#Goodnews - Why Was It So Easy to Recruit #Lawyers for Free Work? (#probono)

(Awesome pig art by a neighbor)

Why does bad news get more attention than good news? It's something in the way we think, I suppose.

Anyway, today we had to close registrations on a pro bono program that I have been recruiting for (I'm gonna be cagey about names and dates because I don't want to get swamped with more volunteers than we can handle). 

We set a target number of lawyers that we wanted to get some free work ("pro bono") out of. That's right: 

• FREE WORK. 
• From LAWYERS.

Conventional wisdom says that either concept is hard to sell and putting them together should be impossible, but that has not been my experience. You CAN recruit lawyers to do free work, you just have to approach them in the right way.

So a couple of weeks ago I started a fairly low-key campaign to recruit a bunch of lawyers for a new pro bono program. We had an upper limit of the number of recruits we wanted; you absolutely do NOT want to recruit more than you can use, because it's a waste of time for them and volunteers who services don't get used have a right to be a little pissed off.

We gave ourselves two months to recruit our number, and started with a few quiet notices to attract the  most motivated. Later on, we figured, we'd see where we were and reach out a little deeper into the pool of recruits to activate those who weren't looking to do pro bono. Maybe do a few cold calls or whatever.

Today we checked our recruitment numbers, and we are essentially full. We have a couple of spaces left open but need them for a few targeted recruits that we had been saving for later. Whoo-hoo! 

Let me emphasize:

• FREE WORK
• From LAWYERS
• Basically FULLY RECRUITED after a couple of weeks
• After a fairly low-level campaign (a couple of web posts and a couple of emails).

Can you imagine the response we'd have gotten if we'd, I don't know, SPENT SOME MONEY ON RECRUITING?

Ok, I know this is just one data point. Maybe the world really is going downhill and everything's getting worse.

But I don't think so. On the evidence, people really want to make the world a better place. We just have to talk to each other and get organized.

King County Commemorates Pro Bono Week

Today I joined about a dozen members of the local access-to-justice community in the King County Council chambers for the "Presentation of a proclamation of the week of October 23-29 as Celebration of Pro Bono Week in King County, in recognition of volunteer legal service provided by attorneys to low-income clients."
This proclamation came about when the WSBA Pro Bono and Legal Aid committee decided we wanted to do something for the national Pro Bono week, but didn't want to devote a massive amount of resources to a large program this year; we had been busy on other projects more directly tied to recruiting and supporting pro bono volunteers. We hit upon the idea of asking local government bodies to consider proclamations, in the hope that this would provide favorable publicity to pro bono and encourage more participation. While it will probably be impossible to point to a particular volunteer as having been persuaded by any particular proclamation, we have to think of these things like any other advertizing or motivating campaign: the more messaging, the more the messaging is absorbed and acted on, until the desired behavior (in this case, providing legal services) is fully normalized.
This was the first time I was in the County Council chambers. I recognized most of the faces from the news and/or campaign literature, and the procedural bits seemed to go efficiently enough. The first act was to recognize a state senator who had passed away over the weekend; the Chair and another Council member talked about him with great fondness and I hope this was a comfort to the survivors. Next there was a joint proclamation by King County and Seattle, on the occasion of Food Day, October 24. This was the first I had ever heard of Food Day, but the concept seems sound enough.
Then came our turn. Those of us from the Committee, from Law Fund and other organizations, were called up to stand behind the podium as the reasons for Law Week were explained and the proclamation read. Then the Council joined us and there was an official photo, which I hope to post here when the County distributes it.
All-in-all, it was an interesting look into probably the least onerous part of democratic governance. I imagine it may have been a lot easier to do than haggling over budgets!

Lesson: if you're standing in back, watch your positioning!

