Lawyers are quick to say that they love their clients. But when your clients don’t pay and you continue to love them, it must be true love. Sean Delany truly loves his clients. As the executive director of Lawyers Alliance for New York, Delany leads the largest provider of pro bono business and transactional legal services to community development and other nonprofit groups in the United States. Through a staff of in-house attorneys and a corps of more than 1,400 volunteer lawyers from more than 100 leading law firms and corporations, Lawyers Alliance provides business legal services each year to almost 700 community-based organizations.
In this interview, Delany shares what a career on the side of the angels looks like and how he has been able to leverage his outreach from one lawyer helping one client at a time in a tiny office in the Bronx to thousands of lawyers helping hundreds of nonprofits every year. His enthusiasm and pride in the good work done by Lawyers Alliance are palpable, yet he is all too conscious of the grinding realities and hazards that lawyers face in undertaking a career in public service for the indigent: low pay, repetitiveness, corruption, and cynicism. He is also acutely aware at present of the problems that arise from public legal service providers’ dependence on a shrinking supply of pro bono associates during a period of law firm downsizing. Notwithstanding the drawbacks, Delany derives deep satisfaction from his work and affirms his career choice. For prospective public service lawyers, he describes the prerequisite preparation and temperament.
Delany serves on the board of advisors for the Frances L. & Edwin L. Cummings Memorial Fund and as an advisor on the American Law Institute’s Principles of the Law of Nonprofit Organizations. He is an adjunct professor of clinical law at the New York University School of Law. He served on the Advisory Committee for Tax Exempt and Government Entities, a group that advises the Internal Revenue Service on issues involving tax-exempt organizations. He was president of the National Association of State Charities Officials. From 1999 to 2010, he served as the board chair for BronxWorks, Inc., formerly named Citizen’s Advice Bureau, a settlement house serving residents of the Bronx. Delany received a JD from the University of Virginia School of Law and a BA from Hamilton College.
Clare Cosslett: Were you raised with a sense of public service ?
Sean Delany: Perhaps surprisingly, I would say not. I came to my passion for public service later in life, after I had left home, and, in fact, after I had graduated from college. I grew up in Stamford, Connecticut, the eldest of three children. My family had for several generations operated a small business in Brooklyn manufacturing plumbing fixtures. We moved to Virginia in 1968. One of my sisters is now in show business, and the other is an interior designer. Perhaps my sense of public service was always a part of me and I did not recognize it. That might be so. But, in any event, it didn’t emerge until I graduated from Hamilton College in upstate New York in 1975, without a clue as to what I was going to do. I had a friend who had graduated a year earlier who had chosen to become a VISTA volunteer at a legal services program here in New York. He encouraged me to consider the opportunity and I did.
I can remember sitting in the job interview on the Lower East Side in a typical legal services office with the managing attorney of the program and being asked, “What makes you want to do this paralegal work?” And I spoke a little bit about my own career path and what I hoped to learn from the experience. And when I answered the question along very personal lines, this fellow took me to task and said, “This isn’t really about you.” I pointed out the window—and it was a pretty desolate view out the window—and said: “It seems like an inappropriate time and place for foolish optimism, but I am interested in making a difference as well.” He wanted to make sure that I had the necessary fire in my belly in order to stick it out under difficult conditions.
I can’t say that I did at that moment, but somehow it developed. And I spent two years working on the West Side of Manhattan helping individual poor people and families with government benefit problems: Social Security, disability, and welfare problems. This was in a somewhat heady period in the mid-seventies. The welfare rights movement in New York and around the country was in full force, and there was a lot of excitement about whether poor people would become a viable political force in this country. That really never happened, but the theory abounded at the time about whether it could. And so it seemed like I was part of something that was growing and that mattered. But there was a frustration. And the frustration was watching my colleagues who had “Esquire” at the end of their names be able to go to court to challenge decisions that had been made by the government and the other forces that controlled poor people’s lives and to have a judge adjudicate those decisions. As a lowly paralegal, I could argue across the desk in a welfare office, but I didn’t have the power to do more than that. Which led me to law school.
I applied to law school and was accepted at the University of Virginia. I decided to attend there because it was far and away the least expensive form of legal education that I could possibly have embraced. Being technically an in-state resident at a state school enabled me to pay less than $3,000 a semester. And it was just for that reason that I went to Virginia. Once I arrived, I realized quite quickly that I was a fish out of water. All of my classmates, with very few exceptions, were there because they intended to go to work for large law firms and they were interested in taking courses that would prepare them to do so. They had little, if any, understanding, let alone affinity, for the public interest motivations that made me want to be a lawyer.
