Pro Bono Opportunities | Pro Bono Handbook

4.1 Balancing Legal Need with Attorney Interest
4.1.1 What is an effective way of determining whether a particular NGO is an appropriate pro bono client?²
4.2 Identifying Pro Bono Opportunities
4.2.1 Creation of Partnerships
4.2.2 Advisory Boards
4.2.3 Pro Bono Coordinators Network
4.2.4 Internal Systems
4.2.5 Attorney or Commercial Client Identification of Pro Bono Opportunities

4.1 Balancing Legal Need with Attorney Interest

Once a firm has established who will administer the pro bono program and has finalized a pro bono policy manual, the next step is to determine the means through which the firm will identify pro bono opportunities. Regardless of how pro bono cases are identified, in choosing which pro bono cases to approve firms should consider both (a) the existing legal needs of the people and communities it considers to be accessible and appropriate for its services and (b) the expertise and interests of its attorneys.

Usually, the definition of pro bono services focuses largely on free legal services to the poor and the disenfranchised; to the organizations that assist them; and to matters of public interest (see Section 3.3.1). Firms should also consider channeling some or much of their pro bono efforts in an organized way towards exigent or significant legal needs of the community or communities considered needing and worthy of services.

It is important to emphasize that pro bono opportunities are not limited to litigious matters. Attorneys have many opportunities to do transactional pro bono work for NGOs (both those encompassed by the preceding paragraph and others that cannot afford any counsel) in the areas of labor, property, tax, intellectual property, and corporate law. Also, pro bono services can be provided on matters in the public interest, such as preparing a legal report discussing access to public information held by government agencies.

In addition, firms should keep their attorneys’ expertise and interests in mind when identifying pro bono opportunities. An effective way to encourage attorney participation and ensure retained interest in pro bono is to offer opportunities in areas where attorneys’ experience and interests lie. One way to identify this is through a firm survey that asks attorneys what kind of pro bono work they would like to do (see format of the “Pro Bono Questionnaire” in Annex B). An aspect of attorneys’ interests, particularly early in their careers, is gaining certain types of legal experience—which may be independent of the type of matter. This might be the subject of questions on the survey. Many firms distribute such surveys annually so the firm can have up-to-date information.

Attorneys may, notwithstanding their survey answers—which deal with types of matters in the abstract—be interested in matters of types other than those mentioned in their survey answers. Therefore, emails, voicemails, phone calls, and personal contacts should be used to elicit interest in particular matters.

Ultimately, firms must balance attorney ability and interest with the legal needs of their communities. For example, a firm may find that the most pressing legal need in the community is family law litigation, but only 3% of its attorneys have expressed interest in this area. In circumstances like this, the firm will have to decide how to create the greatest amount of synergy between legal need and attorney interest. One possibility may be donating to groups providing family law litigation services—which will enable those groups to meet more of the legal need and also to provide sufficient training and ongoing mentoring to make working on family law litigation more attractive to the firm’s attorneys.

Another way to do so (which can be facilitated by the first mentioned possibility) would be to have some lawyers develop expertise in family law litigation, so that there is maximum opportunity for in-house mentoring. In this way, family law litigation could become, in effect, a pro bono practice group, with group meetings and even a group website.

A third way to increase attorney interest could be to work with an in-house law department on family law litigation. Attorneys may be attracted to such litigation by the opportunity to work closely with in-house lawyers.

4.1.1 What is an effective way of determining whether a particular NGO is an appropriate pro bono client?²

Pro bono representation goes beyond the representation of poor or otherwise marginalized individuals. NGOs are also appropriate pro bono clients, especially for non-litigators who are accustomed to transactional work. Just as not all individuals are appropriate pro bono clients, not all NGOs should be eligible for pro bono legal services. The following section from the Association of Pro Bono Counsel’s Statement on the Eligibility of Non-Profit Entities for Pro Bono Legal Services (the “Statement”) provides a useful methodology for determining which legal work for NGOs should be considered under the firm’s pro bono definition. While this formula is certainly useful, it should be noted, as APBCo itself notes, that “every situation is unique [and] there should always be room for the application of professional judgment in determining whether a representation qualifies [for pro bono legal services].”

Mission, Matter, Means Test

A. Mission: A nonprofit organization qualifies [for pro bono legal services] when its mission is to serve the indigent or protect or preserve civil rights, civil liberties, public rights, as well as human rights, regardless of its budget or means to pay attorney fees[emphasis added]. While the term “public rights” is not defined, APBCo members agree that “public rights” may include environmental matters, public health care issues, peace building initiatives and activities related to government regulations that affect the public at large.

