Pro Bono Partnerships Between In-House And Outside Counsel – Why Everyone Wins

Monday, June 25, 2012 - 15:02
 
The Value Of Pro Bono – The Pitch And Why Pro Bono Matters

Visualize a pitch by a well-respected attorney to a potential client that the attorney has been trying to land for years. The lead attorney from the firm naturally brings the A Team. Everyone’s shoes are shined, shirts are starched and each piece of hair is perfectly in place.

First, in-house counsel inquires about the lead attorney’s experience in the relevant type of case – and the lead attorney nails it. Then, the lead attorney is asked about what the other firm attorneys bring to the table – and it is clear that the potential client is impressed. Next, the in-house counsel asks about the firm’s commitment to diversity and women’s initiatives. Again, the lead attorney rattles off statistics that clearly illustrate the firm’s dedication to these endeavors. It’s all set to music.

And then . . . the lead attorney is asked about pro bono. Now you can hear a pin drop. Historically, that attorney may not have educated him- or herself on the firm’s pro bono statistics because no one ever asked. So that attorney stumbles a little bit, and the potential client senses the attorney was caught off guard. As a result, the in-house counsel throws the attorney a softball and asks how many hours the lead attorney has devoted to pro bono in the last year or two. If you are that attorney, you had better be prepared and able to represent that you have participated in pro bono service this year. Otherwise, the pitch may be won or lost right then and there.

This article examines the legal industry’s and corporate America’s general views of pro bono; how law firms and corporations can work together to grow their pro bono programs; and why individuals, businesses and the general public benefit from pro bono partnerships.

The Transitioning Legal Industry: Where Pro Bono Fits

The irony with the scenario just described is that as corporate America has begun integrating more pro bono into its corporate social responsibility (CSR) efforts, the legal industry has been adapting to a changing world and economy by thinking more like a traditional corporation. While that transformation is necessary for the legal profession to survive, it must stay focused on its fundamental roots as a profession. In other words, lawyers cannot give that “higher calling” to help others short shrift.

Lawyers must continue to view pro bono as an integral part of their professional responsibility. Moreover, serving others who may be less fortunate “makes for a better company and better life,” as noted in AmLaw Daily’s recent piece entitled “The Purpose-Driven Firm.” What that means is that law firms will benefit by ensuring that pro bono is a vital part of their business plans and practices, but equally important, its lawyers will take great satisfaction in doing the right thing while enhancing their legal skills.

Corporate America’s Heightened Interest In Pro Bono

Although companies have historically strived to be valuable members of the greater community, they are further increasing their focus on being good corporate citizens. For example, they are incorporating social responsibility into their business plans, resulting in an increase in U.S.-based companies that issue annual CSR reports. These companies benefit from their employees’ involvement with community service because it is good for the shareholders, the consumers, the public and the individual employees. As Rosabeth Moss Kanter stated in a recent Harvard Business Review article, “‘great companies’ are more than ‘money-generating machines.’”

Not only is corporate America placing additional emphasis on CSR and pro bono, but they are even requiring firms who bid for business to provide information about their pro bono practices, according to a 2011 article in Bloomberg Law Reports. In fact, some companies partner only with firms that have established strong pro bono programs. “This reflects a realization that pro bono has become a moral and professional litmus test,” according to that same 2011 Bloomberg article.

Corporations are also practicing what they preach, expecting their in-house lawyers to perform pro bono work as well. Many of these in-house pro bono programs, however, are in their nascent stages, with the average corporate pro bono program being less than two years old. Consequently, this dynamic between evolving corporate pro bono programs and law firms’ institutional pro bono practices provides an ideal opportunity for corporations and law firms to partner together to cultivate their respective pro bono programs and create innovative new programs.

What In-House And Outside Counsel Should Do

Set attorney and firm or company-wide pro bono goals. Pro bono expectations should be clear to all attorneys, and they should understand that, while they have a choice about whether to participate, pro bono service should be part of their professional or moral codes.

Integrate pro bono into orientation programs for new and lateral hires so it is clear that pro bono is embedded in the institution’s culture. From the moment new or lateral attorneys enter the door, they should understand that pro bono is part of the institution’s identity and culture. Educating them about the pro bono program should be as elementary as educating them about the computer system or employee benefits.

Make pro bono part of the review or evaluation process. Pro bono cases provide less senior attorneys an invaluable tool to gain hands-on legal experience they might otherwise never have had. It enables them to build on what the Pro Bono Institute refers to as “core competencies.” They might be able to appear in court during their first year; meet with a client to develop strategy; or manage a case from beginning to end. This growth opportunity should be recognized as being as important as an attorney’s overall hours, business generation, work performance and service to bar or civic organizations.

