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The regrettable waning of pro bono

“New York State’s chief judge, Jonathan Lippman, is moving ahead with his groundbreaking rule requiring law students to perform 50 hours of pro bono legal services as a condition of admission to the state bar.” New York Times Oct. 5, 2012.

Changes like this may not solve the problem of legal representation for low income persons and civic and charitable organizations, but they certainly could help.

There is no question that the need for pro bono service has been rising and the profession has attempted to respond somewhat.  Pro bono publico has been part of the legal profession since ancient times. Today the American Bar Association recommends that each lawyer devote at least 50 hours of pro bono every year.

But only seven states require mandatory reporting. Eleven states have voluntary reporting and 32, including North Carolina and South Carolina, have no required reporting.

In 1983, the American Bar Association House of Delegates adopted a rule which stated that all lawyers should “render public interest legal service.” In 1993, the Law Firm Pro Bono Project put forth a challenge to the legal community to contribute three to five percent of billable hours to pro bono legal services. As of September 1, 2007, 149 law firms had joined in the movement as signatories. The number of legal pro bono organizations has also drastically increased from approximately 80 organized programs in 1980 to almost 800 in 2007.

In today’s economic climate it has become even more difficult for lawyers to participate in pro bono service, and consequently more difficult for low income clients to find legal help.

Pro bono service has become even more difficult because of two major conditions. First there is the downturn in business for lawyers; and then there is the increasing specialization of the profession. This has become more of a problem because of the tendency toward specialties which have nothing to do with law affecting low income persons. And this type of representation requires CLE training, which requires even more precious time.

Of course there are many other types of pro bono work such as helping charities and other organizations. But even there the problem has been exacerbated by the economic downturn. As one lawyer explained, “How can you do pro bono for no fee when you are barely keeping your firm going?”

Just how bad is the situation? What are the numbers of lawyers connected with pro bono service? The latest figure available from the American Lawyer survey was in 2003 and showed 93,175 lawyers contributing 3,335,375 hours to individuals and organizations across the nation.

The North Carolina Bar Association has 14,953 members but only 23 nominations for the NCBA pro bono awards were received in 2011. (The non-voluntary State Bar of North Carolina has 25,865 members.)

One of the top awards, the William L. Thorp Service, went to Charlotte attorney Robert Hahn who provided nearly 300 hours of pro bono service and closed 12 cases. One case alone required more than 60 pro bono service hours. In another case, he obtained SSI benefits for a three-year-old girl with autism spectrum disorder and impaired sensory awareness.

Asked why he devotes so many hours to pro bono, Hahn said, “I mostly do disability claims, under SSI and Medicaid.  I focus on these cases because my mother was blind and I experienced, first hand, the hardships experienced by a person with a disability and by that person’s family. Also, Hunton & Williams is dedicated to serving the community as well, which I appreciate, because it allows me the opportunity to serve those in need on a regular basis.”

The most famous pro bono case in North Carolina history was Hyatt v. Heckler , a class action that ran from 1983 to 2004 in the federal courts, including the U.S. Supreme Court.  The lead law firm for the plaintiff class, Robinson, Bradshaw & Hinson of Charlotte, contributed 4,500 pro bono hours. The firm also contributed the legal fees the courts awarded for their service, some $450,000, to the Mecklenburg Bar Foundation, to assist legal aid efforts needed in future cases.

The case resulted in restoring Social Security disability benefits to more than 50,000 disabled North Carolina citizens and to a national revision by the Social Security system for disabling pain. In August 1984, the law firm received the first pro bono publico award in the history of the American Bar Association.

 John Wester, who tried the case with lawyers from Legal Services of Southern Piedmont and who argued for the plaintiff class in the appellate courts, spoke of what led his firm to take on this litigation.  “For good reason, we are wary of the elitist label so readily applied to lawyers,” he said.  “This case brought home to all in our firm, however, that there are some precious implements in our society that only lawyers can wield.  I am confident that all of us who represented the disabled citizens in this case will forever be grateful for and changed by the opportunity.”

Another valuable service for low income persons is the Lawyer Referral Service which offers low cost advice staffed by a panel of qualified volunteers. But the lawyers who are involved do not receive credit for pro bono service.

What about legal aid?

Legal Aid in North Carolina is severely strapped also. As conditions have worsened, the number of inquiries in its 20 offices serving 100 counties has risen stressing the situation. In North Carolina, the ratio of all licensed attorneys to citizens is one lawyer per 485 people, but under Legal Aid it is one lawyer per 19,000 low income citizens (generally an income at or below poverty).

Yes, times are tough and lawyers are financially stressed. But pro bono work is too important a service to society for the legal profession to let it wane.

Marion A. Ellis of Durham is co-author of “An Independent Profession: A Centennial History of the Mecklenburg County Bar” and “Sages of Their Craft,” a history of the American College of Trial Lawyers.

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