Posted July 7, 20198:33 pm
Written by RJ Vogt in Law 360 on 07/07/2019
Lawyers contributed more than 5 million hours — or nearly 4% of total billings — to pro bono work in 2018, providing more free legal services to those with limited access to justice than ever before.
Sourced from a Pro Bono Institute initiative that calls on firms of 50 or more attorneys to commit at least 3% of billable hours to public service, the data highlight the industry’s growing emphasis on pro bono work: In less than a quarter of a century, total pro bono hours have more than tripled.
According to PBI’s 2018 report, the increase is partly due to rising participation rates and partly due to rising individual workloads that see lawyers devoting 11 more hours, on average, to pro bono work than they did in 1995.
But despite all the big numbers, PBI’s report on pro bono efforts across 128 firms questioned how well using hours as a metric truly captures the success and efficiency of pro bono work.
“Should a year be looked at more favorably simply because [firms] reported more aggregated total pro bono hours?” the report, released in June, states. “It is (past) time to assess the metrics themselves. Let’s carefully evaluate not only the amount of pro bono work being undertaken, but also the outcomes and impact of that work.”
PBI’s call for better metrics reflects a growing interest across the pro bono community.
According to Felicity Conrad, co-founder and CEO of the pro bono software management firm Paladin, many pro bono experts and providers consider outcomes-based data to be “the holy grail” of evaluative tools: ideal, but out of reach.
“Anecdotally, there’s so many stories of the incredible impacts of pro bono work, but it’s really exciting to talk about telling that story in the data too,” Conrad said. “Measuring outcomes really goes to the heart of pro bono work.”
Paladin, which works with firms like Dentons, Wilson Sonsini Goodrich & Rosati PC and Holland & Knight LLP, as well as corporate clients like Verizon and Dell, recently conducted a “design sprint” experiment in which staffers asked pro bono experts and legal aid providers what metrics their ideal pro bono management platform would use.
Across the board, participants stressed the importance of hours as the de facto way to measure work. Conrad says this makes sense: Hours are standard and easy to track, particularly for firms already well-accustomed to counting hours billed to paying clients.
Outcomes, on the other hand, are harder to categorize, especially across the vast range of practice areas — housing, family, immigration, reentry services and more — that can be covered in pro bono work.
Complicating things further is the fact that many firms lack direct contact with the pro bono clients. Oftentimes, an individual lawyer is the only representative who directly interfaces with the person in need, meaning that it’s up to that individual to collect data on things like the client’s desired outcome and whether that was achieved.
“Some of this [data] is being collected, and some legal service organizations do a fantastic job of collecting a lot of this data,” Conrad said. “But it isn’t all standardized. And certainly within firms, that data isn’t routinely collected.”
It’s true that legal aid providers put more emphasis on impact than input, according to Emily Campbell, the associate director at The Center for Community Solutions, which recently completed a long-term impact study on behalf of two independent nonprofit legal aid programs in northern Ohio.
Campbell noted that both programs, the Legal Aid of Society of Cleveland and Community Legal Aid, already studied outcomes on a granular level, including things like number of evictions prevented, number of benefits secured, protection orders put in place and more.
“But the next step is long-term impact,” she added. “We were engaged to study: What impact did legal aid have on your life?”
The 51-page report her organization produced relied primarily on a survey that returned more than 1,200 responses. More than half indicated improvements in financial, family, health, housing, education or civil involvement “stability areas.” Clients whose cases were resolved between two and five years ago were most likely to report positive life changes, indicating that “legal aid has lasting impact.”
Measuring that impact, however, was a process that lasted nearly a year, Campbell said. The sheer size of responses was one factor that slowed down the analysis, and she added, “Now that we’ve done it once, it could be done in a more compressed way.” But she acknowledged that getting to the heart of long-term impacts requires some serious work beyond just tallying hours.
“If just counting hours enables [firms] to understand their work in a way that’s useful, I think that’s fine,” she said. “But in order to have a deeper understanding of what may be happening or not happening as a result of those hours ... you need to commit resources and time and research to be able to do that.”
Since Campbell’s organization released its report in June, she said multiple legal aid groups have expressed interest in obtaining similar insights into the effectiveness of their work.
But Julie LaEace, firmwide director of pro bono at Kirkland & Ellis LLP, said relying on client surveys to assess impact has its own potential pitfalls.
“If the client does respond indicating that he or she is in a good place, how can we know whether the legal representation was actually the cause of that?” she said.
There’s also the challenge of assessing value. LaEace raised the hypothetical situational of an attorney who assists a low-income individual in starting a business.
“If that business eventually fails, is that positive or negative?” she said. “What if the individual learned from the first startup and went on to start up a successful business later on?”
Instead of relying on clients, she advocated for systems that have pro bono attorneys reporting key data points immediately after a case is resolved, such as: Did the clients keep their home? Were they evicted? Was the criminal record sealed?
There’s also something to be said for the value that lies in things you cannot count, according to Bill Silverman, the pro bono partner at Proskauer Rose LLP.
Though he noted using hours as a metric is a good way to evaluate attorney participation and expressed an interest in having access to more outcomes-based data, he cited some of the firm’s nontraditional pro bono opportunities as examples of just how hard defining success can be.
Proskauer’s sponsoring of an Equal Justice Works fellow, for example, is just one instance in which the firm has committed resources and time to public service, “even if it’s not something that’s contributing to our Am Law ranking,” Silverman said.
“If all we’re being judged by is hours, then all the time and effort and expense we put into this project isn’t worth it,” he said. “But in terms of impact and in terms of building a program and in terms of getting our lawyers involved at a much deeper level ... that’s incredibly important.”