Cosslett: So there were no clinics or relevant course work available there?
Delany: The year I arrived, the University of Virginia hired its very first clinical faculty member, revealing a recognition that this might be necessary, but on a very small level. There were extracurricular activities. There was a student legal aid society, which I became very involved in and spent most of my time working with, and there was a core group of students who were interested in that, but they were a tiny minority at the school. And certainly when it came time to decide where one would go after graduation, the school was completely oriented towards interviewing and placement at large law firms, mostly in Washington and New York City. There was a smattering of the most talented students who went on to judicial clerkships, but those who went to public interest jobs could be counted on the fingers of one hand, possibly two, in a fairly sizable graduating class.
Cosslett: Do you think this push towards the law firms was because it was the early eighties when Wall Street and the law firms were booming?
Delany: Well, I think it’s due to a variety of factors. First of all, the University of Virginia was, and to a great extent still is, a very conservative institution and its mission certainly was heavily tilted towards the world of large law firms. Even among other institutions at that time, it was particularly conservative. Also at that time law schools were not very good at connecting with public interest organizations for placement. And public interest organizations were not very good at connecting with law schools. There’s still a good deal of valid criticism of public interest organizations that they don’t develop and sustain relationships with law schools as they should for hiring purposes in many places around the country—but it’s far improved over the way it was in the early 1980s.
Cosslett: Why do you think they don’t reach into the law schools?
Delany: Because the hiring of public interest organizations is sporadic. They aren’t prepared in most instances—there are exceptions—to consume on an annual basis a sufficient number of new hires to be able to set up the apparatus that can be sustainable year in and year out. Now, there are exceptions. The Legal Aid Society here in New York will hire one hundred–plus new young lawyers every year. But that’s the exception to the rule. Most public interest organizations aren’t hiring on that scale and, for them, the cost-benefit equation of having an interviewing and placement program at law schools, particularly in multiple law schools that are geographically far away, is still not perceived as being worthwhile.
Cosslett: They also need to have the infrastructure to educate a young lawyer as to what practicing public interest law is actually all about, because you can be wonderful in law school and come into the real world, and it’s different.
Delany: It’s very different. To a great extent, the growth of clinical programs in law schools in the last thirty years has made that a proposition less daunting than it used to be, but clinical programs are not a substitute for actual practice. To some extent students can now benefit from law schools and public interest employers now collaborating to offer summer opportunities to students by subsidizing their placement at public interest organizations, as we do here at Lawyers Alliance and many other places I know. That’s an important introduction to that work for those students.
Cosslett: Clearly, you knew from the time you went into law school that you were going to go into the public sector. How did you choose Bronx Legal Services ?
Delany: It was serendipitous. Because I had worked in a legal services office in Manhattan, MFY Legal Services, as a paralegal before I went to law school, I was familiar with the legal services community in New York City. I returned to New York looking for a job. I didn’t have one when I graduated. I volunteered for some period, a month or two, in my old office. Then an opening came up at Bronx Legal Services for an attorney because one of their lawyers went on maternity leave, so I was hired in a temporary capacity to work there. At the end of that maternity leave, that lawyer returned but they decided to keep me on as a permanent staff member, so I ended up working at Bronx Legal Services. It was exactly what I had aspired to do when I went to law school. I was doing public benefits litigation on behalf of individuals and families in the Bronx. I did that work for three years before moving on to the Attorney General’s office.
Cosslett: Over the years I have met with many young lawyers who spent time working in criminal defense, and they said, almost to a one, that they had every good intention going in, that they loved the work, that it was very challenging, but that they met with hostility from both sides: they were viewed as a clog in the system by the courts, and their clients viewed them as part of the problem rather than the solution. Did you have that sense in the Bronx?
Delany: I think that sense is more common to criminal defense work. I think the assembly-line nature of that work—and I’ve never done any criminal defense work , but I have friends who have—can make it feel that not only is it a routine for those who represent, but that the defendants perceive you as part of the system that’s oppressing them and not as part of the solution. I think that if you do the kind of work that I did, which is to help people get the benefits to which they’re entitled—and I did some consumer work as well—there’s a greater level of appreciation because there’s an outcome that they otherwise wouldn’t have achieved. Not that you’re able to be successful for everyone, not that there aren’t any disappointments . . . there certainly are. But if you are successful, you’re not perceived as part of an oppressive system necessarily, so it’s a different kind of thing.
Cosslett: How did it feel to see case after case come up that were similar ?
