Civil Justice for All

Recommendation 3: Pro Bono Assistance

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Making Justice Accessible: Legal Services for the 21st Century

Recommendation 3. Increase the number of lawyers providing pro bono and other volunteer assistance, to supplement the corps of legal services lawyers.

In their 2011 report Access across America for the American Bar Foundation, Rebecca L. Sandefur and Aaron C. Smyth describe “a great diversity of delivery models for civil legal assistance.”36 They collected information about eleven ways that civil legal aid is delivered, from legal services organizations to court websites providing information about how people can access and use the courts. Prominent among the examples are programs for pro bono lawyers and other kinds of pro bono efforts, such as courthouse lawyer-for-a-day programs.

Experts emphasize that the United States cannot “pro bono its way out” of the nation’s civil justice problem. The need is too great, and pro bono efforts can be inefficient, requiring the diversion of expert legal services lawyers away from lawyering and toward the supervision and training of lawyers working outside their specialties. Nevertheless, efficient and effective pro bono programs play a significant role in helping meet demand, and more such programs will be a necessary component of any coordinated effort to close the justice gap.

Every lawyer should have a goal of 20 hours per year—two and a half days of work—of volunteer lawyering, as is the minimum requirement at some large law firms. Many should be able to commit to 50 hours per year—one week of work—as the ABA’s model rules of professional responsibility urge.37 Some states already make pro bono work a prerequisite for the bar, while acknowledging variations in kind and scale of practice. But the highest court in every state should carry out the recruitment campaign to which the Conference of Chief Justices has committed them. The courts should promote the mission of increasing and improving civil equal justice and help lawyers fulfill a duty they undertake when they are sworn in as members of the bar and officers of the state court system. In addition to helping people in need, pro bono work is good citizenship and an ethical responsibility of the profession.38

One option for increasing the number of volunteer lawyers is to design programs in which they provide one-time or one-step help for clients—often called “unbundled legal services.” For example, a lawyer in a private firm or a government agency may not have the time or flexibility to represent a client in every step of an eviction proceeding but may have the time to commit a half-day every two weeks to help tenants trying to hold on to their apartments. Another option is to offer low bono, as well as pro bono, services; that is, charging a reduced fee to take on cases for poor and low-income people in crisis. These alternatives are particularly important for the vast majority of lawyers (about three-quarters of the profession) who work in firms of five or fewer lawyers and have difficulty committing to extended periods of pro bono activity.

Legal services organizations serving poor rural areas, whether in West Virginia, Montana, or Alaska, face special difficulties in attracting, hiring, and retaining lawyers. They also struggle to help people across a wide geographic area. Lawyers from densely populated areas, especially the major cities, can provide much-needed help by offering pro bono services through videoconferencing and other digital means. They might also experiment with a visiting program modeled after the Doctors Without Borders medical-emergency program, including lawyers-on-wheels efforts in which lawyers work from cars turned into mobile law offices.

To do this work effectively, lawyers should be allowed to practice in states other than where they are enrolled in the bar. Good models for effectively changing these rules already exist. Out-of-state lawyers were permitted to practice in Louisiana, on an emergency basis, after Hurricane Katrina, and the state of Arizona passed a “universal recognition” law in 2019. Both initiatives made it easier for lawyers to cross state borders to provide assistance and are useful models for other states to follow.

The need for such change is enormous. Pro bono and other volunteer programs represent a critical bridge between people in need and the legal profession. Expansion and proliferation of these programs are among the best opportunities for improving access within the existing structure of the law.





Engaging More Lawyers in Providing Civil Justice: Unbundled Lawyering in Milwaukee

In 1968, people in Milwaukee, Wisconsin, formed two community-oriented law firms—Freedom Through Equality and Milwaukee Legal Services—to represent low-income clients and to challenge aspects of the systems of law and government that keep clients and others from achieving self-sufficiency. The firms later merged to create what is now Legal Action Wisconsin.

Since 2017, Legal Action Wisconsin has supported an Eviction Defense Project that provides free, unbundled legal aid to tenants facing eviction. The project calls its unbundled representation “a lawyer-for-the-day pro bono opportunity.” Several lawyers might be involved in a single client’s case, each lawyer working on one step of a multi­step process. Their participation might involve giving brief legal advice, assisting with a settlement, drafting a document, or representing a client in court. In this way, pro bono lawyers who lack the flexibility and time to represent a client for the duration of a matter can still offer help.

In his landmark study of eviction in Milwaukee, Matthew Desmond found that among the city’s renters, one out of five Black women had been evicted, compared to one out of 15 White women.41 “Poor black men are locked up,” Desmond said; “poor black women are locked out.”42 The effects are extreme: eviction is “a common yet consequential event that pushes families deeper below the poverty line.”43 The rate of eviction in Milwaukee is twice the national average.

As a group, the project’s clients fare notably better than tenants in Milwaukee’s trial court who lack lawyers. The project’s clients tend to hold on to their apartments, and the records of their eviction cases are more frequently sealed.

Legal Action Wisconsin has also been responsible for a series of state-level reforms, including the establishment of a right to counsel for defendants in paternity lawsuits; laws making it a crime to interfere with the custody of a child; procedures for expulsion and suspension hearings for students; revision of wage garnishment laws; and the creation of a statutory defense to eviction for tenants who have applied for but not yet received emergency public assistance.