Wisconsin Lawyer
Vol. 79, No. 7, July 2006

Probing Pro Bono:
Studies Assess Lawyers' Contributions, Citizens' Needs

Sidebar:

• Profiles in Pro Bono

by Dianne Molvig

isconsin attorneys have witnessed an intense focus in the past couple of years on a key question: What is their responsibility in providing legal services to people who can't afford to pay for them?

Swirling around that question are other issues, such as voluntary versus mandatory pro bono; what counts as pro bono; and the already enacted, but still controversial, compulsory Wisconsin Supreme Court assessment to fund legal services for poor people through WisTAF, which took effect in July 2005.

Still, the quandary lingers as to how to best meet the legal needs of Wisconsin's poor residents. To aid in the search for solutions, the State Bar of Wisconsin has undertaken two studies to gather vital information.

First, the State Bar's Pro Bono Survey aimed to learn more about what Wisconsin lawyers already are contributing in pro bono legal services. That survey is now complete.

Second, State Bar President Mike Guerin appointed nine Bar members to a special committee, the Access to Justice Study Committee. The committee's charge is to assess the extent of legal services needs among Wisconsin's low-income residents and ways to fund those services. Moreover, the study is looking at the cost to society of failing to meet those legal needs. The study is now under way, with a report to the Bar due later this year.

Pro Bono Baseline

Brown

The essence of the findings of the 2005 Pro Bono Survey can be found in one sentence written by Jeff Brown, State Bar pro bono coordinator, in a letter attached to the survey report.

Brown writes: "[L]awyers have gone further than any other profession or vocation that I'm aware of when it comes to regularly giving away what they could and would otherwise charge full fare to provide."

Survey results seem to support Brown's statement. The more than 2,000 Bar members responding to the October 2005 survey reported that in the preceding 12 months, they provided 110,736 hours of free legal services. That translates into services valued at about $18.3 million, based on the median billing rate of $165 per hour, as reported in the Bar's 2005 Economics of Law Practice Survey. Of that amount, nearly $12 million in services went to individuals on limited incomes and to community organizations that serve poor people.

In addition, in that same 12 months respondents contributed 80,241 hours of reduced-fee legal services to Wisconsin's poor residents and organizations that serve them. Using a reduced fee of half the $165 median hourly rate, the value of these services totaled more than $6.6 million.

As the State Bar's pro bono coordinator, Brown's job is to support and enhance pro bono efforts among the state's lawyers, in accordance with the Board of Governors' decision to foster more pro bono involvement among attorneys as a way of improving public access to the legal system.

"The Bar has set that goal," Brown says. "To measure how successfully we're meeting that goal, we need some kind of baseline. That's why we did this survey - to find out what lawyers are doing now."

The survey asked 18 questions about three types of pro bono contributions:

• direct services to clients;
• activities to improve the justice system or the legal profession; and
• voluntary financial contributions to support legal services to people of limited means.

Direct services to clients include both free and reduced-fee services. Brown notes that the latter often get overlooked when people, lawyers included, think about pro bono. "The rules that have been drafted on pro bono services," he says, "have always included reduced-fee work. That's probably the least known piece" of what qualifies as pro bono.

That brings up another purpose of the survey. "There's also an educational part to this - to show that there are different ways to do pro bono," Brown says.

Below are key survey findings:

• The median pro bono hours per respondent was 70 hours, including all types of pro bono service, over the previous 12 months. (The median is the middle value - that is, half the responses were above this number, half were below.) The mean, or average, was 137 hours. The wide difference between the median and the mean indicates that a few unusually high numbers skewed the mean. Thus, the median proves to be a more useful figure in this instance.
• Free legal services to individuals of limited means totaled 52,706 hours for the 12-month period. The value of those hours (using the $165-per-hour rate) was $8.7 million.
• Free legal services to organizations that address the needs of persons of limited means totaled 19,619 hours. Value: $3.2 million.
• Free legal services to charitable, civic, religious, educational, or other nonprofit organizations totaled 38,411 hours. Value: $6.3 million.
• Reduced-fee legal services to individuals totaled 67,491 hours. Value: $5.6 million.
• Reduced-fee legal services to organizations that address the needs of persons of limited means totaled 12,930 hours. Value: $1.1 million.
• Wisconsin lawyers in private practice contributed 66,419 hours of free legal services, worth just under $11 million, to people on low incomes and to organizations serving poor people. They gave another 63,502 hours of reduced-fee services, worth about $5.2 million. By comparison, federal Legal Services Corporation funding in Wisconsin last year was about $4 million.
• Respondents reported a total of 28,669 hours devoted to activities to improve the law, the legal system, or the legal profession. The median among all respondents was 15 hours; among judicial members, it was 40 hours.
• 29 percent of respondents said they had made voluntary financial contributions (beyond the required $50 WisTAF assessment) to provide financial support to legal services for people of limited means.

