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History of the Pro Bono Program of the Legal Aid Society of the Orange County Bar Association, Inc.

By Catherine A. Tucker, Pro Bono Coordinator
(This article appeared in April 1999 issue of The Florida Bar Journal)

The Orange County Bar Association is a voluntary bar that has been electing officers since 1924. Members of the association are members of the Legal Aid Society and are required to provide pro bono services each year. The Legal Aid Society's Board of Trustees sets the requirements which currently are that each member accept two case referrals, contribute $350, or participate in one of 12 approved projects.

During 1998, 2400 attorneys including about 150 non-Orange County Bar Association members, handled over 2000 new case referrals, contributed over $350,000 and provided special services through various projects such as the Aids Special Will Project, Attorneys Fighting For Seriously Ill Children Project, Drug Awareness Project, Homeless Advocacy Project, Citizen Dispute Settlement and Family Mediation Program, Community Education Program, Teen Court, Earned Income Tax Credit Clinic, Telephone Screening Project, Judicial Pro Bono, Children's SSI Panel and the Guardian ad Litem Program for Orange County. The GAL Program currently assists over 5000 children in juvenile, domestic relations and criminal cases.

How a mandatory program was begun and why it has flourished are questions that are frequently asked. The creation was modest and the growth was incremental. The result is a source of pride for bar members. An analysis of a survey of OCBA members concluded that the structure, administration and longevity of the pro bono program probably account for the positive attitude that bar members have toward the mandatory program. Steven Wechsler. Attorneys Attitude Toward Mandatory Pro Bono. 41 Syracuse Law Review 3, 950 (1990). The history within the local legal community of performing pro bono work as part of one's profession is the basis for the continued support of the program. As noted by the Joint Commission on the Delivery of Legal Services to the Indigent in Florida in its February 1991 report, "While it is mandatory for its voluntary members, its success seems to be built more on its underlying acceptance as a law practice norm or expectation rather than its mandatory nature."

Attorneys who speak about their support for the pro bono program have personal stories about their involvement with pro bono work and their role in the development of the Legal Aid Society.

Heskin Whittaker served as President of OCBA in 1953 and for three terms on The Florida Bar Board of Governors. He recalls the transition from small bar association with informal referrals to a more organized program. Mr. Whittaker who at 88 years old describes himself as the oldest living practicing lawyer in Orange County, saw the practice of law and the bar change dramatically. "When there were two two-week civil jury trial periods each year, the bar could use a volunteer to call attorneys about cases. When federal funds were available for legal services, it was the consensus of the local bar that we should handle our own legal aid. Making participation compulsory wasn't too difficult." says Whittaker. "A lot of members were willing."

The attorneys who obtained the special legislative act to fund a Legal Aid Bureau with filing fees and who incorporated the Legal Aid Society remember the creation of an organization as personal and special.

"I served as the Legal Aid secretary to the Executive Council of the Orange County Bar Association in the early 60's", said Egerton K. van den Berg. "I was given a book that looked like a ledger with script entries of the names of every bar member. There were about 160 to 180 names. We had different criteria that were reflective of that era. There were no divorces, custody, bankruptcy, or landlord tenant matters. There were stiffer financial rules. We had criminal matters and litigation such as boundary disputes, breach of contract, warranty cases. We looked to level the playing field for those who could not afford an attorney. It was open, generous, progressive for its time. Inclusive and color blind."

In 1961 bar members secured a special act of the legislature establishing a Legal Aid Bureau in Orange County and authorizing the county commission to allocate a portion of the county and circuit court filing fees for funding of the program. With these funds a secretary/referral coordinator was hired to do intake and make referrals to pro bono attorneys.

"When I came to Orlando in February 1957, they had a secretary from the bar at the courthouse with people waiting to be seen by her," recalls Jim Russ, past Legal Aid Board member.

Funds for legal services were made available through the Office of Economic Opportunity in 1965 as part of the War on Poverty. "I was appointed to evaluate the grant for the Executive Council. I felt that we could hire staff and not solely be dependent on volunteers and enlarge the eligibility in income and cases. There was strong objection but the vote was close," remembers van den Berg.

