Overview
In January 2013, ACC released its Chief Legal Officers 2013 Survey report, which includes responses from more than 1,100 chief legal officers on a variety of topics, including formal in-house pro bono programs. While there are hundreds of legal departments and ACC Chapters whose members are engaged in providing pro bono legal services, 95 percent of the chief legal officers who responded to the survey said that their departments do not have a pro bono program. This Quick Counsel discusses why that figure is so high and provides guidance on how legal departments can address the challenges they may face in providing pro bono legal services.
Substantive Content
History of In-House Pro Bono
For many years, formal pro bono programs were the bailiwick of attorneys in private practice. In-house counsel volunteered on their own, but not until the 1980s and 1990s did legal departments launch formal pro bono programs. Even then, there were not many. In 2000, ACC and the Pro Bono Institute formed Corporate Pro Bono (CPBO) to support and promote pro bono in the in-house community. Since then, interest in in-house pro bono has flourished, and, with CPBO's assistance, legal departments have found solutions to many of the challenges to in-house pro bono. Now, hundreds of legal departments and many ACC Chapters are engaged in pro bono, with more and more launching formal pro bono programs.
With that in mind, it may seem surprising that 95 percent of respondents to ACC's Chief Legal Officers (CLO) 2013 Survey indicated that their departments do not have formal pro bono programs. Yet, upon closer examination of the reasons those respondents gave, including department size, time and resource limitations, liability and ethical issues, and cultural differences, the results are not so surprising. In fact, the reasons CLOs gave as to why their departments do not have formal programs are why CPBO exists.
Department Size is Not a Barrier to Pro Bono
The most common reason (67.7 percent) responding CLOs gave as to why their departments did not have a formal pro bono program was that their departments are too small. How small is too small? The majority of CLOs respondents (72.3 percent) lead departments with fewer than 10 employees, which includes not only attorneys but all staff. While the size of a small department is certainly not a barrier to pro bono, it may mean that creating a formal pro bono program is neither practical nor necessary. Some structure benefits most pro bono programs, but informal pro bono efforts may flourish if the department, and especially the CLO, enthusiastically communicates support of pro bono to its employees and encourages employees to volunteer.
For smaller departments, regardless of whether they have formal pro bono programs, CPBO has identified a number of options for volunteers to get involved. For instance, CPBO works with many ACC Chapters that offer pro bono opportunities for in-house counsel, bringing together volunteers from departments big and small with formal and informal pro bono programs to assist needy clients. In addition, many departments work in collaboration with law firms, other departments, and legal services providers so that their employees may engage in pro bono opportunities sponsored or organized by those entities.
Time and Resources Limitations can be Overcome
The second and third most popular reasons CLOs chose for not having a formal pro bono program (they could select more than one) were: legal staff is stretched too thin (50.6 percent) and lack of resources (39.5 percent). There is no question - the demands on in-house counsel are great. In fact, the most common concern expressed to CPBO, particularly by legal departments just starting a pro bono program, is finding time. Many legal departments are stretched thin; their employees' days are busy and unpredictable. It may seem like there is not enough time and resources to start a pro bono program. Fortunately, CPBO has developed numerous resources, including guides and forms, and provides consulting to legal departments so that they do not have to recreate the wheel when establishing a pro bono program.
In addition, for those worried about the demands of pro bono projects, there are pro bono matters that are finite and reliably scheduled. Such projects range from staffing hotlines to community legal education seminars to participating in brief advice clinics, like CPBO's Clinic in a BoxSM Program. Of course, finding the time to research time-limited projects alone can seem overwhelming, but CPBO can help with that too.
Liability and Ethical Issues may be Addressed
Of the other reasons selected by responding CLOs, two stand out as particularly unique to in-house pro bono: lack of insurance coverage for pro bono work (14.6 percent) and practice rules that restrict some department staff from engaging in pro bono work (5.3 percent). Unlike law firms, many legal departments do not have professional liability insurance coverage. However, obtaining such insurance coverage is relatively easy and affordable, whether through the company's provider or through another organization that offers insurance coverage for pro bono work. In addition, many legal services providers offer insurance coverage to their pro bono volunteers so collaboration with such entities will often address this concern. For more information about the insurance options, see Professional Liability Insurance for In-House Pro Bono.
With regard to practice rules, many jurisdictions allow in-house counsel licensed in another jurisdiction to work for their in-state employer. However, the rules in many of those jurisdictions do not permit those same authorized in-house counsel to provide pro bono and, when they do, it is typically subject to unnecessary restrictions. CPBO and ACC are working with in-house counsel to address those restrictions and progress is being made. In the meantime, even in jurisdictions with the most restrictive rules, there are options available to in-house counsel. Depending upon the jurisdiction, options include working under the close supervision of a locally-licensed attorney, or on matters for which admission to the state bar is not required, such as dispute resolution, intake and screening, and special administrative cases. For a guide regarding multi-jurisdictional practice issues in the pro bono context, see Multijurisdictional Practice: In-House Pro Bono.
Pro Bono is Still New in Many Places around the Globe
Although it was not an option to select in the survey, several CLOs specified that their departments do not have a formal pro bono program because it is not yet a priority in their culture. This is not surprising as 10.8 percent of the CLO respondents are located outside of the U.S., in 35 countries around the globe. While pro bono legal services are provided in many countries and interest in pro bono has grown tremendously abroad, there are many challenges, which vary by country. Fortunately, those interested in global pro bono are finding solutions, as reflected in Latham & Watkins LLP's "Survey of Pro Bono Practices and Opportunities in Select Jurisdictions," which features chapters on pro bono in more than 70 countries.
Conclusion: Every Department Can Provide Pro Bono
The results of ACC's Chief Legal Officers (CLO) 2013 Survey are a good reminder that although in-house pro bono has come far, there is great room for expansion. 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 moved to formalize their departments' pro bono efforts. However, in-house pro bono is not a large law phenomenon. CPBO has also worked with numerous ACC Chapters and smaller departments of which there are many that are providing pro bono opportunities for their members.
Challenges such as limited time and resources, liability concerns and ethical obligations, as well as cultural differences, must be addressed but certainly can and are being met by a variety of legal departments. Due to the crisis in access to justice and the tremendous need for pro bono legal services, there are opportunities for all legal departments and their members regardless of size or location. For assistance on finding such opportunities, developing formal or informal pro bono programs, or addressing any of the obstacles noted above, please contact CPBO.