Delany: Eventually, the endless stream of identical problems became a little numbing. And also the sense of trying to empty the ocean into a hole in the beach. It never seemed to have the impact that one would hope. You know, I think it’s God’s work, and I think that lawyers, young lawyers and particularly those who sustain it later into their careers, are to be put on a pedestal and held in awe, frankly.
I wasn’t able to do it on a sustained basis—even the impact litigation that I was involved with in federal court involving arcane calculations of welfare benefits seemed to move the needle only so much. And it was a difficult time in the South Bronx. The crack epidemic was in full flower in the early 1980s. It was a tough place to work. The legal services office where I worked had its own internal problems. Certainly there were conflicts between the attorney staff and the support staff, which could get difficult at times. So there were other strains as well. But ultimately, the sameness of it and the feeling that I wasn’t making as much of a difference as I could is what drove me out of the place.
I went to the Attorney General’s office, hired by a very progressive attorney general, Bob Abrams, who felt that you could use the power of that office to do good and, in my opinion, he did. I was hired to do consumer protection work, where I could have an impact on thousands of people on a regular basis, not just individuals. The work ranged across any kind of consumer work that you can imagine that the office would do. I spent a good deal of time, for example, defending New York’s Lemon Law for automobile sales, which at that time was new and subject to constitutional challenges by automobile dealers and manufacturers. That’s just an example, but it affected a lot of people. And certainly it was satisfying to have the power of the State of New York behind you when you got to court.
Cosslett: That must have been nice, coming out of a small office where you were representing one person at a time.
Delany: Well, I can tell you that the first time I went to court in that capacity and the judge or the court officer said, “Who’s here representing the government?” I looked around to see who he might be referring to before realizing it was me.
Cosslett: When you were in law school, you said, “I’m never going to represent the government . That’s not me.”
Delany: I went to law school to sue the government, not to represent the government.
Cosslett: Little did you know that sometimes the government was on the side of the angels. So you had two years in consumer fraud and then moved into the Charities Bureau ?
Delany: A supervisory position in the Charities Bureau opened up and I immediately jumped on it—and I’ll tell you why. In my final year working at Bronx Legal Services, the managing attorney in the office where I was working suggested that I take on a new client, an organizational client rather than an individual or a family. He said, “You might enjoy this. It’s a small community group here in the Bronx that doesn’t have a lawyer. I’ve been helping them out, but I’d like to transition this to someone else. So why don’t you work for this organization?”
The organization, called the Citizens Advice Bureau, did its work out of a single site on the Grand Concourse in the Bronx, with a budget of between two and three hundred thousand dollars and a staff of approximately a dozen. I began working with them and enjoyed it, and when I went to the Consumer Protection Bureau in the Attorney General’s Office, I asked for permission to continue to do that work on a pro bono basis. When I moved over to the Charities Bureau, I again asked for permission to continue to do that work, and it was granted—to my surprise, since the Charities Bureau regulates nonprofit organizations in the State of New York. As long as I didn’t make any appearances before the office in any capacity of representing the organization, it was approved.
My work with the Citizens Advice Bureau continued for the next decade as I worked in the Charities Bureau. Now, if you work in the Charities Bureau, you can get a skewed view of what the nonprofit sector looks like. Fraud and waste are the focus of many of the investigations that you conduct: charities misrepresenting themselves when raising money, charities wasting funds in their operations, miscreants misappropriating funds—that sort of thing. That’s your job: to focus on correcting those wrongs. If that had been my only picture of the nonprofit sector, through my time at the Attorney General’s office, I might have become a pretty cynical guy, but I had this work that I continued to do as outside counsel to the board of the Citizens Advice Bureau. The organization grew and grew, merged with another large nonprofit and took over their facilities in the Bronx, and continued to add programs and funding streams until by the time I left the Charities Bureau in 1997, it was a $25 million operation with services for thousands of people at twenty sites in the Bronx.
Cosslett: You were with the Charities Bureau for over ten years. How did your job grow during that period? Did you have a mentor there?
Delany: I supervised litigation for the first eight years that I was there, and then when there was a vacancy, I was appointed to be the bureau chief, so I was running the operation for the Attorney General. The person who hired me was a mentor. Pamela Mann was the bureau chief in the Charities Bureau and supervised me for the first eight years that was I there. She was the one who taught me how to be a nonprofit lawyer and who really enabled me to grow to the point where I was qualified to be the bureau chief when that time came.
Cosslett: Mentoring for lawyers is hugely important.
