The Rise of Corporate Law Departments and Pro Bono Service: Strategies and Innovations That Lead to Success
Without doubt, pro bono service is fundamental to the legal profession. Its importance can be measured by the scores of law schools and law firms that provide free legal representation to the less advantaged.
But recently, there has been an addition to this landscape. Corporate law departments across the country are transitioning into first-rate providers of needed legal services in the large cities and in the smaller communities where they are based. This trend is one that Esther F. Lardent, president and chief executive officer of the Pro Bono Institute at Georgetown University Law Center, is closely monitoring.
“Until recently, it was extremely rare for legal departments to have formal pro bono programs. The vast majority [of these programs] are between one and two years old, so this is a real dramatic change in the in-house community,” she says.
She also sees many innovations taking place, from the areas of law practiced by the in-house attorneys to the formation of partnerships and the push towards resource sharing. Lardent believes that the momentum is driven by many in-house attorneys who have a background in law firm pro bono services and a desire to continue it in their new setting.
“As the in-house community has more stature in the profession and has a more public role, it makes sense for that segment of the legal community to be thinking not only about the issues that are unique to in-house, but thinking about issues that are important for the profession and legal system as whole,” she says.
The momentum for corporate pro bono is driven by many in-house attorneys who have a background in law firm pro bono services and a desire to continue it in their new setting.
Lardent also observes that the quality of the work, as well as the quantity of the work, is becoming more ambitious, and says it is critical that along with those ambitions, there is a competent long-term plan to ensure that the program will be sustained.
“It is critical not only to have a strong program in terms of pro bono offerings, but to have enough infrastructure that the program can keep going, even if there is a change in the general counsel or the company grows larger,” says Lardent. “This entails having clear policies, and processes and people in the department who are tasked with the responsibility of keeping it afloat.”
Harnessing What Comes Naturally
Across the country, pro bono service appears to be more than just an obligation to be met. According to the ABA Standing Committee on Pro Bono and Public Service’s report “Supporting Justice: A Report on the Pro Bono Work of America’s Lawyers,” published in August 2005, two-thirds of the survey’s respondents reported volunteering some level of free legal services whether or not their firm or company had instituted a formal program.
But, for many in-house attorneys, the rewards of pro bono are more easily had through a formal program. Michael M. Dai, assistant general counsel at 3M Legal Affairs, based in St. Paul, Minn., finds pro bono work facilitated through the company to be very fulfilling. 3M has partnered with Southern Minnesota Regional Legal Services and (SMRLS) and Children’s Law Center of Minnesota (CLC).
“As an immigrant myself, I have chosen to work on immigration projects with SMRLS. It might not be a common knowledge that Minnesota has one of our country’s largest populations of Southeast Asian and East African refugees, largely due to the state’s progressive humanitarian policies. It is personally rewarding to me to help SMRLS clients navigate the immigration process, which is often intimidating to them, and realize their dreams of becoming United States citizens,” says Dai.
Yet, for all attorneys—despite good intentions—there are significant hurdles to achieving their goals. According to the 2005 ABA report, the main discouragement from performing pro bono work, or from performing more, was a lack of time. Other “de–motivators” include firm-expected billable hours and a lack of skill in the required practice areas. For corporations, there is the additional challenge of relatively small legal departments and their ability to juggle the deadlines and court dates for their pro bono caseload, along with their core corporate legal responsibilities.
“I think there has been a concern among legal departments. They want to do pro bono legal work, but they are very worried about their ability to carry through if anything happens,” says Lardent. “One of the things that we have done is to find finite manageable pro bono assignments that are meaningful, helpful to the client, but have a beginning and end so people can schedule.”
To this end, many legal departments have discovered that partnering with a public interest organization, or a community-based group that already has its own infrastructure in place along with a long line of potential clients, is an efficient method of providing services.
These concepts are very familiar at Merck & Co., Inc., where Mark R. Daniel, managing counsel—patents, works as part of a pro bono team with his legal assistant Carolyn Coyne. Merck has partnered with several pro bono providers, including Legal Services of New Jersey.