Russell Troutman, in his first year as a member of the Executive Council, opposed the application. He filed suit against Sargent Shriver and the Office of Economic Opportunity in federal court. Troutman v. Shriver, 273 F. Supp 415 (M.D. Fla. 1967), aff'd, 417 F. 2d 171 (5th Cir. 1969). This suit triggered a significant amount of publicity in the print and television media and there was a reaction in the community. "It caught the attention of the bar membership," says Troutman. Members of the local bar expressed such strong support for the suit that the President of the bar called a meeting of the membership. The meeting was well attended and the decision to make an application for funds was withdrawn and the bar association decided to join in the lawsuit against the OEO. "I felt strongly in my heart that the Orange County Bar Association should say to the federal government, no we are well able to do it ourselves and will do it. It mattered not what other bar associations did. What mattered was that we as a community should do what our oath required that we do and do it ourselves."

"The controversy cost me the presidency of the bar association," says van den Berg. "The application was rejected by a slim majority of the bar and I was defeated in the subsequent election for the vice-presidency."

"Russell was on the make as a political young lawyer and conservative in the community," says Jim Russ. "Before the fight over the OEO the bar program was somewhat superficial, but once the bar association said we have to do it on our own, it was taken on as a more significant project."

"There did develop a consensus that the bar should do something, if we were not going to seek the money. We liberalized the eligibility criteria. We sought contributions from attorneys. We had money through the statutory filing fee. We incorporated the program," remembers van den Berg, one of the original incorporators.

According to the by-laws of the new corporation, the members of the bar association were members of the Legal Aid Society and the President of the bar association would serve as President of the Legal Aid Society. As President of the bar association in 1968 to 69, Troutman also served as President of the Legal Aid Society and during his term, the first staff attorney was hired.

I count my role in the formation and establishment of our Legal Aid Society as my best contribution," says Troutman. "Through the years I have continued my work with Legal Aid in whatever way I can." In addition to his annual pro bono requirement, Troutman has provided funds annually for a summer law clerk and created the Law Firm Covenant.

"It is easy to be cynical about lawyers but there are a cadre of lawyers who are respected and set the tone," said van den Berg, who retired as partner in Foley & Lardner. The firm was the recipient of three Awards of Merit for outstanding pro bono service from the Legal Aid Society.

By the time the appellate court affirmed the dismissal of the complaint challenging the OEO program, in September, 1969, Legal Aid Society had been in operation for two years and had hired its second director.

Through the next decade, the Legal Aid Society relied on a variety of funding sources available to nonprofit organizations such as United Way, CETA, Community Services Trust Fund, Title XX, and the filing fee and attorney contributions. The staff grew to include several attorneys and paralegals. In 1975, then director, Jim Seals, now a circuit court judge, and Greg Presnell, a Legal Aid Board member and Executive Council member, approached the Executive Council to add the option of contribution of $150 in lieu of handling a case and to restate the mandatory referral policy. The buyout option was formally adopted and the council confirmed their intention to remove from membership any attorney who did not meet the pro bono requirement.

In the late 70's federal money from the Legal Services Corporation was made available throughout the country for local communities to apply for funding of legal services programs. With the uncertainty of the funds available to the Legal Aid Society, the Board of Trustees decided to apply for federal funds and sought approval of the Executive Council for its application and to make the necessary changes in the by-laws of the Legal Aid Society. The Executive Council gave its approval but the vote to change the bylaws required the approval of the membership. Ten years after the standing room only membership meeting on OEO funding, bar members met to decide on the application for LSC funds.

Greg Presnell, then President of the bar association and immediate past President of the Legal Aid Society, presented the argument in support of seeking the new funds. Recalls Presnell, "The Legal Aid Society had struggled with limited resources...filing fees and some other funds and we learned that other money would be available for Orange County. The Legal Aid Board approved the application and I led the effort to gain approval of the bar association." The overwhelming response of the membership was to oppose to the application for federal funds and changing the by-laws. "I recall vividly the meeting at the courthouse and being in the line of fire."

"I was one of the people who supported getting the federal funds," says Jim Russ, "When we got shot down with the federally funded issue we started another program, Greater Orlando Area Legal Services."

"Gary Udouj, had been one of my associates for three years before taking the director job at Legal Aid," said Troutman. "I did not think that we should apply for federal dollars with the strings attached in 1966 and I still was opposed to federal funds in 1977."

"The fallout from the decision also benefited Legal Aid because it galvanized a group of attorneys who were distrustful of the federal money to get them to do more than pay lip service to Legal Aid," said Presnell. "No question that the issue strengthened the Legal Aid Society and its position that if you were an OCBA member then you did pro bono work."