In addition, the survey asked respondents to choose incentives that would encourage them to increase their pro bono work. Some of the top choices included: help with out-of-pocket costs, free malpractice insurance, CLE credit, free or discounted manuals and forms, free or discounted training, the availability of mentors and cocounsel, and the opportunity to work on a discrete legal task.

The opportunity to work on a discrete legal task refers to a sort of unbundling of pro bono. In other words, attorneys would give a limited amount of help in a case, such as reviewing a settlement agreement or assisting in filing for a divorce, but let the client take it from there.

Brown says the State Bar is trying to develop more projects involving discrete legal tasks. He notes that the Dane County Bar Association, for instance, has discussed a project that would offer seminars for consumers on specific legal issues, combined with a set amount of time to consult with a lawyer for no fee.

The State Bar Pro Bono Initiative already offers many of the types of assistance respondents favored, including free malpractice insurance, help with out-of-pocket costs, and free and discounted training and manuals and forms.

Next year, a new Wisconsin Supreme Court rule governing lawyers' professional conduct on pro bono, following the American Bar Association's model, will go into effect. It will include an aspirational goal (not mandatory) of 50 hours of pro bono work per year.

Brown points out that some lawyers may be uneasy with that goal as set by the court. Still, he believes the Pro Bono Survey's findings should reassure many lawyers in a couple of ways. "First, that number probably is no more than what you're already doing," he says. "And secondly, some of the things you're already doing count as pro bono."

• Full report on the Pro Bono Survey

Sizing Up Legal Needs

Sankovitz

The Bar's Access to Justice Study Committee is assessing the extent of legal needs among Wisconsin's low-income residents. Committee chair Richard Sankovitz, a Milwaukee County circuit court judge, recognizes that some observers may question the need for such a study. Isn't it obvious that Wisconsin has low-income people who have legal needs and can't afford legal help?

Sankovitz has two responses. First, he notes that the Access to Justice Study aims to take an in-depth look at legal needs. The study goes beyond assessing the size of the problem. It seeks to create a detailed picture of it, by finding answers to multiple questions: Who needs services? Where are these people? What sorts of legal services do they need most? How do legal needs vary among racial/ethnic groups and from one part of the state to another?

"The second answer to the `isn't it obvious' question," Sankovitz contends, "is if it's so obvious, why aren't we doing anything? What is as obvious as poverty in Wisconsin is the lack of a response."

Sankovitz describes the Access to Justice Study as having a "three-pronged approach." The first part is a telephone survey, which ended in May 2006, of 1,200 Wisconsin residents with household incomes of less than 200 percent of the federal poverty level in three sample geographic groups: the city of Milwaukee, other urban areas, and rural areas. (The 2006 federal poverty level was a household income of $20,000 for a family of four.)

The committee targeted this income level for two reasons, Sanko-vitz explains. First, the federal poverty guidelines are drastically out of touch with today's economic realities. Someone working full time at a minimum-wage job earns below the current poverty line and certainly can't afford a lawyer. But even people who earn well above the current poverty line often can't afford to hire an attorney.

"Our goal generally was to get to people who have incomes of $40,000 and below for a family of four," Sankovitz says.

The second component of the study entails collecting anecdotes of individuals' experiences in seeking legal help - and what happened when they didn't get that help. While not as scientific, the committee expects this part of the study to be "more telling," Sankovitz says. "We'll see whether in fact these people ended up having to rely on some other form of social assistance, which cost [the state] more than if we'd provided a lawyer" at the outset.

A third study component will examine the costs and the current funding of legal services for low-income people. Could current approaches be improved? "We are exploring whether there are better ways to look at this," Sankovitz says. "For example, could we establish a Wisconsin legal poverty line" to broaden eligibility for services.

The committee will complete its study by the end of 2006. But ultimately, the study will trigger a longer, more far-reaching process, Sankovitz predicts. In fact, similar studies in other states, such as Illinois and Washington, led to full-scale efforts to devise solutions, involving state supreme courts, legislators, and governors.

The committee hopes its study will stir a similar call to action in Wisconsin. Meeting the legal needs of the state's low-income residents is not solely the Bar's responsibility, Sankovitz emphasizes. "It's a problem that belongs to our state as a community," he says, "and the community needs to solve it."

Wisconsin Lawyer