Pro Bono by Proxy

Sasha Volokh observes that most lawyers at big law firms still perform fewer than the recommended 50 hours of pro bono legal work each year, despite recent gains. The problem, of course, is that performing pro bono work can entail a considerable opportunity cost in terms of the forgone revenues the lawyers could have generated during those hours. In order to encourage greater provision of legal services to the poor, some law schools are now encouraging their graduates to start "neighborhood law practices" whose purpose is to provide low-cost legal services, a.k.a. "low bono" work. But this approach doesn't eliminate the opportunity cost problem - it just concentrates it on a smaller number of individuals, the attorneys who practice at such firms. As Sasha says, "Trying to get many lawyers to do a few pro bono cases may be a better strategy than convincing more people to take a very substantial salary cut to provide services to the poor."

I wonder if there's a potential third way here. If big-firm lawyers wish to "do the right thing," but the opportunity cost is simply too high, then perhaps they should make contributions to lawyers or firms that specialize in pro bono work. Say I'm a corporate lawyer who contributes 40 pro bono hours per year, but the cost of contributing another 10 (to reach the recommended 50) is just too high. Then I do my corporate work instead, and then contribute part of my earnings to pay someone else to do another 10 on my behalf. This strategy could lead to just as much or more pro bono work getting done at lower cost, because the hours would be shifted from attorneys with higher opportunity cost to lawyers with lower opportunity cost.

The potential downside is that the high-octane corporate lawyers might be *better* lawyers, in which case the transfer of hours to other lawyers could lower the quality of service rendered to the poor. But I think this problem is likely to be slight, for at least three reasons. First, I suspect the biggest problem for many poor people is not having representation *at all*, and this plan would likely increase the number of service hours provided. Second, there are presumably gains from specialization in the legal profession. Some lawyers are better at corporate work, while others are more talented at providing the kind of services most often required by the poor. This proposal would tend to shift the pro bono work to those most skilled at it. Third, if corporate lawyers really are better, the main reason is the higher compensation they receive. The contribution of funds to firms that specialize in pro bono would attract higher quality attorneys to those positions, at least on the margin.

I suspect the main hurdle for this proposal would be opposition to the idea of discharging one's ethical duties with personal checks instead of effort. If so, I think our ethical standards need revising. The duty to help others does not imply a duty to help them in a more costly fashion simply because it's more "personal." Personal contact can be valuable for the practitioner in terms of moral growth and development of character, but perhaps something less than 50 hours a year is sufficient to achieve that benefit. Why not satisfy the rest of one's ethical obligations with cash?

ADDENDUM: If no one's coined it yet, I hereby lay claim to authorship of the label "proxy bono."