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Spring 2000
   
What Good is Pro Bono?
Heather Mac Donald
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For most of its history, the organized bar in America has been conservatism incarnate, standing foursquare for the sanctity of property rights and the rule of law. Today, there is hardly a cause too left-wing to receive its patronage. Do you advocate expanding entitlements, blocking welfare reform, multiplying the victim classes, or promoting homosexual rights? The bar wants to help, and its most elite members want to help most of all. The whitest-shoe corporate law firms will shower you with funding, provide million-dollar attorneys to sit on your board, and maybe even furnish a $600-an-hour litigator to prosecute your case for free.

The bar has hardly forsworn its intimate relationship with corporate America, of course. But even as it earns billions of dollars a year in fees from its business clients, it pursues a variety of causes that would have astounded the bar's early leaders. It does so in the name of a venerable legal tradition: pro bono publico law, or legal service undertaken "for the public good." Pro bono publico law went through a radical transformation in the 1960s; ever since, it has been the vehicle through which elite corporate lawyers could participate in the entitlements revolution, in the litigation revolution that turned lawyers and judges into unelected legislators, and in the cultural revolution that turned America into a nation of victims.

The remaking of pro bono practice mirrors a transformation both of America's legal culture and of elite lawyers' self-understanding. When D.C. circuit judge Laurence Silberman entered Harvard Law School in 1958, he recalls, "practicing law itself was regarded as pro bono. Our professors thought the practice of law was an honorable and valuable calling." Today, Judge Silberman speculates, "lawyers see pro bono services as penance they pay for serving a capitalist system." Now the profession seems to find its ultimate justification in its feats of social engineering.

Formerly, generations of American lawyers understood their pro bono obligation—their obligation to serve the public good without pay—to mean ensuring the fair administration of justice. They helped courts as unpaid arbitrators and mediators and served on bar committees to improve the law. Equally important, they represented politically unpopular clients for free, to ensure justice for all. John Adams defended British soldiers accused of shooting Bostonians after the Battle of Bunker Hill; Algernon Sydney Sullivan, founder of the path-breaking Wall Street law firm Sullivan & Cromwell, represented Confederate sympathizers in New York. Less notoriously, small-town and country lawyers defended the local poor in criminal and civil courts without fee.

By the late nineteenth century, however, the traditional informal mechanism for providing legal assistance to the poor no longer worked in the big industrial cities, with their teeming immigrant populations. In a small town, everyone—including the poor—knew who the local lawyer was and had access to him. Not so in the big cities, where lawyers were increasingly ensconced in large corporate law firms, serving the super-industrialists and their financiers. An immigrant factory hand would no sooner think of penetrating the downtown Beaux Arts fortresses of these new firms to ask for free legal help than of demanding a table at Delmonico's.

Yet even as lawyers became more specialized and remote, the legal needs of the urban poor were multiplying. Dishonest employers, sharpsters, and loan sharks preyed on the wage-earning multitudes. Contingency-fee lawyers might take on personal-injury claims, but they would have no interest in pursuing a small claim for uncollected wages. Unable to afford lawyers' retainers and court fees, and no longer able to knock on the local lawyer's door to ask for free representation, the urban poor were effectively shut out from justice.

Progressive reformers, fearing class warfare, set about devising new machinery to ensure universal access to the courts. In 1876, a group of prominent German-Americans in New York City created the first formal organization to dispense free legal assistance to the poor: the Deutsche Rechts-schutz Verein, or German Legal Aid Society. The organized bar had no part in the creation of this first Legal Aid Society; in fact, it was mildly hostile to a perceived competitor. But as similar societies sprang up across American cities, a lawyer's support for them, whether through money, direct services, or leadership, became an important means of fulfilling his pro bono publico duties.

From its inception, organized legal aid, consistent with Gilded Age philanthropic practice, unapologetically distinguished the deserving from the undeserving poor. The deserving poor were those who worked. The German Legal Aid Society's great early leader, Civil War veteran and elite New York lawyer Arthur von Briesen, declared: "Whoever receives our attention must show that he has rendered some service, that he has done some work, and that he is entitled to a corresponding consideration, which being denied we enforce in his behalf." The most frequent claim the early legal aid societies pursued was for uncollected wages. The non-working, long-term poor, whom today we would call the underclass, were outside the Society's ambit. So strong was the stigma against getting something for nothing that the New York Society began charging a fee of ten cents in 1896 for those able to pay, so that they would not feel they were receiving a handout.

