Economics is the study of the allocation of scarce resources. For the bulk of lawyers who charge for services by the hour, their most valuable asset for revenue is their time. Attorney choices on allocating the scarce resource of time will directly impact their personal income and law firm revenue. At first blush, choosing to spend time on pro bono work (free legal services, usually to indigent clients) does not seem economically rational. This, in fact, is a dominant reason why some attorneys don’t do more than de minimis amounts of pro bono. Most attorneys want to maximize their income. Unlike other businesses that sell things and can scale up or down based on demand (e.g. a publisher can print 10,000 books just as easy as 1,000 at marginal increased cost), unless you’re a plaintiff’s-side attorney working on contingency for very large verdicts or settlement amounts, an attorney’s work is not really scalable in a significant way (beyond hiring associates to do more work). An hour spent on providing free legal work is an hour lost that could have gone to generating revenue, or to spending time with your family, playing video games, exercising, or whatever else floats your boat. This is sometimes expressed as “opportunity cost” — in other words, what it costs to choose to do something other than bill hours. There are only so many hours in the day (unless you’re this guy).
This simplified economic theory of the economically-rational attorney who maximizes revenue through maximizing billable hours doesn’t hold up as a reason not to do pro bono in the unique circumstances of the legal system. To begin with a brief detour from economic theory to legal theory (unless you’re part of the famed Chicago School and think economics and law are the same), a dominant method of interpreting statutes is the so-called “canons of construction” – things like “expressio unius est exclusio alterius” (the inclusion of one is the exclusion of the other) and “noscitur a sociis” (a word should be interpreted using the words around it). However, as one very famous law review article points out, most canons of construction have a dueling canon that cancels the other canon out. See Karl Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are To Be Construed, 3 Vand. L. Rev. 395 (1950). In other words, you can pick one canon to reach one outcome, or pick another canon to reach the opposite outcome.
In this way, economic theory is a lot like the canons of construction. You can apply one economic theory to cancel out a different economic theory, and in some respects the choice of which theory to apply is more about assigning subjective values to a product or task whose overall value is uncertain. This is where the “tragedy of the commons,” another basic economic principle, makes a strong case for attorneys to do pro bono work.
The tragedy of the commons refers to the idea that when each economically rational actor performs with self-interest to maximize the largest benefit from a finite resource, eventually the sheer number of people acting with self-interest will overwhelm the resource so that it can’t be used by anyone. The classic example of the tragedy of the commons is the number of cows grazing on a field – each person might get $100 in revenue for each cow on the field. It’s in one person’s self interest to put as many cows on the field as possible to maximize income. But eventually, if too many people add too many cows, the field will be destroyed. No cows can graze, and no one gets any revenue from the field.
Applied to pro bono, the tragedy of the commons provides a compelling argument for providing free legal services to indigent clients. One of the most basic tenets of the legal system is that a society based on the rule of law is better than a lawless society. The whole government of laws, not of men thing. It’s better to have a system for peaceful resolution of disputes and protections against arbitrary punishment than to live in the Wild West, where each person is an island, but that island can be invaded at any time and blown to smithereens.
For the rule of law to work, those subject to it must have some faith that it will be applied equally to all. It’s no coincidence that “Equal Justice Under Law” is inscribed in the facade of the United States Supreme Court (too bad you have to enter through a side entrance these days, a symbolic loss to the power of the building). If no attorney did pro bono work, the “tragedy of the commons” would likely operate to undermine the rule of law. Many low income individuals need legal assistance, and most cannot afford legal services. Unless they secure pro bono representation, they often go unrepresented. While pro bono representation is not a cure to providing services to every indigent person who needs legal services, it can go a long way to providing stability to the legal system by restoring some fidelity to the rule of law from those who don’t believe that the legal system operates fairly. It’s in the collective interest, including lawyers, for all of society to believe that the legal system is fair.
Since many indigent clients have been on the receiving end of negative legal outcomes by the time they seek pro bono services, it’s been my experience that pro bono representation has a positive impact on them beyond their immediate case. They appreciate the interaction with a licensed attorney who advocates their point of view, they often take on increased responsibilities, and, in my experience, they realize that attorneys are not evil. That’s worth something, even if it can’t be quantified by economics.
The collective good of fidelity to the legal system is much more difficult to attain unless attorneys are willing to provide some pro bono services (or incomes rise to the point where everyone can afford a lawyer). Lawyers have a self-interest in maximizing their own income, but they also have an interest in fidelity to the legal system. Under the Rhode Island Rules of Professional Conduct, attorneys are officers of the legal system, so they have a role in the collective good principles that are addressed by the tragedy of the commons.
The competing economic theories of rational self-interest and the tragedy of the commons are not unlike the grand-daddy of all opposing legal theories enshrined in American law – liberty and equality. The more liberty there is, usually the less equality, and the more equality there is, the less liberty. Many theorists try to resolve the conflict by advocating for equality of opportunity – meaning everyone should be given a fair shot to succeed at an opportunity regardless of their background, and if they don’t succeed, at least they lined up on the same starting line just like everyone else. That pretty much sums up one of the strongest arguments for pro bono – by offering equality of opportunity, pro bono work assists worthy clients to get a fair shot, and it helps ensure fidelity to the legal system. It’s hard to put a price tag on those values, but they’re worth a lot.
In case any Rhode Island attorneys out there are interested in pro bono work, here are a few programs: