A startling recent survey from CNBC found that more than half of American families say they live paycheck to paycheck, and some 70% report feeling stressed out about their finances. Given this, the untimely expense of litigation or legal aid can be catastrophic to anyone searching for help navigating the system to obtain representation.
A case’s expenses are often contingent on the type of case, region and the time spent by lawyers and the parties brought in for expertise. The ability to get assistance in the pursuit of justice was never meant to be a privilege for a select few; a fair outcome is a right that should not depend on one’s financial means. What happens when people find themselves in need of legal help but hindered by the overwhelming cost? Many states have implemented programs to connect them with the guidance they need—and deserve.
Bridging the Widening Gap
Rule 6.1 of the American Bar Association’s Model Rules of Professional Conduct states that lawyers should aspire to provide 50 hours of pro bono work every year, with an emphasis on helping those of limited means. They can achieve that figure through a state-sponsored program (this can be dependent on the state in which they practice), by serving with a nonprofit, donating time or money to a related pro bono effort, or working with a client in person or virtually.
The profession’s ever-growing reliance on technology has helped boost pro bono assistance by normalizing non-courtroom settings, making virtual hearings common, especially since the start of the pandemic. The ease of virtual communication makes such help far simpler to provide than otherwise given the constraints on lawyers’ time. Underserved communities can therefore get more help—and attorneys provide it—much more readily than through in-person consultation alone.
“Pro bono work is important to bridge the widening gap between those who can afford legal assistance and those who cannot,” says Alexa Tipton, 2024 Best Lawyers: Ones to Watch® in America honoree for Entertainment and Sports Law, Intellectual Property Law and Nonprofit / Charities Law and associate at Irwin IP, an intellectual-property litigation firm in Chicago. “Legal equity is one of the pillars of an ordered and free society. In order to preserve respect for the law and the legal system, it is important that everyone who needs representation receives it.”
Some state programs to help lawyers put in their 50 hours have been around for many years; the ABA’s website has a comprehensive list of accredited programs searchable by state. The Standing Committee on Legal Aid and Indigent Defense (SCLAID) serves over these ABA programs. More than 30 state jurisdictions nationwide have launched statewide Access to Justice Commissions to further expand the reach of this critical work to those who need it most.
That little bit of effort can literally mean the difference between the person saving the gainful employment opportunity or being unemployed and demoralized.”
Lawyers who choose to partner with an Access to Justice Commission or similar program work jointly with program administrators to serve nonpaying clients under the same ethical and legal guidelines as any other. Firms or sole proprietors often take on pro bono work through their own initiative or direct referrals if they don’t do so through a state or accredited program. Depending on availability, a lawyer can be open to offer formal assistance to those for whom the conventional for-profit model would never be available.
“If a person is on the verge of losing a job offer due to a misunderstanding or an injustice for which there is no cognizable legal claim, or where conventional approaches to recourse would be too slow, I can try to quickly make a few phone calls and straighten that out or advocate with the possibility of saving the employment opportunity in the urgent timeframe,” says Kathleen Cahill, who runs an eponymous employment-law practice in Towson, Maryland and is recognized in the 2024 edition of The Best Lawyers in America®. “That little bit of effort can literally mean the difference between the person saving a gainful employment opportunity or being unemployed and demoralized.”
All clients want to feel that they’re getting appropriate representation while preserving their dignity and not being in the dark as they go. The ABA sorts its lists of nonprofits and Access to Justice Commissions by practice area; being able to locate help in this manner enables people to get their case in the correct hands as quickly as possible.
Equal Treatment
Pro bono clients who secure a legal advocate often worry that their lawyer might not prioritize their case over that of a paying client. Such concerns can be allayed by the fact that to do so would be an ethical violation that could result in disbarment. Moreover, firms and lawyers nationwide regard their pro bono work not only as vital, but worthwhile for their own professional (and often personal) development. “The manner in which I work for my pro bono clients, in terms of vigor, pace and quality, is exactly the same as for paying or fee-shifting clients,” Cahill says. “I do not see my pro bono clients as different or separate from my other ones.”
