This article first appeared in the ABA Center for Pro Bono Exchange blog.
“Pro bono service has to become as much a part of our substantive efforts as corporate law, tax law, real estate law and all of the other aspects of law that form part of our business law practice. –Joseph Mullaney, General Counsel of Gillette Company
Business law lawyers often feel challenged to provide pro bono legal services within their legal practice area. In an effort to increase the number of pro bono volunteers, many pro bono organizations and professionals claim (and in some instances proclaim) how much business law lawyers grow when they “step out of their comfort zone” and tackle litigation based pro bono cases. Most business law lawyers (myself included) take offense to the suggestion we somehow need to grow. Instead of encouraging a business law lawyer to grow experientially through litigation based pro bono, we should encourage each business law lawyer to use his or her legal skills to meet the ethical obligations of ABA Model Rule 6.1 which encourages every lawyer to provide pro bono legal services to “persons of limited means or . . . charitable, religious, civic, community, governmental and educational organizations in matters which are designed primarily to address the needs of persons of limited means.” A business law lawyer need not depart from his and her practice area in order to meet this obligation. Assisting a client of limited means in obtaining economic justice (or a nonprofit organization assisting their clients to do the same) is just as laudable as battling on behalf of a client of limited means in a court of law.
Put most simply, economic justice involves the laws and institutions that determine how each person earns a living, enters into contracts, exchanges goods and services with others and otherwise produces an independent material foundation for his or her economic sustenance. While the economic justice system includes multiple interfaces with the law, very few of these encounters involve the court system. Who is better equipped than a highly trained business law lawyer to assist persons of limited means in navigating and succeeding in the economic justice system? The business law section created its own pro bono committee in 1993.
While business law lawyers are well equipped to help pro bono clients navigate the economic justice system, finding eligible pro bono clients poses a challenge. There are no courthouse steps where people of limited means line up pro se to battle the economic justice system. Connecting business law lawyers who want to provide pro bono legal services within the business law context with potential pro bono clients is less direct than a self-help desk at the court house.
In keeping with Model Rule 6.1, in his 2002 law review article entitled Fulfilling the Promise of Business Law Pro Bono, James Baillie, a one-time chair of the ABA Standing Committee on Lawyers’ Public Service Responsibility and the Business Law Section’s Pro Bono Committee, outlined a path for business law lawyers to provide business law pro bono. Mr. Baillie generally defined business law pro bono to include any legal services in the broad category of business law (as contrasted with litigation) provided to any person or entities that need legal services on a pro bono basis. Mr. Baillie stated that “the recipients of these services can, for the most part, be divided into two broad categories: nonprofits and microenterprises.”
Since business law pro bono is by definition provided to persons or entities that are participating in the stream of commerce, one critical component of business law pro bono is making sure the clients being served actually cannot afford to pay for the legal services provided. Given the diversity of the lawyers in the legal profession and the clients served, one lawyer’s pro bono client could be another lawyer’s paying client. Means testing business law pro bono clients is just as important as means testing any other pro bono client.
Determining the personal economic means or an individual who desire to start a microenterprise or who needs assistance with a business law issue related to an existing microenterprise is fairly straight forward. The same can actually be said for nonprofit organizations. According to Marcia Levy, the Executive Director of Pro Bono Partnership: “in evaluating whether we can represent a nonprofit that otherwise meets our mission-based criteria, we look at whether the organization can afford legal representation without significantly impacting their resources for services. It is a means test, but one with flexibility based on the totality of the circumstances, including whether they have a paid relationship with a lawyer or law firm.”
While the theoretical and professionalism aspects of business law pro bono are critical, the impact business law pro bono legal services and how a business lawyer can make a difference in the lives of people of limited means is really what matters. Gary Connelley, Pro Bono Counsel for Crowley Fleck PLLP, a regional firm with offices in Montana, North Dakota and Wyoming, said it best: “As far as the impact, we often get feedback from the organizations on the value of our services to their clients, but not much from the clients of those organizations directly. I just spoke with one of our senior partners who has done considerable work with Tumbleweed, especially negotiating a lease from the county for an overnight shelter for homeless teens. When I asked him about the impact of that work on him, he just mentioned that knowing there were now beds (where there were none before) for teens who would otherwise be under the bridges, vulnerable to sexual predators, was a source of pride and great satisfaction to him.”