Via Ashby Jones at the WSL Law Blog,
The Mississippi Supreme Court is considering a proposed rule to require lawyers in the state to provide at least 20 hours of pro bono work.
The rule has been proposed to try to help the thousands of low-income residents in the state who can not afford a lawyer in civil matters, according to this article in The Clarion-Ledger.
While the provision of pro bono legal services has long been a staple for lawyers, it becomes controversial when it’s rammed down their throats.
“Other than perhaps the priesthood, I am unaware of any profession which requires its members, as a condition of their right to practice their craft, to contribute a portion of their income to charity,” attorney Don Lacy wrote in a letter to the supreme court.
Mississippi isn’t the first state to come up with this brilliant idea, and appears to seek this mandatory pro bon to augment civil legal services for the poor, as opposed to New Jersey, having civil lawyers cover indigent defendants in criminal cases where they have no competency whatsoever and want only to plead out defendants as quickly as possible until their hours are done,
But to claim that it’s forced servitude isn’t exactly fair. Lawyers are given a monopoly to practice law. We are not like other occupations, but are provided a privilege that entitles us to represent other human beings. With privilege comes responsibility.
The problem, unfortunately, is that mandatory pro bono doesn’t necessarily match up well with the public need. Let’s say a civil litigator takes on, pro bono, representation of a poor litigant. The 20 hour obligation won’t get the litigant to resolution, but could get him in deep enough to make his life a serious mess. It could get the lawyer to go the quickie route rather than litigation, knowing that his 20 hours will end long before anything can be accomplished. It could leave the indigent defendant worse off than he started.
Then there are transactional and criminal lawyers being asked to provide civil representation. They may have some knowledge of diverse areas of law, but sufficient to provide meaningful representation? Hey, it’s not like these are paying clients. So what if we’re nothing more than warm bodies in the well? Is this really what the Mississippi Supreme Court has in mind?
The core problems with forced pro bono is the disconnect between the lawyers’ competencies and the clients’ needs and the number of hours mandated versus the number of hours required to see a matter to completion. It’s the difference between providing real services and the appearance of services. Lawyers aren’t fungible, and one size does not fit all.
George Cohen, a legal ethics expert at Virginia Law School, applauds the proposed Mississippi rule. “trying to get people to be more cognizant of the needs of poor people for legal services is important,” he said. “Making lawyers more aware of their social responsibilities as a quid pro quo for the benefits of practicing law is also a good thing.”
The complaint that this is somehow stealing from lawyers is utter nonsense. Lord knows we piss away more than 20 hours a year on nonsense, be it twitter or reading the dirty jokes that come through our email. It’s disingenuous to complain that we can’t manage to eke out time to help others from our very busy day. While it may mean slightly fewer billable hours, we’ll survive.
There’s no question that pro bono as a social responsibility of lawyers, even as a quid pro quo, is a good thing. But there’s a very real question of whether forced pro bono actually fills the huge need for those who cannot afford counsel in civil matters. Programs like this offer little to show that it’s been given adequate thought, and that it will serve the purpose intended. It smells like another public relations scam, like mandatory CLE.
Lest people think that this will solve the high cost of legal services problem, leaving the poor without access to the courts, even if a program is developed that makes sense, there remains the reality that the need for legal services by the poor will nonetheless far exceed the ability of such programs to offer a little bit of help here and there.
And still lawyers complain about forced servitude.
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My thoughts on this are a little contradictory and inchoate, but they run sort of as follows –
1 – Attorneys should not be forced by law to work for free, monopoly or no. We fought a war and have a Constitutional amendment to prohibit that sort of thing. Volunteers should be encouraged by all means. Tax credits/deductions would help.
2 – The administration of the law is a core government function, and the rule of law is what separates us from a real third world nation, as well as the Hatfields and McCoys.
3 – Most people do not have the skills to operate with proficiency in either the transactional or litigation fields of the law. The law is complicated, and takes a lot of background knowledge and expertise, and talents in organization, writing and public speaking. (That is why, I think, when you win a case, the client sometimes says “Hey, I could have done that, my lawyer just told the court what I said.” What the client does not know is that before I took the case I saw that the client could not explain his or her way out of a wet paper bag).
4 – Most individuals and small businesses do not have adequate access to legal professionals for transactional or contractual issues, either in forming relationships with others or in resolving problems, because that stuff is billed hourly or at least generally expensive, and there is usually no deep pocket, or worse the deep pocket is on the other side.
Here is where I really lose traction and kind of generalize on policy –
Because government is law, and the core purpose of government is to moderate the relationships between people (and spend their money on social programs, alas), I believe that the government should provide people with All of the tools to negotiate the legal landscape, including a basic level of legal representation. Particularly after a dispute arises, but also before. The government, of course should pay attorneys for their time. The means and qualification for payment is beyond this post at the moment. (I only have 433 characters left)
IMHO, this “socialized law” (my libertarian bent just got bent out of shape) seems to me to be more important than any other program of government aid and would do more to eliminate both actual and perceived injustice in this country than a host of other social programs.
Plus, I am a solo and I could use the work with the guaranteed government paycheck. Sigh. BTW the disclaimer is to show that I am self-interested, so don’t bother with criticism on that point. Isn’t it always about whose ox is being gored? or petted, or whatever?
It’s a hot button issue, and reasonable minds may differ. But if lawyers are “socialized”, I think I’ll take up ditch digging. At least it will be honest work.
I agree that reasonable people can differ, and even I am of two minds on this.
However (on a blawg there is always a ‘however’) if you are familiar with NY’s 18-B work ($100 per hour or something like that), that would be the fee level for outright payment or subsidy that I would suggest.
Also, in terms of what attorneys would do the work, I would compare to the British health care system (as I understand it). You may have free health care if you like. It is basic, long lines, bureaucratic approvals and all the substandard stuff that comes with socialized medicine. But there is a market for private physicians, who can put you to the front of the line and provide excellent and timely care.
Let attorneys volunteer to enter the program without taking away prestige or mighty fee schedules of the white shoe firms of the world and those who want to live honestly. I predict no shortage of attorneys willing to represent the poor in such circumstances.
Thanks for reading.
I am indeed familiar with New York’s 18-B program. There are some lawyers who do fantastic work and do 18-B to help others or to fill in the gaps in their time, and there are some who do truly awful work and are just in it for the check. Plus, it’s a very expensive program, and that money has to come from somewhere. I can’t speak for anybody else, but I’m a little reluctant to start another entitlement program, particularly one that could be rife for abuse by dishonest lawyers.
If it helps, I’d like to get rid of all of those other entitlement programs, because mine is the best.
I told you I was self-intereseted on this.
Just to keep up the end of British health care here – you can pay a private doctor extra to have shorter waiting times and so on but if something goes wrong you’re usually transferred to an NHS hospital. On a GBP spent basis most private healthcare is cosmetic. People generally aren’t going to private doctors in the UK for heart transplants because private hospitals just can’t afford the equipment to offer heart transplants – Britain isn’t massive so only centralised health care is really big enough to have that.
I think you’d expect the opposite for legal services – you’d really expect the private sector to be a bit better equipped for legal service provision than the public sector. That said, legal aid lawyers (provided due to the human right to competent representation in criminal trials) in Britain hardly do a bad job with what they’ve got.