{"id":4919,"date":"2009-04-23T19:43:31","date_gmt":"2009-04-24T00:43:31","guid":{"rendered":"http:\/\/law.marquette.edu\/facultyblog\/?p=4919"},"modified":"2009-04-24T14:45:35","modified_gmt":"2009-04-24T19:45:35","slug":"in-america-you-cant-buy-justice-but-you-can-rent-it","status":"publish","type":"post","link":"https:\/\/law.marquette.edu\/facultyblog\/2009\/04\/in-america-you-cant-buy-justice-but-you-can-rent-it\/","title":{"rendered":"In America You Can’t Buy Justice. But You Can Rent It."},"content":{"rendered":"

In our final Law Governing Lawyers class, we had an extended discussion of proposed ABA rules strongly encouraging\u2014if not requiring\u2014minimumpro bono<\/em>\u00a0work by members of the bar (or law school students). What prompted this was our reading on the unmet need for legal services.\u00a0 Among the indigent, those seeking immigration or asylum, and the mentally ill, legal services are virtually unobtainable.\u00a0<\/p>\n

This is especially true for civil actions; at least in criminal actions an attorney can be appointed for an indigent client.\u00a0 Civil representation for disadvantaged clients, in contrast, is often unaffordable.\u00a0 When they can afford it, the lawyer is usually one whose entire client base is barely able to afford any fee.\u00a0 Such attorneys mean well but be struggling with humongous case loads and limited resources.\u00a0 My basic legal processes are infeasible for them, especially a thorough investigation or discovery.\u00a0 While trying to help so many in need, they may be unable to provide any client with truly competent or adequate representation.\u00a0<\/p>\n

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.\u00a0 They cannot or do not provide representation.<\/p>\n

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\u00a0pro bono<\/em>\u00a0work per year, with a relatively cheap hourly buy-out. \u00a0There are of course, always mechanistic complaints: how would compliance be recorded? how would the requirement be enforced? what would the penalty be?\u00a0 These can be worked out.<\/span><\/p>\n

The real problem seems to be other complaints that are more philosophical.\u00a0 What can a lawyer accomplish in 50 hours per year?\u00a0 Would forced-labor representation be substandard?\u00a0 Shouldn\u2019t lawyers be able to avoid practicing in skill-areas they don\u2019t want to practice in?\u00a0 And why are we picking on lawyers?\u00a0 Do doctors or plumbers have to do\u00a0pro bono<\/em>\u00a0work?<\/span><\/p>\n

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.\u00a0 Lawyers are.\u00a0 The consequences of lawyers’ activities are often far more significant than a plumbing problem. \u00a0And though doctors don\u2019t always use the term \u201cpro bono<\/em>\u201d, most do work with indigent patients.\u00a0 Further, doctors do not monopolize the health care system like lawyers monopolize the legal care system.\u00a0 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.\u00a0We pick on lawyers because, with only a few exceptions, no legal care occurs without a lawyer on the clock.\u00a0 If lawyers don\u2019t do legal\u00a0pro bono<\/em>\u00a0work, who would?<\/span><\/p>\n

Regarding the quality of a lawyer\u2019s work when forced unwillingly into a legal matter, I note that this is a good description of what a juror does.\u00a0 Jurors are \u201ccivilians\u201d 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. \u00a0Yet we expect jurors to perform their imposed duties properly; so why should lawyers in similar situations be recipients of great sympathy?\u00a0 The Rules of Professional Responsibility should bind lawyers even in\u00a0pro bono<\/em>\u00a0cases.<\/p>\n

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.\u00a0 To bring a complex case to completion would require a bucket-brigade of lawyers which would be very inefficient. \u00a0So I have a different proposal.\u00a0 (Don\u2019t I always?)\u00a0<\/span><\/p>\n

Throw the names of all locally practicing lawyers into a hat (metaphorically, of course).\u00a0 When a local, indigent client needs civil or criminal representation, someone (a player to be named later) picks a lawyer\u2019s name out of the hat, and that lawyer gets that case until it\u2019s done.\u00a0 Just like jurors, lawyers would be drafted for whole cases.\u00a0 Just like jurors, lawyers would be drafted for a single case at a time.<\/p>\n

Here I add a feature inspired by a Civil War draft law: If you don\u2019t 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.\u00a0 If your substitute insists on compensation for time and expenses, then, after suitable negotiations, you pay.\u00a0 But you forego the right to second-guess your substitute’s strategic or tactical decisions.<\/p>\n

\u00a0Obviously,\u00a0a lot of details about this proposal would need fleshing out, but this system could be fair, if properly designed. \u00a0It would result in a lawyer taking an entire\u00a0pro bono<\/em>\u00a0case through to completion (no bucket-brigade), and provide a way for independent or socially conscientious lawyers to be compensated by other lawyers who don\u2019t want to participate in\u00a0pro bono<\/em>\u00a0cases but are able and willing to support those who will.\u00a0<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"