Reginald Heber Smith's 1919 Justice and the Poor powerfully advanced the legal aid movement, spurring the legal profession to form 20 new legal aid societies in just two years, bringing the total to 61. Carefully chronicling the continuing barriers to the courts faced by the poor, the Boston Brahmin lawyer concluded that America was betraying its commitment to equality before the law every day by pricing the poor out of justice.

What is most striking today in Smith's indictment of America's legal system is what he did not assert: he explicitly denied that the laws themselves discriminated against the poor. The problem lay solely in legal costs and procedural hurdles. Even here, Smith refused a class-warfare analysis. "No dominating group or class has consciously set out to foreclose the rights of the poor," he argued. The inherent conflict in society, Smith believed, was between the honest and the dishonest, not between the rich and the poor.

Like virtually all their peers, early legal aid practitioners took for granted a distinction between courts and legislatures. The courts were for the adjudication of existing rights, they believed; reform of the laws, including reform to help the poor, took place in the legislature. They also assumed that legal aid was a private-sector obligation. When the National Lawyers Guild, a dissident group of liberal, radical, and communist attorneys, called for government-supported legal services in the early 1950s, an American Bar Association president responded with a consummate expression of the bar's conservatism. The "entry of the government into the field of providing legal services," he warned, "is too dangerous to be permitted to come about in our free America." Allow Washington to encroach, argued opponents of federally funded legal services, and you're paving the way to socialism.

A mere 20 years later, no bar leader would dare voice that opinion in polite company. None would defend the distinction between legislation and adjudication. What happened? The nation's massive culture change during the 1960s brought into currency a radically different philosophy of helping the poor, one that entailed a novel use of the courts. Once converted to the new view, the legal profession became among its most fervent evangelists.

During the War on Poverty, America jettisoned its traditional distinction between the deserving and the undeserving poor. It jettisoned as well traditional social work's effort to change self-destructive habits in the poor. Entitlements to government aid were the War on Poverty's panacea, and anti-poverty warriors from the academic and legal left insisted that government help should be automatic and free of moralizing. The only criterion for receiving welfare should be economic need. A poor person who refused to labor had just as much claim to government money and services as someone struggling to work and support a family. After all, argued the War on Poverty's academic architects, American society was so unjust, so stacked against the poor, that judgment was unfair and individual behavior change useless.

The poverty planners quickly enlisted the lawyers into the ranks of their entitlements revolution. Edgar Cahn, a civil rights strategist and speechwriter for Robert Kennedy, joined the new Office of Economic Opportunity, and persuaded this War on Poverty command center to create government-funded, "community-controlled" legal services to litigate the poor's grievances against society. It was a momentous development both for the legal profession and for American society as a whole.

The new, federally funded "legal services" agencies could not have been more different from the traditional voluntary legal aid societies—and over time they inexorably molded traditional legal aid into their exact image. The goal of the legal aid societies had been due-process justice: making sure that the poor have their day in court. The new legal services agencies had something quite different in mind: the redistribution of political and economic power. One legal services attorney described his work as "legal action designed to change the structure of the world in which poor people live."

Such high ambitions required scrapping centuries-old canons of professional ethics that forbade the solicitation of cases. Lawyers were supposed to wait for clients to come to them; if they were allowed to solicit clients, the reasoning went, they would foment unnecessary and destructive litigiousness. But the new legal services attorneys actively sought out cases as part of a political strategy, urged on by no less an authority than Attorney General Nicholas Katzenbach. "To be reduced to inaction by ethical inhibitions," Katzenbach announced, "is to let the canons of lawyers serve the cause of injustice." In time, the whole profession—most notoriously the plaintiffs' tort bar—would follow the lead of legal services attorneys and discard the inhibition against solicitation.

And how did the new legal services attorneys propose to "change the structure of the world"? By encouraging judges to create a whole new battery of rights. What was unfolding in the 1960s was nothing less than a reordering of government: a shifting of power from the legislature to the courts, with federally funded attorneys as the driving force. Nothing in the traditional legal aid movement anticipated this development.

Judge J. Skelly Wright of the D.C. Circuit Court of Appeals typified the new judicial activists. Wright created a novel body of tenants' rights out of whole cloth, by following, according to his own admission, his political convictions, not the law. In 1982, he reminisced: "I offer no apology for not following more closely the legal precedents which had cooperated in creating the conditions that I found unjust."