Court Fees and General Rule 34 in Washington State

Court fees can be a barrier to justice. Forget about hiring a lawyer; if you can't even afford to pay the fee that a court may charge to file a case, you don't have equal access to the protections of law.
Here in Washington State, we've made a small step to deal with this:

As evidence of its desire to help low-income people with civil legal needs access the courts, the Washington State Supreme Court unanimously adopted a new court rule, General Rule 34 (www.courts.wa.gov/court_rules/?fa=court_rules.display&group=ga&set=GR&ruleid=gagr34 ), that provides standards and procedures for waiver of court and clerks’ fees and charges in civil cases on the basis of indigency. The rule became effective December 31, 2010.
GR 34 streamlines and provides uniform, statewide in forma pauperis motion procedures and standards that should benefit both low-income litigants and their pro bono counsel by facilitating entry of court orders waiving such fees and surcharges. The rule, which was proposed by the WSBA, provides for waivers of “filing fees or surcharges the payment of which is a condition precedent to a litigant’s ability to secure access to judicial relief from a judicial officer in the applicable trial court.” A summary of the new rule and further details about it are available online  at http://www.wsba.org/gr34.pdf. --- Press release from the Washington State Bar Association

Getting this rule in place took a long time and a lot of effort, since anything involving money also involving complications from competing interests. However, it's now done, thanks in part to the work of the WSBA Pro Bono and Legal Aid Committee, among many others. It's nice to see progress in closing the justice gap!

Veterans Child Support Project: Helping Homeless and At-Risk Veterans with Child Support Problems - Pro Bono Opportunity

The Northwest Justice Project is seeking volunteer attorneys and law students to provide pro bono legal assistance to low-income veterans with child support problems. A free "Child Support 101" CLE will be held for volunteers at Seattle University School of Law on Friday, August 13, 2010. Registration information and other CLE and project details will be provided to those who volunteer.

Child support obligations are a barrier to housing, employment, and self-sufficiency for many homeless and at-risk veterans. Many veterans incurred these child support obligations while they were homeless, in a phase of active addiction, or otherwise untreated for a serious mental illness. For incarcerated veterans, the growing arrears from unpaid child support can be a significant barrier to reentry into the community. Many veterans may be able to reduce their child support obligations to a more manageable level and help eliminate these barriers.

The Department of Health and Human Services (HHS), the Department of Veterans Affairs (VA), and the American Bar Association (ABA) are piloting a project in Seattle and eight other cities to assist homeless and at-risk veterans with child support problems. The local partners for this project include Northwest Justice Project, Open Door Legal Services, VA, DSHS Division of Child Support, and the HHS Seattle Regional Office of Child Support Enforcement.

The local partners are recruiting private attorneys to provide pro bono legal services to veterans who need assistance with their child support obligations. Services will include assessments to determine whether the veteran meets criteria for renegotiation of child support payments and assistance with modifying child support obligations and negotiating payment arrangements and adjustments for child support arrears. Experienced mentors will be available to assist volunteers in providing these services.

If you are interested in volunteering for this project, please contact Bridgette Murphy, Northwest Justice Project, 206.464.1519 ext. 615, bridgettem@nwjustice.org .

How To Get Free Legal Help

My bloggy friend Joanna Plichta Boisen just posted "How To Get Free Legal Help

"At some point in your life, you will be faced with a legal issue. But even if you are lucky enough to avoid it, it is almost inevitable that someone you know, whether a family member or friend, will need legal assistance so learning about pro bono options can be valuable.

The trouble with the word "justice" is that it's not free. In fact, the costs associated with hiring a lawyer, paying for litigation, and filing necessary motions in court can add up quickly, and in an economy where the unemployment rate is around 9.4%, many people will end up navigating the legal system pro se. Thankfully, Washington has a very strong network of nonprofit organizations, online resources, and social service agencies for the public to access. So, where do you begin?..."

I would suggest beginning by reading the rest of How To Get Free Legal Help

SWAGging Pro Bono: The Ten-Percent Solution

A biologist for whom I wrote some FORTRAN code, way back in my undergraduate Work-Study years, told me what we had to do when we didn't have some key bit of data.

"Just SWAG it for now," he said, "As long as we state our assumptions, we can get some work done right away, and that'll tell us where we have holes to fill in."

What does SWAG mean? I asked.

"Scientific Wild-Assed Guess".

The really interesting problems in life are those where you don't start with all the information you need. For example, my biologist boss needed to know the speed at which certain bugs at certain life stages (the "naiad instar" stages) swam when they left the muck at the bottom of a pond to the surface, where it shed its skin and flew away. The speed and the depth of the pond determined the length of time the bug was exposed to hungry fish, a matter of concern to bug and scientist alike.

We didn't know how fast those naiads swam, and we didn't want to hold up everything while some hapless grad student was put on the problem, so we SWAGged it at a meter a minute and moved on. The scientists were able to get some insights even when operating with estimates, and when they got actual numbers, they plugged them into the model and roared on. It was fun and useful!

