[vc_row row_type=”row” use_row_as_full_screen_section=”no” type=”full_width” text_align=”left” background_animation=”none” css_animation=””][vc_column][vc_column_text]Anyone following pro bono is well aware that COVID-19 has created a perfect storm for access to justice. Just as during the Great Recession (December 2007 through 2009), millions of Americans, who would otherwise have jobs, find themselves unemployed. In fact, according to the Pew Research Center, nearly twice as many Americans found themselves out of work after the first three months of the pandemic as were unemployed after three years of the Great Recession. (20.5 million Americans were out of work at the end of May 2020 compared to 6.2 million in February of 2020 — an increase of 14.3 million, whereas the Great Recession increased joblessness by 8.8 million.) This alone creates a one-two punch to the gut of access to justice by increasing the need for legal services and reducing the public’s ability to pay for such services.
However, COVID-19 complicates matters another two-fold. First, it has produced a novel situation accompanied by new legal rights and obligations (e.g., laws and regulations providing compensation related to the pandemic and proscribing various actions by landlords, lenders, and employers), which result in a new legal maze that those affected are forced to navigate. Second, it raises many hurdles to the provision of legal services (e.g., closed courts and other forums, the inability to meet directly with clients, an increased reliance on technology). Those wishing to better understand the challenges to access to justice during the pandemic are encouraged to listen to the Pro Bono Institute (PBI) podcast series: The Challenge of COVID-19: Legal Community in Action.
Those following the legal industry will also know that many law firms have seen a substantial reduction in business. A large number of law firms took swift action to rebalance staffing to match reduced demand, and even more firms adjusted attorney compensation to account for the reduced productivity of lawyers. According to our review of information published by Law360 regarding 142 of the largest firms in the U.S.:
Fifteen percent of firms have engaged in layoffs.
Twenty-five percent of firms have furloughed employees.
Fifty-two percent of firms have imposed pay cuts (about one-sixth of which have been subsequently moderated).
Forty-five percent of firms either dropped or shortened their summer associate programs.
These statistics understate the true over-capacity situation, as some firms view mandatory reductions in force (RIFs) as purely a reaction to under productivity of some of their employees and do not associate such RIFs with COVID-19. Still other firms have offered lawyers voluntary packages (e.g., reduced hours for reduced pay) that are not counted in these numbers.
With regard to start dates for spring 2020 law school graduates, a survey by the National Association for Law Placement found that 62 percent of law firms with established start dates have pushed such dates back from the fall of 2020 to January 2021, and 50 percent of all firms had yet to set a start date as of the time of the survey. While we have heard reports of numerous firms rolling back pay reductions, there has not been a similar flurry of reports of firms pushing start dates back up. It seems safe to conclude that we are still more than three months away from most firms’ anticipated new attorney start dates, and, as the pandemic rolls on, many firms may be looking for ways to postpone back start dates even further.
In response to the Great Recession, 44 of the country’s 50 most profitable firms offered or imposed delayed start dates for the would-be fall of 2009 class of associates. About 60 percent of those firms delayed start dates until 2010, with a few pushing back start dates a full year or later. About half of these firms provided their deferred associates with stipends, and the stipends offered by firms with the lengthier delays were largely tied to the deferred associates accepting some form of pro bono work during the deferral period (i.e., “Deferred Associates Programs”). For its part, PBI issued a paper titled: Law Firm Attorneys Displaced by the Economic Downturn: Best Practices and Guidance for Effective Pro Bono Engagement, which provided guidance and direction to firms developing and implementing Deferred Associate Programs.
One consistent element of the Great Recession-era Deferred Associates Program was program duration. In that instance, firms adopting Deferred Associates Programs frequently delayed attorney start dates for a full year. Today, the uncertainty of the duration of pandemic-related impacts on law firms and the ability of firms to properly integrate new hires are complicating factors in relaunching a Deferred Associates Program. However, law firms are gaining a longer-term perspective after having dealt with the initiation pandemic shock, as evidenced by 1) numerous firms announcing roll backs of some of the austerity measures initiated in the spring, and 2) some firms returning a portion of their employees to in-office based work, at least part time. This should help with program planning, though considerable uncertainty remains.
Further, there is general recognition that a return to some form of normalcy cannot be expected with a high degree of confidence before 2021. As a result, there is sufficient time for firms who promptly take up the Deferred Associates Program mantle to implement and complete a successful program before business demands create a scarcity in available associate resources.
Needs of Legal Service and Public Defender Organizations
With law firms paring back associate hours in a variety of ways while the need for pro bono legal assistance is growing, the PBI Law Firm Pro Bono Project® initiative launched an investigation as to whether the time is ripe for revival of deferred and loaned associates programs. Such loaned talent would remain on the lending law firm’s payroll but be committed at a mutually agreed upon level (normally full time) to assisting a specific legal services or other public interest organization (collectively, Public Interest Organizations or PIOs). To understand the Public Interest Organization point of view, we collaborated with the Legal Services Corporation (LSC) and the National Legal Aid and Defender Association (NLADA) to poll legal services organizations and public defenders (collectively, Legal Services Providers or LSPs) regarding (1) their interest in a Deferred Associates Program, and (2) how such a program would need to be structured to make a positive contribution to their programs. (PBI is grateful to LSC and NLADA for their irreplaceable assistance with our polling.)
