That law is a profession, not just a business, has long been a theme here, and I haven’t been shy about pounding that theme whenever possible. And yet, I’m particularly wary when the theme is used in ways that blow beyond professionalism as a weapon against lawyers.
Aric Press, retiring from his 16 years as Editor in Chief of ALM (formerly American Lawyer Media), offered his parting thoughts in a paywalled post that was partially copied by Kevin O’Keefe. Among his “lessons” learned while getting his ALM big guy paycheck was this:
Pro bono isn’t charity. I cringed recently when I heard a longtime public interest lawyer refer to pro bono work as what big-firm lawyers do so they’ll have something to put on their tombstones. I’m not that cynical. I think it’s work that lawyers do because they belong to a profession, and professions have obligations to the broader society in which they operate. Otherwise they don’t deserve the privilege of self-regulation and the honor of a special status in our courts. Part of the price for that status is serving those who can’t afford legal services. It’s a duty, in my view, but also an act of self-protection. With outside investment money beginning to slosh around the legal world, the question of bar regulation will be visited again in your futures. If you want to maintain the current framework, you have to pay the dues. It’s a profession, if you choose to keep it one.
Perhaps I’m taking this all wrong, and Aric meant his words only to apply to biglaw. After all, only Biglaw seems to fascinate ALM, so it’s quite possible that Aric doesn’t know the rest of us exist. Or if he does, he just doesn’t care. And if this quote applies only to Biglaw, then I couldn’t care less. Biglaw can fight its own battles.
But assuming Aric hasn’t forgotten that the legal profession isn’t comprised solely of Biglaw, what is he saying? Lawyers have a duty, as the price of being worthy of being a professional, to give of their time and advice to those who can’t afford legal services. This is not, in itself, a particularly controversial sentiment, though it galls me a bit for someone who enjoys feeding off lawyers to say so when he doesn’t pay the price himself. When was the last time Aric represented an indigent person? Hell, has Aric ever given his time away for free to anyone?
The concept of pro bono has become increasingly fuzzy these days. I filled out my New York State attorney registration form a few weeks ago, and it asked how many hours of pro bono I performed. Does this blawg count as pro bono? Does the time spent answering questions from the thousand callers who can’t afford a lawyer count? What about the CLE lectures, or conference presentations? Worse still, what of the clients who said they could pay, but couldn’t?
Then there was the good guy, a person I thought deserved better legal care than he could afford, who I represented just because I chose to. That was certainly pro bono, but then, I didn’t do it because I felt some duty to the profession, but rather a duty to use my abilities to help another human being because I could, and more importantly, I chose to do so.
Can someone call me and demand that I defend them pro bono? What if they inform me that it’s my duty, because as Aric says, we have a duty to do pro bono? Can that same person call up a partner at Biglaw and make that demand? I somehow find it impossible to imagine that a Biglaw partner will take a random phone call from someone who can’t afford counsel because he “just has a question.” Yet, solo lawyers do this all the time.
I have a problem with Aric Press informing lawyers about our duty. Not that we should do pro bono, as we do so constantly, but that unlike Biglaw, unlike lawyers who get paychecks without practicing, we do so on our own dime. We do so because we help people. We do so constantly.
We don’t get paid while doing so, as part of some pro bono program that firms can use to give their lawyers a chance to actually see a courtroom, or practice on the poor so they will have minimal competence when their work is needed for paying clients. We don’t send out press releases about how we’re great humanitarians, helping the poor and downtrodden between billion dollar mergers and acquisitions.
There are people who need, but can’t afford, legal services. Part of the problem is the growing infusion of law in ordinary life, creating a need that society can’t fill. Aric doesn’t have anything to say about that. Another part of the problem is that the larger society looks to law as an easy way to regulate its annoyances, but doesn’t want to cover the price of its mandates. Aric doesn’t mention that either. If non-lawyers are busy demanding laws to harass each other, does that make it lawyers’ problem to fix by giving our services away for free?
Lawyers aren’t the butt-boys for every regulatory brainstorm that others create to make their world happier. Yet, guys like Aric Press wrap up our professional duty in a pretty ribbon to promote the notion that we, the lawyers, are sitting around, fat and wealthy, and can certainly spare a few thousand hours as the cost of being such fabulous professionals.
Sure, we should do pro bono. We are enormously fortunate to find ourselves in the position of being able to help others, to bear the honor of being lawyers. But we do so out of a generosity of spirit and a desire to help our fellow man, not as a cost of doing business. And no one who hasn’t given anything of himself except to tell us how we should give has the authority to tell us what our duty is.
If Aric Press believes what he says, let him go into the trenches and lead by example. And if he was only talking to Biglaw types, the ones who get to do pro bono while enjoying a paycheck on direct deposit, then please make it clear that you aren’t talking about the lawyers who know what their duty is, do it constantly, and suffer the grandiosity of pundits’ simplistic pronouncements. Don’t insult those of us who carry the weight if you’re only talking about the other half.