Mandatory Pro Bono: Pros and Cons

Mandatory Pro Bono: Pros and Cons

 

Recently in my last post, Access to Justice: Mandatory Pro Bono I addressed the Mississippi Supreme Court's implementation of mandatory pro bono, and the anger that resulted among members of the state bar.

Why does mandatory pro bono bring out such ire in members of the bar?  The comments on the blog reflected all the major arguments against mandatory pro bono:  Some saw it as an unconstitutional taking or involuntary servitude, arguments that have been rejected by courts.[1]  For example, in Dolan v. U.S., the Fifth Circuit affirmed a lower court ruling that held that representing indigent defendants on court order was "an ancient and established tradition" as well as "a condition under which lawyers are licensed to practice law."  Further, An applicant for admission to practice law may justly be deemed to be aware of the traditions of the profession which he is joining, and to know that one of these traditions is that a lawyer is an officer of the court obligated to represent indigents for little or no compensation upon court order. Thus, the lawyer has consented to, and assumed, this obligation and when he is called upon to fulfill it, he cannot contend that it is a 'taking of his services.'  351 F.2d 671, 672 (5th Cir. 1965).

            Others had a moral or philosophical objection to the idea that pro bono could be mandated at all.  Commenter Paul noted, "You know, when charity becomes compulsory, it ceases to be charity and becomes, instead, a tax."[2]  Commenter Jimmy offered, "It's just wrong to force charity work on someone with the power of the law behind you."[3]  As Deborah Rhode points out in her article, "Access to Justice," such arguments wrongly categorize pro bono as "a philanthropic exercise," whereas it is more properly "a professional responsibility."[4]  Nonetheless, these critiques lead to a further, practical concern: that unhappy, resentful lawyers would provide sub-par assistance to clients they were required to serve.[5]

            Finally, a number of commenters agreed that, while the idea of providing pro bono was a worthy ideal for the profession, such a goal should not come at the expense of lawyers' own well being.  Many commenters, especially those from small firms who already served such clients at little or no charge, felt the change placed a particularly unfair burden on them.[6]  It has been argued that mandatory pro bono rules ignore the special plight of the small firm or solo practitioner, who often continue to work "pro bono" or "low bono" at reduced rates for regular clients who can no longer afford to pay for services.[7]  Such clients often do not "count" as pro bono because the work is not entirely free.[8]  Others pointed out the strain, with respect to time, money, and personal and family obligations, that extra work would put on their already full caseload.[9]


Building a Better Legal Profession (BBLP) is an organization based at Stanford Law School.   BBLP is a national grassroots movement that seeks market-based workplace reforms in large private law firms. For more information, visit BBLP's Web site at www.betterlegalprofession.org.

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[1] Comment by Curt Crowley, August 31, 2010 7:09 PM, and comment by Anderson, Sept. 1, 2010 10:02 AM, on "Mandatory Pro Bono," supra note 9; see, e.g., Sup. Ct. of N.H. v. Piper, 470 U.S. 274 (1985) ("a nonresident bar member, like the resident member, could be required to represent indigents and perhaps to participate in formal legal-aid work"); Dolan v. U.S., 351 F.2d 671 (5th Cir. 1965) (rejecting uncompensated takings claim).

[2] Comment by Paul, August 31, 2010 12:34 PM, on "Mandatory Pro Bono," supra note 9.

[3] Comment by Jimmy, August 21, 2010 2:25 PM, on "Mandatory Pro Bono," supra note 9.

[4] Deborah Rhode, "Access to Justice," in Legal Ethics 918 (Deborah Rhode and David Lujan, eds., 2009).

[5] See, e.g., comment by D. Russell Jones, Jr., Sept. 1, 2010 11:14 AM, on "Mandatory Pro Bono," supra note 9; Rhode, supra note 13, at 918-919.

[6] See, e.g., Comment by gowan, Aug. 30, 2010 2:34 PM, on "Mandatory Pro Bono," supra note 9 ("BS rule to further ride us solo guys into the ground.").

[7] Leslie Levin, Pro Bono Publico in a Parallel Universe: The Meaning of Pro Bono in Solo and Small Law Firms, 37 Hofstra L. Rev. 699 (2009).

[8] Id. at 701.

[9] See, e.g., Comment by Eric, Aug. 31, 2010 8:26 AM, on "Mandatory Pro Bono," supra note 9 ("So we're in a profession that has one of the highest (if not the highest) alcoholism, depression and suicide rates. And now we're expected to devote even more of our time to it?").