A few key facts developed from our poll evidence a convincing case for law firms to consider implementing a Deferred Associate Program that fits their current circumstances:
Program Duration. There was significant interest in programs that lend associates to LSPs for periods consistent with the likely remaining duration of the pandemic’s greatest impacts.
About 33 percent of the LSPs were open to programs as short as three months.
Interest jumps to over 80 percent for programs running for at least six months.
Location. Work-from-home policies would not be an impediment to successful Deferred Associate Programs.
Less than 40 percent of LSPs would prefer the borrowed associates to be physically placed in their offices.
Twenty-five percent of the LSPs expressed a preference that the borrowed associates work from outside the LSP’s offices.
Bar Admission. Many LSPs would welcome deferred associates regardless of bar admission status.
More than 40 percent of LSPs would welcome assistance from lawyers that are either (1) not admitted in the state where the LSP (or the LSP’s client) is located, or (2) have yet to be admitted anywhere (i.e., newly graduated law students who have yet to gain bar admission).
Value of Program. Deferred associates were judged to be very useful overall.
Sixty percent of respondents rated usefulness as a five on a scale of one to five.
Another 30 percent rated usefulness as a four, with the remaining 10 percent rating usefulness at three.
Based on these key findings and the other findings from our survey, PBI believes Deferred Associate Programs would be beneficial and practicable for law firms to implement and a valuable tool for enhancing access to justice at a time of particular need. One of our LSP survey respondents noted: “It was great for us last time around.” And with the experience gained from firms that adopted Deferred Associate Programs in response to the Great Recession and the greater sophistication of today’s law firm pro bono programs and PIOs, law firms can be confident that they will reap the benefits of such programs. As one survey respondent said: “I will be willing to make this work in any form possible.”
In designing Deferred Associate Programs, law firms should consider the number of associates they are willing to lend, how long they are willing to commit associates to legal services organizations, the level of training the associates will have, the bar admission status of those associates, and what additional support the law firm can provide beyond providing a stipend to the participating associates. Such details are crucial to determining whether they are truly prepared to implement a Deferred Associates Program and finding the right PIO with which to partner.
Of course, the more attorneys a law firm can spare, the longer each lawyer is available, the more flexibility lawyers have as to working location, and the more focus given on PIOs located in the jurisdictions where the lawyers are admitted, the easier it will be to find opportunities. However, the range of needs of PIOs spans a broad gamut. For example, a few LSPs were only looking for help from one attorney, but about five percent could use the assistance of 10 or more loaned associates. As a general matter, many good matches should exist for firms willing to loan two associates for six months, particularly where such associates are based in markets where numerous LSPs are located. With regard to the latter consideration, public defenders tend to find it particularly important for loaned associates to be able to be physically present. On the other hand, they expressed much greater openness to working with recent law school graduates who have yet to be admitted to any bar compared to legal services organizations.
In addition, law firms should consider the following considerations:
Cultural compatibility between the PIO and the loaned associate(s) is essential.
To that end, best practices would include providing partner PIOs an opportunity to screen candidates.
Provide PIOs with meaningful assurances of commitment to the agreed upon length of the loan and take steps to shield loaned attorneys from requests to prioritize billable firm work whenever partners might find it expedient to “recall’ associates.
Create robust pathways between the firm, loaned lawyers, and the PIO for coordination, communications, and reporting.
Clearly establish whether attorney travel or on-site work is contemplated and under what conditions travel or on-site work may be added or subtracted to account for change.
PBI encourages law firms to adopt Deferred Associate Programs tailored to their needs and the needs of participating PIOs. One recent example is Ropes & Gray, which announced that it is stepping forward with a current, timely and committed Deferred Associate Program that offers an optional deferral year to incoming and existing associates. Under the Ropes & Gray program, associates can choose to work for a nonprofit, public interest organization or approved government entity for a year and will receive a pre-tax stipend of $80,000 from the firm and eligibility for the firm’s health insurance.
As PBI continues to work on its Deferred Associate Program initiative, we invite law firms and interested PIOs to express their interest in such programs by emailing us at email@example.com. PBI staff stands ready to assist firms and PIOs develop programs tailored to their individual circumstances.
 https://www.pewresearch.org/fact-tank/2020/06/11/unemployment-rose-higher-in-three-months-of-covid-19-than-it-did-in-two-years-of-the-great-recession/. The unemployment rate has fallen each month since May, but, as of August, still stood at twice as high as pre-pandemic levels. https://www.statista.com/statistics/273909/seasonally-adjusted-monthly-unemployment-rate-in-the-us/. These unemployment statistics do not include individuals looking for jobs and an increasing portion of the jobless that have stopped looking for employment.
 Pro Bono Institute® and PBI® are registered trademarks of Pro Bono Institute.
 https://www.law360.com/articles/1264699/coronavirus-how-law-firms-are-handling-the-downturn. (Note: this page is updated periodically. Current statistics are likely to vary slightly from those set forth in this PBI article.)
 For example, some survey respondents indicated that it would be helpful for law firms to provide laptops and technical support required for loaned associates to work remotely.
 Ropes & Gray LLP is a Law Firm Pro Bono Project® member and a Law Firm Pro Bono Challenge® signatory.