Delany: In this age at large law firms, where attorney development has become so much more of a focus than even it once was, there’s beginning to be a recognition about how important mentoring can be to that whole process. But for too many years it’s been neglected, I agree. If you’re lucky enough to find an individual who will mentor you successfully, you really have a big advantage over those who do not.
Cosslett: You’ve been with Lawyers Alliance for New York for almost fifteen years. Can you tell me about your position and the work of Lawyers Alliance ?
Delany: When I first arrived, I was hired to be the legal director here, and I was in that role for two years before becoming executive director. At Lawyers Alliance, we provide high-quality, affordable, business law services to nonprofit groups that are working to improve the quality of life in low-income communities here in New York City. So we’re working with groups developing low-income housing, stimulating economic development, and providing social services to children and young people, the elderly, new immigrants, community arts programs—any kind of an organization that might have a program presence that is intended to make life a little bit easier in New York City neighborhoods.
Last year we worked with almost seven hundred nonprofit groups so, over our forty-three-year history, we have reached many thousands. We provide corporate tax, real estate, employment law services—any business law need that our nonprofit clients might have. We don’t do litigation, as there are other agencies in New York that will do litigation for nonprofit groups. But we will provide almost any other legal service that they might need, and we’re able to do so on the scale that we do because we put more than fourteen hundred volunteers to work each year from a network of more than one hundred law firms and corporations. The work of these volunteers ranges from a consultation that may take no more than an hour, to a commitment to a large development project—typically with a team of lawyers—that may take years and hundreds of hours. And everything in between.
Cosslett: The ABA Model Rules provide that every lawyer has a professional responsibility to provide legal services to those unable to pay, and that a lawyer should aspire to provide at least fifty hours of pro bono publico services per year. So there’s an ethical requirement that lawyers do good. There’s a desire on the part of law firms and associates to do good, and they also want to appear to do good. Pro bono work is a good thing, and law firms want to do it. So my question to you is: how do law firms strike a balance between a billable hours requirement for associates with wanting their associates to go out and do good, so that everyone gets the benefit of looking good as well?
Delany: Let’s distinguish between individual lawyers and law firms . Individual lawyers are subject to the ethical precepts that you’ve just outlined. Law firms, as institutions, are not. Individual lawyers are expected, if not required, to perform pro bono service, and the form that that pro bono service takes is prescribed here in New York State by the Office of Court Administration with a very carefully worded set of guidelines about what kind of work qualifies. And the motivations that those individual attorneys have to do that work vary widely. Yes, their ethical obligations certainly are part of it, but it certainly doesn’t stop there. They’re very interested in doing something different than what they have to do every day for their paying clients. They’re interested in acquiring skills that they might not otherwise acquire. They’re interested in exploring other ways of being a lawyer that might lead to a different sort of career path if, perhaps, they’re interested in choosing a different career path.
So their motivations are many. They’re also interested in pleasing their institutions when they do pro bono work, to the extent their institutions care about such things. And these days, and for many years now, their institutions have cared about these things. Not because they’re technically subject to the same ethical precepts, but because they understand that it is the right thing for them to do and that it is in their business interests to do it. And their business interest is extremely important.
If we talk about the growth, we might even say “explosion,” in the world of pro bono in the last ten to fifteen years, we’re talking about a trajectory that closely tracks the growth in the business of large law firms. That’s not coincidental. The fact of the matter is their pro bono programs have grown because it is in their business interests to have those programs. It enables them to brand themselves and, in particular, to brand themselves to the brightest and the best young associates from the top law schools who these days—certainly since the early 1990s, with the dawn of the internet—have much more access to much more information than lawyers of another generation ever did about what distinguishes one institution from another. And that more refined information has required law firms to position themselves much more carefully, to brand themselves much more carefully, in order to distinguish themselves—pardon the expression—from that other sweatshop down the street. And as a result, they’ve had to compete, and their pro bono programs have grown as a result because that’s one of the measures of institutional quality.
Additionally, these are institutions that are human enterprises run by individual lawyers who understand in their heart that it’s also the right thing to do. But they have an obligation to their partners, as limited liability partnerships, to promote the interests of the partnership. And if it were not in the interests of the partnership, it would certainly be harder for them to do it.