Though in reality the poor's demand for legal assistance had shrunk throughout the 1950s, legal services architects nevertheless tirelessly bemoaned a "crisis" in the legal needs of the poor. With breathtaking honesty, legal services founder Edgar Cahn explained the ruse. The legal services "crisis," he confessed, was wholly a product of the rights revolution currently under way. "Recent years have witnessed the creation of a vast and still growing array of legally vested rights," he wrote in 1968. "The developing case law regarding the rights of juveniles, of tenants in public housing, of welfare recipients, of persons accused of a crime, of minority group members, has challenged the capacity of the legal system. The sheer logistical dimension raised by the rights explosion poses a crisis to the law."

Cahn was creating a self-generating machine. "The greater supply of legal services generates more rights, thereby generating more demand for services and bringing more grievances to the surface," he blithely announced.

This litigation machine behaved quite like an ATM. Earl Johnson Jr., the Office of Economic Opportunity's former director of legal services, calculated in 1974 that liberalized welfare rules alone, the product of legal services litigation, had returned over $2 billion to welfare recipients in less than ten years. The desired redistribution of resources was under way. "A bare handful of lawyers," Johnson bragged, "has produced massive transfers of goods and services to the poor—some from the private sector and some from the public treasury."

At first, relations between the old-time legal aid society attorneys and the new government legal services crowd were testy. Advocates of government-funded legal services scorned their legal aid colleagues as too deferential to the bar and to legal traditions, and too paternalistic toward the poor. Many legal aid attorneys, for their part, warned that the new passion for "community control" was a destructive one. But even in the sixties, some legal aid offices started taking federal money; today, they are awash in it. As more and more legal aid societies jumped onto the bandwagon, they become indistinguishable from the legal services agencies in their agenda of maximizing entitlement use and multiplying rights.

Arthur von Briesen's and Reginald Heber Smith's quaint notion that workers deserve the most assistance disappeared overnight. The most significant rights being created were for non-workers: people on welfare. Legal services lawyers spurred the development of a new body of law for them: "poverty law," which was above all about maintaining an unimpeded stream of welfare benefits to recipients (though it included landlord-tenant and consumer law as well). Smith and von Briesen would have blanched at the notion that there should be a separate body of law for the poor—it was against just such a possibility that they had fought so hard. But poverty law assumed that poor people are victims of systemic injustice that only lawyers could cure, primarily by suing the fast-multiplying government agencies that provide benefits to low-income people.

What was the bar's response to these momentous changes—changes that wholly redefined the role of lawyers in the American polity? Cautious at first, then rapturous. After some behind-the-scenes political maneuvering, the ABA discarded its long-standing opposition to federally supported legal services and never looked back. By 1981, when President Reagan tried to dismantle the Legal Services Corporation, on the grounds that its lawyers were engaging in rank politics with taxpayer money, it was the ABA's strenuous protest, above all, that saved the agency.

The OEO's Earl Johnson Jr. himself marveled at the "philosophical transformation" that overtook the establishment bar in the 1960s. The civil rights movement spurred that transformation as much as did the new legal services' success. Civil rights litigation was the great template for using the courts to change society, one with unimpeachable moral authority. Much subsequent rights litigation rode in on its coattails, though with far less justification. In its wake, lawyers lost their image as the great stuffed whales of American conservatism and became sex symbols, in the mold of attorneys general Robert Kennedy and Nicholas Katzenbach. Students clamored to get into law schools to join this new vanguard of social justice.

Once there, they often found the traditional study of law hazardous to their sensitive souls. One law student of the era whined that "law school teaches students to deal with every conceivable loss, that of an arm and leg, five dollars, a wife—every one, that is, but the most important, the loss of one's self." Law schools responded to such complaints by creating programs in poverty and civil rights law. Newly minted lawyers who joined firms demanded that their employers create official pro bono programs, so that they could participate in the rights revolution while pulling in large corporation-funded salaries. Elite law firms established pro bono community services departments to perform the same poverty law functions as the federal legal services offices. In this way, the legal services revolution had succeeded in redefining pro bono work in its image.

Starting in the 1970s, the ABA and local bar associations began furiously cranking out position papers on pro bono work and revising relevant codes of professional responsibility to further the bar's involvement in the advocacy agenda. Over a decade ago, the Ford Foundation created the ABA's Law Firm Pro Bono Project, which pressures elite firms to commit 3 to 5 percent of their total billable hours to hands-on pro bono work, in addition to donating money to legal groups that represent the poor. The pressure has been effective. Many large firms now have full-time pro bono coordinators or partners, complete with staff; almost as many regularly place associates with advocacy and legal services groups on a rotating basis. The organized bars and the advocacy groups together have created an elaborate infrastructure to link big firms with the ever-proliferating public interest law outfits.

