Among lawyers, there are at least two definitions of "pro bono" work. Some say it's work for which they asked no fee. They seek it, can afford it and it leaves them with a warm feeling in their stomachs.
Other say it's work for which they got no fee. They didn't seek it, may not be able to afford it and do it when they have to, when a client can't pay. It leaves them with a feeling in their stomachs that is not so much warm as empty.
Despite years of speechmaking from bar association leaders about pro bono work and responsibility to the poor, the ambivalence within the profession over actually providing such free services is very real. And with the Reagan administration eliminating, or, at best, curtailing federally funded legal services for the poor, this also presents a dilemma for the bar and raises questions about its ability to carry even a fraction of the load it may have to absorb.
Last year, for example, an American Bar Association panel revising the profession's code of ethics announced with a flourish a proposal to require pro bono work as part of the ethical responsibility of every lawyer. After howls of protest, Robert Kutak, the Omaha lawyer who heads the panel, said in an interview that the proposal has been totally eliminated in the draft code about to be released.
Last December, the D.C. Bar, to which all practicing lawyers in Washington must belong, voted in a referendum to prohibit the use of membership dues to fund such activities as lawyer referral services for the poor. Some lawyers said they objected not to the idea of providing pro bono lawyers for the poor, but rather to being forced to contribute to anything. However, Zona Hostetler, director of the D.C. Bar office operating the pro bono program, sees the vote as demonstrating a lack of commitment to the poor. The D.C. Court of Appeals upheld the referendum and Hostetler is now in the process of dismantling the service.
And interviews with bar officials from around the country indicate that most areas, especially localities outside metropolitan areas, having no systematic mechanism for finding lawyers for people who cannot afford them in civil cases -- the kind of cases now handled by the thousand by the federally funded legal service offices around the country.
The American Bar Association has given out $103,000 in grants this year to six bar associations to begin setting up such mechanisms, with staff to answer the phone, find the right lawyers and follow up on the handling of the cases.
"But most places have no organized pro bono program," said Ruth Ann Schmitt, who runs the ABA pro bono project.
Part of the dichotomy reflects the extremes of the profession, the contrast between small firms and large firms. Hogan and Hartson, one of Washington's most prestigious and largest firms (153 lawyers), operates a Community Services Department along with its tax department administrative department and other more conventional commercial sections.
Two prominent lawyers, Sara-Ann Determan and David Tatel, formerly head of Health, Education and Welfare's Office for Civil Rights, farm out to the firm's lawyers individual cases -- divorces, landlord-tenant disputes, and so on -- and important class actions in the fields of civil rights, civil liberaties and economic justice.
Lawyers from the firm recently filed a friend of the court brief, for example, in a major case at the Supreme Court involving the rights of the mentally retarded. Hogan and Hartson attorneys have represented the Black Panthers, have challenged Internal Revenue Service tax exemptions for segregated private academies and have defended government whistle-blower Ernest Fitzgerald.
Determan said that at any time, the firm is involved in about 50 pro bono cases and consumes annually about $1 million in "billable" time working for nothing.
All that is unusual, even for Washington firms. For smaller firms such consistent pro bono activities are unheard of. And outside the big cities, more than 70 percent of the nation's private practice lawyers are either sole practioners or members of firms with two or 10 lawyers.
Lawyers in smaller firms around the country say that for them, pro bono work is often an accident. "It happens when we take on a case and later find out the person can't pay all or part of the bill," said Portland lawyer Martin Howard, who heads an ABC committee on the economic problems of small firms. Howard is now in a five-lawyer firm but most of his life he has been on his own.
"When you're on your own," he said, "pro bono means when they can't pay."
Lawyers in these firms say they simply can't afford to do more. Some also say that danger lurks in taking on the sorts of social causes legal services lawyers or Hogan and Hartson can manage, even if they were philosophically disposed to do so, which many are not.
A small firm may be vulneral to pressures from clients who might object to a lawyer's involvement in a social cause. "It's like newspapers," said Michael Hagland, a private practice lawyer in charge of a new ABA-funded volunteer lawyers project in Portland. "The smaller the newspaper and the smaller the community the more vulnerable it is to pressure from advertisers or loss of advertisers."
Corporate clients often need firms like Hogan and Hartson more than the firm needs them, Hagland said.
Some lawyers in regular contact with law schools see little prospect of an increasing interest in pro bono work. "There seems to be a falloff in her comment on interviews wiht law students. "Eight years ago, virtually every student asked about the opportunity for pro bono work at a firm. But now they're more security oriented."