And we’ll talk about what that means in the current era, too, because we may be experiencing another day. But I’ll stick with the golden age for now. All of this came to a new level of attention when the legal press—particularly American Lawyer magazine—began to rate law firms in 2002 by creating the A list each year of the top twenty institutions in the country, using a scale that involved four different criteria: profitability, pro bono service, associate satisfaction, and diversity. But the first two are weighted twice as heavily as the second two. And, therefore, you don’t get on that list and stay on that list unless you have a very active pro bono program. Now, some would say that this has not always had positive effects, because it’s an hours-counting game, and the American Lawyer editors measure the pro bono performance by the number of hours that their lawyers from reporting institutions are putting in. Nevertheless, it has certainly driven the growth in pro bono services and the cultivation and promotion of pro bono programs at large law firms to a level that they would not have otherwise achieved.
So that brings us to Lawyers Alliance’s place in this cosmology. During that same period of time, as large law firms grew exponentially, they grew in a somewhat lopsided way. The number of nonlitigators, business lawyers, deal lawyers, and so on grew out of proportion to the number of litigators in most large institutions here in New York City. It’s not the case in every place around the country, and it’s certainly not the case if you look at patterns of growth today. But during that period of time between the late 1990s to 2008, when the bottom fell out of everything, we’re talking about growth in business law practice to a greater extent than anything else.
At that point, more than seventy-five percent of the lawyers in many large law firms in their New York offices were not litigators but business lawyers. What does that mean to the pro bono programs in those institutions? Well, it meant that finding pro bono work that those lawyers could do and at the same time be able to bill two thousand, twenty-two hundred, or twenty-four hundred billable hours every year was a challenge. Those lawyers don’t have time to go to the bathroom, let alone do much pro bono work, and any kind of pro bono work that requires a long learning curve is a problem. These attorneys might have been perfectly willing to learn how to go to Landlord-Tenant Court and represent people who were being evicted, but they’d never been to court before and it would be a stretch to get them there and feeling comfortable. However, they can certainly update bylaws or handle a corporate structuring project or advise a nonprofit on an employment problem without having to learn very much that’s new. And so our dance card was really very full during this period of explosive growth in the pro bono world. We were quite spoiled.
That brings us to the great recession in 2008 when everything may have changed. We’ll see what the future holds and whether the uncertainty in the practice of law in large law firms leads to enduring changes in their business model or not—and whether those changes are consistent across the practice of law and the business of managing large law firms or not. For a pro bono organization, like Lawyers Alliance, that operates at a certain scale, staffing requirements are, as you can imagine, extremely important. We’ve been the beneficiaries of the billable-hours model to an extent that we cannot overestimate. The law firm practice of having armies of young lawyers—and, indeed, even mid-level and senior lawyers—on hand to throw at any paying client’s project, whenever necessary, meant that there was often excess capacity available in terms of the numbers for pro bono work that might not otherwise have been there.
Cosslett: Are associates’ pro bono hours counted towards their billable-hour requirement at the firm?
Delany: A simple question with a complex answer. So I’ll be a bit cynical by saying that with the growth of the internet and with the access to increased information by those who are considering going to work for a large law firm, the questions of law firm policies toward pro bono have become increasingly intricate and byzantine. The fact of the matter is that all will declare that their pro bono hours are counted and in most instances that’s true. However, there are very few, if any, institutions—I know of none—in which those hours are counted on a truly blind basis when compared with billable hours. Nor would one expect them to be, which means that the variations along the spectrum of how they are treated can be quite miniscule. Above the line, below the line. Caps, no caps. The processes for approval. The differences between individual practice groups versus firm-wide policies. The unwritten rules versus written rules. It presents a complexity that’s frankly quite bewildering.
Cosslett: Now you said that you had benefited from the billable-hour requirement and the significant staffing in the corporate areas. I’m a little confused by that because if you have associates billing twenty-four hundred hours, it shows that the firm is very busy and that there is more of a disincentive to send your lawyers out to do pro bono.
Delany: We don’t benefit from the billable-hour requirements as it applies to individual lawyers. We do benefit from the billable-hour model, in which law firms charge their clients by the hour because, when they’re able to charge by the hour, they have the luxury of having a greater staffing on hand because they are not required to be as cost-conscious as they would be if they were billing on a specific project fee basis, or on any of the alternative fee arrangements that are now becoming popular, at least in some institutions.
Cosslett: So your concern going forward is that that billable-hour model will be changed because the nature of legal practice will change.
Delany: At many institutions it’s already changing. Let’s face it. The largest cost center in any large law firm is personnel and the most expensive part of that cost center is the lawyers. If firms are being pressured, if their clients are refusing to pay for the billable-hour model at all or refusing to pay for the billables by anything less experienced than a third-year lawyer, that suppresses staffing levels and lower staffing levels are not good for pro bono programs.