“If you are a company like Merck, establishing a partnership with a pro bono organization that can screen cases and provide you with clients in your areas of expertise is critical,” says Daniel.
“The most senior executive management of both the corporation and legal department needs to set the right tone that would encourage lawyers and staff to devote their valuable time to pro bono work.”
According to Lardent, Merck & Co., Inc.’s 14-year-old program is one of the longest established corporate pro bono programs. Merck attorneys accepted their first case, a family law matter, in 1994. The family law case was followed closely by a custody case.
“We did this for about a year and demonstrated that we could do this effectively. The feedback from Legal Services of New Jersey was exceptionally high and the feedback from the clients was very strong,” says Daniel.
Following that success, Merck rolled out the program to their other corporate law department sites in New Jersey and Pennsylvania. Daniel says that, currently, a significant number of attorneys, paralegals, and administrative associates are involved in the program. More importantly, it hasn’t been a hard sell.
“Our program is strictly voluntary,” he says. “We look at it as we have an ethical obligation to represent those in need in the areas where we live and work. But we make it easy.”
At Merck, the process begins when their nonprofit partner provides Coyne with a list of available pre-screened cases. At least once a month, Coyne sends out the information electronically to Merck’s volunteer attorneys. She is responsible for docketing the cases, and alerts the pro bono providers when they accept a case.
Coyne and Daniel have partnered in handling guardianship cases. “Mark and I work together on these cases where we meet with our clients at the offices of our pro bono providers to conduct the initial interview. Following this initial meeting we regularly meet with our clients throughout the duration of the case,” Coyne says.
Daniel says that many of the attorneys at Merck enjoy partnering with colleagues in sharing the pro bono responsibilities. Coyne says that many of the attorneys are eager to explore something new but acknowledges that entering a new area of law can cause a little apprehension. She states, “Just knowing that you are helping someone, and how much it means to them, is in itself very rewarding and helps you overcome the apprehension.”
Yet a successful program requires more than involvement at the ground level. Dai says that the policies and commitment must come from up high.
“The most senior executive management of both the corporation and legal department needs to set the right tone that would encourage lawyers and staff to devote their valuable time to pro bono work,” says Dai. “To go beyond the proper tone setting, resources need also be allocated for training and other logistical needs to ensure the pro bono work can be a success.”
Lardent agrees. “Probably the single most important thing is having the general counsel publicly indicate support, and then designate either someone or a pro bono committee the responsibility to work to on this.”
Daniel observes that the key is to start slowly, “think small, think practical, and build the program for the long term. The companies that have been successful have started off small, have built their program up over years and made sure they did it the right way, and those are the programs that are still in existence.”
Lardent concurs. “Often, if they are multioffice legal departments, this means to start in one office with one project, because that allows them to get the kinks out, and to demonstrate their success, which will in turn get more people excited,” she says.
Nuts and Bolts
There are a multitude of challenges, whether a company is establishing a pro bono program from scratch or attempting to grow the one it has. According to Lardent, there is not one ideal. What will work depends on the company’s culture and history.
“We know that with busy in-house attorneys who want to do pro bono, if they have to stop and think, ‘How is this going to happen?’ the moment may pass,” says Lardent. “For every obstacle we try to find an easy, effective, and simple answer.”
“We encourage people to immediately do surveys of the legal department to find out what pro bono work people are doing, even if there is no formal program, and what they are interested in doing,” states Lardent. “In the case of a number of departments, having conversations with whoever at the company is in charge of volunteerism or philanthropy or social responsibility [is critical] so they can build upon the approach the company is already taking.”
Coordinating the volunteers requires administrative hours. Over time, Merck has built up the required infrastructure with the assistance of their paralegals and administrative associates. Another issue is ensuring that malpractice insurance is in place. Many of the nonprofit organizations that legal departments team with carry malpractice insurance for volunteers.
Yet another question that often arises is whether the in-house lawyer has the necessary skill sets to perform the required legal tasks. According to Lardent, the vast majority of pro bono work tends to be litigation-based work. Although it is natural that lawyers would prefer to use their existing skill sets and not move out of their comfort zones, many in-house attorneys who have taken the plunge say that there are meaningful opportunities for transactional attorneys.
