Supplemental Analysis and Summary of Recommendations of Pro Bono and Legal Aid Committee Following Survey on Market Incentives and Pro Bono Work

June 18, 2001

Since the original analysis of the survey results on market incentives and pro bono work, we have received 15 additional questionnaires. These have come from various sources, including delegates at WSBA CLEs, and from meetings attended by members of the PBLAC. These survey results are analyzed below. The questionnaires included several responses from attorneys in large firms (which were lacking from the original responses), and we have therefore been able to obtain useful insight into attorneys working in that environment.

Thirteen of those who responded confirmed the size of their law firm. Seven were from large law firms with over 100 attorneys nationwide. Five were sole practitioners.

Those who responded from the larger law firms came from firms that had a pro bono policy. Responses were received from five different firms. Two of the five firms referenced counted pro bono hours towards their attorney billable hour requirement. One firm counted such hours towards bonuses, and another, while permitting attorneys to do pro bono work, still had a separate billable hour requirement. It appeared from the responses, however, that, even in those firms that counted pro bono hours towards the hourly requirement, pro bono hours were still not viewed in the same light as billable hours when it came to advancement and partnership.

One of the larger firms had a full-time "public service attorney." It was this attorney who apparently responded to the survey. He/she advocated the installation of similarly situated attorneys in other large firms to coordinate the firms pro bono efforts and to find opportunities and facilitate pro bono work by other attorneys in the firm (in addition, presumably, to engaging in pro bono work himself or herself). Presumably, such an individual could also "encourage" adherence to the firm's pro bono policy by all attorneys and/or shoulder the responsibility for providing a proportion of the firm's targeted pro bono hours.

This idea is clearly less of an option in smaller firms which may not be able to commit to a full-time pro bono attorney. However, in medium-sized firms, with the right incentives, it may be that firms could be encouraged to employ attorneys specifically with a view to allocating a percentage of their time to pro bono work and coordinating pro bono efforts within the firm. It may be that "encouragement" for firms to engage pro bono attorneys could come through some of the various incentives that have been discussed, such as B&O tax breaks, reduction in Bar membership dues, or free CLEs.

One disincentive mentioned by those in larger firms is that often pro bono work is in areas outside the "corporate attorney's" field of expertise (this was also a problem mentioned by attorneys in smaller firms). One attorney in a large firm indicated that he spent a lot of time looking for opportunities to do non-litigation "transactional-type" pro bono work, which was not generally found through the traditional pro bono channels. That attorney now does pro bono work for nonprofits, including drafting leases, etc. He encouraged the traditional pro bono organizations to look for more opportunities in these fields. However, in other cases, some attorneys felt that because of their unfamiliarity with the law in certain areas of pro bono practice they were unable to offer a "gold service" to clients and, as a result, the attorney was dissatisfied with the pro bono experience and reluctant to repeat it. There are two possible solutions to this. One solution, suggested by a couple of attorneys, was to have a mentoring program. This would give the pro bono attorneys someone to turn to at least for those first few cases in a new area of practice. Presumably, this would often have to be provided by an attorney in a different law firm. It may also allow for the "mentor" to fulfill a pro bono service without having to commit to the actual day-to-day handling of the case. This may be attractive to more experienced/senior attorneys with heavy case loads.

Another solution would be to have practice guides in areas of pro bono law, essentially a step-by-step manual, pro forma documents, checklists and contact numbers. This information could be provided in conjunction with CLEs in specific practice areas (this may have already been done).

Time constraints were noted to be a major disincentive by many who responded to the survey. The easier we can make the process the more likely it will be that attorneys would do more pro bono work.

Student loans remain a hugely popular incentive to doing more pro bono work (although one attorney in one of the larger firms indicated that this would be of limited interest to those who trained outside Washington State). In both surveys, this has been by far the most wholeheartedly supported incentive (this may raise the question whether it is younger or newer attorneys who are more inclined to respond to the survey or more inclined to do pro bono work).

One attorney, who is not currently practicing, would like to do more pro bono work but is not inclined to do so because of the issues relating to malpractice insurance. This may be something that should be given further consideration. There is a potential army of pro bono attorneys who could be prevailed upon to do some pro bono work if they had some malpractice protection. These may include attorneys who have passed the bar but have not yet secured a position, those who have taken a career break (for example, for family reasons) and retired attorneys. These individuals may have the benefit of time but be in need of malpractice coverage, a mentor, and office access.

B&O tax breaks were considered to be an incentive by 11 of the 15 individuals who responded to the most recent survey. Those suggestions that were not generally considered to be a major incentive were the referral of paid cases in return for a number of pro bono hours and public recognition (although this is appreciated). The availability of brief banks or allocation of pro bono work on a task rather than case basis, had mixed reviews. As one attorney indicated, it is the standard forms and "what to file" that is often needed rather than legal briefings. Summary and Recommendations

From the results of the two parts of the survey reported, the PBLAC may want to consider pursuing further the following possibilities as "incentives" to encouraging attorneys to do more pro bono work.

1. Student loan rebates in return for a certain number of pro bono hours.

2. B&O tax breaks (although this may raise potential difficulties in terms of how pro bono work should be defined and monitored).

3. To encourage larger and medium-sized firms to employ a full- or part-time "public service attorney" to provide some of the firm's targeted pro bono hours and encourage and coordinate pro bono efforts within the firm. Maybe the WSBA could consider offering a "pro bono coordinator training" to make such attorneys aware of the opportunities available for pro bono work.

4. Such a "push" to encourage employment of public service attorneys, could perhaps be offered in conjunction with another incentive such as, free CLEs, reduction in Bar dues, B&O tax breaks, or even in conjunction with a publicity push on the recent rule change re CLE allocation for mentoring.

5. Consider further setting up programs for mentoring, malpractice insurance and use of office space in conjunction with a "push" to have attorneys not currently in active employment to do more pro bono work.

6. If it has not already been done, to consider drafting "user guides" (possibly in conjunction with CLEs) in areas of practice where pro bono attorneys are needed. Such practice guides could include checklists, frequently asked questions, pro forma documents, what to file, and possibly even legal briefings on relevant legal points.

7. Continue to recognize people for their pro bono efforts. Although it is probably not an incentive, it is appreciated.

Jane Clark Pro Bono and Legal Aid Committee