Today's experiment is in a related field. Instead of a watery gap between the bottom and the top of a lake, which our frisky naiad seeks to navigate without getting eaten, we have a Justice Gap between the resources available and the resources needed to keep our fellow citizens from meeting an unfair fate in our justice system. Estimating what share of that gap can be assigned to pro bono, what share to legal aid, and so forth is absolutely necessary to effective planning, but it's also like figuring out how fast that little bug can swim. We need some graduate students with stopwatches and hipwaders, but until then, we have to SWAG it and ... who knows? ... maybe something will make it to the surface and take wing.

• The Need
• Pro Bono's Share
• Legal Aid's Share
• Something Else's Share
• Notes

The Need

The Justice Gap is the difference between resources available to persons with a civil legal need, and the resources necessary to ensure a just resolution of that need. The numbers below are for Washington State, 2008.

• Percent of low-income people that needed and got legal services: 20%
  Source: Alliance For Equal Justice;
• Percent of low-income people that needed but didn't get legal services: 80%
  Source: Calculation from the above 
• Number of low-income people that went without legal services: 650000
  Source: Alliance For Equal Justice
• Number of low-income people needing legal services: 812500
  Source: Calculation from the above
• Number of low-income people that needed and got legal services: 162500
  Source: Calculation from the above.

No SWAGging so far ... give us time ...

Pro Bono's Share

In gross, we can figure out the absolute maximum reasonable number of lower-income persons who can be helped via pro bono by counting how many people are in the pool of legal professionals who might reasonably take on some cases, and multiplying by the number of cases they might take on each year.

Lawyers

(All figures: Washington State, November 2009)

• Active Status: 28312
• Emeritus Status: 139. These are, by definition, doing pro bono work already but we might squeeze a little more out of them.
• Inactive Status: 4219. Some of these have expressed interest in pro bono service. At present, the path for this is to change to Emeritus status. Since Emeritus is only about 3% of the pool of (Emeritus+Inactive) it seems reasonable to think that an active recruiting campaign, focussed on each inactive attorney's interests, may be fruitful, although the maximum conversion rate would be only SWAG. 
• Military Status: 11. While this pool is small, I know of a few who may be interested in pro bono service on a time-available basis.
• Suspended Status: 2126. This pool seems a stretch, but for the sake of completeness should be considered. Comparing the number of disbarments per year to the current pool of suspendeds, it seems likely that most suspended will return to active status upon fulfillment of fee or CLE requirements. However, it seems equally likely that they will be replaced by a comparable number of newly suspended members. Thus, for estimation purposes, Suspended should be ignored. This means about 8% of WSBA's potentially active members may be ineligible for pro bono service by reason of suspension at any particular time, which is is something to ponder.

Maximum Pool of Washington State Lawyers that might do pro bono (Active, Emeritus, Inactive, Military): 32549 

Others (See Notes for derivation)

• Law Students 1896 
• Law Faculty 203
• Paralegals 8000 
• Other Legal Services Professionals, e.g. legal secretaries (pure SWAG)

Pool of Other-Than-Lawyer Legal Services Professionals that might do Pro Bono: 10199

What Share of Closing the Justice Gap Might Pro Bono Take?

• Maximum Pool of Legal Services Professionals that (With Unreasonably Optimistic Assumptions) Might do Pro Bono: 42741
• The entire unmet need might be satisfied by pro bono work if each member of the pool took, in addition to their current pro bono efforts, the cases of 15 people a year (650000/42741)
• If each member of the pool took the cases of 1.5 persons a year, that would represent about 10% of the existing gap, enabling a small quip in our title (42741x 1.5 = 64,111 or 10% of 650000).

Legal Aid's Share

We can think of several reasons why Staffed Legal Aid programs are absolutely necessary.

• Even if we had enough raw pro bono hours to close the justice gap, infrastructure in support of those hours is very significant. Organizing, training, matching, and so forth takes time and, perhaps of greater important, organizational memory that simply is not maintained by volunteers.
• Anyway, we don't have enough raw pro bono hours to close the justice gap (unless the assumptions above are way low.)
• Paid staff signifies a recognition by our State that the Justice Gap is a serious enough issue that we're going to invest resources in it. It may be analogized to fire protection; Volunteer Fire Departments are important but not enough to provide comprehensive fire protection.

