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Earlier this month, a Law360 article explored a fundamental—yet often overlooked—question:  whether the long-held standard practice of tallying pro bono hours remains “the best way to measure pro bono success.”  Though attempting to approximate a firm’s commitment to pro bono through quantifiable metrics is laudable, hours alone do not tell the full story.  Especially given that half of those seeking legal aid assistance are turned away due to a lack of resources, a firm should not lose sight of the fundamental (albeit less measurable) purpose of pro bono work, which is to maximize access to justice in under-served communities.

A growing body of empirical research aims to address the scarcity of legal services for the poor in the United States.  For example, consider Professor Jim Greiner, a leading scholar in the space, who founded the Access to Justice Lab at Harvard Law School in 2016.  Unlike most research into the practice of law, Greiner employs Randomized Control Trials (“RCTs”)—the gold standard for research in other disciplines—to explore difficult issues, such as how severely limited legal aid resources might be more efficiently deployed.  He has considered such questions as:

Last week, in Martin v. Gross, Chief Judge Patti B. Saris of the U.S. District Court for the District of Massachusetts granted summary judgment in favor of our clients, finding the Massachusetts Wiretap Statute (Mass. Gen. L. ch. 272, § 99) unconstitutional when applied to secret recordings of government officials performing their duties in public.  The decision is significant for its clarification of protections under the First Amendment.

The Massachusetts Wiretap Statute makes it a felony to “secretly” record oral communications writ large, regardless of the other circumstances of the recording.  Our clients—two civil-rights activists in Boston and the plaintiffs in this case—challenged the Massachusetts Wiretap Statute as unconstitutional under the First Amendment as applied to secret recordings of police officers performing their duties in public.  While both plaintiffs have openly recorded law enforcement officials performing their duties in public, both believe secret recording would protect their safety and more accurately document officials’ behavior in public.