Pivoting on Pro Bono after COVID-19

The Bencher—November/December 2021

By Judge David W. Lannetti and Jennifer L. Eaton, Esquire

The aftermath of the COVID-19 pandemic presents a unique opportunity to visit pro bono service anew. The pandemic’s disproportionate impact on the poor has highlighted the longstanding problem of unequal access to justice and offers the chance to attack the problem with fresh eyes and strong enthusiasm. The legal profession can use the pandemic as an awakening to reevaluate how and to what extent individual attorneys can support and encourage pro bono service. Embracing change will require a shift in perspective away from vague aspirational goals and toward active involvement from all corners of the profession. With this new grassroots mindset, the profession can better support both indigent individuals and legal aid organizations to close the Justice Gap.

What is the Justice Gap? By now most attorneys know that the “Justice Gap” is the difference between the civil legal needs of impoverished Americans and the resources available to meet those needs. At first glance, it may be difficult to understand why traditional legal aid societies and funding from interest on lawyer trust accounts (IOLTA) fail to provide the needed legal services. But the reality is that legal aid resources are limited and IOLTA funding is—and has been for many years—woefully inadequate. According to the Legal Services Corporation, which oversees the majority of the nation’s legal aid societies, each year it provides only limited or no legal help to almost a million impoverished people seeking assistance with civil legal problems. And this does not include the millions of Americans who make too much money to qualify for legal aid services yet cannot afford to hire an attorney to represent their interests. In fact, the Justice Gap had been widening even prior to the pandemic.

What has been done to mend the Justice Gap? Many stakeholders, including national and state bar associations, have attempted to mend the Justice Gap for decades by implementing top-down approaches that encourage attorneys to provide pro bono service by, among other things, requiring pro bono service or suggesting that attorneys report their pro bono hours on an annual basis. Although these approaches have gained traction over the years—and have resulted in additional pro bono hours—they have not been enough on their own to sizably narrow the Justice Gap, at least partly because the gap continues to widen.

Why does a grassroots approach to pro bono make sense? Although top-down approaches that mandate attorney action have had some success in providing additional pro bono service, it is clear that they cannot solve the problem on their own. Per capita attorney volunteer hours are down as the need for indigent legal services continues to rise. It is time to revisit how we think about pro bono representation and to pivot from top-down initiatives to bottom-up action.

What is needed is significantly more pro bono service hours by individual attorneys. And for attorneys to voluntarily contribute more hours, they need to be encouraged, supported, and involved in the process. A grassroots approach is a new way to spark enthusiasm for pro bono service and create a movement going forward. Such an approach focuses on engaging and empowering stakeholders at every corner of the profession to get involved in the pro bono cause. This method emphasizes the micro actions of the many to create long-lasting and impactful change. It also leverages already existing platforms and tools, including bar associations, judicial involvement, law firm resources, and attorney skill sets, to collectively foster change. This type of movement gives power to individuals to recognize that they can make a difference. This awakening has the potential to turn the tables and create lasting change.

Why now? It is well-known that pro bono service benefits both individual attorneys and law firms. For individual lawyers, it offers immediate client contact, invaluable courtroom experience, and responsibilities they might not otherwise encounter for years to come. For law firms, pro bono service offers positive marketing that can translate into new clients. However, COVID-19 has made the environment even more amenable to reaping collateral benefits. For individuals, pro bono service provides a sense of belonging to something bigger. Because the pandemic exacerbated mental health issues within the legal profession, a sense of giving back is more important now than ever. For employers, pro bono service provides an opportunity to do the right thing while improving attorney fulfillment.

“Epiphany quitting” is a phrase that has gained traction in the wake of the COVID-19 pandemic; some employees are reevaluating their jobs and concluding that their vocation is not the best fit for them moving forward. Legal employers have the opportunity to learn from these “epiphany quitters” and reevaluate how to treat the causes of burnout and low attorney satisfaction. One such way to support attorneys is by encouraging pro bono service and showing attorneys that their contributions to the community are valued and make a significant difference.

Will change make a difference? Answering the question of whether a bottom-up approach will mend the Justice Gap is an impossible feat because it requires assumptions as to whether attorneys will actually respond to the call. What is clear, however, is that there are enough attorneys in the United States for a bottom-up approach to work if attorneys are willing to unite under this common cause and look to themselves as the solution.

Understanding that we all have a role to play in closing the Justice Gap is the first step to lasting change. And never underestimating the significance of our respective roles is even more important. Witnessing the devastating impact of the COVID-19 pandemic on impoverished Americans hopefully will serve as a wake-up call to unite individual attorneys and law firms in making a real difference. The time to act is now.

Judge David W. Lannetti is a circuit court judge in Norfolk, Virginia (Virginia’s 4th Judicial Circuit). Jennifer L. Eaton, Esquire, is a civil litigator who is currently taking a leave of absence from private practice to serve as a judicial law clerk for a judge on the newly expanded Court of Appeals of Virginia. Lannetti is a past president, and both he and Eaton are current Executive Committee members of the James Kent American Inn of Court in Norfolk. The views advanced in this article are those of the authors alone and should not be mistaken for the official views of the Norfolk Circuit Court or the Court of Appeals of Virginia.

© 2021 Judge David W. Lannetti and Jennifer L. Eaton, Esquire. This article was originally published in the November/December 2021 issue of The Bencher, a bi-monthly publication of the American Inns of Court. This article, in full or in part, may not be copied, reprinted, distributed, or stored electronically in any form without the written consent of the American Inns of Court.