It's beyond the scope of this post to contemplate how much of the Justice Gap should be closed by Legal Aid organizations, but since there's at the very least a symbiotic relationship between Legal Aid and Pro Bono, it's hard to think about one without thinking about the other.

Assuming that the pro bono efforts could be increased to absorb an additional 10% of the Justice Gap, and that legal aid organizations were increased enough to make that pro bono effort effective, we're left with 90% of the gap left. In round numbers, that is 72% of the entire Justice Gap (90% of the 80% of unmet need. Assuming that it was during our Legal Aid systems' best-funded years that the 20% of the Gap was closed, it seems unlikely that the 72% will be closed by Legal Aid alone.

Something Else Is Needed.

Something Else's Share

The nature of the "Something Else" that is needed to close the Justice Gap is not entirely clear to me. I'm hoping someone smarter than I can figure it out.

One thing seem obvious: it needs to be something that enables the needy community to serve itself, since there will never be enough people from outside that community to serve them.

Running with that assumption:

One method might be to enable the community to develop its own, local experts, from within the community, who can handle some types of cases. An expansion of the Law Clerk program might allow communities to support members while they learn professional skills, then return to their community to serve without the crushing burden of debt. A large number of veterans might find it rewarding to use their limited GI Bill benefits to develop a career in community service law - but only if they were actively recruited to do so.

A complementary approach may be to make the legal system itself more efficient, perhaps using technology to help with the most common matters.

No doubt a dozen other strategies might be employed. There's plenty of opportunity to experiment.

Notes and Assumptions

• Washington State: The data in this note specifically refers to Washington State, since it's the jurisdiction I'm most familiar with. I don't have anything to suggest it is atypical of our United States.
• Lawyer Counts all come from the Washington State Bar Association's lawyer directory. The "Status" selector includes several statuses that are useful for other purposes, but unlikely to yield pro bono help, e.g. Deceased. (Software developers will enjoy that page's disclaimer: "Some results may appear unusual, but they are consistent within the program logic.")
• Law Faculty Counts
• Gonzaga 69 ABA Law School Data/Gonzaga
• SU 65 Faculty Profiles 
• UW 69 Faculty Directory  
• Law Student Counts
• Gonzaga 565 ABA Law School Data/Gonzaga
• SU 781 Admission Facts and Figures
• UW 550 Estimated from Admission Statistics stating 187 1st-years in a 3-year program
  
• Paralegal Counts: Courtesy Brian Haberly of the Washington State Paralegal Association; he is not responsible for any abuse I may have made of the number. Obviously paralegals represent a huge growth opportunity for Closing the Justice Gap efforts but institutional barriers make joint lawyer/paralegal programs rare.
• Unit-of-Data Issues: Some figures are in terms of number of people needing help, some are in number of cases (which could include multiple people), some are in terms of hours of pro bono worked or needed.
• What Is The Goal: Successful programs get that way by defining a strategic goal, making it known to all, and unsentimentally figuring out what it takes to get there. If you don't have the resources to make the goal, then you need either a different approach or a different goal. The only really worthwhile goal of pro bono is to be part of a joint effort to close the Justice Gap. If we don't have the resources to close the Justice Gap by conventional means, then it's time to play some Moneyball!
• Let's UnSWAG!  You'll have noticed some data issues above, and no doubt there are some structural issues as well. Any help you can give would be gratefully received. Are we not teammates?  

Washington State's Alliance for Equal Justice

tThe Alliance for Equal Justice of Washington State is an umbrella network of all civil legal aid programs in the state, formed in 2004 to create efficiency, provide support, and foster collaboration among members.
Alliance members are organizations whose predominant mission is to provide civil legal aid to Washington State’s low-income and vulnerable people. There are two basic kinds of member organizations: legal aid programs, and volunteer programs.


Legal Aid Programs
The Alliance includes a number of statewide and specialty legal aid programs. Some are general practice programs; others help low income populations who face unique barriers to our civil justice system or provide representation related to specific types of legal problems. Several programs provide services to individuals and families across the state.


Through statewide planning with one another, the pro bono programs, and Alliance supporters, these programs create efficiency by ensuring services are not duplicated and that legal assistance is available to some of our state's most marginalized populations.

• More information, including a list of member programs

Volunteer Programs

Thousands of lawyers in Washington provide their time and expertise to make access to justice a reality for low income and vulnerable members of our community. 

