In our final Law Governing Lawyers class, we had an extended discussion of proposed ABA rules strongly encouraging—if not requiring—minimumpro bono work by members of the bar (or law school students). What prompted this was our reading on the unmet need for legal services. Among the indigent, those seeking immigration or asylum, and the mentally ill, legal services are virtually unobtainable.
This is especially true for civil actions; at least in criminal actions an attorney can be appointed for an indigent client. Civil representation for disadvantaged clients, in contrast, is often unaffordable. When they can afford it, the lawyer is usually one whose entire client base is barely able to afford any fee. Such attorneys mean well but be struggling with humongous case loads and limited resources. My basic legal processes are infeasible for them, especially a thorough investigation or discovery. While trying to help so many in need, they may be unable to provide any client with truly competent or adequate representation.
Legal clinics (such as our own venerable Marquette Volunteer Legal Clinic) try to fill the gap, but often such clinics can only offer advice and direction. They cannot or do not provide representation.
Against this backdrop, the ABA House of Delegates has considered and rejected changes to Model Rule 6.1 that would require lawyers to provide at least 50 hours of pro bono work per year, with a relatively cheap hourly buy-out. There are of course, always mechanistic complaints: how would compliance be recorded? how would the requirement be enforced? what would the penalty be? These can be worked out.
The real problem seems to be other complaints that are more philosophical. What can a lawyer accomplish in 50 hours per year? Would forced-labor representation be substandard? Shouldn’t lawyers be able to avoid practicing in skill-areas they don’t want to practice in? And why are we picking on lawyers? Do doctors or plumbers have to do pro bono work?
To the last question the reply is that plumbers and other skilled trades are not often participants in processes that kick someone out of their home (evictions, foreclosures, etc.) or take someone’s children away. Lawyers are. The consequences of lawyers’ activities are often far more significant than a plumbing problem. And though doctors don’t always use the term “pro bono”, most do work with indigent patients. Further, doctors do not monopolize the health care system like lawyers monopolize the legal care system. There are many non-physician medical professionals who do come to the aid of the indigent: nurses, LPNs, physician assistants, EMTs, midwives, doulas, physical therapists, occupational therapists, counselors, visiting nurses, nurse practitioners, orderlies, etc, etc. We pick on lawyers because, with only a few exceptions, no legal care occurs without a lawyer on the clock. If lawyers don’t do legal pro bono work, who would?
Regarding the quality of a lawyer’s work when forced unwillingly into a legal matter, I note that this is a good description of what a juror does. Jurors are “civilians” usually without any formal legal training, who are forced to participate unwillingly in legal matters, and on whom we place the ultimate burden of decision. Yet we expect jurors to perform their imposed duties properly; so why should lawyers in similar situations be recipients of great sympathy? The Rules of Professional Responsibility should bind lawyers even in pro bono cases.
The strongest argument against the oft-rejected ABA rule is that, except for really trivial cases, even the best lawyer will not often contribute much value in 50-hour annual increments. To bring a complex case to completion would require a bucket-brigade of lawyers which would be very inefficient. So I have a different proposal. (Don’t I always?)
Throw the names of all locally practicing lawyers into a hat (metaphorically, of course). When a local, indigent client needs civil or criminal representation, someone (a player to be named later) picks a lawyer’s name out of the hat, and that lawyer gets that case until it’s done. Just like jurors, lawyers would be drafted for whole cases. Just like jurors, lawyers would be drafted for a single case at a time.
Here I add a feature inspired by a Civil War draft law: If you don’t feel you are competent on the relevant area of law or cannot afford to give up your billable time for your drafted case, you can find a replacement lawyer. If your substitute insists on compensation for time and expenses, then, after suitable negotiations, you pay. But you forego the right to second-guess your substitute’s strategic or tactical decisions.
Obviously, a lot of details about this proposal would need fleshing out, but this system could be fair, if properly designed. It would result in a lawyer taking an entire pro bono case through to completion (no bucket-brigade), and provide a way for independent or socially conscientious lawyers to be compensated by other lawyers who don’t want to participate in pro bono cases but are able and willing to support those who will.
