Lawyers' legal aid participation: A qualitative and quantitative analysis

• Published date: 01 June 2024
• Author: Ching‐fang Hsu,Ivan Kan‐hsueh Chiang,Yun‐chien Chang
• Date: 01 June 2024
• DOI: http://doi.org/10.1111/jels.12385

ORIGINAL ARTICLE

Lawyers’legal aid participation: A qualitative and

quantitative analysis

Ching-fang Hsu

1

| Ivan Kan-hsueh Chiang

2

|

Yun-chien Chang

3

1

Department of Public Policy and Administration, National Chi Nan University, Nantou County, Taiwan

2

Institutum Iurisprudentiae, Academia Sinica, Taipei City, Taiwan

3

Cornell Law School, Ithaca, New York, USA

Correspondence

Yun-chien Chang, Cornell Law School, 310 Myron Taylor Hall, Ithaca, NY 14853, USA.

Email: ycchang@cornell.edu

Funding information

Center for Research in Econometric Theory and Applications (granted by Ministry of Education, Taiwan),

Grant/Award Number: NTU-111L900203; National Science and Technology Council, Taiwan, Grant/Award

Number: NSTC 111-2634-F-002-018

Abstract

This article develops a framework to understand the legal profession’s participation in

providing services to indigent clients. Our theory is based on two factors: whether lawyers

have successful practices, and whether the legal aid delivered to indigent clients is free or

below market price. Pro bono signals moral high ground in the profession. Conversely, a

regime in which legal assistance is provided at a discounted market price (“low bono”),

an under-explored area in the literature, attracts less competitive attorneys, and doing

legal aid cases is perceived as signifying incompetence in one’s professional capacity.

Using a unique, comprehensive data set on all legal aid lawyers in Taiwan (nearly 4000),

two nationwide attorney surveys, and 143 in-depth interviews with practicing lawyers

across the country, we offer the first comprehensive empirical analysis of legal aid law-

yers and explain that the design of a legal aid regime attracts lawyers of different hemi-

spheres into the endeavor.

The authors thank two anonymous referees, the editor Jeff Rachlinski, Rick Abel, Scott Cummings, Bruce

Aronson, Ira Belkin, Jianlin Chen, Jinhua Chen, Jonathan Choi, Jerry Cohen, Victor Fan, Aaron Halegua, David

Law, Xueyao Lee, Ben Liebman, Emily Owens, Bing Shui, Frank Upham, Chao Xi, Wei Zhang, and Weimin

Zuo for helpful comments. A draft of this paper has been presented at 2019 CELS held at Cla remont McKenna

College; Melbourne Law School on December 5, 2018; The Second Data Legal Studies Conference at Shanghai

Jiaotong University in Shanghai, China, on December 15–16, 2018; Empirical Legal Studies Workshop at

RCHSS, Academia Sinica on December 28, 2018; a lecture at Columbia Law School sponsored by Taiwanese

Law and Culture Club and Center for Chinese Legal Studies on February 26, 2019; and USALI Workshop on

April 15, 2019, held at New York University School of Law.

DOI: 10.1111/jels.12385

©2024 Cornell Law School and Wiley Periodicals LLC.

J Empir Leg Stud. 2024;21:337–374. wileyonlinelibrary.com/journal/jels 337

KEYWORDS

access to justice, attorney surveys, legal aid, legal profession, low bono, pro bono

INTRODUCTION: A THEORY OF LEGAL AID

PARTICIPATION

Lawyers worldwide have a long and commendable tradition of providing ser-

vices to the indigent. Why lawyers participate in such an activity, however, is a

longstanding puzzle. Specifically, what kind of lawyer provides free or cheap

services to the poor, and for what reason? In this article, we argue that lawyers

are after either money or reputation when contributing services to the socially

and economically disadvantaged. “Struggling”lawyers participate in legal aid

for monetary rewards, while “successful”lawyers devote services for free in pur-

suit of reputation. Under our framework, “successful”lawyers include those

working in corporate law firms and profit-making solo practitioners,

1

whereas

“struggling”lawyers are solo practitioners who work very hard to make ends

meet. Using qualitative and quantitative data from Taiwan, we will demonstrate

that profit-making solo practitioners shy away from doing “low bono,”

2

so that

they can be distinguished from struggling solo practitioners. In addition,

although corporate lawyers do not have to worry about sending the wrong sig-

nals if doing low bono, their pursuit of reputation leads them to instead do pro

bono. (Below, this article uses legal aid as the umbrella term for pro bono and

low bono.)

