Business Law Pro Bono:
Involving the Other Half of the Profession
By James L. Baillie

Most lawyers who provide pro bono services are litigators and they are providing litigation-oriented services. But more than half of all lawyers are not litigators and they participate in pro bono at a much lower level. Involving that other half of the profession in pro bono services is a challenge. But it is a challenge that can be met through pro bono programs that call on their skills.

For the most part, traditional legal aid and pro bono services have been litigation-oriented. Legal aid offices and pro bono programs have historically focused most of their services on individual clients who need help in court: individuals being evicted from their apartments, needing representation in housing court, going through divorce or child custody or child protection issues, needing to use an administrative or court procedure to receive benefits to which they are entitled, or in danger of deportation. It is easy to see why these needs receive attention -- the unrepresented individual in court is very visibly in need of legal services. These individuals need the help of lawyers to be able to effectively assert rights granted to them by law. Serving them helps validate our system of law and the basic principle of our justice system: "Equal Justice under Law" (the inscription over the west portico of the United States Supreme Court). Helping these people helps serve another purpose, that of assisting in the administration of justice. Judges often become strong supporters of pro bono programs because pro se litigants generally slow the administration of justice and make it more difficult for the judges to dispense judgment with an even hand. The judicial system works best when judges can rely on legal representation for all parties.

Pro bono programs seeking more volunteers to help with these clients, especially in family law, have noted the resistance of business lawyers, including lawyers on corporate legal staffs. Efforts have been undertaken to recruit, train and retain "non-litigation" lawyers to provide family law and other traditional litigation services. There have been some successes. Some non-litigators have enjoyed expanding their legal skills and helping these clients. Some have become outstanding volunteers. But they are the minority. As early as the 1970s, corporate legal staffs began pro bono programs, often in partnership with local legal aid or pro bono programs. But after initial bursts of enthusiasm, many of these programs have declined.

The reasons for these declines are understandable. Recently, James Johnson, general counsel of Proctor & Gamble, told of handling a family law case. He concluded that this use of his services was not cost-effective and he decided not to do it again. Since then Mr. Johnson has become one of the leaders in establishing a business law pro bono program in Ohio.

When pro bono programs that present business lawyers with a chance to use their own skills became available, many of the same lawyers become very enthusiastic volunteers. Many see the needs they address as more important and the benefits from their pro bono services as more long-lasting than litigation services. Philosophically, for many of these lawyers, provision of these kinds of legal services is more satisfying. As planners, builders and counselors, these lawyers would rather work with community institutions and help people who are struggling to participate in the market economy than help people in trouble in court.

Inspiring business lawyers to help may not always be difficult, but matching them with clients is. The clients are not found at the traditional legal aid offices. Despite the fact that there is a large pool of needy pro bono clients -- small nonprofits and microenterprises and a need for economic development generally -- matching volunteer lawyers with appropriate clients is not an easy task. That requires the development of intermediaries, the business law pro bono programs, to link lawyers and clients.

Business law pro bono -- legal services provided on a pro bono basis by business lawyers in aid of community economic development -- is an idea whose time has come. Although it is not a new concept for business law pro bono services to be provided on an occasional basis, the organized provision of these services is, for the most part, new. Recent years have seen a dramatic increase elsewhere in the country in the number of pro bono programs specifically devoted to providing business law services; correspondingly, there has been a dramatic increase in the amount and variety of those services by volunteer lawyers. The promise of business law pro bono is enormous. While the amount of traditional, litigation pro bono services appears to have leveled off or even declined in recent years, the development of business law pro bono programs has the potential to dramatically increase the number of pro bono volunteers because it can draw upon that larger part of the profession who are not litigators and who resist participation in traditional pro bono programs.

In the past year, Joe Genereux and I have chaired an MSBA Task Force to study the need for a business law pro bono program in Minnesota. I am pleased to say that the MSBA Board of Governors has recently adopted the Task Force recommendation that we develop such a program and has allocated $15,000 as seed money. The challenge now is to help raise the $100,000 or more annually or so that is needed for a such a basic program. (Volunteers to help with that fund raising effort would be welcomed.) (To view my law review article on this subject, go to http://www.wmitchell.edu/lawreview/Volume28/Issue4/07_Baillie.pdf.)

Joe Genereux has agreed to chair the board of the new program. With luck within the year we will have a program that involves the other half of the profession and makes a significant contribution to our communities.

JIM BAILLIE is president of the Minnesota State Bar Association. A shareholder in the firm of Fredrikson & Byron, P.A., he concentrates his practice in business bankruptcy and insolvency law and related litigation and business transactions.