Once a particular organization satisfies the mission test, no further review is necessary. The provision of free legal services to an organization that has a qualifying mission benefits those served by the nonprofit organization’s work. Therefore, in the case where the organization’s mission qualifies, the budget of the organization itself is irrelevant. Law firms should, however, consider whether some or all very large and well-funded nonprofit organizations that meet the mission test should not be included in these firms’ pro bono definitions—or otherwise should not be permitted under particular circumstances. For example, some firms represent large, well-funded charitable institutions with constant legal needs on a fee-generating basis. These firms often, for client relations reasons, choose not to offer pro bono services to organizations with similar funding to that of the firm’s fee paying clients.

B. Matter: A nonprofit organization with an overall mission that does not fit the criteria above nonetheless may be eligible [for pro bono legal services] if the specific matter proposed itself presents a qualifying mission. In cases where a non-qualifying organization proposes to engage in a qualifying activity, i.e., one that serves the indigent or fosters human, civil or public rights, the matter should qualify [for pro bono legal services] regardless of the entity’s ability to pay attorney fees. If the specific matter satisfies the mission test, no further review is necessary

C. Means: Where neither [Mission nor Matter] above is satisfied, most law firms will still allow an organization to qualify [for pro bono legal services] if the organization does not have the means to pay for legal services. In these circumstances, the question is whether the organization has sufficient means to afford competent legal counsel to handle the matter presented. This is not always a simple determination. In evaluating whether a nonprofit organization has sufficient means to afford legal counsel, many factors may be examined, including:

Referral by a legal services organization: In many communities, there are sophisticated legal services organizations that screen and refer nonprofit organizations to law firms for pro bono legal services. Law firms rely heavily on such referrals, and absent any clear indication that pro bono representation of a nonprofit organization would be inappropriate, such a referral should be a sufficient indication that an organization qualifies for pro bono services.

Financial criteria: If not pre-screened by a trusted legal services organization, a firm may want to examine statements reflecting the organization’s financial condition. In particular, firms may wish to consider nonprofit organizations’ revenues as compared to their overall budgets, executive compensation, and debt-to-asset ratios. If the organization has budgeted for legal fees to cover the proposed matter, this may be an indication that the entity has the means to pay for legal fees.

Past payment of legal fees or other professional fees: An organization’s past payment of legal fees and other professional fees may also be considered. Payment of legal fees in the past should not automatically disqualify an organization from pro bono representation. On the other hand, the ability to pay for fees in the past may well be a good indication of a current ability to pay, although this is not always the case. The payment of other professional fees may also be considered.

Nature and extent of legal services required: Firms may also consider the nature of the specific matter when determining whether an organization can afford legal services. Some matters require specialized legal expertise, the cost of which may be prohibitive. Some matters might not be undertaken but for the availability of pro bono assistance. Some matters might be crucial to the continued viability of the organization. On the other hand, certain matters, like some plaintiff-side litigation, can routinely be handled by contingent-fee lawyers.

Constituency served: If a nonprofit organization is exclusively or primarily serving a constituency of persons of relatively substantial means, the organization may be able to afford legal fees even though the organization itself may not have funds immediately available to pay legal counsel. For instance, a nonprofit homeowners’ association fueled by members’ dues, not in a low-income area, would likely fail to qualify for pro bono assistance if it has the ability to obtain funding through its membership.

It should be noted, however, that some law firms will not allow an organization to qualify for pro bono unless that organization meets the mission and/or matter test, irrespective of the organization’s inability to pay for legal services. Moreover, some law firms will not allow (either at all or depending on the circumstances) an organization to qualify for pro bono, even if it meets the mission test, if the organization has a particularly great ability to pay for legal services.

Finally, some law firms may permit free legal services to be provided despite failure to comport with the mission-matter-means tests. Where this occurs, these firms do not include these legal services in their pro bono definitions (see section 3.3 above).

4.2 Identifying Pro Bono Opportunities

Once legal needs and attorney interests have been assessed in the abstract, the next step is to determine how the firm will find appropriate pro bono opportunities. Particularly in the absence of well-functioning pro bono clearinghouse groups (see Section 4.2.1 below), identifying pro bono opportunities is not an easy task, and should be given substantial attention. The need for a particular type of free legal services may be great but, absent proper client vetting, training, and mentoring, may be inappropriate for pro bono services.

Before a firm can determine whether a pro bono opportunity is appropriate, a series of steps must occur (where a good pro bono clearinghouse group is not in position to undertake them). Some of these steps include, but are not limited to, contacting and interviewing potential pro bono clients, and obtaining and initially reviewing a potential client’s documentation to determine whether the firm’s definition of pro bono is met.

The next section describes some of the most common methods used to identify pro bono opportunities. As in all aspects of pro bono program development, law firms should remember to tailor their programs to their individual characteristics and resources. Thus, firms should utilize existing networks and already developed relationships to find pro bono opportunities.

