I have worked with non-profits and community groups without charge since I became a lawyer. At the height of the foreclosure crisis, I was in the community (usually not in connection with any paid job) four or five nights per week, giving a free presentation on foreclosure and then answering questions until people were satisfied or until our venue locked up (usually the latter).
Pro bono service is, for me, pro bono. I shudder at the behavior of attorneys who show up with a business card, giving a little “free” advice now in order to get a retainer fee later. In over a decade, I’ve only agreed to represent four or five people that I met in free settings on a fee basis, and those arrangements were always something we discussed with the sponsoring organization to ensure transparency. I think the other model, giving a “free sample” and hoping to attract clients is fine–but it isn’t pro bono service. It is advertising, and those attending should know in advance that they are coming to a tupperware party, not a “free” event.
At my sessions, I paid for my own parking and gas. I drove my own car, and often detoured on my way home to give a ride to someone who lived in a fancier neighborhood than I. I encountered people in foreclosure who were too good to come to my neighborhood for advice, but would refuse to buy themselves a cup of coffee (let alone pick up my tab) to justify using a table in a restaurant that was convenient for them.
In 2014, in the midst of a huge fair housing case for people sorely in need, I got a huge wake-up call. When I called on community organizations for help, they were too busy. Some who provided assistance expected me to pay for gas for them even though my effort was clearly unpaid. Though it was certainly okay for individuals and organizations to ask for what they needed, I quickly found that people have short memories for receiving thousands of dollars worth of free legal services without so much as a request to pass the hat for gas. Of course, this also makes those organizations that have passed the hat for me, held fundraisers, or just made a point of saying thanks stand out even more fondly in my mind.
If I had it to do over again, I would have changed a lot about how I provided help. Some of the tips below are derived from those changes, and others reflect my view about how to treat people accessing help with dignity.
- Is this a legal effort or a political effort? Recently, I assisted a group where placement of political signs came to the fore in a discussion. The signs were not part of the original legal effort, but the issue was not surprising to me because I understood the group’s goals. Had I thought I was only signed on for a narrowly-defined legal objective, then the issue would have derailed the effort. It is legitimate for groups to want to pursue a larger agenda than just what can be tackled in court, and it is legitimate for a prospective pro bono lawyer to turn down being part of that agenda, sign on with some stated boundaries, or to accept it entirely. Being clear is what matters!
- Understand the limits of legal work. I often represented people in efforts to save homes where the legal options would run out. Early in my career, sending them back to the organization for other work caused confusion. I learned to be clear even though it is hard for lawyers to admit that we are not always the final word. The time for legal work sometimes ends with an adverse decision. That does not mean the person might not, for example, advocate for their desired end through political pressure. It might not be appropriate for me to be part of some protests (despite my agreement with the message), and continually asking me to go to court when legal options have been exhausted is counterproductive. Other clients needed connections to social services or other resources. Over time, the best organizations and I learned how discern the need for legal, political, and other work.
- Talk about how you will get paid. Long before I went to law school, I was involved in an effort where I felt angry that the other side was getting free legal work. A wise community lawyer told me, “There’s no such thing as free legal work.” When I had my own law office, I naively thought doing community work made me part of the community–and with the best organizations, it did. However, when I needed help, I found some of my friends had short memories. I now ask for what I need up front, whether it be help with parking, a venue closer to home, being included in press work around a legal issue, or–in some cases–plain old money (even at a reduced rate) for my services.
- Money changers. Temple. Throwing. Throwing money changers out of the temple can be exhausting, and I’ve learned to keep them out. When I first started doing foreclosure educational sessions, it was depressing to do truly free, high quality work and rebuff offers of paying clients while seeing business cards for substandard services passed out on the sly. Some groups would allow attendees to stand up and crow about the great work of Mr. X, leaving me to know I would have 20 Mr. X victims, each $5,000.00 poorer, to try to salvage (at no cost) in the coming weeks. Probably the worst examples were seeing the names of disbarred lawyers promoted on a community list-serv and walking into a community meeting to see actual Satan, complete with sulphuric fumes, passing out cards. I now make it clear at the beginning of relationships that my services are free, but that does not make me an advertising platform for others. Some groups do not get it, and that’s okay. One hopes enough needlessly lost homes will eventually speak for themselves. Regardless, I am not available to attract people who will be put through a grinder that leaves them homeless and penniless.
- Set behavioral boundaries. I am fond of telling people that I sometimes need to be paid in actions, if not money. This can sound a lot like insisting people act as “the deserving poor,” which is not my intention. Going to court for someone at no cost is a big commitment. It is important to make sure you get what you need without it taking up time unnecessarily. Clients can–and should–timely deliver needed documents, attend meetings, and–where possible–assist with case logistics. It is degrading and patronizing to assume they cannot take a few steps, even with extra support, to help themselves.
- Control the flow of communication. Clients who pay an hourly fee have a monthly incentive–an invoice–to be efficient in communication. A downside to pro bono representation can be unrealistic demands by clients or community partners that you be on the phone for several hours per week. I set clear expectations for communication flow at the outset, and I let those who do not want to use my preferred mode of communication that I am simply not the best lawyer for them.
- Account for time. Free representation does not have to be bottomless. An invoice (without a demand for money) showing how time is spent can be a powerful tool for showing the value of your services. Many people simply don’t comprehend the complexity and time investment involved in writing a pleading. Clear accounting can help convey the value of what you offer.
- Protect yourself! For many years, I kept no copies of attendance sheets, disclaimers, or agreements. Asking for these things made me feel like I was wearing a monocle and a top hat. This changed after I provided an opportunity for 50 people who had just settled a lawsuit to receive financial management training. When one of the pro bono clients turned on me and accused me of not explaining the settlement terms, I wanted to bring in the sign in sheets from my training–where the settlement terms were a prominent topic. The sponsoring organization flatly refused, citing “confidentiality” (of my own clients–to me!) and failing to even honor an agreement to write a letter confirming the training existed. Fortunately, the case was in front of a no-nonsense judge, and the false claim against me was quickly rebuffed. However, I now insist upon my own copies of attendance sheets and other documents. I also got one bug off my vine–that organization is not welcome in my office in any way ever!
- Know who can leave and who can’t. This is short: they can (without consequence) and you can’t (without leave of court, which could be denied). I am often asked to take a case relying on the word of an organization that they will assist with translations, logistics, or fundraising. However, people have a way of being human and alienating pro bono lawyers and other helpers. I’ve had a truly vile organization turn against my clients and actually attack them after wooing me in (itself a funny use of HUD funding), but most are more benign. A client stopped by my non-profit partner a couple years ago, picked up the group’s portion of her file, and left. When I asked them to reach out to her, they told me they wanted nothing to do with her. That’s an organization’s prerogative, but is no help to the lawyer, who is in the case until a judge says otherwise. Think carefully about any case where you are likely to rely on an outside partner.
- Lead with the community. The law is about people. A huge shortcoming of the legal system is imposing a framework that rarely connects with human need. By listening to the community first, we can find the solution that best fits, suggest it, and back away. Often, people will reject good legal solutions and doggedly pursue lost causes. While we may choose not to offer our help when efforts are too far out of bounds, a lawyer who imposes an overly-legalistic view hurts as much as the broken system. My first introduction to a lawyer who I intensely dislike was learning how she would lecture groups that she could not help them to break the law–that’s co-opting a meeting and making it about you. If the group’s tactics are the offensive, I excuse myself. It is pretty easy to tell my law school diploma from a baseball bat, though I understand how gobs of grant money, earned with nothing but complicity, might blur the lines.