Michael Absmeier, co-managing partner from Gibbs & Bruns, a 2023 Best Law Firms® Houston Tier 1 firm in eight practice areas, echoes Cahill’s sentiments: “Every pro bono matter at our firm is handled with unequivocal dedication by our lawyers. Pro bono clients and cases are managed with the same level of care, preparation and tenacity as those of any other client. We recognize it is our responsibility to help provide fair and equal access to justice to all U.S. citizens, and it’s our privilege to share the firm’s time and talents with those in need.”
A True Partnership
Lisa Holubar, partner at Irwin IP, nationally ranked in 2023 in Best Law Firms for one practice area, notes that young lawyers who take on pro bono work supervised by their senior colleagues can make a tremendous impact. The firm encourages its attorneys to offer gratis assistance in cases they find meaningful and that align with their interests.
“What everyone should know about pro bono work is that it is invaluable both as a way for attorneys to learn by doing and to help those of lesser means obtain legal assistance,” says Holubar, “In other words, pro bono work benefits not just the party receiving free legal aid; it also benefits the attorneys providing it. Less-experienced attorneys who join a firm often have to wait years for second- or first-chair experiences. But pro bono matters can give them experience sooner and therefore help them build confidence and hone their skill set.”
The partnership between senior and junior counsel typically provides further benefits to a firm’s culture as well. “Various studies have shown that helping others leads to a reduction in stress and depression, two unwelcome but common side effects to those in the legal profession,” expanded Holubar at Irwin IP. “At its heart, pro bono work benefits those who without it could not vindicate their position, obtain royalties for artistic expression, regain a stolen identity, obtain asylum or acquire a patent protecting their intellectual property.”
A solid foundation of understanding that both client and lawyer are on the same team cannot be cemented if the latter fails to treat a pro bono case with sufficient respect. Firms not only want to avoid ethical sanctions; they also understand that all case work is useful to building baseline knowledge and is mutually beneficial to client and attorney.
The Lawyer in the Middle
Relatively early in the course of a case is where esteemed mediation attorney and 2023 Best Lawyers Arbitration and Mediation honoree Dale Ann Iverson, who practices in Grand Rapids, Michigan, steps in to make sure lawyers and clients alike understand the benefits mediation offers, especially when offered at no cost to the client. It’s a vital resource often left unused in nonpaying cases because of public (and sometimes even lawyer) ignorance about qualified pro bono mediators and the mistaken assumption that it’s unethical for a mediator to be paid fully by one party when the other is unable. If the terms of payment are agreed upon by both sides of the mediation beforehand, there are no conflicts depending on one or both sides paying or needing pro bono mediation.
We have longstanding processes that are helpful, and I know can be expanded upon for every person to have the access to the multi door court system that they deserve.” - Iverson of Just Mediation
She also highlights a pending initiative in Michigan that would better equip paralegals to provide pro bono mediation, a move she hopes will eventually spread across the country. Training paralegals to work in mediation would certainly help nudge that proverbial courthouse door open a bit. For the client, it’s akin to seeing a physician’s assistant rather than a doctor: The care dispensed is essentially the same, but it can possibly come sooner at a significant discount. “This is not a Michigan fight, a state fight or an individual fight that I’m at the front of,” Iverson says. “We need to look around the country and learn from each other. We have longstanding processes that are helpful and that I know can be expanded upon for every person to have the access to the multidoor court system that they deserve.”
She encourages mediators who provide unpaid services to learn their jurisdiction’s position on lawyer/mediators to operate under the appropriate ethical guidance. This simple approach helps allay one of her primary professional fears: “We need to find as many ways as we can to make sure pro bono mediation is as available to nonpaying people as it is to those who can pay. People with money will receive the full benefit of the multidoor court system, and that’s my biggest concern. We are pushing for access to justice for all people.”