Within the next year Legal Aid went through many changes and faced the challenge of declining funds as CETA, CSTA, Title XX were reduced or eliminated. Legal Aid was evicted from their office when the county ended their agreement to provide space. The bar, forced to re-examine their commitment to Legal Aid, increased the pro bono requirement to two cases and $250 per year.

For many of the attorneys who began practicing in the 70's, their support for the Legal Aid Society was grounded in their belief in an attorney's commitment to public service and pro bono work has often provided to them an opportunity to be part of serving the community through special programs like the Guardian ad Litem Program.

"When I came to Orlando to practice in 1973, pro bono work was part of being a member of the bar. I felt it was part of being an attorney. Through the Guardian ad Litem Program in particular I have enjoyed the work I've done with children," says John Marshall Kest, past President of OCBA and the Legal Aid Society. "Although there are disappointments, the opportunity that you have to make a difference in a child's life and be an advocate for the 'good guy' in the courtroom has been satisfying."

The Guardian ad Litem Program served 334 children in its first official year of operation in 1981. In 1998, about 1500 children were assigned GAL's. The program has drawn a core of about 300 pro bono attorneys who help children in juvenile, domestic relations and criminal matters.

"In my first year on the Legal Aid Board in 1979, there was an informal system where the judges would appoint attorneys to serve as Guardians ad Litem.  We had a pilot project for a year and then the state offered us money to have a program without attorneys as GAL's. We said we wanted to keep control of the program and refused the money," said Chuck Stepter, longtime Legal Aid Board member.

"We preserved the best of what came before us but were open to new ideas," says Terry Ackert, former Executive Director of Legal Aid, "When confronted with big questions, we have to say we've been bragging about this, now let's do it."

For new attorneys, pro bono work is what is expected if you practice law in Orange County.

"Why does it work? Pro bono support came from bar leaders and respected lawyers and firms. The pro bono program was developed from the bar and then it became Legal Aid," said Chuck Stepter. "It was not a delivery program having to approach the bar and say get involved."

"While there are conservative folks, they are progressive. Pro bono became an institution and as an institution, pro bono is self-perpetuating," says Sally Kest, Legal Aid Board member and former Executive Council member.

"I give tremendous credit to the folks involved in the early 70's. When I came here in 1977 there was automatic doing of Legal Aid cases," says Mike McMahon, former President of OCBA and former President of Legal Aid. "New lawyers would come into the environment where pro bono is expected. Since that expectation level exists, to decline involvement presents psychological hurdles. The burden is on the attorney to offer a reason not to participate. It has become culturally unacceptable to present other options."

"I think the acquisition of the bar center and the operation of the Legal Aid Society in the same building as the bar added to the connection between the bar leadership and Legal Aid," says Terry Ackert who was director during the construction and move into the bar center. "Bar leaders and members could see the staff and the clients and physically connect with the ownership of the program. They could take pride in it..Here it is, our baby."

In 1986 the Board of Trustees formally restated the policy of Legal Aid for referring pro bono cases and said that no member was exempt from pro bono services. The Board set criteria for those members who could be excused from services and provided that government attorneys would also be expected to participate in pro bono work. In 1992, after the Supreme Court's opinion on pro bono services, the Board of Trustees of Legal Aid requested an increase in the fee to $350 and it was approved beginning in 1993. When the Orange County Bar Association amended its by-laws in 1995, they continued the mandatory policy supporting pro bono work through the Legal Aid Society. "Unjustified failure or refusal to accept cases referred to the member from time to time by the Legal Aid Society, or to otherwise comply with the procedures established by the Legal Aid Society for service or contribution in lieu of service; provided however termination by the Executive Council cannot occur without recommendation to the Executive Council by the Board of Trustees of the Legal Aid Society of the Orange County Bar Association, Inc.

“Current OCBA President Dan DeCubellis attributes the success of the program to the leadership of the original attorneys. "They had this great little idea of public service as a commitment of the whole bar. It seemed a reasonable request to make of a professional, and now it has developed a tradition and a life of its own."

"I feel I have been part of the program for 40 years and I am proud of my contribution. The origins for attorneys like myself are professional responsibility. There has always been the onus to upgrade the program if we say we are doing it ourselves. It always comes down to the individual commitment even in big firms." says van den Berg.

Throughout the past 30 years the bar association has strengthened its support of the Legal Aid Society and the accumulation of events and memories has created a compelling personal connection for many members. This connection continues to promote the role of pro bono work as the expectation of an attorney who practices law in Orange County.