New York Lawyer
June 6, 2002

Q:
I am bothered by what seems like a hypocritical attitude with some of my partners.

We tell our associates that some pro bono work is considered the same as regular billable work, meaning they will be credited with it when considering associates for partnership. At a recent partnership meeting, we were debating whether a particular female associate would make partner. She had spent hundreds of hours on a high-profile death case. I was shocked when a partner got up and said, "Her hours aren�t good. We all know this death case was soft time."

I went crazy. I said, "We�re telling them it�s the same as billable time and it�s not." Partly because I raised a fuss the final decision was put off for the time being, but I fear that she�s doomed.

I cannot believe that we would willingly foster "two sets of rules," but that�s what�s happening.

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A:
"Two sets of rules" is one of the biggest complaints people have in any workplace. When the rules are supposed to work one way, and in fact work another, or when some people get favorable treatment and others get shafted, cynicism takes over. Although there is always a gap between our best intentions and practice, a yawning chasm like you�re talking about is one of the single biggest demotivators in any workplace. Trust disappears in a flash.

In this case, apparently the firm pushed a pro bono thing to attract people, but in fact is not really committed to it. And everybody -- with a wink and a nod -- is supposed to "know" this, public declarations to the contrary notwithstanding.

At the very least you can push your partners to be straight about this. If they don�t want to include pro bono time as counting towards "real" billables, fair enough -- but they should make that clear to associates.

Indeed, as Lawrence S. Lustberg, a partner with Gibbons, Del Deo, Dolan, Griffinger & Vecchione in Newark who directs the firm�s highly regarded John J. Gibbons Fellowship in Public Interest and Constitutional Law, comments, "Pro bono work does not necessarily and should not always substitute for billable work. In other words, it is not a zero sum game: a pro bono hour, like a billable hour, does not always replace another billable hour, but is in addition to one. An attorney should want to do pro bono work because it is the right thing to do, and should achieve the appropriate balance by making time to do so, even if it is not going to be of concrete and immediate material benefit."

In the meantime, for those who have labored faithfully under a previous understanding, if there is a movement against making this particular woman a partner, you (and others, who may be so moved) have a major obligation to step up to the plate and make things right. You risk losing credibility, as well as compromising basic principles of fairness, to let this slip by. Says Lustberg: "A firm that punished an associate for one year of doing a lot of pro bono, while ignoring other, profitable years, would be an unwise firm indeed. On the other hand, an associate who, in a business that must, after all, make money to survive, did nothing but pro bono work year after year would not only be unprofitable and therefore not, except in very unusual circumstances, worthy of partnership, but also would have proven him or herself to be unable to balance the demands of practice -- in this case, billable hours with pro bono work."

More broadly, the general negative attitude about pro bono is puzzling. Let�s connect a few dots, to use a popular phrase these days. Attorneys are documented as some of the most unhappy professionals around, partly because they don�t see much meaning in what they do. Young lawyers (and some older ones) are fired up by the prospect of pro bono and firms that exploit that angle have an edge in recruiting. So playing up pro bono and figuring out an acceptable way to include it in the mix makes sense.

What�s puzzling is that law firms are so hesitant to take credit for their good deeds. Many firms do pro bono work but don�t advertise it, and in fact seem embarrassed by it. I�ve often recommended that firms brag a little about their pro bono work but that frequently gets dismissed. Sometimes there�s a fear that pro bono work will alienate corporate clients. But remember that the main rap against lawyers is that they are money-grubbing opportunists who will defend anyone for a buck -- in other words, with no principles.

Celebrating pro bono work can accomplish a number of things: making people in the firm feel greater pride and meaning; letting the public and clients know that lawyers are interested in a few others things besides fattening their own wallets; and attracting mean, hungry recruits.

Lustberg raves about pro bono as a recruiting tool: "Our program is a huge selling point when it comes to recruiting. And we do play it up and we�re not shy about it." And the rewards are not just feel-good in nature, he says: "Our clients are very supportive of the Gibbons Fellowship in particular. I know that we have gotten work because there are corporate clients out there who think highly of that program."

So clarify the criteria for partnership in the first place, but beyond that, it might be time for a more global talk about the worth of pro bono and how you fit it into the spectrum of law firm work.

Sincerely,
Holly English
Principal Consultant, Values at Work