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Jason Dzubow on Political Asylum

The Perils and Promise of Low Bono

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“Low Bono” refers to providing legal representation for less than market value. The idea is that for certain clients who cannot afford an attorney, the attorney will reduce her price so that the client can hire her.
Lobo, No!


When lawyers represent asylum applicants (or anyone else) on a low bono basis, there is an obvious benefit to the applicant and to "the system," but what's in it for us? Why would an attorney do this? The most obvious reason is because the attorney wants to take the case—either to help the client or because it is an interesting or important matter. Another reason is that “market value” for an attorney’s time is simply too high for most potential clients. Both reasons apply to my decision about setting my fee for an asylum case: I am interested in asylum cases and that is the type of work I choose to do, and the market for asylum seekers won’t support high attorneys’ fees, at least not for most applicants.


For asylum cases in the DC-area, fees vary widely. I have heard about attorney’s fees as low as $900.00 for an affirmative case, and as high as $7,500.00 (and I even once heard about a case where the lawyer charged $80,000.00—dare to dream!). Most attorneys who primarily represent asylum seekers (such as myself) charge between $2,000.00 and $3,000.00 for a case. My fee for most cases is $2,800.00, which is a flat fee, meaning it includes photocopying and mailing, as well as attending the asylum interview. I have never calculated how this translates into an hourly fee (it would be too depressing), but I have no doubt that it is well below “market value,” whatever that means.


There is a great benefit to charging an affordable fee: You can get the types of clients and cases you want to do. And in this sense, I have been very lucky. I’ve represented journalists, human rights workers, women’s rights advocates, diplomats, and politicians, among many others. Given the good luck I’ve had with my clientele, I really shouldn’t complain, but since this is my blog, I will anyway. After all, wasn’t it Descartes who once said: “I complain, therefore I am.”


My main complaint is related to the backlog, and to delays with asylum cases in general. Before the backlog, most asylum cases would take maybe six or eight months from the time of hiring to the time of decision. Assuming a successful outcome, that was the end of the matter for me. Now, cases may take years. This means that the client contacts me for all sorts of things, from work permits to travel documents to requests to expedite to changes of address. All this extra work takes time; time for which I do not charge my clients.


But since we lawyers make a living by charging for our time, it’s only fair that we get paid for the additional work. As a practical matter, though, seeking fees for this work can be difficult. Clients are already stressed due to the backlog and charging for dribs and drabs of additional work seems a bit petty. Also, raising the fees for a case makes it more difficult for clients to hire lawyers, so charging for the additional time can create an access-to-justice issue: Higher fees = fewer represented asylum applicants.


But there is a cost to the attorney for not charging. Extra work for one case means less time for another. It also means more stress in general. Maybe there is some sort of balance that can be achieved here, but I have yet to find it.


Another problem of low bono is that with less money coming in, the attorney must spend less time on each case. This is not necessarily a problem that results in less successful outcomes for the clients (because although we spend less time on each case, we do a lot of asylum cases, so we become proficient at it). However, it does take some of the pleasure out of doing this type of work. Much of the attraction of an asylum case is the human interaction. But when there is less time for each case, there is less time to spend with the client. It’s common, for instance, for a client to offer to take me to lunch or dinner after a case is granted, but I almost never go—there simply isn’t time.


In the end, of course, I am my own boss, and I set my fees in a way that (theoretically) maximizes my own happiness with my practice. I want the interesting cases and the cool clients. That is what makes the job worthwhile. The extra work caused by the backlog has made this more difficult; it has upset the equilibrium. For now, I will keep on keeping on, but if the backlog persists, I don’t know whether the “low bono” model is sustainable. I hope that it is, but with each passing day in Backlogistan, I feel less optimistic.

Originally posted on the Asylumist: www.Asylumist.com.

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Comments

  1. Greg Moore's Avatar
    Thanks for this post - I am one of the rare immigration attorneys that charges by the hour for most all matters (maybe this is because of my litigation background). Used to be, even for an hourly low bono affirmative asylum client, I could comfortably predict total fees of $2000 - $3000. But with my clients stuck in the backlog, we are now almost always $3000+ once all the effort for EADs, SSNs, and other odds and ends that clients need over the course of a year or two case are tallied in. Asylum cases are the most enjoyable part of my practice, but the backlog is making them more expensive (when done completely and carefully). Like Jason, I struggle with the thought of doing more work for less pay, but thus far have rationalized that the value I apply to the case is worth the fees clients are presented with.
  2. Intecon's Avatar
    Low Bono attorneys won't make it in the end unless they want to live in a mobile home on the poor side of the tracks. Many lawyers go bankrupt because of many reasons, altruism, poor business management, incompetence, but to set yourself up for a fall economically could spell disaster for the lawyer, his/her marriage, children, future.

    Think long and hard about Low Bono and show me a 60 year old Low Bono lawyer who has been plugging away at Low Bono . . . then maybe you will make me a believer.
  3. dcdaly1@aol.com's Avatar
    Thank you Jason for a very articulate discussion of this issue. Low Bono is and will also be a big issue for deferred action cases. Like you and the asulym cases, I want to take these cases, but we end up putting in twice as much work as we charge for if we were to take our hourly fee and apply it to the time spent on the case. I don't know how to resolve the issue either, but appreciate your thoughts.
  4. JDzubow's Avatar
    I have sustained the low bono practice for 11 years now. Of course, when I started I was a single person who lived on friends' couches. Now I am married with two kids and a mortgage, but financially, I am doing ok. Stress-wise, I am less ok. The extra work from the backlog is a problem. I don't know if I'll make it to 60 doing this (15 years to go!), but we'll see. And Greg, I have no doubt that the value added by competent representation is well worth the money.
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