Making Pro Bono Work: Insights on Barriers Lead to Solutions for Expanding Legal Services to Those in Need
By Linda Rio and Mary Goers
The need for attorneys to provide pro bono legal services has never been greater. Despite the strong efforts of national, state, and local entities to provide free legal services to those of limited means, statistics show that we are in a legal aid deficit. Pro bono attorney representation cannot replace legal aid programs, but when poverty is on the rise and there are drastic funding reductions to legal aid, participation by the bar is critical to ensuring access to justice for those who cannot afford an attorney. Recent research on the motivations and obstacles for attorneys to provide pro bono services suggests that there are new ideas and models that have the potential to enhance access to justice by increasing the number of people who receive critical legal assistance.
Nationally, there is approximately one private attorney for every 429 persons in the general population, compared to one legal aid attorney for every 6,415 low-income persons.1 The 2017 Justice Gap Report, published by the Legal Services Corporation, revealed that 86% of civil legal problems reported by low-income Americans received inadequate or no legal help in 2016.2 For Illinois, the numbers are very similar. Outside of Cook County, one legal aid attorney exists for every 10,000 low-income residents.3 In addition, 93% of Illinois’ 102 counties report that more than 50% of civil cases include at least one self-represented litigant.4 The need for legal aid and pro bono work is also prevalent in DuPage County. Approximately 22% of the population is low-income or living in poverty.5 Existing legal aid agencies in the county have accomplished so much; however, there remains much unserved legal need in DuPage.
The Legal Services Corporation, Lawyers Trust Fund of Illinois, Illinois Equal Justice Foundation, and Illinois Bar Foundation, are the major funders of legal aid and pro bono organizations in Illinois, and the Chicago Bar Foundation provides significant funding for Cook County legal aid programs. All of the Legal Services Corporation-funded programs in Illinois provide pro bono services, as do many independent agencies, with Chicago Volunteer Legal Services being the largest. The Public Interest Law Initiative (PILI) works across Illinois to support pro bono work through its Pro Bono Initiative Program and by funding Law Student Interns at public interest law organizations.
DuPage County has several agencies providing pro bono services. DuPage Legal Aid has a strong family law project and helps with other legal matters including bankruptcy, guardianship, and orders of protection. DuPage Legal Aid also has a veterans’ assistance project and a foreclosure help desk. Prairie State Legal Services (PSLS) serves 36 counties in Illinois and has a Wheaton office specifically for DuPage County. Administer Justice holds many legal clinics throughout the month where attorneys can provide pro bono legal services. Pro Bono Network (PBN) has several pro bono projects in DuPage including telephone counseling and SSI reconsideration with PSLS, online counseling with ILAO, and a couple of new projects in the works. PBN recently received a DuPage Bar Foundation grant to recruit and train more DuPage attorneys.
Additionally, the DuPage County Bar Association’s Public Information and Education (PIE) Commission has partnered with PILI to create the Eighteenth Judicial Circuit Pro Bono Committee. The focus of this Committee is to promote pro bono legal services, recruit attorneys to participate in existing pro bono programs, and to recognize the pro bono contributions of attorneys. Michael Bergmann, executive director of PILI, says the goal is to “work toward increasing access to justice and providing a fairer legal system statewide.” Walt Jackowieck, chair of the DCBA’s PIE Commission, says that together, these two entities are working to “develop a pro bono mentor-mentee program where more experienced attorneys are matched up with younger attorneys to help them get started and involved in pro bono work.” The two entities are taking this model statewide by developing a process and protocol for such programs.
While the need for more pro bono assistance has long been clear, motivations and barriers to engaging in pro bono work is a new research area that offers key insights for the pro bono community. The American Bar Association (ABA) Standing Committee on Pro Bono and Public Service recently completed a survey of attorneys in 24 states regarding pro bono experiences and attitudes.6 Illinois’ survey results were presented at the Illinois Forum on Pro Bono Summit last October, co-sponsored by the Illinois Bar Foundation, PILI, the Illinois Supreme Court Commission on Access to Justice, and the Chicago Bar Foundation. The data of the almost 6,000 attorneys who responded was detailed at the Summit by April Faith-Slaker, a legal researcher for the ABA project and the current associate director of research innovation at Harvard’s Access to Justice Lab.
