By David A. Lash
Daily Journal/Forum Column
4/25/08

It was only a generation ago that legal services organizations had to hire "volunteers" to try eviction cases for indigent clients. Today that world has been turned upside down. Law firms instead are paying for the privilege of doing work for free. Yes, it is a sea change that has helped to fund legal aid offices serving the poor but it is also perhaps a short-sighted policy that ignores better alternatives.

The Wall Street Journal not long ago reported that some law firms have been willing to make large donations to public interest groups specifically in exchange for a pipeline into the most attractive pro bono referrals. As pro bono work becomes more a part of the business fabric of private law firms, the expediency of making donations in exchange for cases is simply a minor cost of doing business. And as public funding for legal services to the poor continues to become more tenuous and scarce with each passing governmental budget crisis, this new source of revenue can be a major boost to legal aid offices throughout the country. This anti-poverty version of "pay to play" seems then to be a win for everyone. Maybe.

The recently heightened awareness and importance of various nationally published law firm rankings illustrates what law firms have been learning for quite some time: A strong pro bono program is good business. It is an essential component of these rankings, as well as being critical to recruiting efforts, retention programs and diversity initiatives. Large commercial clients, concerned about the vibrancy of their communities, sometimes make their law firm hiring decisions based, at least in part, on a firm's pro bono commitment. Newspapers are apt to cover interesting pro bono cases, creating valuable public relations opportunities. And the right pro bono engagements help law firm associates develop their professional skills and give seasoned lawyers the chance to work on high-profile, high-impact cases, while engendering pride in the institutions for which they work. A lawyer's highest calling now is being acknowledged and elevated in ways that are intangible but also in ways that directly serve the bottom line, be that bottom line financial, professional or emotional.

With this emerging reality, it does not take much of a leap for law firms to see the value in making a charitable contribution that directly yields more and better pro bono opportunities. Competition for the best associates and the best pro bono engagements has given birth to a "pay to play" world that is almost hard to fathom. Paying for the opportunity to help the poor? Lesser miracles there may be, but even in a world of astonishment, this ranks in the pantheon.

And from the perspective of the legal aid agencies, this enhanced revenue flow is manna from heaven. Struggling on shoestring budgets, many legal services offices have found this a creative opportunity to raise additional, valuable funds by which to serve the poor. They also have found it a way to increase pro bono participation in ways that can directly and immeasurably increase services to the underclass.

But a more long-term view reveals a field of caution flags. Over time, the best pro bono work goes to those whose loyalties run deepest. Nice contributions go a long way towards that goal, but nothing builds relationships like true loyalty, and nothing builds true loyalty like actual hands-on service. In the end, it will be passion, not money, that leads volunteers to return, to represent more clients, to develop valuable expertise and to build dedication.

Passion comes in many forms, but when passion fuels dedication to a cause and to an organization serving that cause, service is the coin of the realm. The lawyers and law firms that do the everyday eviction cases earn their bona fides, build expertise and relationships, and are first in line to do the high-profile civil rights or slum housing cases. They are given that opportunity not because they bought it, but because they earned it. They want to do it not for glory but for serving a cause and client for which they have become deeply committed.

Competition for the best cases born of loyalty and dedication, rather than financial contributions, will, in the end, bring greater benefits to all. If law firms earn with sweat equity their place in the hearts of both clients and legal aid agencies, they will perform over time far more pro bono work than will firms whose financial contributions jump them to the front of the line. And while the immediacy of the funding brought by those paying to play is extremely attractive, experience tells us that law firms that build relationships, and lawyers who find heartfelt rewards in serving the poor, will almost certainly make financial contributions and will almost certainly do so for many years to come. Nothing opens checkbooks and keeps them open like an open heart, like loyalty and the passion that comes from actually serving a cause and a client.

And both law firms and legal services firms need to think about the impact on community pro bono practices if loyal, dedicated pro bono lawyers get passed over for the more desirable cases by someone who has simply made a large contribution. They need to consider the impact on clients if those who have earned their stripes and developed expertise are passed over because of financial concerns. Conversely, law firms that do work for poverty law agencies and use those cases to train their young lawyers garner publicity and increase their community profile must be cognizant of the value they are receiving. If they become free-riders, never providing financial support of any kind, they are hurting an overall community effort just as much as those who buy their way to the front of the line.

The social bottom line begins to emerge quite clearly. Pro bono legal work is a right, a privilege, an honor and a responsibility that only lawyers can enjoy. The best way to maximize it is to understand its virtues, to participate in its personal, professional and community rewards and to build a passion for the way our democratic court system can save lives and battle the injustices of poverty. Paying for that passion is one way, but earning it will build a better tomorrow.


David A. Lash is the managing counsel for pro bono and public interest services at O'Melveny & Myers.