacobson*+, who obtained a significant, precedent-setting victory.  New York State Supreme Court Justice Jeffrey Sunshine ruled that a man serving 40 years in state prison for raping Alice was not entitled to share her pension or any other marital asset in their divorce.

From the firm’s perspective, these programs are uniquely beneficial as skills training and professional development vehicles for young attorneys. Susie Hoffman of Crowell & Moring* noted that externships were an opportunity for investment in professional development. Her firm utilizes its loaned lawyer program to “help legal aid extend their resources” and to give “our attorneys great training, on your feet experience, and case management.”

London based Becca Naylor of Reed Smith*† spoke about how secondments, such as the one she participated in at Liberty, are a great tool for recruitment:

It shows how seriously the firm takes the pro bono commitment. That we not only do pro bono work for [the organization’s] clients. That we’re willing to lend them one of our lawyers for a period of time in order to further help and develop the work that they are doing.

These programs have the potential to provide numerous additional benefits, including developing and strengthening relationships between law firms and host organizations, expanded new pro bono opportunities and expertise when the lawyer returns to the firm, while increasing dramatically the firm’s overall pro bono hours.

Want to hear more about real life experiences working with these programs? Check out our podcast, the Pro Bono Happy Hour, to hear firsthand accounts from Amy, Becca, and Susie as they discuss their experiences with externship programs and more.

TRIVIA ANSWER: PBI’s President and CEO, Eve Runyon participated in a seven-month externship program with the Legal Aid Society of the District of Columbia during her time at Skadden, Arps, Slate, Meagher & Flom*†.

* denotes a Law Firm Pro Bono Challenge^® signatory

† denotes a Law Firm Pro Bono Project^® member

It’s Pro Bono Podcast Monday: A Conversation with Kate Nolen

This week on the Law Firm Pro Bono Project’s Pro Bono Happy Hour podcast, we talk with Kate Nolen of Lathrop Gage^†. A die-hard fan of Mizzou, which she attended for undergrad and law school, Kate was introduced to pro bono through her sorority volunteer program with CASA (Court Appointed Special Advocates). She also participated in domestic violence and housing clinics while a law student.

Kate went on to work for CASA in Kansas City and saw first-hand how under resourced public service organizations can be. In response and in addition to her regular duties, she started recruiting volunteer attorneys to work pro bono at CASA. Luckily the access to justice culture in Kansas City is thriving and Kate found a supportive and “incredibly collaborative” community. She took a pro bono leadership position at Lathrop Gage, which she sees as a continuation of her attorney recruitment efforts at CASA – this time working from the law firm side.

Attorneys at Lathrop Gage, a 145-year-old firm, are passionate about many pro bono areas of need and recently have deepened their commitment to timely issues like immigration and civil rights.  Kate observed that when recruiting law students to join the firm, she has heard a lot of questions about pro bono. Students these days are asking questions that are substantial and going beyond simply: “does the firm do pro bono?”

In this episode, we introduce a new segment, which we are calling “Pro Bono in the News.”  Our current event is an opinion column by Nick Kristoff that was published in The New York Times, Is the Business World All About Greed?  Spoiler alert:  No!  And, law firms are leading the way, through pro bono, as forces for good.

Take 40 minutes to listen to Kate’s story about transitioning from the public interest sector into the law firm world.

Subscribe to the Pro Bono Happy Hour on Apple Podcasts and be sure to leave a review! We’d appreciate the feedback and it would help make it easier for other listeners to find the show. The podcast is also available on YouTube. Links to all of our episodes can be found here.

Listen and let us know what you think. Send your comments, thoughts, feedback, questions, and suggestions to probono@probonoinst.org. Be warned: we might just read them on the air when we return from our hiatus.

† denotes a Law Firm Pro Bono Project^® member