Corporate Counsel
Catherine Dunn
February 21, 2012

Pro bono legal work was once the sole province of law firms. But no more. Now that terrain is increasingly being inhabited by in-house legal departments, too, according to Esther Lardent, president and CEO of the Pro Bono Institute. “What we’ve seen over the last decade is this amazing growth,” Lardent says. “It’s like a quiet revolution.”

Back in 2000, the Association of Corporate Counsel (ACC) approached the Pro Bono Institute, which has traditionally liaised with law firms, about teaming up. That led to the creation of a joint endeavor aimed at in-house counsel—the Corporate Pro Bono Project. They have since worked with 450 different legal departments, Lardent says (although not all of the departments have a formally designated pro bono program, she notes). And more than 100 legal departments have signed onto a voluntary pro bono pledge, called the Corporate Pro Bono Challenge.

Lardent chalks the change up to two major currents: the in-house legal profession has grown in stature, and more companies are emphasizing corporate social responsibility on the whole.

Whereas in-house practice was once perceived as something of a backwater, corporate counsel are now “the most powerful and respected people in the profession,” according to Lardent. Accordingly, in-house lawyers ask, “So, what can we do with that power?”

At the same time, companies are recognizing that being a “good citizen” carries sway with both shareholders and consumers. More and more U.S.-based companies are issuing annual corporate social responsibility (CSR) reports, and those in charge of CSR are often direct C-suite reports. “The idea that your reputation is creating good will is really, really important,” Lardent says.

Today, the average law department pro bono program is less than two years old. Aetna lays claim to the oldest organized pro bono program in a legal department, says Lardent. It has been running for more than 30 years.

Since pro bono has been so much a part of firm life, the migration of attorneys from firms to in-house positions has also proven transformative. Lardent cites Microsoft general counsel Brad Smith as the “poster child” of this pattern; he worked pro bono during law school and while at Covington & Burling, and then created Microsoft’s immigration law pro bono program.

The Corporate Pro Bono Project has played a key role, too, Lardent says, particularly by addressing head-on the common obstacles that arise in-house. Now, when they talk to legal departments, they already know the seven main challenges to conquer:

1. Time: Legal departments are often smaller than firms, and the in-house lawyers are already stretched on all the corporate work that needs doing. When pro bono is on the line, “there’s a nervousness about ‘How can we make that commitment and live up to it?’, ” Lardent explains.

Solution: Coming up with finite, time-limited, and predictable opportunities. A classic example is the clinic-in-a-box model, such as holding a legal “health check-up” for community nonprofits.

2. Malpractice insurance: Often, legal departments don’t have it because they may, for instance, be covered by the general principles of a company’s insurance policy. Even though malpractice claims in the pro bono field are rare, lawyers wouldn’t dream of doing the work without coverage and protection.

Solution: Introducing legal departments to options for inexpensive or free coverage.

3. Skill sets: In-house lawyers who are mid-career and highly specialized may be unfamiliar with the courts and area of practice—like family law—involved in pro bono work. “There’s a fear that you’re going to mess up,” Lardent says. “It’s like being a first year out of law school, but you’re not.”

Solution: Training, mentoring, and support that allow in-house counsel to move out of their comfort zones and into areas like immigration and housing law. Also, showing lawyers that the corporate law skills they already have can help nonprofits with transactional and business needs.

4. Appearance of conflicts: In-house lawyers don’t want to take a position in a pro bono case counter to the interests of their corporate client.

Solution: Identifying those conflicts from the outset, and establishing clear policies that allow in-house counsel to steer clear of them.

5. Location: Many legal departments are located on corporate campuses far from where the pro bono clients are. Driving from Silicon Valley to the office of a nonprofit in Oakland, for instance, could mean a lot of lost time in the car.

Solution: Using telephones, computers, and the Internet to consult with clients. “Virtual pro bono,” Lardent calls the approach.  

6. Practice rules: With corporations’ offices spread around the country, in-house counsel may be licensed and in good standing—but not in the jurisdiction where their desk is. That could be fine on the corporate end, but by taking on pro bono cases in that area, “the worry is you’re going to be charged with unauthorized practice of law,” says Lardent.

Solution: This is one challenge “we haven’t quite solved yet,” Lardent says. But they’re on the road to a solution. ACC and the Pro Bono Institute are working to change the applicable rules state by state—Virginia just adopted a rule to allow in-house counsel in good standing to take on pro bono, even if they’re not licensed by the state. Interim solutions also include getting court approval and the written consent of pro bono clients, and focusing on work that doesn’t require that someone be a licensed attorney at all, such as in the field of veterans benefits.

7. Making global pro bono work: As companies expand overseas into new markets, in-house counsel are also asking how they can go global with pro bono. In addition to the challenges listed above, it can be hard to source international opportunities.

Solution: The Corporate Pro Bono Project has formed a task force to examine the issues involved. Some law departments do pro bono work in places like Nepal that’s oriented more toward legal research and policy development, rather than litigation.

In-house departments continue to offer creative solutions within the pro bono world, says Lardent. “I think we’re just beginning to see what they can bring to the table.”