Incorporate pro bono into the organization’s short- and long-term strategic plans, and direct attorneys to do likewise with their individual business plans. All attorneys must understand the business case for pro bono and the fact that pro bono is good for their institution’s reputation – regardless of whether it is a firm or corporation.

Senior attorneys should encourage more junior attorneys to engage in pro bono endeavors. Often, more junior attorneys are hesitant to engage in pro bono for two reasons. First, they are concerned that their superiors may not value pro bono or may not embrace the concept of putting resources towards non-income-generating cases. Second, they are sometimes hesitant to take on the responsibility of cases on their own, which is addressed below.

Encourage senior attorneys to work on pro bono projects with more junior attorneys. Pairing with more junior attorneys on a pro bono matter is a wonderful way for established attorneys to connect and cultivate relationships with attorneys in their practice groups and/or official or unofficial mentees. Moreover, it becomes less intimidating to more junior attorneys who may be reluctant to take on a case solo.

Recommend that individual attorneys familiarize themselves with the institution’s pro bono plan and statistics. Attorneys should have a comprehensive understanding of their institutions, which should include knowledge about the institutions’ pro bono statistics.  While everyone should spread the good word, familiarity with statistics is particularly critical for attorneys who serve as outside counsel – otherwise, as noted in the introduction, business opportunities could be lost.

Reward attorneys for exemplary pro bono service. Organizations should demonstrate the importance of pro bono service by recognizing attorneys who engage in such work. They should consider rewarding attorneys who obtained unique or significant results; reached or exceeded a certain number of hours; or otherwise significantly contributed to the pro bono program.

Add the institution to legal service organizations’ mailing lists. Each firm or company should have a coordinator of pro bono programs who ensures attorneys have a wide range of options or “menu” of potential pro bono cases. The coordinator should meet with as many legal aid services organizations as possible to learn what kinds of cases they have and determine whether they are a “right fit.” The firm or company should take a case or two to ascertain whether the organization is worthy of its personnel’s time. Similarly, connect with think tanks such as the Pro Bono Institute and the Taproot Foundation, which coordinate the collaboration among law firms, corporations and legal service organizations and which can assist in brainstorming and implementing already-existing programs and in devising new ones.

Remain cognizant that strong pro bono relationships often evolve out of trial and error. Be patient and remember that it may take time to create a program or partnership that works for all. Also be prepared to work with legal services organizations that are often understaffed and underfunded and may not be as efficient as a corporation or firm. At the same time, if the legal service organization is not meeting the company’s needs, find another one. There are plenty.

Be Proactive And Commence Your Pro Bono Partnership Now

Going forward, outside counsel should educate themselves about potential and current clients’ pro bono and CSR interests. For example, ascertain which charities are meaningful to them – either as individuals or as a whole. Be proactive and contact your client; offer to partner on pro bono matters and suggest a meeting to discuss participation in, or creation of, pro bono programs that are mutually beneficial.

As for in-house counsel, do not wait for that call if you are anxious to amp up your pro bono program. Reach out to your outside counsel and commence a dialogue. Remember that collaborating with outside counsel and using them as a resource can improve the comfort level of your in-house attorneys who likely have not recently prepared papers or appeared in a courtroom. Also, more likely than not, your outside counsel’s pro bono program is more developed than yours so you can learn from his or her experiences.

Such a partnership will benefit your corporation and firm because it will improve your reputation; increase your employees’ satisfaction and general morale; enhance employees’ professional development; and cultivate your business relationship with your partner. Most importantly, helping others who are less fortunate is the right thing to do. In other words, pro bono partnerships make everyone a winner.

Mara E. Zazzali-Hogan manages complex litigation matters in both state and federal courts in various jurisdictions while serving as the firm's Pro Bono Coordinator. She has also served as a Special Court Monitor and Mediator. Specifically, she litigates general business and commercial cases and various matters within the healthcare industry. In the business and commercial litigation field, she focuses primarily on shareholder disputes involving small corporations. As for pharmaceutical companies, she has represented them in patent infringement, antitrust, restrictive covenant and insurance coverage disputes arising out of alleged pharmaceutical product defects. Over the years, she has also spearheaded litigation related to medical devices and clinical laboratories, and has represented healthcare providers involved with criminal investigations concerning, by way of example, the federal anti-kick back statute. More recently, Ms. Zazzali-Hogan has developed her practice in e-discovery issues, particularly social media, such as Facebook and Twitter.

Please email the author at mzazzali-hogan @gibbonslaw.com with questions about this article.