Cosslett: So we need to keep our fingers crossed that there’s full employment for all lawyers on Wall Street again. Could you give me an example of a firm or a group of volunteer associates that took on a task that became much more onerous or complex than they originally anticipated?
Delany: I can talk about a project and I’ll use an extreme example, but there are others. For a decade, Lawyers Alliance has been representing a community group in the northwest Bronx that has been pushing for the redevelopment of the largest vacant space in the Bronx, a former state armory building on Kingsbridge Avenue. It’s been the subject of many press accounts here in New York City. And a year ago, the City of New York and this community group fought to a draw over what would happen with this space, and the city withdrew its proposal for the approval of the development of this space. It’s now been revived and the project is back on the radar screen, and we’re beginning our work again with that community group.
Over the course of that project, ten years, four different law firms worked on it, in sequence, never at the same time. One would begin work as long as it could, leave the project, or become not the best candidate to continue working on the project because the nature of the legal needs changed.
In the early phases, there was a lot of land-use planning and land-use lawyers were required. Later on there were other kinds of deal-making skills that were required and other law firms were brought in to handle that. There were real estate needs throughout the project, but they changed at least in nuance over time and the law firms over time either had, in some instances, put in more hours than they could continue to put in or became unable to keep on with the long horizon of the project and needed to step out, and Lawyers Alliance would find another set of lawyers. We were able to make this work because we have expert attorneys on our own staff. We have an attorney—who formerly worked as a partner in a firm and does our economic development work—who has been the primary contact, and he and other lawyers here at Lawyers Alliance have co-counseled the project because we co-counsel all our projects and have picked up whenever the law firms have been unable to continue carrying the ball. So that’s an example of a project that’s still not over after a decade in which the law firms for one reason or another, after doing yeoman service in every case, have fallen out and been replaced.
Cosslett: On the flip side, have you had lawyers or law firms who over-lawyer ? There are firms in New York who do outstanding work for Fortune 500 companies in large transactions, and perhaps your transactions are not quite as large, but the firm comes in with a team of lawyers. Has that happened and have you had to say, “Step back a little bit”?
Delany: It’s interesting. The phenomenon of over-lawyering I think is overstated, and it’s often confused with a different phenomenon. Sometimes our clients come to us with a concern before they are placed with volunteers that the matter is going to be over-lawyered. And what they’re really concerned about, it turns out, is that the process will be dragged out beyond a point that will be productive for them. It’s not so much about the nature of the work that’s being done. It’s about how long it takes that I find to be the most common translation, when you really get down to it, of over-lawyering.
And there’s certainly a role that Lawyers Alliance plays in working on pro bono work with our clients. And when I say “working,” I mean both in preparing clients to receive services if they haven’t worked with pro bono counsel before and in working with pro bono counsel once they get started. There is a certain function that we perform that’s like an English-to-English translation: we help lawyers who have never worked with nonprofit groups to understand how their businesses work and we help nonprofit managers understand what it means to work with a pro bono lawyer from a large law firm. These are two species that don’t interact in any other context and don’t necessarily understand each other.
One of the phenomena, for example, that we see all the time is that nobody wants to complain. The nonprofit manager might think, “Who am I to complain that a lawyer who’s giving their time and free services isn’t returning my phone calls?” And the law firm lawyer might think, “Well, who am I to complain that this busy, busy person doing God’s work out there hasn’t reviewed the draft I sent over?” And so it’s our job to make sure they communicate with each other and that they indeed complain to each other when they should.
Cosslett: And, in fact, the relationship is as any lawyer–client relationship should be.
Delany: Right. But it’s more than that because we, in the process of co-counseling the cases, bring an expertise on matters that our pro bono lawyers might not have. They’re expert corporate tax, real estate, and employment lawyers, but they don’t know anything, nor should they, about financing affordable housing, about the implications of business ventures for tax-exempt organizations, about the regulation of lobbying and political activities for charities, et cetera, et cetera. And that’s what our staffing comes down to. So, as to the danger of over-lawyering, some of that is certainly addressed by the expertise that we can bring to the table to cut to the chase. There’s less chasing of tails going on in here by our volunteers as a result of that. And the other thing is that our volunteers need to understand that in many ways nonprofits are no different from their paying clients—they are businesses. They are mission-driven businesses and they’re interested in getting a project done on a certain timetable and not making a fetish out of it. When our volunteers understand that, then the danger of over-lawyering is reduced, because it’s really about timeliness and getting the project done: understanding that every project has a beginning, a middle, and—yes—an end.
Cosslett: Junior associates in big firms are rarely asked to understand a business or to figure out a way to further a particular business objective. They are more often asked to draft documents and negotiate terms for deals that have already been structured.
