Why so many lawyers do pro bono work—and why so many people still slip through the holes
Published in 2017 Texas Super Lawyers Magazine on September 5, 2017
Glenn D. West remembers vividly a pro bono case his firm litigated years ago for a woman on the verge of losing her mobile home. The bank, he says, had executed the mortgage unfairly, in violation of homestead laws.
“Whenever I am involved in one of these matters, I am reminded of what Andrew Beckett said to Joe Miller in Philadelphia when he was asked what he loved about the law,” says West. “‘It’s that every now and again—not often, but occasionally—you get to be a part of justice being done. That is really quite a thrill, when that happens.’”
The case was no simple matter. “We had to write some extensive briefs, and it was a complicated set of issues,” he says. The woman ultimately was able to hold on to her home. The $75,000 worth of work West did dwarfed the $20,000 loan.
It was a “worlds-collide” kind of moment—the kind that happens only if a lawyer chooses to make it happen. Normally, West practices mergers and acquisitions law at Weil, Gotshal & Manges in Dallas, representing private equity firms. He has cultivated an interest in representing sports franchises.
“Not many people I do those things for need pro bono work, or would qualify for it,” West says wryly. Fortunately for the woman in this case, West believes in helping those who need it.
A Chance at Justice
When it comes to offering free or low-cost services, the legal profession is known for stepping up to the plate. A 2008 report in the Journal of General Internal Medicine found lawyers twice as likely as physicians to volunteer in their communities. That same year, the Corporation for National and Community Service said attorneys were more likely than the seven other types of professionals studied to use their skills volunteering. This report also referenced a campaign to expand pro bono service beyond being “the sole purview of law firms.”
“America’s lawyers understand the important value of engaging with their communities,” says Linda A. Klein, president of the ABA, which urges attorneys to give at least 50 hours of pro bono service per year. “I’ve seen the difference those efforts make for veterans, children, the homeless and many others whose lives are changed for the better by pro bono work of lawyers. I’m proud to be a member of a profession that gives back so much to so many.”
Lynn Kamin, a family law attorney at Jenkins & Kamin in Houston, is gratified by the amount of pro bono work Texans take on. “I don’t know if it’s enough,” Kamin says, “but … lawyers in Texas are very generous with their time.”
Legal assistance for the poor comes partly from staff attorneys at organizations that offer legal aid, but it also depends on the volunteer work of far more private attorneys who take time from their regular gigs to help those who otherwise couldn’t afford a chance at justice.
Still, the need is great. Nationally, less than one legal aid attorney is available for every 10,000 Americans living in poverty, according to the National Center for Access to Justice. Legal aid services are kept afloat by a mix of federal funding, grants, private donations and varying state government support, but it’s never enough. According to Legal Services Corp., the publicly funded nonprofit that provides resources for civil legal aid organizations across the country, more than 80 percent of the legal needs of those below the poverty line are going unmet. A 2009 LSC study found that, for every person helped by a federally funded legal service organization, another in need of help was sent away.
The degree of poverty one must live with to even qualify for legal aid is severe. An applicant’s income must be below the federal poverty line: an annual income of $12,060 for one person or $20,420 for a family of three. According to a Henry J. Kaiser Family Foundation study for 2015, 15 percent of Texans, or 4.1 million, fall into this category.
“There’s that saying, ‘Justice is only for those who can afford it,’” says Carlos Cardenas, a personal injury lawyer at the Law Office of Carlos Eduardo Cardenas, El Paso. Cardenas has been on the board of the Texas Access to Justice Commission, which beats the drum for the cause of pro bono work, since 2011. “That’s what we’re trying to fight against … Say you’re the tenant involved in a wrongful-eviction suit. You can have a good defense, but if the landlord’s got plenty more resources to hire an attorney—that could be a [tough] situation.
“That’s why legal aid and pro bono lawyers are essential,” he says. “But there’s more of a need than there is a supply of lawyers who can fill it.”
A survey by the State Bar of Texas found that about 46 percent of lawyers in the state did pro bono work in 2015. It estimated some 1.87 million hours of free legal services, amounting to nearly $12 million worth of work, were contributed.
At the same time, the need in Texas is so great that the state ranks 47th in access to lawyers through civil legal aid organizations. According to the ABA, “less than 10 percent of the civil legal needs of low-income and poor Texans are being met.”
Texas has a number of groups in particular need of pro bono assistance. The state is home to 1.6 million veterans, the second-largest concentration in the United States. Their need for assistance with health care-related legal issues, benefits challenges and other matters prompted the state Bar to form Texas Lawyers for Texas Veterans in 2010. And this year, the Texas Access to Justice Foundation established an endowment to bolster free legal services for qualifying veterans.
Another demographic has an even harder time getting legal assistance: the immigrant community. By law, the Legal Services Corporation cannot provide aid to noncitizens. “Yet there is no group in greater need,” says Houston lawyer Charles C. Foster, who runs Foster LLP, one of the largest immigration firms in the U.S. “They are strangers to our country, less familiar with our customs or institutions, and some don’t speak English.”
