Not Enough Meat on the Pro Bono Bone

By: Jay H. Ong
August 11, 2008

All too often when an attorney thinks of "free legal advice", the concept conjures up notions of the tenacious relative cornering you at family functions. Once quarried, they unyieldingly exact the expert's take on such intricate and socially significant matters as quelling the neighbor's annoying dog.

However, much as it might satisfy, this article is not an exercise in railing on the inconveniences of being sought out for free legal advice in social circles. A much more substantial issue is lawyers not being sought out enough to formally provide free legal services through pro bono work.

It is not intended to be a lecture. While I do occasionally provide pro bono services, I don’t do it nearly often enough, and I certainly do not expect to be recognized anytime soon as a leader in the provision of pro bono services. The point is a simple one: from a fundamental, principled standpoint, our legal system absolutely depends on access to legal services regardless wealth. It is key to the very notion of the adversary system that allows us to represent clients without regard for any personal, social responsibility for whether that client's position is right or wrong. If two adversary positions are both capably represented, the rationale, and the hope, is that justice will usually prevail.

Unfortunately, the insufficiency of pro bono services from a systemic standpoint causes much violence to this fundamental principle. It's also truly unfortunate on a personal level for many private practitioners, because pro bono work is among the most satisfying. Of all of the many cases that I've handled, one that I most remember is one of the most simple. I was asked to represent a woman in bankruptcy who had been told by doctors that the had an inoperable, and therefore terminal, aneurysm. Being of very modest means, she had never been able to provide much material comfort for her family. Perhaps not rightly but understandably so, she decided to incur substantial debt acquiring gifts for her family, expecting that the debts would never be repaid.

Then, the vagaries of life intervened. Doctors presented her with a new, experimental approach to surgery. It worked. She would live for the foreseeable future, but was then immediately faced with enormously unmanageable debts. Her lenders had ample evidence of luxury spending and ample grounds to prevent their debts from discharge in bankruptcy.

Providing this person with bankruptcy representation was extremely fulfilling. One of the less predictable reasons is that every one of the woman's lenders showed their own human understanding in ultimately agreeing not to pursue her.

I wish I were required to do it more often. We all should be. It's an unpopular opinion in private legal circles. Junior attorneys have more than enough responsibilities and not nearly enough time to attend to them. Senior attorneys question the fairness of being required to provide exorbitant salaries for their charges to work for free. The problem is particularly acute in bankruptcy circles, where a recent amendment to the Bankruptcy Code in 2005 did much to make bankruptcy less accessible to the least wealthy individuals, and drove many private practitioners from taking individual bankruptcy cases entirely. 

The bankruptcy Judges in the Southern District of Texas, in a further uplifting example, responded to these amendments by issuing a standing order construing certain of the more onerous requirements placed on attorneys as not applying to pro bono attorneys. From a strictly definitional standpoint, it may be a bit of a stretch, but no one should question its correctness.

At least in Texas, pro bono work by private practitioners also appears to be on the upswing. One recent survey found that pro bono work rose by nearly 15% in 2007. Still, examples of the insufficiency of relying on individualized efforts to fulfill this systemic need are also continuing to accrue. Public defenders, who rely on state government budgets to provide what otherwise amounts to free legal services for their entire practice, are increasingly struggling with budget constraints and outright reductions. In at least four states in 2008, public defenders have publicly stated that such constraints are jeopardizing their abilities to handle their case loads, and the Metro Conflict Defender Office in Georgia has announced its closure.

Requiring private attorneys and firms to provide greater minimum commitments to pro bono services each year would go a long way towards ensuring that our legal system, on which their livelihoods ultimately depend, functions as intended. Firms and lawyers can be given the option to fulfill their commitments with monetary contributions. Only Florida employs such requirements, and the policy is constantly under fire. Similar efforts have failed in several other states, including Texas.

Among the complaints is that an hourly requirement does not accurately track value because some attorneys provide hire quality services more efficiently than others. This criticism underscores the problem with looking at pro bono issues from an individual rather than a systemic standpoint. There will always be those that give more, and others less. That shouldn’t matter. It true that individuals' own consciences should be the guide as to where and how much they can or should commit their lives, but that doesn’t mean that we as a society cannot implement a baseline requirement confirming the lower threshold of acceptability. After all, that's the basic concept of having laws in the first place. Most importantly, we might all realize in giving that we’ve received far more in the process.