Delany: And it’s a shame. Putting on my faculty hat for a moment—it is a shame that business lawyers are not being trained at an earlier point in time to understand the importance and the connection between lawyering and business advice . You can’t really be a successful business lawyer unless you have a full and rich understanding of the way your client’s business operates.
Cosslett: I have to ask you about the case involving pro bono representation and the mailroom mix-up at Sullivan & Cromwell . As you know, the case involved two associates who took on an appeal from a death-row inmate. They subsequently left the firm but didn’t advise the mailroom, the client, or the court that they were leaving. A ruling denying postconviction relief addressed to the lawyers and sent to the law firm was returned to the sender. As a result, no appeal was filed within the deadline. The case ended up in the Supreme Court, where it was decided that these attorneys had actually abandoned the client. This was a good decision for the client because, had it been decided otherwise, he would have been one step closer to execution. Do you have any thoughts on that case specifically or generally as to how so many things could have gone wrong?
Delany: I won’t comment on that case specifically except to say what might be the obvious. Lawyering involves deadlines. Lawyering of all kinds involves deadlines that are often externally imposed and often have very significant consequences if they’re not observed. This is certainly true in litigation—not only in high-stakes litigation involving human life, but in all other kinds of litigation and indeed in transactional work as well. There are deadlines by which things need to happen or the project won’t be financed, the deal won’t be possible—whatever it might be. Therefore, in any large institution, the importance of having every part of the internal machinery operating as efficiently and carefully can’t be overstated.
I’m not sure that this story is especially about pro bono work, although a lot of people think it is. It’s about a failure in the mailroom. I dare say failures in the mailroom occur to the detriment of paying clients as well. This became an extremely publicized matter, understandably, because a human being’s life was at stake, the highest of stakes possible. So I think that the story also says something about the practice of law in a time of extraordinary turbulence. And I think this is an effect of the management of large law firms, including but not limited to their pro bono work.
We picked up the newspaper this morning and read what many of us already knew about: significant cuts at one very large law firm here in New York City, not only among their attorney staff but also among the support staff of all kinds. With that kind of turnover going on in so many institutions in the last few years, it’s almost remarkable you don’t hear about stories like this more often, frankly. Things are very much in turbulence and turmoil in a lot of institutions these days, and that makes it harder to manage these institutions. So it’s a real challenge for the people who lead those institutions and the folks who manage the sometimes unglamorous machinery that makes things happen on time. It’s been a tough time to run a large law firm, and I think that this story says more about that than it does about pro bono work in particular.
Cosslett: Let’s talk a little about salary . Unfortunately students often graduate law school burdened with such a huge amount of law school debt that their choice of practice is circumscribed.
Delany: Here at Lawyers Alliance, there are two reasons why we do not hire students who are less than two or three years out of law school. The first of those reasons is that the work we do here requires a certain base of experience. We have rotating externs from four different law firms who essentially serve as our junior staff. They’re not necessarily junior lawyers, but they’re new to what we do. And, if we did not have them, we would have to hire very junior associates. Therefore, when we’re hiring our own staff, they are two to three years out at least.
The other reason is that we find students who are less than two or three years out of law school, and sometimes even later, just haven’t had the opportunity yet to pay down those enormous debts that they’ve graduated with and they can’t afford to take the eighty-percent pay cut that they’d have to take to come and work here. So that’s one example of how important debt is in the equation of whether you can afford to work in a public interest legal organization.
Cosslett: Eighty percent . . . ouch! How long do the externs work at Lawyers Alliance and do they stay on law firm salary?
Delany: For four months and they remain on law firm salary. They get an opportunity to come here and do work that they’re passionate about, or at least interested in. The law firms sponsor these programs for a variety of reasons. But the best of those reasons is to increase their pro bono commitment, to create a base of knowledge in the kind of work we do, which the externs can then take back to the firm and share with others, so that they’ll be able to do more easily the kind of pro bono work that we do. They acquire practice skills coming here that they might not otherwise acquire. Certainly, we put them to work with greater levels of responsibility and client contact than they might get in their earliest years at the firm. So there are a variety of reasons why it works for both of us: for the law firms and for Lawyers Alliance.
Cosslett: What would you tell undergraduates considering law school about public interest law? And what would you tell practicing lawyers who might be considering changing their practice area about being a public interest lawyer ?