Pro bono efforts are coordinated through local bar association volunteer lawyer programs throughout the state as well as in law firms, governmental law offices, and corporate counsel offices. Volunteer lawyers provide a continuum of services from brief advice in clinics to extended representation in court.

• More information, including a list of member programs

---

Commentary

Most of the above text is straight from the Alliance's website.

This praiseworthy effort does not seem to flaunt on its site any strategic vision. It recognizes that "Over 650,000 low income people living in Washington went without any help when they faced serious civil legal problems this year" but does not offer any plan to solve the problem of making "access to justice a reality" for that 650,000. It has a list of things it does, and they are all very good things; but  the magnitude of the uncompleted tasks is never compared to the resources marshaled to address them. It has a very wordy yet number-challenged plan (2008) which assumes that the Legislature is going to provide funding where there isn't enough pro bono volunteers; there is very little in the historial record to suggest that this will, in fact, occur. The website talks about the work it does and anecdotes about the success it has achieved; it avoids the topic of the work left to do and how it will achieve it. This is rolling out an aircraft that has yet to fly, without a plan for it to take wing. What a pity! the problem is inherently solvable, although basic math suggests that a comprehensive solution requires projects in addition to those within the Alliance's evident contemplation.

Among these means may be:

• Training members of the underserved community to provide legal services, either by funding law school or systematically expanding the Rule 6 program (In the long run, the best means of providing an underserved community with something is to empower the community to provide for itself or in cooperation with other communities. Every other approach merely perpetuates inequality.)
• Educating members of underserved communities to avoid legal issues or, when possible, to steer their way out of them, through Public Legal Education and comparable programs
• Systematically coordinating efforts with other legal professionals, such as paralegals, legal secretaries and other
• Reforms to laws and rules, to facilitate pro se and other access to courts
• Improving means of funding legal aid programs, to eliminate dependence upon the inherently unstable IOLTA
• Other means; above all, a plan, however voluntary, to close the Justice Gap, using every means available.

It's worth noting also that "equal access to justice" does not promise a particular outcome in any particular care or class of cases. For example, in your garden-variety landlord/tenant matter, sometimes the law and facts are on one side, sometimes on the other; the goal of equal access to justice is to give all parties an equal shot to have the matter decided on the merits.
This is to be distinguished from social justice, which can relate more to outcome than to process. The distinction maybe helpful for enlisting a broader range of support, since some persons reluctant to address social justice issues that may disadvantage themselves personally may nonetheless be totally in agreement with our foundational American vision of Equal Justice Under Law.

What Is the Pro Bono Goal?

Semi-equality is never the goal of any successful civil rights struggle; it can not be an unstated goal of the access to justice movement of which pro bono is a component.

Friday I participated in the Pro Bono Week event at Seattle University, "Pro Bono Workshops: Hope and Help in Hard Times"; itwas certainly enjoyable. The facilities were completely functional and pleasant, staff helpful and efficient, the atmosphere hopeful and exciting. I am especially glad that I didn't skip the social event at the end; Bill Gates (a.k.a. "The Senior"), Sal Mungia and Harry Schneider Jr. gave short talks that were both factual and inspiring. Schneider in particular is a very funny guy, which may be an underappreciated asset in protecting our constitution.

However, we had a fundamental, underlying, unaddressed problem: no great goal.

Now in bringing this up, I am going to hurt the feelings of a lot of nice people: hardworking, decent, generous, possessed of all the virtues ... and far better lawyers than I. So be ready and remember, it's nothing personal; it's just business. We have a problem to solve and I ask you to reserve judgment on whether I'm just bitching.

So here's the problem: No-one talks about what the goal of the pro bono enterprise should be.

While we can be proud of individual successes in pro bono efforts, who talks about solving the entire problem? Where are plans, however non-binding and informal, to systematically and measurably close the oft-invoked justice gap? If that's the goal, are we closer to it, or farther away? While we know how to make progress in individual cases, what will it take to move us all across the goal line?

What Is The Goal?

At this excellent programs, I heard several things in favor of pro bono:

• Pro bono makes providers feel good
• Pro bono trains new lawyers by letting them practice on people too poor to afford skilled assistance
• Pro bono is like giving away lottery tickets; winners get help navigating our legal system, although since there will never be enough winning tickets, the goal might otherwise be stated to be to abandon most of our fellow citizens to injustice.