4.2.1 Creation of Partnerships

The creation of pro bono partnerships is one of the most efficient and convenient ways to identify pro bono opportunities and is widely used by U.S. firms. In this approach, the firm collaborates with public interest or social welfare organizations, law schools, or government agencies, among others (the “pro bono provider”) to obtain pro bono referrals that are then circulated internally to gauge attorney interest in particular matters. If there is sufficient interest, and the pro bono provider does not give the matter to a different firm, the firm initiates the acceptance process (see Section 3.6.1). A benefit of this approach is that the pro bono provider frees the firm from the responsibilities of initial intake: interviewing of clients, examining case history documents, and other administrative tasks.

Using this approach, firms can forge partnerships with NGOs or other institutions that function as “clearinghouses” connecting pre-screened pro bono clients to firms that will provide legal services. NGOs, bar associations, government agencies, universities, law school clinics, hospitals, and churches can all serve as clearinghouses.

Once established, local clearinghouses are important sources of pro bono work for their participating law firms and lawyers. Basically, a clearinghouse’s function is to develop pro bono projects that it can then offer to law firms or individual attorneys. The clearinghouse then should oversee and manage the firm’s relationship with the pro bono client, providing support to the pro bono attorneys as they work toward a successful resolution of the project or matter. Clearinghouses can also be useful sources of information and technical assistance as law firms develop their pro bono cultures. Moreover, some clearinghouses provide extensive ongoing mentoring, as well as initial training, and may sometimes be co-counsel on pro bono matters. As noted above, the roles that clearinghouses will or may play after matters are placed should be covered in commitment letters and, sometimes, be the subject of co-counsel agreements.

It should be noted that, to sustain the various services that clearinghouses offer, law firms should plan (including in budgeting, as applicable) to make financial contributions to organizations that are sources of (and in some instances, have further involvement in) pro bono projects.³

4.2.2 Advisory Boards

It is a good idea for each local clearinghouse to establish some kind of advisory board in addition to its Board of Directors. This advisory board could consist of younger attorneys who not only can assist the clearinghouse in its programming but can also serve as points of contact at each of the participating law firms, giving the clearinghouse additional information about how to improve its functioning in the pro bono chain.

4.2.3 Pro Bono Coordinators Network

If no local clearinghouse, bar association referral program, or advisory board has been established—and even if one or more has been established, pro bono coordinators from different law firms may choose to meet on a regular basis to discuss the pro bono implementation processes at their respective firms. By sharing experiences and strategies, this network can more strongly promote the pro bono initiative to the legal profession, and together devise solutions to shared challenges.⁴

Firms also can choose to identify pro bono opportunities that do not involve such partnerships. A firm might find pro bono clients by inviting potential clients to a legal clinic. At such a legal clinic (as with ones organized in conjunction with a partnership), lawyers from the firm might provide one-time, on-the-spot advice to most of those seen, but agree to represent some with full-fledged pro bono representation.

Some law firms have chosen to create private foundations that serve as referral agencies between the community and the firm. Whereas pro bono partnerships have more administrative advantages, these foundations can give firms greater control over the identification of potential clients and the verification of their information.

4.2.4 Internal Systems

4.2.5 Attorney or Commercial Client Identification of Pro Bono Opportunities

There is no greater resource for a pro bono coordinator or committee than a law firm’s own people. No one knows better the challenges and successes of undertaking pro bono work than the attorneys and administrative staff who work to ensure that pro bono work is not only undertaken, but performed efficiently and with the highest quality. Pro bono coordinators should develop periodic workshops, roundtables, or discussion groups, through which attorneys participating in pro bono work can voice their opinions and offer suggestions about ways in which to improve the pro bono program. Not only does this help the pro bono coordinator or committee to be more effective, it also fosters the development of a firm pro bono culture and gives positive recognition to those participating in pro bono work.⁵

In addition, commercial clients, or their in-house lawyers, can be a source of pro bono clients. This can occur, for example, as a byproduct of an in-house lawyer’s serving on the board of directors of a group that provides legal services to the poor or a group that provides non-legal services to the poor but itself needs legal help. Moreover, in some circumstances, in-house lawyers can work effectively with firm lawyers on pro bono matters—after careful consideration of how the arrangement will work and the preparation of a written agreement thereon.

As mentioned above, however, attorney interest must be balanced with the greater goal of addressing unmet legal need in the community. And all potential pro bono projects, including those proposed by attorneys, must meet the firm’s definition of pro bono work.

²This section was adapted from Frequently Asked Questions: A Supplement to the PBDA Implementation Handbook: A Guide to Establishing a Pro Bono Program at Your Law Firm.
³The last two paragraphs were adapted from Frequently Asked Questions: A Supplement to the PBDA Implementation Handbook: A Guide to Establishing a Pro Bono Program at Your Law Firm.
⁴Subsections 4.2.2 and 4.2.3 were adapted from Frequently Asked Questions: A Supplement to the PBDA Implementation Handbook: A Guide to Establishing a Pro Bono Program at Your Law Firm.
⁵This paragraph was adapted from Frequently Asked Questions: A Supplement to the PBDA Implementation Handbook: A Guide to Establishing a Pro Bono Program at Your Law Firm.