Employment and economic growth in the United States have always relied, in part, on the steady creation of small businesses. Start-ups, small restaurants, innovative mom and pop stores, and non-profits are all needed for a healthy economy. Yet, as Professor Alina Ball points out so ably in her article, Primary Care Lawyers: A Holistic Approach to Pro Bono Business Lawyering, small businesses are seldom able to afford the type of ongoing legal counsel needed for their healthy survival. And, importantly, the current model of pro bono legal aid provided to small businesses is not designed to meet their needs in a comprehensive and holistic way. Professor Ball argues in her article for a new type of small-business pro bono representation, one that is structured to meet the varied needs of emerging enterprises, and she asks that law-school clinics lead the way in developing this new prototype.
Using health care as an analogue, Professor Ball explains that small businesses are subject to a vast array of laws, regulations, industry practices, and other contractual obligations that need to be addressed in a holistic manner much like the interconnected systems that function within the human body. And, just as regular, medical checkups help individuals prevent debilitating disease, small businesses benefit from a continuous relationship with counsel. Professor Ball points out that the present model for delivering pro bono assistance to small business—seeking legal advice when discrete problems arise—is much like the patient who only sees the doctor after a medical crises occurs. She notes that the pro bono help afforded small businesses was modeled on legal-aid programs that were set up to assist low-income individuals with discrete legal needs, like an eviction or a divorce. This form of legal assistance is not designed for the type of legal support needed by the small business. Just as large corporations have general counsel that stay on top of their legal issues, small businesses need lawyers who develop an ongoing relationship with their clients and are able to monitor their legal needs on a regular basis.
Professor Ball demonstrates the interconnectedness of transactions that may seem at first glance to be discrete business transactions. For example, a small business may retain different pro bono counsel each time it needs to draft a complicated contract. If the current pro bono attorney is not aware of a certain provision that was included in a prior contract written by a different lawyer, she may draft a new contract with a conflicting provision that could create unforeseen complications for the client. However, Professor Ball points out that these types of problems can be avoided if a single lawyer has in-depth knowledge of the client’s legal history and access to its files.
Professor Ball argues that law schools are in the best position to develop a holistic model of representation in their small-business clinics. Moreover, given the growth and breadth of transactional clinics, providing on-going advice akin to a general counsel would not require too drastic a change in the delivery of legal services by these clinics. A primary-care approach would also serve as a best-practice model for future transactional lawyers. And, when these law students become junior associates and take on pro bono projects, they will be more likely to develop a pro bono practice that engages in an ongoing, holistic relationship with their small-business clients. Professor Ball is not just advocating for this new approach; she has instituted it in her Enterprise and Economic Empowerment Clinic at UC Hastings Law School. The clinic only takes on a business client with whom it is able to invest in and develop a long-term relationship. By modeling her primary-care approach in her own clinic, Professor Ball is doing her part to help to secure the long-term health of small businesses.