This infrastructure urges firms to take on big, politically charged cases. The results: in just the last several years, titans of the corporate bar have sued to dissolve anti-gang injunctions in gang-infested southern California areas; to fight quality-of-life law enforcement in San Francisco; to saddle prisons with court orders; to allow felons to vote; to block the death penalty in hundreds of cases, including for a woman who kidnapped and sexually abused a 13-year-old girl, injected the girl with drain cleaner, then shot her in the back when she didn't die; to force gun manufacturers to pay potentially millions in damages to crime victims; to defend minority set-asides and preferential admissions policies; to require bilingual education for Haitians; to make the Virginia Military Institute and the Citadel admit girl cadets; to declare the busty waitresses at the Hooters restaurant chain victims of gender discrimination; to compel the Boy Scouts to accept homosexual scoutmasters; to block the classification of AIDS as a sexually transmitted, or even communicable, disease; to enact homosexual marriage; and to challenge industrial facilities on grounds of "environmental racism." In New York City alone, big-firm panjandrums have sued to force the city to pay union-scale wages to workfare workers; to enjoin aggressive crime-fighting in high-crime neighborhoods; to force the city to spend even more on the HIV-infected than the mind-boggling amount it already disburses; to wring $600 million from the city in a sex discrimination case (successfully prosecuted); to require the Saint Patrick's Day Parade to accept homosexual-rights marchers; and to force New York City to create special foster-care programs for children who "question their sexuality." And this is just a sampling of cases undertaken in the name of the public good.

Recall that pro bono work gave New York City its unique, and uniquely tortured, court-ordered homeless system. It took shape when Sullivan & Cromwell associate Robert Hayes filed a massive pro bono suit claiming the city had a constitutional duty to provide shelter on demand. The city eventually settled the suit on terms agreeable to Hayes, terms that included court oversight of its every move regarding the homeless. It has never been free of homeless litigation since. When Hayes left Sullivan & Cromwell to found the Coalition for the Homeless, where he continued his nonstop suits against the city, he by no means sacrificed the unparalleled resources of New York's elite firms. The "trick" of the Coalition, he explains, "was to have a half-dozen cases going at any given time, all class actions, always co-counseled by major firms." Maria Foscarinis, director of the high-profile National Law Center on Homelessness and Poverty, replicated the same "trick" with power firms in Washington, D.C., Hayes observes.

Hayes has used Paul, Weiss, Rifkind, Wharton & Garrison; Cahill Gordon & Reindel; Cravath, Swaine & Moore; and Davis Polk & Wardwell. Steven Banks of the Legal Aid Society, currently the main homeless-rights litigator in the city, has relied on Debevoise & Plimpton; Sullivan & Cromwell; and Winthrop, Stimson, Putnam & Roberts. Besides providing actual manpower, Manhattan's firms have poured millions of dollars into the incessant homelessness suits through contributions to the Legal Aid Society, the Coalition for the Homeless, the Urban Justice Center, and the ACT-UP spin-off, Housing Works.

I asked Robert Hayes why he didn't take his case for shelter on demand to the legislature, where it belongs. "Personally, I don't like politics," he replied forthrightly. "It's really hard."

Here, in just eight frank words, is the trouble with class-action and other litigation that seeks to create new rights—the very heart of contemporary pro bono publico work. Hayes is right: persuading a legislature to commit the billions that New York City has been forced to spend in irrational ways on the homeless would be a whole lot harder than persuading one judge to order those billions spent. The legislature has to balance competing demands for taxpayer dollars; a judge can order an elaborate shelter and housing system without having to trade off dollars for teachers, say, versus dollars for private apartments for drug addicts with AIDS. Big political litigation allows elite lawyers to make an end run around the political process.

And, in so doing, they make others pay for their vision of the world, notes Francis Menton Jr., a partner at Willkie Farr & Gallagher. Menton has long observed the nexus between elite firms and the advocacy groups they support through pro bono lawyering and contributions. "Millionaire attorneys have decided how society should work," he says, "and they use the courts to make the middle class pay for their schemes." Menton calls the Legal Aid Society, now wholly transformed from its sober origins, an "agent of millionaire attorneys for forcing their charitable preferences on middle-class taxpayers."

