Necessity is the Mother of Innovation

Cross-posted from Pro Bono Net's 2011 Pro Bono Celebration Blog

Legal professionals are pretty good at making do with the tools at hand. The practice of law is, after all, "knowledge work" through and through. Outside of word-processing software and legal research databases, the tools we use haven't changed all that much - and even still there are lawyers out there who hand-write their drafts, dictate letters (and emails) for others to type, and prefer to flip through volumes and volumes of reported cases bound in books rather than learn what a Boolean search is. And yes, they're still effective lawyers.

Whatever our individual tastes and comfort zones, the tools and workflows we choose to adopt as individual attorneys are rarely the best tools to support an entire system of service delivery. And it's only natural that we in the legal profession, left to our own devices, individually and collectively tend to gravitate towards our comfort zones.

I submit to you that our models of service delivery in the poverty law world are broken. Sure, our methods are tried and true, and with them we've delivered services to countless individuals who couldn't afford a lawyer. But what about the countless individuals who never got to that clinic, or never got through the intake process, or whose pro bono case was never picked up?

When ninety-nine percent of the mostly low-income defendants facing consumer debt collection actions in New York State courts are unrepresented (In New York City alone that's 297,000 of the estimated 300,000 cases clogging the City's Civil Courts each year), something is broken. When The Legal Aid Society, the largest not-for-profit in the country providing free legal services - in a year which saw a 20% increase in the valuation of pro bono services provided to their clients - is still having to turn away 8 out of 9 eligible applicants for its services because the demand for services is simply too high, something is broken.

We as a profession need to figure out how get more out of the resources we are using, and we need to figure out how to do it fast. The answer isn't going to simply be to secure more funding, expand staffing, and find more pro bono volunteers. Those are all critical objectives, but if we don't also look at ways to change the way we deliver services to maximize the outcomes generated by those resources, we're always going to be looking at a negative number in the needs-versus-services-delivered ledger.

That's not to say there aren't innovators in the legal services or pro bono world. This past week, the ABA convened a gathering of some of the most engaged thinkers in the field of pro bono service delivery (including Pro Bono Net Executive Director Mark O'Brien) at a summit to discuss pro bono innovations and best practices. The emergence of medico-legal partnerships are a radical and exciting example of how lawyers can work with other service providers - in this case doctors - to serve those in need, and the benefit of the holistic services these partnerships provide is much greater than the sum of its parts. Law firms, legal services providers and corporate legal departments are partnering together to develop ways to effectively get in-house lawyers into the pro bono game. And many law firms have already taken up the challenge Tiela Chalmers put forth to have a greater impact in an area of poverty law by offering a focused pro bono program, rather than the smorgasbord of choices that many attorneys face when considering pro bono. All of these are welcome innovations.

There are also programs that are proving that technological innovations can provide new, more effective ways to deliver legal services and encourage pro bono. One such innovation Pro Bono Net has been supporting is a project of the Minnesota Legal Services Coalition, the Volunteer Lawyers Network and the Council on Crime and Justice, which uses interactive interviews and document assembly technology to create a start-to-finish guide to assembling an expungement petition. This tool makes it possible for a lawyer with no prior experience to help a low-income Minnesotan expunge their criminal records. This project doesn't just make this type of pro bono work more accessible (and by extension more attractive), it also builds in quality control by providing structured templates developed by experts. More importantly, because the expertise and essential knowledge is captured in technology that is available at any time, anywhere, the project can scale to any size.

As the legal profession continues to grapple with the problem of providing access to justice for all, and as we continue to think up new projects to deliver services or engage pro bono attorneys, we need to start asking ourselves a threshold question: "Have we really explored all the possible ways to maximize the impact of these resources?" For us at Pro Bono Net, that means constantly challenging ourselves to explore all the possible ways technology can improve delivery of services. If we aren't asking this threshold question every time we address an emergent need or think about new programs, then can we really say that we're doing our best to ensure access to justice?

The good news is we're not alone. Organizations like Illinois Legal Aid Online and the Tennessee Alliance for Legal Services lead by example with their innovative technology-driven pro bono programs. And we're fortunate to have thinkers and leaders like Richard Zorza in our community - if only we think to call on them.

