The Relational Costs of Free Legal Services
55 Harvard Civil Rights-Civil Liberties Law Review. (2020 Forthcoming)
Posted: 2 Oct 2019
Date Written: September 19, 2019
At the same time that government funding for civil legal services has been reduced, large law firms have increasingly invested substantial amounts of labor and money 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 pro bono lawyers. 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 at factors internal to law firms, but have yet to explore the impact of the structure of pro bono relationships 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 therefore follows that NLSOs would only engage in pro bono relationships that would not compromise this purpose. However, the literature has yet to explain why 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. Resource dependence theory in organizational sociology helps to frame this empirical data, and provides guidelines for remedying the problem. The article argues that the problems in legal services reflect the power imbalances that exist between law firms and NLSOs. To secure law firm resources for survival, NLSOs acculturate law firm lawyers and accept subpar pro bono work. The article makes three proposals that would address the power imbalances between law firms and NLSOs.
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