Are you angry now? That's fine. The question is whether you're angry because (A) the above unfairly categorizes the many fine people who devote time, money and sometimes whole careers to providing pro bono services ... or because (B) you don't think it's right that there will never be enough winning pro bono tickets for all who need one?

A good answer is "C) Both of the Above".

What is the goal of the pro bono enterprise as a whole? To get there, how much pro bono do we need? Can we get there without asking those questions?

If you don't want to ask those question, then why are you providing pro bono at all? If you are trying to solve problems, why not the greatest problem?

Success 101: Have a Goal

Anyone who's participated in large projects know that you need a goal. Everyone on the project needs to know the goal, and unless there are reasons for keeping progress toward the goal secret, you publicize honest and accurate periodic public measurements of what we have left to do.

Otherwise, you're playing football without a goal line, or building a house without even a rough blueprint. "Just build more foundation and get us some more shingles!"

Biographical note: I came to the Law after working in private enterprise for decades on programming projects involving millions of transactions, multiple continents, more money than the Legal Services Corporation has ever seen. I say this not to boast, for hundred of thousands, or perhaps millions, of computer programmers can say the same. I state with little fear of contradiction that every one of us will say: No successful project lacked such goals.

You do not stumble into success! Good intentions, hard work and even huge resources are less important than having Commander's Intent. Goals may be unwise or ill-conceived (I have worked on projects in which the goals were mathematically impossible) but they are necessary if you want to succeed. Frank, unsparing, unsentimental goals analysis makes it possible to recruit the necessary help and trust that our efforts (even if sometimes individually insignificant or even wasted by our PHB's)
are worthwhile; this is highly motivating. They're also substantively useful, which is always a plus.

Now, tell me: what is the goal in providing pro bono services, and how close are we to realizing it?

If the Goal is Healing the Justice Gap, Then Where Are We Now?

The final formal session of our October 30 program had a panel of four expert, intelligent, highly-motivated, skilled and experienced lawyers, all of whom have probably done more pro bono with their little fingers than I have with in my entire body. So I was not intending to criticize them when I asked:

"What share of closing the Justice Gap should pro bono fill? How much more pro bono do we need to do that?"

This is a fair question, and relevant. Precision is not needed (e.g. "39.14%"); the question asks for rough estimates in the context of an over-all plan.

A good answer would have been something like
"The 2007 Washington State Access To Justice Strategic Plan (the latet year available) envisions pro bono efforts filling in about one-third of the Justice Gap, with the remainder being filled with a mixture of legal aid, public legal education, public service lawyer recruitment and statutory reform. Our current economic crisis has been a setback; although it's hard to measure, we anticipate that unmet civil legal needs has increased over the last year. At the least, we need to roughly double the number of pro bono hours provided to meet the goal.". There's studied vagueness in this response but it indicates a goal and an idea of how to get there.

That's not the answer we got. The panel was visibly rocked by the question although, I hope, amused

Into the pause came a response came from an audience member - a highly dedicated, respected and hard-working participant in pro bono enterprises - who voiced the opinion that it didn't matter, because the need was so great that we just needed more pro bono, lots more.

This was an entirely wrong answer!  It may not have been wrong on the facts, but it was wrong from a project management standpoint. You cannot meet any goal that you refuse to define; it is impossible to get adequate resources if you refuse to quantify them however imprecisely.

The panel did not shrink from a further response, showing (if I may editorialize) why they are such effective advocates: they provided an excellent, fact-laden response that did not answer the part of the question that they could not answer. The panel referred to a plan more than five years old that had never been fulfilled. It gave a frank admission that the facts on the ground (e.g. our current economic problems) have made things worse since the plan had been written. These were top oral advocates, and they gave a great no-answer.

One did some quick math and come up with a number; while it unfortunately was low by a factor of 10 (lawyers are not mathematicians), it was pretty good start for a pop quiz. Too bad this should not have been a pop quiz, but a central point in every planning session. Of greater concern to me is that this response assumed that the 1st question's answer was "100%" - that the entire Justice Gap was to be filled by pro bono - a strategic concept which is neither possible nor wise.

That panel did not suggest how much of the Justice Gap pro bono should fill, and therefore how much more pro bono we needed to get. If they do not know the plan, then there IS no plan in any meaningful sense. We have many virtuous, hard-working and generous individuals and institutions playing football without goalposts or chalk lines, and building houses without a blueprint.