If necessity is the mother of invention, then why haven't the needs of those denied access to justice given birth to more innovation in our world? Why aren't we innovating every step of the way? Surely it's not because the need isn't there. As Mike Monahan puts it, we pro bono folks have been left behind in the "technology rapture". It's not just a question of limited resources; we set priorities and decide how we're going to allocate those limited resources. We - collectively - share some of the responsibility for allowing ourselves to get left behind. Maybe we need Mike to create his Monahan Scale of Behindedness and apply it ruthlessly to all of us, to help point us in the right direction.

Tony Lu is Pro Bono Net's Pro Bono and Special Initiatives Coordinator. To learn more about Tony and the Rest of Pro Bono Net's staff, click here.

Pro Bono and Social Change

This post is my contribution to a collective pledge made by over 30 bloggers to honor the work of volunteer attorneys during National Celebrate Pro Bono Week.  Thanks to Kate Bladow of techno.la for organizing!

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Pro bono publico - "For the public good."

When I was a staff attorney at the Urban Justice Center, I used to tell my pro bono co-counsel that the cases we were working on together were helping to empower low-income immigrant communities to fight for justice and create social change. My co-counsel usually nodded politely, though I'm sure they were also trying to figure out how they had been saddled with a starry-eyed idealistic legal services lawyer with delusions of grandeur when all they wanted was a simple pro bono case to work on.

Though it may be hard to imagine, pro bono attorneys do have the potential to contribute to movments for social change, even through what might appear to be run-of-the-mill pro bono matters. The trick is to find a grassroots, movement-building organization that needs legal help. Or, just find yourself a starry-eyed, idealistic legal services lawyer - preferably one who works somewhere that has an institutional vision that supports community- and movement-building.

Don't believe me? Read on and decide for yourself.

I Will Suffer in Silence No More

Estella came from southern Africa, leaving her parents and her young daughter behind for the promise of a decent salary and a college education, and the belief that her employer - a tennis instructor in an affluent New York City suburb - would someday help her bring her daughter to the U.S. as well. She was to be a live-in nanny for her employer's 2 year-old son, and she was promised meals and her own room. Instead, what greeted her upon her arrival in the United States was 7-day work week, 18 hours per day that involved not only caring for the 2 year-old, but also doing laundry, cooking and cleaning for her employer and his father. Instead of her own room, she was given a thin mattress on the floor behind the couch in the living room, where her employer would come in late at night to use the computer or watch TV while she was trying to sleep. Estella's employer only paid her $250 per month for her work - when he decided to pay her at all. When she complained of her work conditions and not receiving her pay, her employer threatened to have her deported.

Attorneys at Simpson Thacher & Bartlett LLP agreed to co-counsel with me on Estella's case. We filed an action in federal court for unpaid minimum wages and overtime pay, and after hundreds of hours of pro bono work that included court conferences and several depositions, the case settled and Estella received $45,000. Estella also joined Domestic Wokers United, a grassroots advocacy organization in New York City, and found her voice. She became a vocal spokesperson for the rights of all domestic workers, and her story became a crucial part of convincing the New York City Council that it needed to take action to protect this workforce. In May of 2003, the New York City Council passed a bill requiring job placement agencies licensed by the city to advise domestic workers and their potential employers of the federal and state labor laws that protect all workers. This was the first law of its kind in the nation and helped to raise the public's awareness of the conditions that many immigrant women in the industry face.

 You Can't SLAPP* the Nannies
(*Strategic Lawsuit Against Public Participation)

Domestic Workers United members meet every month in a church in Brooklyn. Scores of immigrant women from Africa, Central and South America, Asia and the Carribean have gathered monthly for over 10 years to share food, share their stories of workplace exploitation, and to take comfort in the presence of other immigrant women who understand the heartbreaking homesickness of a wife and mother who has to leave her family behind to find work. When the members of DWU come together, they also strategize and talk about their plans for achieving their vision of a world where all workers in all industries are treated with respect and dignity. In an organization whose members are almost all immigrant women, their power has always been in their collective voice and in their willingness to speak out

When the members of DWU learned of the case of Cindy, who was physically assaulted by her employer in Long Island, they took action. Cindy, who was working as a nanny and housekeeper, was physically assaulted and pushed to the ground by one of her employers outside of the employers' home as neighbors looked on. Cindy would later reveal that her employers were underpaying her in violation of labor laws, and that she was routinely subjected to verbal abuse and racial eptithets. The employer was later allowed to plead guilty to misdemeanor harassment, and she and her husband denied mistreating Cindy or taking advantage of her.

