The pro bono problem

Cite this Article
Larry Ribstein, The pro bono problem, Truth on the Market (June 30, 2011),

Law Blog notes, reporting on the AmLaw A-List issue, that

last year, as AmLaw 100 firms enjoyed solid profitability growth overall, their pro bono output declined. Many lawyers, it appears, were too busy representing paying clients to counsel non-paying ones.  * * *

AmLaw. . . reports a 10.8% decline in the average number of hours lawyers at the 100 highest-grossing law firms spent on pro bono work. The plunge reverses a decade of steady growth in pro bono output among those firms.

“The fact is that associates do the heavy pro bono lifting at big firms, and those [associates] who survived the recession layoffs found themselves loaded up with paid work in last year’s turnaround,” said AmLaw editor Robin Sparkman.

I see this as a symptom of the Death of Big Law:  Big Law uses pro bono to build reputational capital, both directly as a good deed and indirectly as associate training.  As discussed in my paper, these firms are dissolving into groups of individual client-oriented partners.  Firm reputational capital is out the window, and with it pro bono.

But there’s more. Big Law pro bono is just an aspect of the organized bar’s focus on pro bono as a way of deflecting criticism from its overall failure to serve the needs of the poor and middle class. As I’ve argued, e.g., here, mandating a one-size-fits-all high-cost law forces millions of Americans to buy Cadillac (or Mercedes Benz) legal service, go without altogether, or try to be part of the relatively thin slice of those who need legal representation who can take advantage of pro bono.

Once economics squeezes out pro bono, the legal profession’s failure in this regard will be even more exposed.  We will then have to give up on band-aids and go for meaningful solutions to the problem.  One approach is massive public subsidy of high-cost lawyers.  I think a better approach is drastic changes in the licensing regulation of law practice. You don’t need three years of high-priced law school to serve many of the needs not being met by pro bono.