The Uphill Challenge of In-House Pro Bono

Monday, September 28, 2015 - 16:42

Here’s the good news: Great things are happening today in pro bono. That’s especially true when it comes to corporate pro bono. In-house participation, in the form of unpaid legal services to meet unmet legal needs, is surging. Alas, so is demand. That’s the bad news.

More and more corporate law departments are heading down the trail blazed, some 35 years ago, by Aetna under the leadership of retired executive vice president and general counsel Stephen B. Middlebrook, the visionary behind the oldest corporate pro bono program in America. Aetna has been there, pushing and tugging, from the beginning.

Since 2000, so has Corporate Pro Bono. CPBO is the handiwork of another visionary, Esther Lardent, the founder of the Washington, D.C.-based Pro Bono Institute (PBI). Dubbed the “Queen of Pro Bono,” Lardent’s brainchild, the Pro Bono Challenge, may be responsible for more unbillable hours than all the AFAs of the Am Law 100 combined.

When she launched PBI, Lardent’s none-too-modest goal was to weave pro bono into the very cultural fabric of Big Law. That she has managed to do just that speaks volume about the impact one non-practicing lawyer with a vision and a passion to serve can have on the profession. To date, some 150 firms have signed the Pro Bono Challenge, pledging to devote significant time to those in need. That added up to more than 4 million total hours of pro bono last year alone.

Urged on by corporate legal chiefs, a few years later Lardent forged a partnership between the Association of Corporate Counsel and her Pro Bono Institute to launch a new organization devoted to promoting and supporting in-house pro bono. That’s CPBO. Since its launch, in-house lawyers have climbed aboard the pro bono bandwagon in droves as some 145 GCs pledged their best efforts to ensure at least half their lawyers would do pro bono work.

Former Arnold & Porter managing partner James J. Sandman, who now serves as president of the Legal Services Corporation, credits Lardent with having the clout to get clients involved in pro bono, and the savvy to know their involvement would draw even more outside counsel into the fold.

"It's a brilliant model," he says. "And it took Esther to pull it off.”

Eve Runyon, CPBO’s director, echoes the sentiment. “Since then, interest in in-house pro bono has flourished, and, with CPBO’s assistance, legal departments have found solutions to many of the challenges to in-house pro bono,” she says. “Now, hundreds of legal departments of all sizes and many ACC chapters are engaged in pro bono, with more and more launching pro bono programs.”

It’s an impressive tale, and an important one. The stats are stark. Since the Great Recession, need has exploded even as the congressional fist has tightened. Yes, many are fighting the good fight and, in plenty of cases, making progress, but the hill is steep.  

According to the Legal Services Corporation, which bites off as much as it can reasonably chew, its lawyers served nearly 2 million people in 2014 – for every eligible person who comes in the door and finds a lawyer, another is turned away. In some markets, the numbers are downright scary. In Boston, for instance, 80 percent of the civil legal needs of the eligible population go unmet. Same story in New York, where in 2013 more than 1.8 million people went unrepresented in civil proceedings in the state courts, including 99 out of 100 tenants in civil eviction proceedings.

John G. Levi, a partner at Sidley who serves as chairman of the LSC Board of Directors, hammered home the point in remarks to the American Bar Association House of Delegates in August. He noted that in 1976, its first year of full congressional funding, LSC was allocated $468 million (adjusted for inflation). Three years later, Congress hit a high-water mark of $880 million. It’s been, more or less, a downhill slide since.

“I wish I could say we were anywhere near that level of funding now,” Levi told the delegates, “but despite our best efforts, the FY2015 allocation of $375 million is less than half of that peak.”

That’s one of many reasons why the growth of corporate pro bono is such an important development. For too many years, and continuing today in too many places, unnecessary barriers have stood between willing in-house lawyers and untended pro bono cases. While the rules governing multi-jurisdiction practice, long the bane of the in-house bar, are softening, progress in many places has been agonizingly slow.

Still, that hasn’t dampened the zeal of true believers such as the in-house lawyers, paralegals and staff of Aetna. Earlier this year, PBI honored William J. Casazza, executive vice president and general counsel, and the Law & Regulatory Affairs Department of Aetna with the 2015 Laurie D. Zelon Pro Bono Award for their outstanding commitment to pro bono legal services. Among many noteworthy efforts, PBI pointed to the hundreds of cases Aetna has handled for elderly clients, its founding and funding of Lawyers for Children America, a nonprofit organization that promotes a multidisciplinary approach to representing children, and its partnership with Bet Tzedek Legal Services to provide legal support to Holocaust victims eligible for reparations from the German government.

In his acceptance speech, Casazza hearkened back to Middlebrook and the company’s unwavering 35-year commitment to pro bono. He also pointed out just how challenging it is for today’s in-house lawyers, faced with increasingly complex, 24-hour legal and business responsibilities, along with the constant demand to do more with less, to meet the pro bono challenge.

“Despite the increased professional and personal demands,” Casazza said, “the employees of Aetna’s law department have always found the time – always found the time – to help others who are in need of legal services.”

That kind of commitment is awe-inspiring. As is Lardner, now 68, who recently announced she has made a “transformational decision” and would be stepping back from her leadership roles at the Pro Bono Institute after 20 years to tend to her health and make way for fresh perspectives. Her words to the many friends of pro bono are worth quoting at length:

“Together, we have pioneered so many things that have become an accepted part of pro bono practice, including the Law Firm and Corporate Challenges and a data-driven approach to measuring success, regional and national pro bono training events, the business case for pro bono and corporate pro bono and so much more,” she said. “I want to continue to be part of PBI's work but in a different role that will enable PBI to grow and change while enabling me to find the time to recover. I have loved every minute of my time in creating and leading PBI, particularly working with all of you. Your vision and passion inspire me every day.”

Right back at you.