The ABA survey found that the top three motivations for attorneys to engage in pro bono work are helping those in need, ethical obligations, and professional duty.7 Malpractice insurance was seen as the fourth most encouraging factor for attorneys in doing pro bono work, and the lack of malpractice insurance was seen as a barrier.8 The majority of attorneys who provide pro bono services want to continue doing pro bono and want to expand their efforts. Pro bono completed through a legal aid agency provided a more positive experience than an attorney who found the pro bono case through informal channels, making structured pro bono opportunities more attractive.9 Legal aid agencies also provide training, mentoring, research assistance, sample documents and pleadings, and the screening and vetting of cases and clients to make an attorney’s pro bono experience more successful.10 In a previous 2013 study, the ABA found that 59% of surveyed attorneys thought having more opportunities to perform limited scope representation would encourage more attorneys to do pro bono work.11 The new ABA survey similarly found that pro bono attorneys are interested in providing limited scope, shorter-term representation.12 Providing more opportunities for CLE credit – including pro bono service hours themselves – was also ranked as a very high motivator, as was being solicited by a judge.13 Conditional factors such as age, gender, location, and work environment also influenced an attorney’s likelihood of pro bono participation.14
Besides motivations, recent research has looked at common barriers and obstacles that attorneys feel prevent or impede their efforts in providing pro bono work. The ABA Survey found that the three biggest obstacles for Illinois attorneys were time constraints, family or work obligations, and lack of skills or experience in certain legal fields.15 Lack of administrative support and resources, and potential liability were also common barriers.16 The fourth most common barrier for attorneys was the difficulty of appearing in court for pro bono cases due to scheduling conflicts.17 The factors indicated as having the smallest deterrent effects were personal beliefs about pro bono client need or opposition to providing free legal services, showing that the barriers are more logistical, and thus solvable, than anything else.18
This research offers new opportunities to enhance pro bono by creating solutions to increase motivators and overcome the barriers. As a means of addressing the motivators and obstacles, many legal aid agencies have started to create a variety of projects with an array of time commitments and varying types of work. Mark Marquardt, executive director for the Lawyers Trust Fund, says that “legal aid groups are working hard to make sure their volunteers have a range of options for doing pro bono work. As a legal aid funder, the Lawyers Trust Fund tries to understand and support this.”
By increasing participation options, new and unique attorney populations can be drawn to pro bono work. Pro Bono Network started as a way for stay-at-home attorneys on career breaks to volunteer legal services to their community, and has since expanded to include other attorneys who also want a variety of opportunities, including retired, part-time, solo, and inactive attorneys. According to Sheila Pont, Director of Programming and Volunteers, “by giving a menu of different pro bono opportunities, and by creating a system where attorneys work in teams and volunteer at times that don’t conflict with family or work, PBN allows volunteers to give back in a way that is beneficial for everyone.”
Marquardt has seen pro bono take on the shape of a barbell over the last decade, with some cases that require several hundred hours, to those that can take less than five. But the biggest need, he says, is “in the middle – that is, the case that might take thirty hours, rather than three or three-hundred. This includes most of the common but critically important issues for which people need representation.” DuPage Legal Aid has done just that, taking on family law cases that are unpredictable in terms of how long they will last, but finding volunteers who are willing to take on those cases that fall within the middle range of the time required. Cecilia Najera, executive director of DuPage Legal Aid, says the volunteers “run the gamut, and the attorneys are with the case from beginning to end” for pro bono cases. By giving attorneys a range of opportunities, it helps to lessen the stress or uncertainty they may feel balancing their service with family and work obligations.
Another solution to engaging more attorneys in pro bono work is to increase the number of limited scope representation opportunities. All attorneys in Illinois can now provide limited scope representation, including attorneys who are retired, inactive, or out-of-state, under the emeritus law.19 Legal aid and pro bono agencies are using this to increase their volunteer base and help make pro bono work beneficial to their volunteers. Marquardt mentioned that limited scope is a really promising area, and hopes legal aid programs make it an explicit part of their pro bono menu. In 2016, 66% of surveyed Illinois attorneys who did pro bono work handled a limited scope representation case.20 According to Eric Nelson, Administer Justice’s executive director, a promising aspect of limited representation opportunities is that it “has allowed attorneys to get into a case pro bono to help at a crucial point without having to represent the client in all aspects of the case.” Limited scope representation also gives non-traditional attorney populations the chance to volunteer by providing free legal services under the guidance of existing legal aid agencies.
Remote pro bono opportunities present another solution to family and work barriers that attorneys encounter in attempting to do pro bono work, allowing for the work to be done where convenient for the attorney and with scheduling flexibility. With available technology, programs such as Illinois Legal Aid Online allow for legal services to be done on a tablet, mobile phone, or computer. This reduces the inconvenience of traveling to a certain location and also gives the attorney flexibility in when they can answer client questions.
