Law firms are the cavalry of the legal world. Disaster strikes, and the firms, with their thousands of lawyers and millions of dollars, ride into town to clean up the mess.
But what happens when the cavalry doesn't show?
That's the situation in New Orleans, where almost two years after Katrina, the criminal-defense system is still in a state of emergency. Public defense was never the city's strength: When the levees broke, there were about 7,000 criminal defendants waiting to see a state-appointed lawyer. Immediately after the storm, the city jailed roughly 5,000 of them, many on shaky legal grounds. Most remained locked up for over a year before speaking with a lawyer. The public defender's office is slowly working through the backlog, but is still overwhelmed. It's a situation public defenders bitterly call "Gitmo on the Bayou."
In response to the crisis, more than 2,700 law students traveled to New Orleans and the Gulf Coast, on trips a bit reminiscent of the famous civil rights freedom rides. The students do just about everything but appear in court, including interviewing defendants and collecting evidence. Public defenders from different parts of the country took sabbaticals from their day jobs to come down as well. But however welcome, this is as effective as washing the bathroom floor with a toothbrush, say New Orleans public defenders. Eventually, you'll clean up the mess, but a mop could take care of the problem a whole lot faster. The law firms are far stronger and richer than anyone else in the legal world. Why aren't they helping the Bayou's criminal-defense bar recover?
To be fair, big law has done a lot for the region. Firms donated thousands of hours to the legal rebuilding effort, sending lawyers down to help with FEMA appeals, small-business recovery, and Road Home grants. The Mississippi Center for Justice, a Jackson-based nonprofit founded in 2003, convinced 19 law firms to donate 8,100 hours last year, adding up to a value of $3 million. *
Most of this work, however, has been on civil matters. Generally, it makes sense for law firms to concentrate on helping with civil suits, because criminal defendants have a constitutional right to representation. Remember Gideon? The 1963 Supreme Court case ordered states to pay for attorneys for poor people accused of crimes, making pro bono work on their behalf relatively superfluous. The flip side of state-funded defense, however, is that when it fails, firms aren't prepared to help pick up the pieces. For poor litigants in New Orleans, that often means waiting months in jail before even meeting a lawyer.
It's the systems firms use to efficiently donate legal hours that hold them back from effectively helping criminal litigants. The idea of an organized firm pro bono program started gathering steam about 15 years ago. In 1993, the American Bar Association revised its Rule of Professional Conduct to describe donating 50 hours of free legal work a year as a "professional responsibility." The Pro Bono Institute at Georgetown University Law Center challenges firms to donate either 100 hours per attorney or an amount of time equal to 5 percent of the firm's total billable hours. More than 150 large firms have signed off on the standard.
That doesn't mean they meet it: According to the American Lawyer's 2006 pro bono survey, only about 37 percent of law firm attorneys at the 200 biggest firms did at least 20 hours of work last year. Still, even if the firms miss their pro bono goals, most consider setting them good for business. A strong pro bono program is a recruiting hook for top law students and junior lawyers, who give more weight to pro bono in deciding where to work than they used to. Industry publications, like the American Lawyer's A-List, include pro bono in their ranking criteria for firms.
Today, at most big firms, pro bono works like a well-oiled machine. Many have pro bono coordinators or partners working full time to vet projects and match them with the appropriate lawyers. The firms generally expect the public interest providers to present packaged, clear projects with a set scope and time frame. Firms will go far for the most desirable cases. As the Wall Street Journal recently reported (subscription required), some donate money, office space, or clerical help to nonprofits in return for the first crack at interesting legal matters. Lawyers Without Borders Inc. requires an upfront donation of $7,500 a year before it gives firms access to the best cases.
But if the cases don't fit the traditional format, firms won't touch them. And firms generally feel most comfortable doing the kind of work they know best. Hand them a real-estate dispute, small-business negotiation, or intellectual property problem, and they'll come at it with a flurry of paper and army of suits. But dealing with drug charges, petty thefts, and assaults? Not so much. Also, it takes lawyers to get lawyers. Even in the midst of legal chaos, firms want a fully developed plan of action. If a firm is going to take on a criminal case, in a district with different laws, it wants assurance that its lawyers will be heavily supervised. No firm likes a malpractice suit. And no lawyer wants to give any client—whether paying or not—bad legal advice.