This article was published in Verdict on August 26, 2016. It is reprinted here with permission.
In his article in Verdict (July 18, 2016), Prof. Ronald Rotunda, responding to comments on pro bono delivered by Supreme Court Justice Sonia Sotomayor at a national conference of the American Law Institute, rightly states that all lawyers should do pro bono, and cites Model Rule of Professional Conduct 6.1 in support. At the same time, however, Prof. Rotunda, picking up on a phrase apparently used by Justice Sotomayor in her comments, questions the concept of mandatory pro bono, and suggests that “forced labor” is inconsistent with the various requirements and privileges in the practice of law.
Prof. Rotunda suggests that imposing a pro bono requirement in the practice of law would interfere with various other essential requirements and prerogatives of practicing attorneys.
However, characterizing required pro bono legal work, such as the 50 hours a year now required for applicants who take the New York bar exam, simply as a kind of “forced labor” does not tell the full story.
As Prof. Rotunda notes, lawyers have a monopoly in that only licensed lawyers can practice law. In order to justify a monopoly that excludes others, those holding the monopoly should be expected to give something back that reflects and justifies the privileged position they hold.
The issue should be viewed in the broader landscape of how the legal system operates in this country. We are a country of laws that affect every aspect of our lives, and no one can “opt out” of the system. As such, all those affected by the operation of law should have some level of access to it, particularly in areas of fundamental legal needs and rights, such as legal defense in housing and eviction proceedings, and hearings that can lead to termination of parental rights.
Yet, it is undisputed that roughly 80 percent of those who have fundamental civil legal needs and cannot afford to pay lawyers go unrepresented in a structure in which legal training and analysis are the sine qua non of negotiating the system.
Prof. Rotunda suggests there is an important distinction between pro bono as it relates to criminal law matters and to issues in civil law, noting that “the government already provides free counsel in criminal cases.” Yet, that may be an overly broad generalization when stated so simply and conclusively. While technically correct, many lawyers who provide “free counsel” in criminal matters have dozens or hundreds of cases to attend to at any given time, and cannot devote enough time to every case due to their pressing caseloads. One could argue that the meaning of having free counsel may be altered by these circumstances.
The suggestion that mandatory pro bono would simply be too onerous may also be overstated. Practicing law already includes many requirements. Future lawyers must go to law school, must take and pass a bar exam, and must meet character and fitness requirements. Lawyers must pay annual registration fees and must take a certain number of continuing legal education (CLE) credits each year. Lawyers who don’t pay the fees or take the CLE courses cannot practice law. Is requiring, say, 50 hours of pro bono a year qualitatively different?
While requiring 50 hours of pro bono may be “akin to a tax,” as suggested by Prof. Rotunda, it is a tax imposed in exchange for a privilege, namely, the right to practice law to the exclusion of non-lawyers who cannot do so.
And does a 50-hour requirement necessarily “impose greater burdens on the younger lawyer” than other lawyers? Prof. Rotunda notes that the New York bar requirement applies only to new lawyers, and suggests that if the concept of mandatory pro bono was extended to current members of the bar, senior partners in large firms would simply delegate the pro bono work to young associates. However, if the pro bono service rule were personal to each lawyer, i.e., it could not be transferred to another lawyer, then senior lawyers could not shift their pro bono duties to more junior colleagues.
The “burden” on younger lawyers might also carry some benefits, as a pro bono case can provide skills training and perspectives to young lawyers that might not otherwise be available to them. It might also afford an opportunity to work on legal matters that young lawyers find compelling, but that are otherwise far afield of the client-billable legal work they address day-to-day.
In fact, it seems hard to imagine an area of professional practice in the United States, other than medicine, where the distinction between “should” and “must” is more nearly invisible. Take this hypothetical: If an ambulance brings a man with a knife stuck in his chest to the emergency room, the doctors don’t send him away because he can’t produce an insurance card. The doctors treat him, because it is not just what they “should do” but what they must do. They save the man’s life.
Similarly, if a low-income family is facing wrongful mortgage foreclosure or eviction, with the near-certain consequences of becoming homeless and destitute, and cannot pay for a lawyer, one would argue that lawyers not only should, but must, step forward, using their legal skills and access to stop the family from being turned out of their home.
Perhaps the drafters of Rule 6.1 of the Rules of Professional Conduct chose the term “should” do pro bono, rather than “must,” because they were committing to writing a concept that is already a key underpinning of our profession, namely that there are times when all lawyers, and any lawyer, must do pro bono work to uphold our system of justice for all, and to preserve the concepts of equal rights and fundamental fairness that form the bedrock of our legal system.