The Relational Costs of Free Legal Services
55 Harvard Civil Rights-Civil Liberties Law Review. (2020, Forthcoming)
57 Pages Posted: 2 Oct 2019 Last revised: 23 Jan 2020
Date Written: November 3, 2019
At the same time that government funding for civil legal services has been reduced, large law firms have increasingly invested substantial amounts of resources into pro bono legal services. Although these investments have expanded the availability of free legal representation in some respects, 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 looking only at the law firm but have yet to explore the impact of the institutional structure of law firms and NLSOs and their secondary effects on the delivery of legal services.
The literature posits that the core purpose of NLSOs is to provide quality legal services to the poor. It might therefore seem to follow that NLSOs would only engage in pro bono relationships that would not compromise this purpose. However, NLSOs engage in pro bono relationships that appear to be suboptimal in ways that go against their core purpose. This article draws on qualitative empirical data to show how institutional relationships impact inequality in legal services, how this inequality is generated, what its specific elements are, and what can be done to alleviate it. Particularly, it describes the structure of pro bono relationships that scholars have yet to notice, which is that NLSOs respond to law firm demands for pro bono work and board seats virtually regardless of the quality of pro bono work or costs to NLSOs. It shows how this structure contributes to the problems in legal services. It also provides macro, meso and micro analyses of the incentive structures of law firms and NLSOs. It uses the literature on power in organizational sociology to explain why NLSOs are unable to force law firms to compete with each other. It then makes macro, meso, and micro level proposals for reallocating power to achieve competition, while highlighting the micro level tactic of acculturation that NLSOs currently employ.
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