The Relational Costs of Free Legal Services
55 Harvard Civil Rights-Civil Liberties Law Review. 358 (2020)
52 Pages Posted: 2 Oct 2019 Last revised: 26 Dec 2020
Date Written: July 17, 2020
At the same time that government funding for civil legal services has decreased, large law firms have increasingly invested substantial financial resources into pro bono legal services. Although these investments have expanded the availability of free legal representation, they have caused other problems that can be broadly grouped into two categories. The first is that nonprofit legal
services organizations (“NLSOs”) face undue costs when they collaborate with law firms. The second is that the increasing involvement of law firms tends to produce a mismatch between the needs of the poor and the kinds of matters that receive free legal representation. Scholars have primarily explained these problems by examining law firm motivations for engaging in pro bono work but have yet to explore the structure of pro bono relationships between firms and NLSOs and its effects on legal services.
The literature posits that the core purpose of NLSOs is to provide quality legal services to the poor. It would follow that NLSOs only engage in pro bono relationships that do not compromise this purpose. However, NLSOs engage in pro bono relationships that appear to contravene their core purpose. This Article draws on qualitative empirical data to show how institutional relationships
increase inequality in legal services, how this inequality is generated, and what can be done to alleviate it. Findings suggest that NLSOs respond to law firms’ strong interest in pro bono work and board seats virtually regardless of the quality of pro bono work or costs to NLSOs. This Article argues that this structure contributes to problems in the delivery of legal services. It also provides
macro, meso, and micro analyses of the incentive structures of law firms and NLSOs, and makes corresponding proposals for reallocating power to increase competition. It uses the literature on power in organizational sociology to explain why NLSOs are generally unable to force law firms to compete.
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