Indeed, there is a breezy indifference among the Society's supporters to the costs of Legal Aid's demands. Over the years, for example, the city has paid out $5 million in court-ordered fines to single mothers claiming homelessness. Each mother got a $250 windfall if, instead of being placed immediately in housing, she had to stay overnight with her children in the homeless intake center. If she stayed a second night, she got another $250, and so on. I asked Cleary, Gottlieb, Steen & Hamilton partner Mitch Lowenthal, who has participated in the ongoing homeless litigation against the city, if this wasn't an irrational use of funds. Wouldn't the $5 million in fines be better spent for housing than for overcompensating a minor inconvenience that ordinary travelers must put up with often enough? Lowenthal was blasé: "How much is $5 million compared with the city budget?" he responded rhetorically. To a Cleary partner (1998 per-partner profits: $1 million), $5 million may seem like pocket change, but to the majority of city taxpayers, it's real money.

Pro bono work provides many other opportunities for showering taxpayer dollars on favorite charities. To understand how this works, first jettison the biggest misconception about contemporary pro bono litigation: that it is done for free. In fact, firms purporting to be fulfilling their public service obligations sometimes rake in thousands, even millions, of dollars in fees, usually from the government. The firms cash in under statutes that allow winning plaintiffs in rights cases to collect their attorneys' fees from the defendant (though the rationale that firms wouldn't otherwise take such cases breaks down in a pro bono context). The Silicon Valley powerhouse firm of Wilson Sonsini Goodrich & Rosati demanded $8.3 million in fees from defendant California in a prison litigation suit, then magnanimously settled for $3.5 million. San Francisco's Morrison & Foerster collected $1.24 million from California for invalidating a parental notification requirement for minors seeking abortions.

Having collected fees for something they claim to be doing charitably, a remarkable 30 percent of big firms pocket the entire sum without apology. The rest make an enormous show of donating some or all of the money—fresh from taxpayers' pockets—to their favorite public interest group. Often the recipient is the very advocacy group with which the firm just co-litigated, and the money goes to finance more suits against the public treasury. Thus is the litigation machine kept ever stoked with taxpayer dollars.

New York City has just witnessed precisely such a taxpayer-fleecing operation. Cahill Gordon and Schulte Roth & Zabel teamed up with Marcia Lowery, an attorney who sues child welfare agencies for a living as head of Children's Rights, Inc., to try to put New York City's entire child welfare administration under court supervision. They filed their suit just as Commissioner Nicholas Scoppetta began sweeping reforms in the agency. Commissioner Scoppetta immediately proposed a settlement. No go, declared Lowery, and proceeded to ring up nearly $11 million in pre-trial costs, calculated at corporate rates of up to $515 an hour. Almost four years later, the parties settled, on terms almost identical to what Commissioner Scoppetta had initially proposed. Those terms involved nothing the city was not already doing.

Now Lowery and Schulte Roth are asking the city for $9.18 million in fees. Cahill Gordon has already collected $1.57 million from New York State, also a party in the suit; it handed the $1.57 million, minus its expenses, right back to Lowery for more litigation. David Brodsky, the former Schulte Roth partner in charge of the litigation, will not return phone calls about the case; the firm has not yet announced what it intends to do with its expected $1.4 million. Perhaps it could first poll the city's taxpayers, to see how they would like their money spent.

Many big-firm lawyers today sound like Marxist academics when they discuss pro bono work. Take John Kiernan, a $600-an-hour litigation partner at Debevoise & Plimpton, who is also director of Legal Services for New York and the Lawyers Committee for Civil Rights Under the Law. Scorning the homely small-town tradition of pro bono work, he defines pro bono for "us big-city litigators" as the "process of committing resources for the legal representation of the disenfranchised."

"Disenfranchised" is pretty strong stuff, calling up images of a racist South trampling on voting rights. Asked for an example of the disenfranchised today, Kiernan cites blacks allegedly targeted by the New York City police for stop-and-frisks. Are their legislators not representing them? "I mean disempowered, not disenfranchised literally," he says.

But disempowered? Consider that Kiernan's firm, spurred on by the Amadou Diallo shooting, is suing the New York City Police Department, charging that its Street Crimes Unit illegally singles out blacks for street stops. In the wake of that shooting, black leaders in New York City and beyond focused unprecedented international attention on the NYPD; they persuaded  the president, the First Lady, the Justice Department, the U.S. Civil Rights Commission, the New York attorney general, and a host of lesser political entities to denounce the department. Given that political muscle, it strains credulity to claim that blacks in Harlem and the Bronx lack political power.