I'm sorry if I hurt anyone's feelings with this, but it is not about our feelings. We need to habitually think of pro bono in the context of the broader effort of closing the Justice Gap. We need to start or resume the practice of setting measurable goals toward closing the Gap, measuring how far we have left to reach each goal, and then taking steps to close the distance. That is how every successful project ... succeeds.

What Is Now To Be Done?

You might ask, well what is now to be done?

Hey, I'm just this guy. I'm a poor lawyer, in every important sense.

But if you do not have a goal and you do not have a plan, do you really expect me to come up with a plan? If I had t, I'd set a reasonable goal, such as "Cut the Justice Gap from its base level (2009) by 10% per year until it is zero'd out (2019)". Naturally, pro bono would be only a fraction of the means t implement this goal; other means (e.g. legal aid, statutory reform, development of a corps of lawyers financially able to make public legal aid a viable career option). Then I would start setting out tasks and phases and dependencies, and all that project management stuff.

However, why look at me? Somewhere, there must be people, many people, who have thought these thoughts before; it's simply implausible to suppose any of the above is without precedent. So somewhere, surely there's a Committee somewhere working on a plan; I'm willing to go to find it. Why isn't it not merely easy to find, but all up in the face of every lawyer, makes no sense. But whatever - just tell me where to go, and thither I shall go, not with the expectation of being any smarter than anyone there (...let's be realistic...) but totally willing to be a pain in the ass until someone comes up with an answer.

I love you all, people of the Access-To-Justice Community. You are smart, dedicated, hard-working and well-meaning; you have defended individuals, groups and our sacred human rights and Constitution with more skill and effectiveness than I ever have or could.

But how the heck do you expect to succeed if you won't even talk about the frickin' goal?

Remodeling the Justice Gap

It's time to rethink how we bridge the gap between average americans and civil justice.

With the best will in the world, great genersity on the part of many people in the legal profession, and the investment of a lot of money, that gap has never been fully bridged. For example, in Washington State, it has been estimated for years that we need on the order of $25 million in funding to bridge the gap, yet funding has never reached half that. And in the current economic downturn, the gap grows larger while the resources shrink.

In business terms, our business model is not working well enough. This means that now is a good time to reconsider our project design. If what we are doing didn't solve the problem when our economy was flush with cash, it's not going to do so any time soon and, most likely, never can.

Therefore, we must change our business model. Our purpose is to close the justice gap.

What is the "Justice Gap"

The world is full of disputes. People have disagreements over land, rent, contracts, injuries and anything else you can think of. Our legal system tries to give people a place to work them out peacefully instead of a worse way.

Ideally, all legal disputes would be solved on the merits; each side would present their facts and match them to the law and the result would be fair (...although not necessarily to anyone's liking.) However, in practice, there is a big advantage in knowing how the rules work or even what they are. It's like any game; if you've never played before, you have a hard time winning if you're reading the rule book at the end of the round.

That's where lawyers and other legal professionals come in; their job is to know the rules and help everyone else work things out according to the rules. However, a great many people cannot afford legal professionals to help them, and as a result, their disputes may be resolved on a basis other than the merits.

The difference between the need of people for help in resolving their disputes under law and the resources available to do so. This is the Justice Gap.

Typically, the Justice Gap refers to civil matters, not criminal, since there is a constitutional requirement for legal help to criminal defendants. Whether that's adequate is another question.

Project Elements

• Private law practice: By far the most common means is a free-enterprise system of legal professionals, offering their services for a fee, salary or some other arrangement;
• Government (usually court-based) help: Courthouse facilitators and other employees offer some help, often very important in matters such as family law and protective orders;
• Legal Aid groups: Organizations such as the Northwest Justice Project and Columbia Legal Services provide legal help; funding these is often a problem;
• Pro Bono help: Many individuals and organizations provide free ("pro bono") help. A related concept is "Low Bono" - not free but at a discount to certain populations;
• Charitable donations: Contributing cash and other resources help fund legal aid;
• Resources helping people to help themselves: many resources support individuals in a civil legal conflict assist themselves, including standard forms, websites, some aspects of Public Legal Education, and so on;
• Statutory Reform: Sometimes changing the law can make it easier for ordinary citizens to use it.