Delany: Law students who think that they want to do this work have a number of options before them. Demonstrating some sort of interest in it early on is certainly important. Through the clinical courses they choose to take. Through how they spend their summers, and certainly through the volunteer activities they get involved in during the school year that demonstrate a public interest affinity. It is not necessary for them to plot a career course that immediately begins at a public interest law firm, institution, or organization.
Here at Lawyers Alliance we typically hire lawyers who have worked at large law firms. I am one of maybe two lawyers here who have never worked at a large law firm. All the other lawyers have. That’s because we’re looking for the corporate tax, real estate, employment law, and business law skills they’ve acquired at a large law firm. Those attorneys may have gone right out of law school to those firms, but they also may have, along the way, demonstrated an interest in what we do, either in law school or by doing pro bono work when they’re at the firm, or both.
Cosslett: If that law firm path is unavailable now because of the market, is there a second path for law students to take?
Delany: I’m going to speak more generally, and then I’ll speak about Lawyers Alliance because we’re a bit different from some public interest legal organizations. Certainly the organizations whose focus is litigation are looking for lawyers who have acquired litigation skills. So if you’re able to go to work, for example, in the government in a litigation capacity of one kind or another, you will make yourself valuable and will be able to make that transition later on. Even if large firms are foreclosed to you and you go to a smaller firm but are able to acquire litigation skills there, those will make you valuable to a public interest legal organization whose focus is litigation.
Similarly, many public interest legal organizations need lawyers with transactional skills who have acquired those skills. There are public interest legal organizations that specialize in immigration law, to take just one example. Here at Lawyers Alliance, we’ll hire attorneys from the Charities Bureau because they’ve worked on the regulatory side, which we need. We’ll hire lawyers who have done transactional work even in smaller firms, depending on the quality of that experience. But at the end of the day, because we rely so much on the work of volunteers from large law firms, we do have a strong preference for candidates who have worked in those institutions.
Cosslett: Is there a particular skill set that you think is useful for a public interest lawyer?
Delany: The practice of public interest law is so varied now that it really depends on what kind of work you’re going to want to do. It’s a specialized field, and you have to go and get the experience to make yourself attractive to that kind of a public interest legal organization. So those who want to work in the public interest need to think harder about what kind of public interest work they want to do in order to pursue the appropriate skills.
Cosslett: What continues to motivate you as a public interest lawyer?
Delany: Well, there are several things that continue to motivate me. First of all, in terms of Lawyers Alliance’s mission, what continues to motivate me is what has motivated me since 1984 when I first started working for the Citizens Advice Bureau and I was at Bronx Legal Services—and it’s what motivates everybody who works here at Lawyers Alliance and is willing to accept the admittedly inadequate compensation that we’re able to pay to them—and that’s a real admiration, if not awe, for what our clients can achieve. We are, every day, excited by the creative, entrepreneurial, and persistent work that our clients do to make a difference in the communities in which they work. That’s what gets us up in the morning, and that’s what makes all of us want to continue to do this work day in and day out. You know, lawyers who talk about their paying clients often say that they love their clients, and that’s why they do their work. But we really mean it here. We really do love our clients, and they don’t pay us very much, if at all, and therefore it’s true love. So that’s number one.
Secondly, I’d be remiss if I didn’t talk about the Lawyers Alliance itself and the enormous privilege I’ve had in arriving at this organization just at a time when it was entering a period of enormous growth. I owe a great deal to my predecessor for being the conceptual father of what we’ve become, but I’m also enormously proud of having been able to grow the organization significantly: to double in size, double our volunteer pool, double the number of clients that we work with, triple the operating budget, and to become a leader of a network of organizations around the country and in dozens of different cities that do what we do. That’s all highly gratifying.
And we realize that with that scale comes greater impact. If we believe, as we do here, that nonprofit organizations—not lawyers, but nonprofit organizations—are going to make a difference in the quality of life for those who are less well-off in this country and that we bask in their reflected glory, then our ability to help more of those organizations do better and better work has an exponentially greater impact. The leveraging effect of being able to represent an organization that helps hundreds of thousands of people as opposed to an individual client is something that we think about all the time. The impact that comes from that leveraging is a very gratifying motivation.
Finally, one of the things that currently excites me about being a public interest lawyer is teaching. In my role as adjunct professor at NYU Law School teaching a business law transactions clinic, I have the privilege of engaging in a process by which young people learn to represent organizational clients. They learn what it means to work with an organization having varied internal and external stakeholders and needs that are very much business needs but, in the case of the clinic’s clients, are also mission-driven. And, not coincidentally, my business law students learn what the joys of pro bono service on behalf of nonprofit organizations might look like.
To me, that’s a very, very gratifying process to be involved in.