When the Wisconsin Supreme Court declined in February to grant the Civil Gideon petition and its proposed requirement that legal counsel be appointed for impoverished civil litigants, it instead noted a familiar fallback solution: pro bono initiatives. When Congress decided in 2011 to drastically cut funding for the Legal Services Corporation, which funds legal services providers such as Legal Action of Wisconsin, the message was similar: lawyers should do more pro bono.
When it comes to the issue of poor people and their legal problems, passing the buck to lawyers in private practice is par for the course. Those who have the greatest ability to affect the problem and acknowledge it as a societal issue always give it back to the lawyers.
So much for venting.
The fact is, more lawyers should do pro bono, and not because those with the money and power shift the attention to the profession. Lawyers should be involved in pro bono because we took an oath that said we would; because we are ethically obliged “to provide legal services to those unable to pay;” because with very few exceptions, no one else can represent the unrepresented poor; because the problem is overwhelming; because it is the right thing to do.
Many lawyers accept that responsibility but many do not. It is estimated that in 2011, fewer than 500 civil cases statewide were successfully referred out to private practice lawyers by the organizations who attempt to find pro bono lawyers to represent poor people. Using methodology based on numbers found in the State Bar’s important Bridging the Gap study and the 2010 Census; ignoring the fact the situation has deteriorated since both of those databases were created, and conservatively estimating that only 10% of “poor people legal problems” require representation by a lawyer, there were over 8,000 matters in Wisconsin in 2011 in which a poor person needed a lawyer.
Different studies or methodologies might produce different results, but a huge gap results from any analysis. And the poorly funded legal services organizations cannot make up the difference.
Some clarity for purposes of discussion is needed here. Different people have different definitions of pro bono. I have had lawyers tell me that they chalk up any unpaid bill as pro bono. And many lawyers provide representation to arts organizations, civic, community and religious groups, Wills for Heroes, veterans and other good causes that do not involve poor people.
When I talk about poor people pro bono, I am talking about legal services for indigent people or organizations whose clientele is largely made up of indigent people. That is the unrepresented group. That is where the justice gap exists.
I have invested some time over the years in the business of studying the marketing of pro bono representation. I have read articles, attended conferences, joined organizations; I have interacted regularly with the professionals who deal with pro bono recruitment on a daily basis.
On the one hand, I can speak from the heart about the people who need pro bono legal services and the effect on their lives, and on the other hand I can make a case for the “selfish” reasons to do pro bono — how it trains young lawyers, litigators and non-litigators, how it makes a firm look good to the courts and to the community, how it makes good business sense.
And the arguments I have heard for not becoming involved in pro bono, such as lack of opportunity and time, are not convincing. Hard-working pro bono leaders such as Pat Risser of the Volunteer Lawyers Project and Jeff Brown of the State Bar will happily find you a pro bono project. Check out the State Bar’s pro bono website, where opportunities abound.
Also, as someone who has seen bond lawyers obtain domestic abuse injunctions, estate planners argue for Social Security disability payments, and corporate lawyers undertake immigration representation, I am not moved by the argument that pro bono is only for litigators. The brief advice clinics sponsored by Marquette at the House of Peace, the Justice Center and other places, show that non-litigators from virtually every practice area are willing to advise poor people. We need the same involvement in the area of direct representation.
The lack-of-time argument also is difficult to make. Four to five hours a month is a small investment to promote justice. The State Bar’s Delivery of Legal Services Committee is trying to make it even easier, studying a proposal that would exchange required CLE credit for pro bono representation. Purists see that as a form of payment; proponents see it as a necessity to encourage involvement, noting that seven other states already provide CLE.
One lawyer whom I approached about becoming involved in pro bono told me that the $50 a year that the Supreme Court takes from him and gives to the Wisconsin Trust Account Foundation is his pro bono contribution. But that is an excuse, not a substitute for doing pro bono. His $50 buys only a couple of hours of representation from a public interest lawyer.
All of this has led me to the realization that some lawyers just need to be focused on the problem and the availability of pro bono opportunities. Others must be reminded about the oath, and their ethical obligation to the poor. And others, unfortunately, just don’t care.
I sometimes despair that the last group is the majority. As any of the pro bono professionals will tell you, frustration is part of their job description.
But so is hope. Every year in late April I head up Wisconsin Avenue to the law school for a pick-me-up. The occasion is the induction ceremony for the school’s Pro Bono Society at Marquette’s Law School. This year 100 students satisfied the induction requirement of 50 hours of pro bono service, just as many had done before them. The ceremony is a major celebration at the law school, as it should be.
These are future lawyers who do care. Here’s hoping they never change.