Problems

• Scoping the Problem Itself: It is hard to calculate the amount of legal need. A study from the early 2000's set it at about 150 FTE (full-time equivalent lawyers). It seems likely that the need has increased with the increasing population and economic problems;
• Resourcing Solutions: Much of Legal Aid is funding by IOLTA. This has never been an adequate source of funding; it has become grossly inadequate due to the economic downturn; and because it depends on inefficiencies in our banking system, it is destined never to be a sufficent sum of money
• Private law practice: Costs money;
• Government (usually court-based) help: Competes with every other government service; difficult to calculate ROI;
• Legal Aid groups: Funding is a huge problem, especially in an economic downturn;
• Pro Bono help: There just aren't enough available pro bono hours close the gap on its own; some administrative issues, e.g. malpractice coverage, training, matching clients with attorneys; getting appropriate help from other legal professionals, e.g. paralegals, legal secretaries; recruiting and managing volunteers;
• Charitable donations: Competes with all other charitable needs;
• Resources helping individuals help themselves: useful but limited;
• Statutory Reform: Slow, difficult and frequently opposed by those who profit from the justice gap.

Summary: With the best will in the world, our current solutions to the justice gap cannot solve the problem.

This does not mean we should not continue with those efforts, and it definitely does not mean we should give up, but it does mean we need to look at some new ways of doing things.

Next Step

• Re-model: Since we cannot succeed in closing justice gap by sticking with the current business model, we need a new business model.
• Get Help: To get a new business model, we need people who are good at developing new business models. Any ideas as to who?
• Stay Tuned: I'll add to this as I learn more. You comments are needed!

Well-Meaning Pro Bono Programs ...

... are indeed well meant. Let's not deny that.

I signed up for the WSBA's Pro Bono and Legal Aid Committee (PBLAC) so I could be a contributor, not a complainer. Yesterday (Thursday Oct 30, 2008) was its new member orientation, followed by a regular meeting.

They are all well-meaning people, and I wish things went better. We met for two-and-a-half hours and did not mention a single measurable, meaningful target to be met within a defined time. That is to say, I saw no real plan. There *is* a huge plan; we had at least five pounds of dead-tree handouts in a 3-inch-wide binder. It defines a process that provides some helpful activities, no doubt, but by its very bulk and obscurity doesn't solve the problem of access to justice.

It's as if Boeing were to say, "We need a better jetliner. We've been making lots of progress toward it: we've made some parts, we had a rollout event, et cetera. But a date for it actually flying? Hey, look at that shiney thing over there!"

This problem is not unique to the law-and-justice community.

However, if a private enterprise screws up, no-one should be crying except the shareholders, and they knew the risks. But charitable matters are different; people with limited choices rely on them to be effectual, and this makes it doubly wrong when they're not.

I'm familiar with PBLAC and its cousin, the Access To Justice Board, from over a decade of hanging around the Washington State Law-And-Justice Community. I've been struck with how carefully they tiptoe around actually stating the problem in measurable terms, defining a plan to solve it, and reporting on progress toward completely meeting the goals.

Instead, there are factoids ("X% of Washington's low income residents have such-and-such a need") but never facts ("a specific number of persons or cases have such-and-such a need"). Why this is, I can't say because the volunteers are uniformly well-meaning and the paid staff are nice people. It is entirely possible that, when you do the math in your head, there's just no way to solve the problem with the tools at hand:

• One million Washington State residents unable to purchase the services of an attorney
• If each has one problem every five years, that's 200,000 problems per year
• 20,000 licensed attorneys in Washington State might conceivably address civil legal issues
• Each takes 10 pro bono cases a year
• Problem solved!

It ain't gonna happen folks. And if we get hit with a Depression, it's doubly not gonna happen, as lawyers drop out of the profession, take minimum wage jobs, and default on the law school loans.

Now you can play with the numbers to get a more happy or less happy result. The point is, PBLAC and ATJ and the rest of the community don't run the numbers. They provide a lot of data, but not the really distressing information. Instead, they publicize the amount of work they do:

• X hours donated
• Y clients helped
• Z expressions of gratitude from a forelock-tugging peasantry

Any project that reports effort expended instead of progress achieved toward completion is about expending effort, not solving the problem.

If that last point (and the "forelock-tugging" bullet) seems a little cynical, it's because I'm really tired of the Lady Bountiful model of legal aid. I was raised poor. Without foodstamps, I wouldn't have teeth and without welfare I have close family members who would be dead. Charity is important, but empowerment is more important.

Certainly I'm going to put in a lot of work on this committee, but holy cow!