In recent years, the largest group of immigrants needing assistance has been minors. It’s become common in immigration proceedings for minors without lawyers—even those in primary school—to represent themselves.
In 2014 alone, Texas was inundated with almost 50,000 unaccompanied children from Guatemala, El Salvador and Honduras, fleeing violence, poverty and drought. They found their way into the state, then threw themselves on its mercy. “Under [the Trafficking Victims Protection Reauthorization Act of 2008], they were entitled to a due process hearing to determine whether or not they would be subject to abuse if they were returned to their home country, and whether or not they were eligible for political asylum,” Foster says. “The numbers coming across were unprecedented.”
Foster and others, including Houston attorney Benny Agosto Jr., former president of the Hispanic National Bar Association, quickly put the call out to any lawyer with an interest in helping asylum-seekers. In three weeks, they assembled a program to train 500 attorneys to represent these minors. It was a Hail Mary pass, but it was one of the largest CLE events in the history of the Houston Bar Association. “We had to cut it off at 500,” says Agosto, a personal injury attorney at Abraham, Watkins, Nichols, Sorrels, Agosto & Aziz.
Even then, only about a third of the 63,000 minors with cases pending in October 2014 were able to get a lawyer, according to data from the Transactional Records Action Clearinghouse at Syracuse University and reported in The Texas Tribune on May 19, 2016. It also noted that, in a two-year period, more than 80 percent of minors seeking asylum without a lawyer were deported.
Foster has also done extensive pro bono work for cultural organizations seeking to bring artists from other countries and notes that Section 101 inquiries—regarding the temporary admission of artists and entertainers into the country—have been filling up a larger part of every workweek.
As have other immigration issues. In May, the Texas Legislature passed a law expanding the rights of police to check the citizenship of anyone detained, even for a minor traffic stop, and punishing sanctuary cities by threatening criminal penalties against sheriffs or police chiefs who defy federal immigration policy. On a recent day, Foster was writing an op-ed piece attacking the legislation. “I consider that pro bono, too,” he explains.
Why Do Pro Bono?
Lawyers who take on pro bono work give many reasons for doing so. One is obvious and sometimes underestimated: It makes you feel good.
“Every day, we work to make money to take care of our families, but when we provide pro bono services, we feel good about taking care of our community,” says Agosto.
Sometimes there are lasting benefits beyond a particular case. In 2009, Agosto represented a county law-enforcement official struck by a car on his way to answer a call. The officer was in a coma for three months.
“When I found out the guy was being railroaded by his insurance company, I said I don’t care if I get paid,” Agosto recalls. In the end, the company paid his client—but more important, state law was changed to more fully cover officers en route to work. “Now we have new case law affecting all police officers,” says Agosto. “I’m helping his family and other officers, and it also made me feel great.”
Kamin describes a pro bono case she’s never forgotten, involving grandparents trying to get legal custody of several grandchildren. The children’s mother had passed away; the father was in prison. The grandparents had no money, but Kamin made it possible for them to raise their grandkids.
“These are cases that can leave a lasting impression on us,” she says.
Pro bono work can also help the attorney and firm.
“For our new lawyers, doing pro bono can be a wonderful experience,” says Harry Reasoner, chair of the Texas Access to Justice Commission, and a business litigator at Vinson & Elkins in Houston. He notes it teaches them to interact with people “in all kinds of situations, and the experience of taking a case to trial.” By doing joint pro bono ventures with other firms and corporate legal departments, “there is the opportunity for our young lawyers to make acquaintances and develop friendships that may well enhance their ability to do legal business in the future.”
Pro bono work can help young professionals learn aspects of the work they might not easily experience in a time of declining jury trials. Kamin works closely with the Houston Bar’s Houston Volunteer Lawyers, sending young lawyers and paralegals from her firm to assist in specific cases. “Other attorneys will be watching, making sure it’s getting done correctly, but it is an opportunity for young lawyers to get into court, manage a case and engage with a client’s expectations,” Kamin says. “So we get something out of it, absolutely.”
Yet another benefit of pro bono work is its ability to counteract a sometimes negative stereotype of lawyers.
“There’s no question that it’s important for people to know that lawyers really do care about this and really do give back,” says former state Supreme Court Justice Deborah Hankinson. The appellate attorney with Hankinson LLP in Dallas serves as vice chair on the board of the Texas Access to Justice Foundation, launched by the Texas Supreme Court to raise funds for those who need representation in civil cases. “These lawyers, who have other jobs, are doing something important that helps.”
She adds, “We know we will never have enough legal aid lawyers. We have one legal aid lawyer per every 9,800 Texans who qualify for legal services. So how do we take care of them? Last year, legal aid helped 100,000 Texas families. What do we do with the rest of them? That’s all the money we have [from the government] to pay those lawyers.”