Our theory, though straight-forward, fills in an important piece of the puzzle

largely ignored by the previous literature. Both the theoretical and empirical

studies deriving from the US focus on the participation of successful corporate

lawyers in pro bono endeavors. Little is known about the participation of the

solo practitioners in pro bono or low bono cases in the United States and

abroad. Also, little is known about the extent to which successful lawyers, no

matter the size of the law firms, serve indigent clients in low-compensation

schemes, and the dynamics that drive this (in)activity. Also understudied in

research is the participation of struggling lawyers in low bono. While some

sociolegal studies have identified the expanding, and perhaps even intrusive,

1

In this article, we may also use solo practitioners to refer to lawyers working in law firms with very few attorneys.

As shown in Appendix Figure A1, 70% of the law firms in Taiwan in 2018 had only one attorney (they are solo

practitioners), and 90% of the law firms hired three or fewer attorneys.

2

Low bono means attorneys receive below-market-standard remuneration for handling a legal case for an

underrepresented client (Herrera, 2009, p. 39; Herrera, 2014; Krieger, 2015). Low bono could be provided by

private lawyers who offer services to clients directly (i.e., not through the government), or by non-profit or non-

government organizations, such as church or community service centers. In the Taiwanese context, the

distribution of low bono cases is institutionalized by a government-supported foundation, and the amount of

remuneration is stipulated by the foundation and funded by the government.

338 LAWYERS’LEGAL AID PARTICIPATION

management of legal aid agencies and the corresponding decreasing esteem of

the legal profession, a clear mechanism connecting insufficient profit-making

capacity and low bono participation requires further analysis. This article builds

on the existing literature that usually focuses on one of these dimensions and

provides empirical (both qualitative and quantitative) studies under a theoretical

framework on both the pro bono and low bono work by big and small law

firms. Our framework puts attorneys’legal aid activities under one theory and

provides the first-ever empirical analyses of both activities in one country.

One novel finding is that the active participation of struggling solo practi-

tioners in low bono creates an association between low bono and a perception of

incompetence; as a result, successful solo practitioners shy away from low bono

to avoid this negative image. A related finding is that corporate lawyers, prioritiz-

ing reputation over monetary rewards, self-organize pro bono activities, which

signal moral high ground and hence convey a positive image, rather than simply

taking low bono cases. That is, successful lawyers prefer no remuneration to some

remuneration, as only the former creates the image of a public benefactor. Our

theory goes a long way toward comprehensively explaining legal aid (in)activities.

While we use quantitative and qualitative data from Taiwan, our findings

are by no means one of a kind.

3

Low bono attorneys in the United States are

also the struggling ones, and successful attorneys want no part of the negative

image which low-compensation legal aid conveys. In 2011, the New York Times

ran a story on the so-called 18-B attorneys in New York City. These assigned

counsels received $60 or $75 per hour for representing indigent clients in crimi-

nal or family cases (Feuer, 2011). The New York Times story revealed not only

how much these attorneys struggle but also how strong the negative image

is. As one higher paid attorney put it, “[i]f someone said my name and ‘18-B’in

the same sentence, I’d probably commit suicide”(Feuer, 2011).

The rest of this article is structured as follows. The Why Lawyers Do Pro

Bono section reviews the literature and advances our theoretical framework.

The Taiwan’s Low Bono Regime section summarizes the low bono regime in

Taiwan. The Empirical Methods and Data section provides an overview of the

mixed empirical methods and several unique data sets we use. The Findings

section reports our empirical findings and The Discussion section discusses their

implications. The Conclusion section concludes.

WHY LAWYERS DO PRO BONO

Pro bono is a common practice across jurisdictions. Why lawyers provide their

services for free, however, is a longstanding puzzle in the study of the legal

3

For a more general overview of the studies of private lawyering in a comparable context, see Hsu and

Chang (2023).

LAWYERS’LEGAL AID PARTICIPATION 339