The need for low-cost or no-cost legal services is obvious, but what about lawyers who like to contribute to the community using skills other than their legal skills? It seems that mandatory pro bono hours might impact lawyers’ abilities to engage in other types of community service by either replacing already existing community service practices or preventing lawyers from engaging in non-legal community service. In an already demanding career, it may seem very unappealing to some lawyers to be required to use their legal skills for community service when they have other non-legal skills they enjoy using for community service. I think a criticism of the ABA’s proposed rule is that it adds to the pressure for lawyers to be one-dimensional simply because of their profession. I recognize that others could fill the gap caused by lawyers flocking from non-legal community service to pro bono work, but isn’t it the non-legal things in our lives that make us better lawyers, too?
I agree with Sandie. I volunteer my time frequently throw local blood drives, coaching a little league team, etc. However, aside from helping friends with minor legal questions, my legal activities are generally limited to the office. If the true goal is to aid the community (not just those in the community who reach out for legal help), then why limit such community service to the law?
Regardless, I’m not so sure requiring community service (pro bono or otherwise) is the best way to get top notch help when the attorney feels he or she is entering into forced servitude. Why not make this requirement in law school and try to breed lawyer who *want* to volunteer, and not just those who are compelled?
This entry reminds me why I’ve voted Republican for so many years…
I can’t agree with the pro bono lawyers as jurors analogy. Jurors aren’t supposed to be experts. In fact, potential jurors who are experts, like a doctor in a medical malpractice case, likely won’t become actual jurors. On the other hand, a lawyer is supposed to be an expert in his area of law. So I don’t think it helps anyone, especially the indigent client, to have a transactional attorney moonlighting as a litigator for a pro bono case. Jury duty and pro bono work are both a form of public service, I just don’t think they are in analagous.
Sandie and Nick,
I can only surmise both of you missed the last paragraph in which I stated that there are a lot of details of my proposal to be fleshed out. You have noticed a detail that should be considered, I would be astounded if there were no others. I congratulate you both on your many contributions to your community.
However, since only lawyers can provide legal aid, if they don’t do it, it won’t happen. Lawyers who volunteer in other areas are to be commended, but again, if lawyers don’t provide legal aid, who will?
Both of you noticed something missing in my off-the-cuff suggestion; I notice something missing in your comments: an alternative solution except to “breed lawyer who *want* to volunteer”. We are already trying to do that (assuming the ‘breed’ is used here metaphorically) but this solution has not worked. Time to find something that will.
In any event, I thank you for your suggestions and your service to your communities.
Chris,
All analogies have their limits. Obviously jurors and lawyers serve different roles in the legal system so no analogy between them can be spot-on for all considerations. The analogy as I use it addresses the concern that it might be unreasonable or unfair to dragoon lawyers into participating in cases they don’t want to participate in. If it’s fair and reliable to dragoon jurors to serve their role, it’s fair and reliable to treat lawyers likewise. There is nothing about drafting experts that is especially undesirable when the fact-finders and verdict-renderers are themselves drafted.
If it helps to have untrained jurors making weighty legal decisions, it’s not harmful to have a transactional lawyer serve as a litigator; certainly it’s better than having the untrained defendant serve that role!
And as I suggested, the transactional lawyer could find a substitute lawyer who is willing to take the case. If the indigent client could find and pay a willing and capable lawyer, we wouldn’t have this problem.
I have to wonder what something like this would do to the amount of suits that would be filed. I would imagine that if the general population were told they could receive free legal services for civil cases, many lawsuits that would not normally have been filed, possibly even frivolous suits, will be brought simply because it is free to do so. This increased case load could obviously have a detrimental effect on both courts and attorneys.
Have you considered other possible solutions, such as “legal insurance” or prepaid legal services? These services may not be free, but they are definitely more affordable than hiring an attorney.
Jim,
My proposal is not to provide free legal services to the general population for civil cases; this should be restricted to the indigent. I realize there is a gray economic zone of people who are not clearly indigent and not clearly able to provide for their own legal costs. Some kind of pay-what-you-can provision is doable.
Sanctions for frivolous cases should continue to apply and be sufficient to winnow them out.
Legal insurance or prepaid services might help those in the gray zone, but I don’t see how they are of use to someone truly indigent.
Thanks.