DWU mobilized their members and organized caravans to Long Island, called press conferences, and gathered outside Cindy's employers' home to demand justice. The employers retaliated by filing a defamation suit against DWU. For organizations like DWU, who rarely have large budgets and never have counsel on retainer, retaliatory suits to prevent public speech can destabilize an organization and pose a serious threat to their continued ability to organize and raise the public's consciousness

The law firm of Weil Gotshal & Manges LLP took on DWU as a pro bono client and defended the organization against the defamation suit. Attorneys from Weil Gotshal quickly filed and won a motion to dismiss the lawsuit, averting litigation that could potentially have drained DWU's resources and possibly destroyed the organization. More importantly, Weil Gotshal's defense of DWU protected the right of all abused and exploited workers to speak out about the conditions they endured.

Making History in Albany

 In September 2010, domestic workers in New York celebrated a historic victory as Governor Paterson signed the first legislation in the country to extend human rights and labor law protections to nannies, housekeepers, babbysitters and elder companions. Entitled "The Domestic Workers Bill of Rights," passage of the bill marked the culmination of a six-year campaign to correct the historical exclusion of domestic workers from civil rights and labor laws that most of us take for granted. Because of this law, for the first time, domestic workers cannot be discriminated against because of race, ethnicity, gender or nationality, and will receive certain basic labor protections.

The victory was well-deserved. For six years, DWU not only mobilized domestic workers, they mobilized allies in labor unions, student groups, farmworkers, and even their own employers to call for the passage of workplace protections for domestic workers. Over the years, DWU members took days off from work to organize and lead bus caravans to Albany to speak to legislators, to tell their stories of exploitation and abuse, and to make it clear that they were not going to give up.

The passage of the Bill of Rights was never a foregone conclusion. Even the formidable energy, passion and determination of the women of DWU was not enough to win in Albany - a state capital that has become known nationally for its political dysfunction and legislative gridlock. Despite the tireless efforts of members of DWU, despite the tremendous work by law students from NYU, despite countless phone calls to legislators and petitions signed by supporters, the future of the Bill was uncertain until a veteran attorney with years of experience navigating the halls of the state capitol agreed to provide pro bono assistance to DWU.

While the members of DWU were telling their stories on the steps of the state capitol, Richard Winsten of Myer, Suozzi, English & Klein, P.C. was drafting and redrafting the bill, arguing points of law with legislative staffers and state agency officials, and helping guide the Bill of Rights through the seemingly impenetrable gauntlet of Albany politics. Through his dedication and commitment, Wintsen helped turn the vision that DWU members had held onto for so many years into reality, and in so doing, has played an integral role in sparking a domestic worker movement that is gaining momentum across the country.

The Ripple Effect

Sometimes seemingly small acts that go largely unnoticed in the scheme of things can have a profound impact when you add them together. The associates from Simpson Thacher not only secured a financial settlement for one immigrant worker, they helped give Estella the courage to speak up for all the women who have similarly suffered exploitation and abuse. Without stories like Estella's, the New York City Council would likely never have passed legislation, and might never have urged Albany to take action to protect domestic workers. The attorneys at Weil Gotshal may have thought that they were defending against a routine SLAPP case, but the organization and the speech they were protecting have paved the way for historic legislation in New York that extends critical legal protections to this excluded workforce. And Richard Winsten of Meyer Suozzi hasn't just helped to pass a law in one state. Legislators are considering similar legislation to extend labor protections to domestic workers in California, and domestic worker organizations in other states are building on the momentum sparked by the Domestic Workers Bill of Rights to create a national movement that could someday lead to changes in federal law.  The efforts of workers' rights organizations, supported by attorneys like Winsten and other pro bono lawyers, aren't just changing the lives of individuals or even single industries - they're helping to transform the labor movement in the United States.

And lest you think I failed to live up to my reputation for starry-eyed idealism: this past June, due in part to the incredible momentum in the domestic workers movement in the United States, the International Labor Organization held a conference on domestic workers and began a process to create an international labor standard for domestic workers worldwide.

Pro bono publico indeed.