THE PRO BONO FARCE : ANOTHER SHAM IN LAW PRACTICE

AN ESSAY

I do not reserve many kind words for the legal profession. In essay after essay, I have criticized “modern lawyering” for its relentless fixation on commercial gain over principle. At the same time, I have written ruthless satires involving “modern lawyering” because “successful lawyers” lend themselves to hypocrisy on many levels. Satire works best when it targets powerful people who claim to advance principle, yet betray it whenever it is profitable. Law practice provides endless opportunities to do exactly that. While the law may enshrine good principles, those who practice it have many incentives to betray those principles. Perhaps this is the necessary result of a legal system that makes both sides “adversaries.” Or perhaps it is just because law is just another business; and all businesses are the same. No matter what the reason, my cynical powers come into sharp focus when analyzing “lawyers’ follies.”

Sometimes I think I will exhaust the rhetorical well when it comes to law practice. But just when I think the well is dry, I stumble upon some new aspect that revives the flow. In short, lawyers are a satirist’s dream. They just keep on giving. True, there are some lawyers out there who truly want to make a difference in society. I do not want to pillory them. Of course, they earn my respect because they actually want to vindicate larger principles, not merely enrich a private law firm. Their motivation differs from the average private attorney. These “public interest” lawyers do not work to get rich; they work to do justice. Private lawyers, by contrast, work to get rich; and they seek justice only to the extent that it appeases their clients’ financial appetites. Yet this is the great tension between law and justice. Justice transcends. It exists without regard to private interest or “advocacy.” It cannot be warped, tailored or obscured to reward one party over another. Private lawyers, however, warp, tailor and obscure for a living. Their chief duty runs to their client, not to justice. They do not want abstract justice; they want to win for their clients, whether or not the result is abstractly “just.”

Still, if you walk into a law firm’s office, you might actually think that lawyers care about justice. Law firms care about winning and making a profit. But they know that doesn’t sound very noble. To attract new business, they can’t honestly tell prospective clients: “Well, we’re in this to win for you and bill the shit out of you in the process.” No, that is too blunt. In America, you can’t just volunteer your motivations like that, even if people really know what they are. Rather, you need to construct a public “veneer,” then let others whisper about “what you’re really after.” In discourse, lawyers want to project a lofty, cerebral image, not a cash-grubbing one. Even if everyone knows that lawyers are cash-grubbers, lawyers never publicly admit to it. Instead, lawyers take refuge in a fog of “elevated professional detachment.” They want outside observers to say: “These are intelligent, well-groomed, well-educated, skilled, successful men and women who understand the law and will work hard to secure justice for me.” That is the impression lawyers want to make when you step into a law firm.

Last week, I stepped into a well-respected law firm. “Well-respected” means that it ranks within the top 250 revenue producers in the United States as reported by a professional magazine called “The American Lawyer.” “Well-respected” is not some muddy, subjective appraisal related to integrity, honor or dedication to principle. No, according to the “American Lawyer” you only make the “well-respected” list if your firm brings in a certain dollar amount every year. You might deliver all the justice in the world, but if you can’t make the dollar cut, you don’t make the “well-respected list.” It was a beautiful lobby: Nice new furniture, immaculate marble floors, a brand new telephone system, glass doors, ice water pitchers everywhere, expensive-looking art on the beige stone walls, gorgeous flower arrangements in sleek purple vases. To the uninitiated visitor, it would seem that these lawyers did very well by advancing justice. After all, lawyers represent the law, and the law is good, right?

What would make an uninitiated visitor think that? This “well-respected” law firm did more than merely tastefully decorate its lobby. It also selectively placed two magazines in the waiting area. One magazine discussed the “Law Firm Charitable Giving Foundation.” The other discussed the firm’s “Commitment to Pro Bono Representation.” Each magazine opened with a statement from the firm’s partners, claiming that the firm does not give money to charity or volunteer its services to indigents for “public relations” purposes. Rather, according to these statements, the firm gives money to charity and renders free legal services to the poor because it “wants to give back to the community” and “advance justice.”

Yet “giving back to the community” and “advancing justice for the poor” would not have decorated the lobby. Nor would it have paid the rent in the massive Manhattan office tower.

Did these lawyers expect me to believe that they care about “the community” and “justice?” What unabashed hypocrisy. Pro bono legal work is a wonderful thing. But major law firms don’t do it because they “care” about justice. They do it for precisely the reason they say they don’t: Public relations. Viewed logically, why would they plaster magazines trumpeting their pro bono work all over the visitors’ area? Judged objectively, it appears the firm wants people to know about its pro bono “commitment.” In turn, it likely expects them to say: “What a compassionate firm,” then send them paying business. In short, major law firms undertake pro bono cases for public relations and advertising reasons. Pro bono is not really “free legal work.” It is an investment calculated to seduce paying clients later. It conveys a false impression that lawyers deeply care about “abstract justice,” when in fact they merely want more paying clients to come their way. In brief, lawyers use pro bono as a marketing ploy, not to “placate their conscience,” “serve the community” or “do justice.”

At this point, someone will object: “You are too cynical. Maybe some private lawyers really want to help others.” I counter this objection with personal experience. I interviewed with several large law firms in Chicago several years ago. During those interviews, I repeatedly asked about the firms’ commitment to pro bono work because I actually did care about justice. I wanted to handle cases involving substantial social issues, not just royalties, supply contracts, fees and lost business. My questions made my interviewers uncomfortable. They mentioned that their firms had a “pro bono benchmark” every year, but quickly changed the subject. They did not seem very enthused by my desire to “waste firm time” on cases that did not yield a profit. I did not get jobs at these firms. In hindsight, I’m grateful I didn’t.

Pro bono work reflects lawyers’ calculated efforts to project an “image” at odds with their commercial nature. Despite all explanations to the contrary, private lawyers do not practice law to secure justice or to “make society a better place.” Rather, private lawyers have one goal in mind: To make more money this year than last year. In law practice, lawyers make money by winning legal disputes, or at least perpetuating them for as long as possible. While legal disputes involve supposedly neutral legal rules and doctrines, the business-minded lawyer sets about manipulating those rules in order to “secure favorable results” for his client. Those “results” generally involve two things: Either (1) Winning a monetary sum; or (2) Saving a monetary sum. “Doing justice” may serve those goals. But often it doesn’t. If it comes between “securing favorable results” and “doing justice,” virtually every lawyer in America will opt for the former—provided, of course, he does not risk his own liberty or professional standing as measured by technical rules.

Against this background, pro bono work offers no direct pathway to commercial success. At best, it provides an indirect one: Business-minded lawyers can trumpet their “pro bono commitment” to draw in paying clients with self-serving tales of “their battles for justice.” Yet no matter how they spin it, their motivation is the same: Commercial success. If projecting an image that the lawyer is “committed to justice” leads to greater commercial success, then the lawyer will take a few pro bono cases for “public relations” purposes. And they have the gall to say they do not do pro bono for that reason.

Any other explanation for lawyers’ pro bono work is facetious. If lawyers started taking cases for “justice only,” legal practices nationwide would collapse. For better or worse, lawyers must adapt their behavior—and their motivations—to commercial reality. Commercial reality in a free market system means “staying afloat.” Staying afloat means making enough money to pay all expenses, then making a decent profit. Pro bono brings in no money. You can’t pay expenses or make a profit without money. In this sense, lawyers have a compelling disincentive to handle pro bono work. Every minute representing an indigent beggar is a minute lost billing an aggrieved pharmaceutical company at $500 an hour. And every $500 lost is $500 that cannot be used to pay expenses or contribute to the partners’ fund. While representing the beggar may result in justice, it is not commercially prudent. Representing the pharmaceutical company, by contrast, is not just prudent; it is the economically reasonable thing to do. In that light, commercial reality dissuades lawyers from pro bono work. Justice is all well and good. But paying rent and salaries is better. Money gets you on the “American Lawyer” Top 500 list, not justice.

Yet what is law all about? Society creates law for some beneficial purpose, not merely to secure money for private interests. But lawyers use law to do exactly that. What happens to the beneficial purposes? I understand that lawyers want to make money. Commerce forces everyone in society to think about how to cope with unending financial obligations. I think a life dedicated to money is unsavory and unrewarding. But I reserve my harshest criticism for lawyers because they pursue financial success by applying rules that should stand for something beyond private commercial gain. Lawyers want people to believe they use law to “fight for justice,” when in fact they use law to win, no matter where justice really lies.

In this sense, lawyers are no different from any other hawker or hustler on the street. They merely use bigger words and reference inscrutable books to sell their wares. They know that the public associates the law with “good” and “justice.” They actively cultivate an image calculated to convince the public that they, too, care about “good” and “justice.” Yet in our commercial world, “good” and “justice” are not profitable courses. On the other hand, appearances are more important than reality in many situations. If the appearance of “good” and “justice” brings in more business, then lawyers will adopt it. Lawyers’ “commitment to pro bono”—along with their advertising about it—is all part of a calculated effort to generate a convincing “appearance.”

Who needs to “be” just when it is sufficient to simply “seem” just? No one can afford to “be” just, can they?