Academic journal article Law & Society Review

Lawyers' Pro Bono Service and American-Style Civil Legal Assistance

Academic journal article Law & Society Review

Lawyers' Pro Bono Service and American-Style Civil Legal Assistance

Article excerpt

Lawyers are often criticized for stinting on their responsibilities for public service; nevertheless, their uncompensated provision of legal services to poor people, or pro bono work, provides a substantial part of available civil legal assistance in the United States. Cross-sectional analysis of data from the late 1990s reveals that reliance on pro bono may render assistance vulnerable to market pressures in ways both obvious and subtle. In states where the legal profession takes in more receipts per lawyer, larger proportions of the profession provide uncompensated service to the poor. In states where the profession feels its work jurisdiction is under threat from unauthorized practice by other occupations, larger proportions of the profession participate in pro bono work than in states where there is no concern about unauthorized practice. As federally subsidized legal assistance shrinks in both scope and scale, growing reliance on pro bono leaves American-style civil legal assistance increasingly vulnerable to market forces.

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In the United States, when an indigent person confronts a problem that raises issues of civil law and could benefit from a lawyer's advice or advocacy, he or she has no guarantee of counsel.1 Lawyers' services are not always the best or the only solution to such problems,2 but they can be helpful in many situations. Studies of representation and advice typically find that the use of lawyers increases the probability of favorable outcomes (Advice Services Alliance 2003; Sandefur 2006; but see Kritzer 1998). But lawyers are expensive, and their services can be beyond the means of many households. In the United States, the federal Legal Services Corporation (LSC) funds legal assistance lawyers whose work consists entirely of providing representation and advice to indigent people confronting civil legal problems. Nearly 50 million people live in households with incomes low enough to be eligible for LSC services (U.S. Bureau of the Census 2005). For lack of adequate staff and other resources, LSC-funded organizations currently turn away as many clients as they accept (Legal Services Corporation 2005:5-7).

A large, and perhaps increasing, share of the civil legal assistance available to indigent Americans reflects lawyers' work in organized civil pro bono programs. The most recent available information, from 1997, suggests that more than a quarter of the full-time equivalent lawyer staff providing civil legal assistance in the United States reflects this pro bono activity. Reliance on lawyers' pro bono work renders the stock of legal assistance vulnerable to those factors affecting pro bono participation. Empirical analysis of state-to-state differences in lawyers' participation in organized civil pro bono programs reveals that this activity is sensitive to conditions in legal services markets. This finding has implications not only for American social policy, but for that of other nations considering increased use of pro bono as a means of reducing or containing legal aid costs.

American-Style Civil Legal Assistance

Like many other social services in the United States, public civil legal assistance relies on private supplement (Marwell 2004). Traditionally, civil legal assistance provision in the United States is described as following a "salaried" model, reflecting the organization of government funding and staffing: eligible people receive services from government-salaried lawyers working in special law offices that serve only legal assistance clients (Cappelletti & Garth 1978; Cappelletti et al. 1975; Paterson 1991:132-4). These federally supported lawyers are only part of the picture, however. Civil legal assistance in the United States has a tripartite structure, comprising law clinics staffed by federally salaried lawyers, clinics staffed by lawyers salaried by funds from other sources, and lawyers working in pro bono programs organized expressly for the purpose of providing civil legal services to the poor. …

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