Hankinson says everyone—the state Bar, legal aid organizations and law firms—can do more to encourage pro bono work. And state and federal governments—which control legal-aid funding—need to be made aware that providing legal aid pays off in the long run, she adds. “If you put resources into people, there are real economic returns for Texas,” she says, citing a 2013 study by The Perryman Group, sponsored by the Texas Access to Justice Commission.
No Easy Answers
In Houston, with its abundance of thriving firms, there’s an overlay of organizations offering volunteer services, such as Aid to Victims of Domestic Abuse, which Kamin has chaired multiple times in the past six years. It provides legal assistance to female and male victims who qualify for state and federal funding. The organization has an endowment named for fabled attorney Joe Jamail, the “King of Torts,” which helps victims who don’t qualify by covering an attorney and paralegal for the nonprofit.
The safety net in other parts of the state, however, is far less intact. Amarillo criminal defense and civil rights attorney Jeff Blackburn, with Blackburn & Brown, thinks less affluent parts of Texas will never be able to provide the pro bono support Houston or Austin can offer. He points to the county of Deaf Smith, about an hour southwest of Amarillo. “It is an overwhelmingly Hispanic area,” he notes, but it has “virtually zero Hispanic political representation. They’re sending first-offense drug users to prison; you bet they’re convicting innocent people. There are voting-rights cases where they are going after people criminally who were trying to get people registered to vote. Yeah, in Houston and Dallas they have big firms [supporting pro bono work], but in counties that I’m around, where it’s a few thousand people here, a few thousand there, life is real bad for the poor; and they have little fair access to justice criminally, and no access to it civilly.”
In 2005, Blackburn founded the Innocence Project of Texas—which, like other branches, sought to exonerate prisoners—and worked with the organization for a decade as its chief counsel. Blackburn believes in pro bono work, but he says it also masks a bigger problem. If justice is important to Texas, Blackburn reasons, then the state should support it unequivocally. “I spent years trying to mobilize lawyers to do these cases. I thought foolishly, ‘Who doesn’t want to be a hero and get an innocent person out of prison?’ It didn’t work out that way at all.” He talks about how begging and hobnobbing for resources gets in the way of doing the work, and doesn’t always pan out. “We pretend,” says Blackburn, “that handing out a few plaques to lawyers who do the right thing can mask the lopsided system that doesn’t allow poor people to be treated equally.”
Others don’t go that far, but few think the unmet need for legal assistance can be completely fixed by lawyers volunteering for 20 or 50 hours a year. “It’s not a problem with the legal profession; it’s a flaw in our whole society, and the whole society needs to be involved in order to remedy it,” says Reasoner, who famously gave lawyers the same credit for pro bono time as for hours billed when he was managing partner at Vinson and Elkins. The firm continues the practice and retains an experienced lawyer to administer the program and mentor young lawyers in areas such as domestic abuse in which they have no experience.
That’s where it all starts: with educating new lawyers, says Hankinson. Some law schools in Texas require students to volunteer in various programs. “There’s an effort by Texas law schools to instill in budding new lawyers that this is part of their responsibility,” she says. “There are things lawyers can do that others can’t do, and if we truly care about the rule of law, it has to be available to all.”
Still, says Reasoner, it’s not easy for new lawyers to volunteer outside their jobs. “Society has quit paying for higher education,” he says. “Students leave college with incredible debts, owing a couple hundred thousand dollars. I’d be worried more about loans than about doing pro bono work.”
He does worry about pro bono work, however. And as he worries about it, he thinks back to an early memory, of standing in a classroom in San Marcos, where he grew up in the 1950s, reciting a promise along with the entire class. “We say in the Pledge of Allegiance, ‘With liberty and justice for all,’” he says. “And I think that’s incredibly important to the people of our country—how we can get justice.”
It’s a Crime
Since those facing criminal charges are guaranteed legal counsel by the 6th Amendment, government funding for legal assistance tends to get steered toward criminal proceedings. Still, public defenders are often overburdened and underfunded compared to their private counterparts. But at least some representation is assured.
It’s a different matter on the civil side, though these outcomes can also be crucial.
“It goes to people’s basic human needs—spouses and children who are victims of domestic abuse; elderly who are wrongfully denied life-sustaining prescriptions or have issues with benefits; veterans denied critical medical care or have housing issues and the like; families who have lost their homes,” says Hankinson.
“The state winds up spending more money on these folks than they would otherwise spend,” adds Trish McAllister, executive director of the Texas Access to Justice Commission.
Many civil litigants represent themselves, gumming up the courts as judges have to guide non-lawyers. In Harris County, the county Bar is inviting judges to ask for a pro bono lawyer when they spot litigants needing help.
“We are trying to set it up under pro bono legal services, where we communicate between the court and the pro se litigants,” says Agosto. “We are trying to formally connect those dots.”