Maureen A. Harms, assistant general counsel of 3M, has been involved with her department’s program for 10 years. She, like Dai, has partnered with SMRLS. She agrees that not all practice areas lend themselves to the type of experience and time that an attorney has to give. At 3M, attorneys work closely with their partners to find appropriate practice areas and assignments, which in turn maximizes the volunteer hours along with the volunteer interest.
Harms says that both sides are willing to give more energy to the project when appropriate areas and interests come together. She points out, as an example, that immigration legal services is an area that allows attorneys to control their time and priorities and manage the work that is needed to serve that client. Merck maintains its success by partnering with its pro bono providers that are willing to train their volunteer attorneys in the necessary areas of law.
The location of these most-needed services can be an issue for legal departments who work outside of major population areas, and who live in areas where commuting can be a hassle. Potential solutions include hosting on-site clinics at the legal departments, finding opportunities closer to where the attorneys live, and using technology to provide assistance to clients.
A one-day clinic was a huge success for 3M. “We got involved with a big fair that SMRLS put on at a local civic center that hosted more than 500 seniors. The attorneys gave presentations in five areas of law, and held advice clinics in the afternoon. This sparked the interest of the 3M attorneys, because they had never offered these areas of practice before, which included healthcare directives and powers of attorney,” says Harms.
What also made this project attractive, says Harms, was the fact that the training could be accomplished in a few hours and had an immediate impact. “We are now waiting to see how SMRLS evolves this. We anticipate that they will be going to senior centers, and will bring the presentations to the senior centers.”
One company that has been extremely successful in developing time- and resource-manageable projects is Exelon, whose legal department has offices in Chicago and Pennsylvania. Its current pro bono program has existed since 2002 and is administered by two coordinators, Margaret Balsley-Cross and Kevin Stepanuk. The program not only encourages its own employees to engage in pro bono activities, but also expects its outside counsel to share in this commitment.
Partnership between in-house law departments and outside law firms is a growing trend, says Lardent. This is because in many law firms, pro bono is robust with substantive expertise, projects, and infrastructure that legal departments can piggy-back onto.
Training by their outside partners is critical, says Balsley-Cross, because much of the work is indeed litigation-based. “To ease that transition, there is usually an hour of pro bono training with the project,” she says. This has allowed the department to volunteer at birth certificate clinics and work on guardian ad litem issues, violence against women act petitions, immigration matters, and tangled title issues.
Stepanuk points out that, as part of their job duties, he and Balsley-Cross are tasked with locating projects and partners that are applicable for corporate law firm work. “We try to find discrete opportunities for our attorneys, almost always in partnership with a public service organization and a law firm to take on these cases.”
The department recently participated in a two-part clemency project. Replacing three hours of their annual business meeting with a pro bono activity instead, the team received training and then got to work interviewing potential clients.
“We presented the case for each of our clients that we had interviewed, and then that collective group of the interviewers, along with the legal services provider’s staff, selected the candidates for the pursuing petitions,” explains Balsley-Cross. The legal services provider then facilitated the use of a law firm to take on the task of actually preparing and drafting the petitions.
“We really look to our outside counsel and our legal services providers to come up with these innovative ways for us to meet our pro bono objectives. You can imagine how hard it is for us to find a project that you can do in three hours on a certain date,” says Balsley-Cross.
Sustainable into the Future
Merck, which has legal offices throughout the world, is considering potential global pro bono projects. “Pro bono work is a way for companies with disparate and far-flung legal departments to get to know each other, work together, and have a sense of teamwork and common interests,” Lardent says.
At Exelon, the future is always on the table. “Unlike most companies of which we are aware,” says Stepanuk, “Margaret or I have to report monthly to our department’s executive council on the status of our pro bono services, our future plans, and any program challenges and issues.”
Which goes to prove that once a department settles on a program or structure that is right for the company, they are on the way to achieving great things. DB
Elisabeth Frater, Esq., specializes in business litigation in Napa, Calif.
From the March/April 2008 issue of Diversity & The Bar®