The Role of Corporate Counsel in Access to Justice
“Pro Bono is the finest tradition of our profession.”
Judge Edmond Chang
On April 14, 2021, the American Bar Association hosted a program on the role of corporate counsel in access to justice. Michael A. Scodro, Esquire, partner at Mayer Brown, moderated the program. Other panelists included the Honorable Edmond Chang, U.S. District Court, Northern District of Illinois, the Honorable Jolie Russo, Magistrate Judge, U.S. District Court, District of Oregon, and Beth Henderson, Esquire, Director of the Pro Bono Program at Microsoft. The program focused on giving Corporate Counsel a greater understanding of assisting with closing the access to justice gap.
The panelists shared a few startling statistics that illustrate the scale and scope of the gap in access to justice.
- Legal Services Corporation (LSC), in its 2017 Justice Gap Report, indicated that low-income Americans will approach legal aid organizations for support with an estimated 1.7 million legal issues in one year.
- Of those civil legal problems included in the LSC report, 86% received inadequate or no legal help.
- One study showed that only 22% of those who attend eviction proceedings with legal representation had final judgments against them, compared to 51% of those who had no representation.
Why should corporations develop pro bono programs?
There are many reasons why corporations may want to consider establishing a pro bono program in their in-house counsel’s office. First, their attorneys have professional obligations to perform pro bono services. As illustrated here, the statistics demonstrate unmet legal needs for a large portion of the population. Additionally, there is a new generation of law graduates attracted to corporate offices that serve the communities in which they do business. Providing pro bono legal services can also satisfy a marketing need to demonstrate good citizenship.
The view from the bench is definitely that pro bono is a calling that our profession should embrace. The judges on the panel both agreed that pro bono representation makes a clear difference in legal outcomes. Judge Russo stated that in her experience, “pro bono services have become a necessary and critical component to our court’s efficient functioning” because, without legal aid, pro se litigants meander through the process. She also highlighted the fact that pro se litigants “absorb inordinate amounts of the court’s time,” as well as the clerk’s office, intake staff, and deputies. More critically, pro se litigants fail to state claims that they are unaware of. Judge Chang also shared Judge Russo’s concerns stating that pro se litigants struggle with “advancing a case forward” procedurally and through discovery and establishing the substantive part of their claims.
Ms. Henderson indicated that corporations who address the Access to Justice crisis as a component of their companies’ ESG (environmental, social, corporate governance) standards will benefit greatly plus provide benefits to their local communities. Ms. Henderson mentioned a report by the World Justice Project which conducts an annual Rule of Law Index. The most recent one was for December 2021. The report reflects the “United States is ranked 126 out of 139 countries on accessibility and affordability of civil justice and dropped 40 levels between 2015 and 2021.”
In every state, lawyers have a professional responsibility or suggestion to provide pro bono service annually. The ABA Model Rules, of course, have an aspirational target of 50 hours. Ms. Henderson believes “in-house legal departments have a responsibility to ensure that the attorneys they employ have the time and space to work towards and meet their professional responsibility goals.”
How may a corporate in-house legal department set up a pro bono program?
Ms. Henderson recommends the first step to starting a pro bono program within an in-house legal department is to look at the rules of professional responsibility governing your jurisdiction. The rules will identify the total number of hours recommended and also define the type of legal work that counts as pro bono hours. In her experience, she has found that pro bono hours can be accumulated for matters other than direct legal services. Examples Ms. Henderson gave included mentoring a law student, teaching CLE courses, or serving on the board of a legal aid organization.
Next, Ms. Henderson notes getting support from leadership is a key to a successful in-house pro bono legal program. Determining whether leadership can provide a budget for the program is also critical. Exploring whether your local legal aid organizations provide opportunities for pro bono volunteers to get involved is a great resource so that you are not starting from scratch seeking pro bono opportunities. Inquiring with outside counsel that you regularly work with was also suggested. Your outside legal counsel may have opportunities and existing infrastructure that your in-house legal department may utilize.
Finally, Ms. Henderson indicated there are a lot of great transactional-based opportunities for in-house corporate counsel where one may use their existing skillset to provide pro bono legal services. She identified a national organization called Start Small Think Big which pairs transactional attorneys with small business owners who can’t otherwise afford legal counsel.
It is also important, said Ms. Henderson, to recognize the pro bono work done by your legal department. At Microsoft, there is a formal awards ceremony for the legal department. One of Microsoft’s categories for an award is “giving back and pro bono.” The winner receives the award as well as cash associated with it.
What skills may corporate counsel have that can help close the justice gap?
As corporate counsel, you may be thinking how can my skills in advising my client be transferable to closing the justice gap? Judge Chang gave a few examples where a corporate counsel’s specific skill set is transferable to pro bono work. He was the presiding judge in an intellectual property case where there was a trademark dispute between a national civil rights organization and one of their branches in Chicago. The legal talent of in-house corporate counsel in the area of intellectual property was crucial in that case. Another example given was employment discrimination cases where the pro se litigant has trouble calculating their benefits for damages purposes. Corporate counsel can handle those cases in a pro bono capacity and assist with their expertise in HR employee benefits.
In-house corporate counsel that are interested in establishing a pro bono program, will need at some point to make a pitch to leadership for commitment to a pro bono program. Ms. Henderson stated she is seeing an increase, in the corporate world, of general counsels making pro bono a pillar of their platform. Ms. Henderson stated Microsoft and Amazon have already formed in-house pro bono programs. Other corporations that have developed in-house pro bono legal programs are Discover Financial Services, Exelon Corporation, JP Morgan Chase & Co., McDonald’s Corporation, State Farm, and United Airlines, Inc. Ms. Henderson also indicated that “younger generations of lawyers want to work for companies that have strong, robust pro bono programs.” She suggested that if you are looking for talent in the current market with recent law school graduates, the pro bono legal work of the company is very important to them.
Of course, corporate counsel who are interested in starting a pro bono program within their in-house legal department should also consider tying the pro bono work into the important initiatives within your company. Forming a pro bono program within the corporate legal department can be incorporated as a broader ESG initiative that corporations are implementing on sustainability, diversity, and inclusion.
Pro Bono Resources
A few of resources for corporate counsel thinking about initiating a pro bono program are listed below:
ABA Center for Pro Bono (holds Equal Justice Conference annually with NLADA): americanbar.org/groups/center-pro-bono/
Pro Bono Institute: probonoinst.org
Pro Bono Net (not in every state): probono.net
The Association of Pro Bono Counsel (APBCo): apbco.org
Public Interest Law Initiative Pro Bono Reference Guide for Corporations: pili.org/?s=pro+bono=reference=guide=for=corporations
State and local bars and nonprofits
In sum, there are many reasons why corporations may want to consider providing pro bono legal services including the professional obligations of their legal staff, the unmet legal needs of the communities in which they serve, recruiting and retention purposes, marketing, training, and professional development. Developing a pro bono program within a corporation also serves the best interests of the corporation if the corporation is trying to create an ESG program or evolve their current ESG infrastructure. The unmet need for access to justice remains huge despite tremendous efforts. Corporate counsel can play a critical role in closing the access to justice gap and ensuring a fairer and more accessible court system by establishing a pro bono program within their legal department, providing pro bono opportunities for both attorney and legal support staff, developing strategic partnerships with legal aid, courts and law firms and supporting and celebrating your pro bono volunteers.