As the proposal for mandatory pro bono reporting slouches toward the Virginia State Bar Council to be approved this Fall, or maybe this Thursday or next year, others can complain about the burden on lawyers, especially sole practitioners and various unconventional lawyers. And they’ve done so on my facebook and my last blog post’s comments section. But I think the biggest problem with any pro bono requirement is that it will always do far too little to have any effect on the problems it aims at. And this failure will eternally spark calls for redoubling our efforts, and mandates, and penalties, instead of other changes that might actually help.
Pro bono cannot even begin to mend the gap – the chasm – between what people can afford and what the legal system requires them to pay – whether they are coming to court seeking justice, or being dragged into court. We have huge structural problems that can never be fixed by more of the same work being done, whether forced or volunteer.
In some areas of the law, innovations have fixed this gap. For example, allowing contingent fees and class-action suits, to make lawsuits affordable for most people and get them lawyers who are as good and well-equipped as the big business lawyers for the other side.
But family law, my field, is an example of the kinds of law where that’s much harder. A couple generations ago we decided to allow unilateral divorce, so anyone might end up in a divorce or child custody case, but we didn’t do anything to make it affordable, and in fact many trends have combined to make it less affordable. Americans have the right to litigate everything until the cows come home, legal ethics and malpractice standards rightly demand legal advice and hyperactivity that pushes people farther apart and foments litigation, and custody cases can always go back into litigation about what’s best for a child, so costs mount up to numbers that even upper middle class people cannot afford. If hardly anyone can afford it as an individual, and it happens to perhaps almost half the population, then we can’t make it any more affordable by making taxpayers pay for it or by asking lawyers to do the work for free. And that’s without even looking at non-paying clients’ lack of rational incentives to weigh the cost of legal work when deciding how much of it, and what particular kind, to demand.
Lately there are a host of private-sector and nonprofit and governmental solutions popping up to address this need. Some have been around for a few years and become institutions. Some are court-led reforms that sacrifice traditional formalities that we used to think protected the public, so that there are other choices between self-representation and full-service, unlimited-cost, law firm representation. For example, the Virginia State Bar is launching a hotline for volunteer lawyers to answer legal questions from low-income people.
Many of the proposed solutions are scary. Some need to be embraced anyway. Some are vital but need to be molded to be compatible with the legal system and its obscure dangers and obstacles. Some really are irresponsible, leave consumers worse off than they would be without them, and should be heavily regulated or squelched. Some are downright gross.
But these kinds of changes are the only sustainable and scalable solutions to make legal help affordable for most people. Even more effective would be changes to the adjudication system so that less lawyering is needed in the courts, and even more fundamentally, so that fewer cases end up in litigation. Small claims courts are a great example of this that have been around for generations now. Even tradition-bound Virginia Circuit Courts are changing their terminology and procedures so that non-lawyers can do more to help themselves. Mediation and collaborative law, both for family law cases and other civil cases, including probate and elder law disputes, are helping but a lot more can be done. But even the substantive laws themselves too often are designed by lawyers who think that ending up in court, with a judge handcrafting a custom-made decision, is a routine part of life and is an easy all-purpose answer to questions about laws being vague, ambiguous, or leaving too much to a judge's discretion instead of being predictable. An outstanding example of changing this paradigm, and keeping millions of people out of court, is child support guidelines. But we should look at family law and other civil laws for more opportunities to streamline the interactions between law and everyday life.
I like pro bono, and I do pro bono. To help individual people and to make my own work more varied, balanced, connected, and socially just. But I do not do it to change society or make the legal system work to serve everyone’s needs. That’s impossible and would only make me crazy and permanently disappointed. When I want to work wholesale on fixing the misery the legal system imposes on families, I prefer to "go upstream" and work on collaborative dispute resolution and, further upstream, to learn how to help people improve and save their marriages; and further upstream, to avoid unhealthy relationships and establish healthy ones before marriage and babies are on the horizon.
So I'm sure I can comply with any pro bono standard the bar throws at me, but my pro bono work for clients is only pro the bono of myself, my interns, and a few clients whom I hope I can help, and their families. What I do pro the bono of the publico doesn't look like lawyering at all.