Overview
In January 2015, ACC released its Chief Legal Officers 2015 Survey, which reports that 60 percent of responding chief legal officers of legal departments with 50 or more lawyers encourage their legal staff to engage in pro bono. This finding is further evidence of the increased in-house pro bono engagement seen over the past years by Corporate Pro Bono, a global partnership project of ACC and Pro Bono Institute, which works with hundreds of legal departments and ACC chapters on their pro bono efforts. This Quick Counsel discusses the current status of in-house pro bono, details pro bono options for departments of all sizes, provides solutions and resources to address challenges, explains the case for encouraging in-house pro bono, and highlights why in-house pro bono is on the rise.
Current Status of In-House Pro Bono
In-house pro bono has grown tremendously since 2000, when ACC and Pro Bono Institute formed Corporate Pro Bono (CPBO®) to support and promote pro bono in the in-house community. At the time, only a handful of legal departments had formal pro bono programs and most in-house counsel who engaged in pro bono did so independently. Over time and with the support of CPBO, the number of legal departments that encourage their members to provide pro bono legal services has increased exponentially. In addition, many more in-house counsel are engaged in pro bono through their local ACC chapters and other avenues.
The results of ACC's Chief Legal Officers 2015 Survey highlight this trend. The 2015 Survey reports that 60 percent of responding CLOs of legal departments with 50 or more lawyers and more than 30 percent of CLOs at legal departments across all categories encourage their legal staff to engage in pro bono.
For those CLOs who do not encourage pro bono, the 2015 Survey indicates that many believe their departments are too small. Others report time limitations, lack of malpractice insurance, or concerns around practice rule restrictions among their reasons for not encouraging pro bono participation. Fortunately, there are a number of resources and solutions that can ease and mitigate these concerns.
Pro Bono Options for Departments of All Sizes
According to the 2015 Survey, the most common reasons CLOs do not encourage pro bono (they could select more than one) are that their departments are too small (64 percent) and their legal staff is stretched too thin (60 percent). Of the 1,048 CLOs responding to the survey question regarding pro bono, 977 are from departments with 49 or fewer employees, including lawyers, with the majority of those CLOs from departments with two to nine employees. For smaller departments, encouraging the development of a formal pro bono program that is managed by committee or similar structure may be not be necessary. But creating a formal pro bono program is not necessary for legal departments to get involved. There are a variety of ways lawyers in smaller departments can participate that are meaningful for both volunteers and clients served and that accommodate volunteers' concerns about time.
One option is working with ACC chapter pro bono programs, which offer a variety of pro bono projects for in-house counsel. CPBO has published a series of best practice profiles highlighting a number of chapter pro bono programs and the opportunities they offer to their members, from conducting half-day legal audits for nonprofit organizations at CPBO's Clinic in a Box® programs to providing scheduled mediation services for small claims courts. Participating in such efforts not only helps the community but allows in-house counsel to work with peers in other legal departments on finite matters. See also Focus on ACC Chapters and Pro Bono.
In addition, there are opportunities with legal services organizations, law firms, and local bar associations that are ideal for busy in-house counsel. For instance, the legal department of The Pep Boys-Manny, Moe & Jack has made a strong commitment to pro bono service despite having a staff of only 10, including four attorneys. They do so by working with local partners to provide such services as staffing an evening legal clinic at a homeless shelter for women and children. Each Pep Boys attorney attends at least two of the six clinics a year. In addition, Pep Boys volunteers regularly attend scheduled clinics to assist clients in obtaining their Pennsylvania birth certificates, which impacts whether an individual may receive benefits, obtain medical care, or find a job. They also participate in a local legal services organization's annual corporate pro bono clinic to provide startup entrepreneurs legal advice on a variety of business matters. All this is accomplished with only four attorneys.
Solutions to Common Challenges
Other reasons CLOs chose for not encouraging their staff to provide pro bono legal services include lack of insurance coverage for pro bono work (18 percent), and practice rules that restrict some attorneys from engaging in pro bono work (5 percent). Fortunately, CPBO has developed numerous resources, including guides and forms, and provides consulting to legal departments so that they can tackle these challenges and do not have to recreate the wheel when engaging in pro bono.
With regard to professional liability insurance coverage, there are a number of options as detailed in Professional Liability Insurance for In-House Pro Bono. They include volunteering with a legal services organization that provides coverage or acquiring an endorsement to an existing insurance policy for no or low premium.
As for restrictive practice rules, it is true that many jurisdictions allow in-house counsel licensed in another jurisdiction to work for their in-state employer, but do not permit those same authorized in-house counsel to provide pro bono. CPBO and ACC are working with in-house counsel to address those restrictions and progress is being made. In the past few years, 11 jurisdictions have adopted rules that make it easier for non-locally licensed in-house counsel to engage in pro bono services. And in those jurisdictions where restrictions still exist, there are options, including working under the supervision of a locally-licensed attorney, and providing assistance on matters for which admission to the state bar is not required, such as dispute resolution, intake and screening, and special education cases. For a guide regarding multi-jurisdictional practice issues in the pro bono context, see Multijurisdictional Practice: In-House Pro Bono.
The Case for Encouraging In-house Pro Bono
Some may ask, even if in-house counsel can provide pro bono legal services, why should CLOs encourage legal staff engagement? Encouragement from CLOs is vital for legal staff to feel comfortable dedicating time and resources to pro bono projects. Without CLO support, legal staff often feel hampered or restricted from fulfilling their ethical and professional obligations to use their legal skills and expertise to provide legal assistance to those who are unable to afford such services. In addition, there are many business reasons that influence CLOs to encourage and promote pro bono within their department.
In-house pro bono programs can enhance critical aspects of the operations and the bottom lines of companies and their legal departments. Pro bono engagements offer legal staff the opportunity to broaden and vary their workload, interact with different people inside and outside of the legal department, and make use of legal skills for positive impact in the community. This can increase employee engagement, support team building, and improve morale. It also may prevent the departure of a valued attorney, a costly occurrence.
Pro bono engagement provides professional development opportunities for lawyers and legal staff to hone skills that are applicable to their work for the company, including negotiation, leadership of a team effort, and working effectively with partnering organizations. Plus, the involvement of a company's legal department in pro bono service adds value and breadth to the company's corporate social responsibility profile and activities, as well as improves the quality of life and stability of clients and the community at large, making an important contribution and creating a better business climate.
Other business benefits of pro bono include (i) the opportunity to work with outside counsel in a manner that strengthens mutual understanding and respect, enabling outside counsel to gain a better understanding of the client legal department so they can better respond to its commercial needs, (ii) pro bono can intersect with and strengthen the department's commitment to diversity, and (iii) improved reputation with consumers, regulators, shareholders, employees, and, on a narrower scale, legal publications that cover in-house counsel news are increasingly aware of and focused on pro bono service. See The Business Case for In-House Pro Bono.
Conclusion: Many Departments are Engaged; More All the Time
The results of ACC's Chief Legal Officers (CLO) 2015 Survey are a good reminder of just how far in-house pro bono has come, as well as the distance it has to go. CPBO has worked with hundreds of legal departments of all sizes. More than half of the Fortune 100 and almost half of the Fortune 500 have formalized their departments' pro bono efforts by creating pro bono programs for their legal staff. CPBO has also worked with numerous ACC chapters and smaller departments that are provide pro bono opportunities for their members and staff.
Due to the crisis in access to justice and the tremendous need for pro bono legal services, there are a broad range of opportunities that are available and meet the needs and interests of legal departments and their members. For assistance on finding projects, developing formal or informal pro bono programs, or addressing any of the obstacles noted above, please contact CPBO.