Pro bono in times of crisis; looking forward by looking back.

• Author: Rhode, Deborah L.
• Position: New York

The 9/11 terrorist attacks revealed much that is best in the American people, and lawyers were no exception. As Justice Judith Kaye notes in her Forward to the report Public Service in a Time of Crisis, this was "the Bar at its finest.... thousands of lawyers, paralegals and staff, hundreds of thousands of hours enthusiastically volunteered for the public good." (1) Yet while the profession's response offers much to celebrate, it also offers no grounds for complacency. What attorneys did--and equally to the point--did not accomplish points up the gap between our ideals and institutions. Thousands of New York lawyers gave generously at a time of crisis. Thousands more did not. Of those who did volunteer, the average time commitment was less than fifty hours--under an hour a week for the year. (2) The challenge remaining is to understand what accounts not just for the bar's generous contributions, but also for their absence. Our goal must be to ensure that especially, but not only in times of crisis, the vast majority of attorneys see public service as a professional responsibility.

To that end, this essay puts the New York experience in a broader context. The discussion that follows draws on findings from my own recent study, Pro Bono in Principle and in Practice, which provides the first comprehensive national data on the forces that influence lawyers' public service. (3) Drawing on a sample of some 3,000 attorneys, the survey analyzes the workplace and law school experiences that affect pro bono contributions. Its findings generally are consistent with the New York case history. Taken together, these two studies offer useful insights about what motivates and sustains lawyers' public service. Moving forward generally requires looking back, and these reports help clarify the challenges we face.

1. LOOKING BACK

   The 9/11 terrorist attacks left in their wake thousands of New Yorkers with obvious urgent needs. Many individuals who lost family members, housing, and employment required legal assistance as well as other social services. To meet those needs, lawyers established an impressive system for comprehensive representation described in the report. (4) About 3000 attorneys who volunteered to help received training from the city bar; some estimates suggest two to three times that many practitioners may have volunteered through other organizations? Yet out of a state bar of some 60,000 lawyers, that participation rate leaves much to be desired. And we know regrettably little about those who served, and even less about those who did not. Only about ten percent of lawyer volunteers completed the bar's questionnaire on their experience, and no information is available concerning those who failed to respond to requests for assistance. (6)

   Of the relatively small number of participants in the survey, most described their motivations for service in highly general terms. About four-fifths said that they "wanted to help"; slightly over half felt that it was the "right thing to do," or "the best way [they] could help." (7) Only a small number cited less selfless motivations: sixteen percent said they were asked to serve; nine percent indicated that they wanted the experience; and seven percent acknowledged that "work was slow." (8) What these responses fail to tell us is why these lawyers wanted to help while most of their colleagues did not. It is equally unclear what other factors in the volunteers' workplaces may have contributed to their willingness to serve, such as their firms' policies and practices concerning pro bono assistance.

   My own research concerning public service underscores the importance of both personal characteristics and external influences. An overview of studies on altruistic behavior suggests that two character traits appear most significant in motivating charitable activity: a capacity for empathy and a sense of human or group solidarity. (9) Volunteers generally seem able to identify with others and to see themselves and those whom they help as part of a common social condition. Such feelings of responsibility and empathy are strongest among members of individuals' immediate community or groups with whom they share some key characteristic, such as race, ethnicity, religion, or sex. (10) Lawyers who assist public interest organizations often report a feeling of responsibility to give something back to others, especially those united by some common bond or history of subordination. (11)

   So too, may a general sense of civic obligation, or a symbolic link between a particular needy group and broader national cause, widen an individuals' sense of moral community. For example, in Holland and Denmark during World War II, efforts to rescue the Jews from Nazi persecution came to seem emblematic of national resistance; many rescuers were motivated by a sense of patriotic duty and the need to protect national integrity from fascist oppression. (12)

   Similar considerations were clearly at work in the aftermath of 9/11 terrorist attacks. The outpouring of assistance for victims by New York lawyers, as well as other local groups, was fueled partly by the proximity of tragedy, a sense of common identity, and a desire to demonstrate national strength and solidarity. (13) It is note-worthy that a majority of the attorneys responding to the bar's survey reported little prior experience with pro bono work. (14) As research from a wide variety of contexts makes clear, charitable assistance, particularly at a time of crisis, becomes a way to express deeply felt values; volunteers' self-esteem and moral identity often become bound up in helping others. (15)

   Social influences are also important in shaping values and in encouraging or discouraging individuals to act on altruistic impulses. People pick up cues about appropriate behavior from moral reference groups, which are most often found in schools, workplaces, churches, communities, professional associations, volunteer organizations, and related social networks. (16) Individuals vary considerably in terms of which groups are most critical and how much their approval matters. But as a general matter, giving behavior is often influenced by a desire to meet social expectations and conform to...