Leslie Corbett, executive director of Illinois Equal Justice Foundation, has noticed that “pro bono opportunities are increasingly becoming more bite-sized and are using remote technology to meet both volunteers and clients where they are.” Mike O’Connor, executive director of PSLS, is in agreement. He says that “bite-sized commitments in terms of time or subject area” are what legal aid providers are looking to offer more and more. PSLS has already done this with sealing and expungement projects, as well as telephone counseling. Other bite-sized projects in DuPage include the Legal Answers Online Legal Counseling Clinics done by PBN and the DuPage Bar Association, and the DuPage Legal Aid Help Desks.
The lack of subject matter knowledge or legal experience is cited by many attorneys as a barrier to providing pro bono legal service. Legal aid organizations recognize this concern and are working to lessen the fear of uncertainty. Cheryl Zalenski, director of the ABA Center on Pro Bono, says that with “increased specialization of the legal profession, lawyers feel they are not qualified to provide assistance in areas of law beyond the scope of their daily practice.” DuPage Legal Aid and PSLS offer many opportunities to get the training needed for a specific case. Administer Justice also provides their volunteer attorneys and paralegals with the training and skills needed to finish a pro bono case. PBN holds training sessions for each of their projects and creates a network of support by providing a project manager, online support, and subject matter experts for its volunteer attorneys. The volunteers also work in pairs or larger groups to provide support in case family, work or personal needs arise. Training and mentorship increase not only legal knowledge but also attorney confidence in areas of law where the volunteer has not had a lot of experience.
DuPage County is at an advantage because much of its bar comes from a civil law or litigation background, making it naturally equipped to handle pro bono cases. DuPage County Bar Association President Gerald Cassioppi feels that this is what makes DuPage attorneys particularly prepared for pro bono subject matters such as family law or landlord-tenant issues. Cassioppi cited a “boots on the ground” advantage that attorneys who live and practice in DuPage have when volunteering with legal aid agencies. There are certain skills and types of law (such as serving as an in-house counsel) that do not seem to translate as readily for pro bono work. But in addition to getting trained to provide legal services, attorneys who currently practice business law and handle more transactional matters can benefit from serving on boards of not-for-profits. Cassioppi has served on several boards and feels that even though it is “not considered pro bono work in the most traditional sense,” he can give legal insight to the organization’s boards and help them move forward as an organization.
Supporting these organizations in any manner – including with leadership and financial contributions – enables more pro bono work to be done. Operational support for legal aid agencies also allows the agencies to foster more volunteer attorneys. Pro Bono Network’s model is a great example of how to support legal aid agencies with project creation, training, mentoring, and supporting volunteers.
The third most encouraging factor for attorneys for pro bono work is solicitation by a judge. The DuPage County Bar and PILI created the Eighteenth Judicial Circuit Pro Bono Committee to more fully engage those in the local legal community in pro bono work. Jackowieck pointed out the massive recognition by the Illinois Supreme Court, bar associations, and county courts for pro bono need is “resulting in actions and programs that will ultimately provide a significant increase” in the number of attorneys that are available and willing to do pro bono work.
Not knowing how or where to get started with pro bono opportunities was a lower ranked barrier, yet it was still indicated as a common obstacle.21 Cassioppi says that there is a communication gap and the solution is more of it – “you can’t over-communicate about pro bono opportunities.” This obstacle may be more prevalent for those who are solo practitioners or work at small firms, where there are not the pro bono infrastructures found at large firms.22 PSLS’s DuPage office uses a pro bono coordinator to help communicate about opportunities, and DuPage Legal Aid’s Najera also says that its “grassroots networking” that best connects her with volunteers.
The new findings and research on motivations and barriers attorneys have with pro bono work give key insights to opportunities that would enhance pro bono work by the creation and utilization of enhanced models and approaches to clearly address barriers going forward. DuPage County associations, agencies, and attorneys can use all of these approaches to help serve more people in need of legal services and help narrow the gap in access to justice.
Linda Rio is the Executive Director of Pro Bono Network. Linda previously worked at the Seventh Circuit Court of Appeals, Sidley Austin, the Chicago Bar Association/Foundation, and the American Bar Association. Linda received her B.A. from Northwestern University and her J.D. from UCLA, and is a long-time DCBA member.
Mary Goers is an intern with the Pro Bono Network, and has interned for the DuPage County State’s Attorney’s Office and Governor Scott Walker. She received her bachelor’s degree from the University of Wisconsin-Madison, studying legal studies, history, and criminal justice. She is a DuPage resident and will be attending law school this Fall.