When I was a law student, I wrote a note for the law journal that called for a rethinking of “public interest law.”
The note described both a numerical and philosophical problem. The numerical problem was the enormous unmet demand for legal services, largely driven by people’s inability to afford legal fees and the dwindling number of law students embarking on a full-time career to address those unmet needs. In the 1988 graduating class of law students, the national average for placement into public interest law jobs was only 3%. That same year, the American Bar Association estimated more than 93% of the legal problems of people living in poverty went unserved. The philosophical problem was that public interest lawyers had largely adopted a procedural conception of the nature of their work, which didn’t go far enough in articulating and achieving the substantive good of their clients’ interests.
On the numerical front, nothing much has changed. In my home state of Tennessee, the most recent comprehensive survey (University of Tennessee College of Social Work, Statewide Legal Needs Assessment, 2014) revealed that 61.5% of low-income households that experienced at least one civil legal problem in the previous year took no action at all to try to solve it. Those households said they took no action because “that’s just the way things are” or because they didn’t believe anything could be done that would help. Of those households that took some action in response to their legal problems, 34.2% did not have the assistance of a lawyer.
On the philosophical front, lawyering in the public interest continues to identify itself largely as a procedural imperative focused on “access” rather than advocacy for a substantive change in circumstances for powerless and marginalized groups. I adhere to the view that public interest lawyers should view their role as not simply providing clients with access to the legal system, as if access itself is the end goal. Instead, public interest lawyers should fully own the task of dismantling the legal structures that impede powerless and marginalized communities, with the end goal of replacing those structures with more just and equitable practices.
Practicing public interest law – from a private firm setting
What I have learned after more than 25 years of practicing law is that lawyering in the public interest can be accomplished in a variety of settings. Traditionally, public interest lawyers work in issue-centered, non-profit legal services organizations. Public interest lawyers also work in a variety of government organizations — courts, district attorney and public defender offices, state and federal attorney general offices and state and federal agencies.
My own practice of public interest has come in perhaps an unexpected setting — a large, private law firm. In this article, I will describe that practice and hope to convince prelaw and law students, lawyers and law firm leaders that lawyers in law firms have a place within the wide variety of settings in which lawyers advocate in the public interest.
A three-pronged approach that creates impact
Let’s start with the vision that lawyers in a law firm must create to have a public interest law practice. At my firm, we define our work as advancing three key priorities: strengthening families, empowering communities and protecting civil rights. While we work toward these ends by providing clients access to legal venues, access is a tool and not the fundamental goal.
Strengthening families means providing veterans benefits they have been wrongfully denied, maintaining disability income for those unable to work, and obtaining asylum for people who have fled oppressive and violent regimes. Empowering communities means standing up and supporting non-profit organizations. Protecting civil rights means advocating for systemic change within the criminal legal system, holding the government accountable when it oversteps constitutional limits on its power, and freeing people from prison who are innocent of the crimes for which they have been convicted.
A law firm is a particularly effective setting in which to strengthen families, empower communities and protect civil rights. Law firms have the personnel and resources to take on big challenges. They have the continuity of leadership and staffing to make long-term investments and commitments. And they have access to resources outside their organizations — corporate clients, political and business leaders and other law firms — that form a deep bench of support for their public interest work.
Pro bono work enriches legal careers
I have been fortunate to practice my entire career at law firms that support this vision of public interest work in a law firm setting. When a law firm supports pro bono work, it makes the entire organization better. Everyone in the law firm, including professional staff and lawyers who don’t participate in pro bono work, has a sense of pride and respect for their workplace. And it gives the lawyers who do pro bono work the opportunity to connect to the reasons why many of them went to law school in the first place — not only to enjoy the financial stability and advantages of law practice, but also to use their training to enrich the lives of their neighbors and communities.
What does this mean for prelaw and law students, as well as lawyers in law firms that do not currently engage in meaningful public interest lawyering, and how do they identify the practices necessary to support this kind of pro bono work? I would suggest the following checklist to measure the strength of a law firm’s commitment to public interest lawyering.
Does the law firm provide billable hour credit for associates and compensation credit for partners?
Does the law firm employ full-time or part-time lawyers or staff dedicated exclusively to supporting pro bono work?
Does the firm leadership (managing partner, practice group leaders and longtime lawyers) actively support or participate in pro bono work?
Has the law firm demonstrated a commitment to matters that affect change at a systemic level, measured either by the number of people affected or the importance of the effect on an individual person or organization?
Because of the diversity of people and views that exist within a law firm, are individuals within the firm empowered to seek out and participate in matters that meet their interests and passions?
Prelaw and law students should be confident in asking these questions of law firms if they expect pro bono and public interest lawyering to be an important part of their careers. The pro bono culture I have described is not unusual or cutting-edge in law firms. It is a well-established component of a significant number of law firms across the country. These organizations are not only successful in their pro bono work, but they are also among the nation’s most accomplished and profitable law firms.
Public interest lawyering comes in a variety of settings, including law firms. As I recently said to a group of first-year students at Vanderbilt University Law School, “if you choose to go to a law firm, and that’s a career that suits you, you don’t have to check your social interest and your desire for change at the door.”
David R. Esquivel is the pro bono member at Bass, Berry & Sims. In that capacity, he devotes half his practice to leading teams in significant pro bono litigation and managing the firm’s overall pro bono efforts. In addition to his robust pro bono practice, David advises clients on investigations and litigation matters mainly in the financial services sector. He can be reached at DEsquivel@bassberry.com.