But wait, there is one group that is literally disenfranchised today—felons—and Debevoise & Plimpton has sued to change that, too. Kiernan claims that the law that disenfranchises felons violates blacks' voting rights, because so many blacks are in prison. Kiernan has no problem taking away white felons' voting rights, but "you worry when [the disenfranchisement laws] have a racial impact." Isn't the real problem the black crime rate? No, because the drug sentencing laws discriminate, too, he says—a dodge that ignores the very real problem of crime and violence in minority neighborhoods.

Progressives once denounced the corporate bar for its stuffy self-certainty. Today's elite bar possesses the same self-confidence, but it directs its infallibility at different targets. Milbank, Tweed, Hadley & McCloy partner Joseph Genova, for example, head of the firm's pro bono program, passionately opposes welfare reform, which he calls a "diabolical scheme" to "shove as many people from the rolls as possible [and] remove the tax burden from the wealthy." The previous welfare regime seems pretty much fine to him. But what about the harsh criticism that people in poor communities, especially the working poor, make of that regime? "I'm aware of the phenomenon," he says. "I'm confident that the complainers don't know what they're talking about." One can't help think that residents of welfare-saturated neighborhoods might have a better idea of welfare's effects than a Milbank partner (1998 per-partner profits: $1.1 million), however.

Fortunately, pro bono work has broadened in the last several years beyond adversarial suits against government and claims of discrimination. Now, corporate attorneys from Paul Weiss and Winthrop Stimson, among other firms, help small businesses, many of them located in minority areas or empowerment zones, with their legal needs. Milbank Tweed lawyers counsel individuals seeking to adopt children and help elderly homeowners trapped in foreclosure proceedings. Cleary Gottlieb attorneys mentor inner-city high school students. The Volunteers of Legal Services, a New York City pro bono clearinghouse, finds attorneys for poor elderly people needing legal help. There has even been a slight counter-movement to include more "conservative" cases in support of personal responsibility, assimilation, and color-blindness. In a landmark for conservative pro bono work, Los Angeles-based Gibson, Dunn & Crutcher represented Cheryl Hopwood in her successful challenge to racial preferences at the University of Texas Law School. Davis Polk has defended the eviction of drug dealers from public housing and recently supported a family member's request to medicate a severely psychotic sibling without her consent. Skadden, Arps, Slate, Meagher & Flom defended California's ballot initiative banning bilingual education against a court challenge, albeit anonymously.

Still, at least Skadden Arps took the case—unlike the prestigious Manhattan firm where two partners wanted to argue against racial gerrymandering several years ago, also without using their firm's name on the legal papers. They were forbidden, on the grounds that fighting for color-blind legislative districting would tar the firm as "racist" at law schools. "I became discouraged," one of the partners recalls. "To take a high-profile conservative case—too many people here think it's disgusting."

Overall, getting prestigious firms to accept conservative cases pro bono remains an uphill struggle. Top-scoring Chinese-American students, barred by racial quotas from San Francisco's prestigious Lowell High School, were turned away by every big San Francisco firm they solicited for pro bono representation. Dennis Saffran of the mildly conservative Center for the Community Interest, an advocate for public safety and quality of life, says that finding pro bono counsel for every case is "a fight." By contrast, when the ABA sent out a call for additional firms to represent homosexual scoutmaster James Dale against the Boy Scouts, Morrison & Foerster's pro bono coordinator Kathi Pugh had a Mo Foe attorney lined up "within an hour," she says. Other firms, such as Kramer Levin Naftalis & Frankel, signed up as well.

It is time for firms to ask whether their pro bono programs in fact serve the public good. The problems of the long-term poor today cannot be solved with litigation; attorneys would accomplish far more acting as Big Brothers and Big Sisters, scoutmasters, and tutors. Though the pro bono industry pushes for bigger and bigger cases, what the most troubled poor need is on the micro level—an understanding of work, the commitment to stay in school, a stable family. If benefits and more government spending could solve juvenile delinquency, non-work, or illegitimacy, we would have solved them long ago.

Since the 1960s, many lawyers have believed they are specifically fitted to improve society by creating new rights that a heartless majority refuses to recognize. The pro bono docket exemplifies this newfound hubris. Its failure to bring about any visible improvement should inspire humility.

 

 

 
Elite lawyers make a big show of serving the public good for free, but today their “pro bono” activities fray the social fabric, and taxpayers often end up paying their seven-figure bills, to boot.
City Journal Spring 2000.
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