In our final Law Governing Lawyers class, we had an extended discussion of proposed ABA rules strongly encouraging\u2014if not requiring\u2014minimumpro bono\u00a0work by members of the bar (or law school students). What prompted this was our reading on the unmet need for legal services.\u00a0 Among the indigent, those seeking immigration or asylum, and the mentally ill, […]<\/p>\n","protected":false},"author":54,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"ocean_post_layout":"","ocean_both_sidebars_style":"","ocean_both_sidebars_content_width":0,"ocean_both_sidebars_sidebars_width":0,"ocean_sidebar":"","ocean_second_sidebar":"","ocean_disable_margins":"enable","ocean_add_body_class":"","ocean_shortcode_before_top_bar":"","ocean_shortcode_after_top_bar":"","ocean_shortcode_before_header":"","ocean_shortcode_after_header":"","ocean_has_shortcode":"","ocean_shortcode_after_title":"","ocean_shortcode_before_footer_widgets":"","ocean_shortcode_after_footer_widgets":"","ocean_shortcode_before_footer_bottom":"","ocean_shortcode_after_footer_bottom":"","ocean_display_top_bar":"default","ocean_display_header":"default","ocean_header_style":"","ocean_center_header_left_menu":"","ocean_custom_header_template":"","ocean_custom_logo":0,"ocean_custom_retina_logo":0,"ocean_custom_logo_max_width":0,"ocean_custom_logo_tablet_max_width":0,"ocean_custom_logo_mobile_max_width":0,"ocean_custom_logo_max_height":0,"ocean_custom_logo_tablet_max_height":0,"ocean_custom_logo_mobile_max_height":0,"ocean_header_custom_menu":"","ocean_menu_typo_font_family":"","ocean_menu_typo_font_subset":"","ocean_menu_typo_font_size":0,"ocean_menu_typo_font_size_tablet":0,"ocean_menu_typo_font_size_mobile":0,"ocean_menu_typo_font_size_unit":"px","ocean_menu_typo_font_weight":"","ocean_menu_typo_font_weight_tablet":"","ocean_menu_typo_font_weight_mobile":"","ocean_menu_typo_transform":"","ocean_menu_typo_transform_tablet":"","ocean_menu_typo_transform_mobile":"","ocean_menu_typo_line_height":0,"ocean_menu_typo_line_height_tablet":0,"ocean_menu_typo_line_height_mobile":0,"ocean_menu_typo_line_height_unit":"","ocean_menu_typo_spacing":0,"ocean_menu_typo_spacing_tablet":0,"ocean_menu_typo_spacing_mobile":0,"ocean_menu_typo_spacing_unit":"","ocean_menu_link_color":"","ocean_menu_link_color_hover":"","ocean_menu_link_color_active":"","ocean_menu_link_background":"","ocean_menu_link_hover_background":"","ocean_menu_link_active_background":"","ocean_menu_social_links_bg":"","ocean_menu_social_hover_links_bg":"","ocean_menu_social_links_color":"","ocean_menu_social_hover_links_color":"","ocean_disable_title":"default","ocean_disable_heading":"default","ocean_post_title":"","ocean_post_subheading":"","ocean_post_title_style":"","ocean_post_title_background_color":"","ocean_post_title_background":0,"ocean_post_title_bg_image_position":"","ocean_post_title_bg_image_attachment":"","ocean_post_title_bg_image_repeat":"","ocean_post_title_bg_image_size":"","ocean_post_title_height":0,"ocean_post_title_bg_overlay":0.5,"ocean_post_title_bg_overlay_color":"","ocean_disable_breadcrumbs":"default","ocean_breadcrumbs_color":"","ocean_breadcrumbs_separator_color":"","ocean_breadcrumbs_links_color":"","ocean_breadcrumbs_links_hover_color":"","ocean_display_footer_widgets":"default","ocean_display_footer_bottom":"default","ocean_custom_footer_template":"","ocean_post_oembed":"","ocean_post_self_hosted_media":"","ocean_post_video_embed":"","ocean_link_format":"","ocean_link_format_target":"self","ocean_quote_format":"","ocean_quote_format_link":"post","ocean_gallery_link_images":"on","ocean_gallery_id":[],"footnotes":""},"categories":[34,72,36,48],"tags":[],"class_list":["post-4919","post","type-post","status-publish","format-standard","hentry","category-legal-education","category-legal-ethics","category-legal-practice","category-marquette-law-school","entry"],"_links":{"self":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/4919","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/users\/54"}],"replies":[{"embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/comments?post=4919"}],"version-history":[{"count":0,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/posts\/4919\/revisions"}],"wp:attachment":[{"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/media?parent=4919"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/categories?post=4919"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/law.marquette.edu\/facultyblog\/wp-json\/wp\/v2\/tags?post=4919"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}