The Gazette 1995

GAZETTE

NEWS

JANUARY/FEBRUARY 1995

The Indigent's Search for a Champion:

Lawyers and

Pro Bono Publico

Practice

by Adrian F. Twomey, B.C.L. (N.U.I.),

M. Litt. (Dub.), Barrister-at-law;

Associate Lecturer in Law, National

College of Industrial Relations.

"Lawyers cannot escape being

officers of the court and cannot

escape. .

. pro bono publico

work,

which inevitably go[es] with the

special and exclusive privilege of

being allowed to represent others in

the court. . . I believe that thoughtful

lawyers would npt want it

otherwise."

- Judge Seiler,

Missouri Supreme

Court.

Introduction

The last two years have seen

previously unparalleled improvements

in the State's civil legal aid system. As

the Chairman of the Legal Aid Board,

Mr. Vincent Landy, S.C., notes in the

Board's most recently published

Annual Report

there has been a

sizeable increase in the State grant-in-

aid to the Board,

a substantial number

of new solicitors and support staff

have been recruited

and "a pilot

project which provides for the

participation of private practitioners

(to a limited extent) in District Court

work. . . has been put into operation.'"

In addition, the Minister for Equality

and Law Reform has quite recently

announced that fourteen new law

centres will be opened.

It is, therefore,

with some surprise that one notes that

the Chairman of the Bar Council, Mr.

Frank Clarke S.C., has, in that same

period, been particularly critical of the

State's civil legal aid system,

stating,

inter alia,

that the Minister for

Equality and Law Reform "seems to

be downgrading the level of service

being given to individuals who qualify

for legal aid."

In such a context it is

worth recalling that Judge

Vilhjalmsson of the European Court of

Human Rights held,

in the now almost

legendary

Airey

case,

that Mrs.

Airey's difficulties were with the legal

I profession rather than the State. Also

deserving of mention is Mr. Justice

Gannon's observation, in

Cosgrove v

The Legal Aid Board,

that:

The duty of administering justice

and adjudicating by due process

does not create any obligation on the

state to intervene in any private civil

litigation so as to ensure that one

party is as well equipped for their

dispute as is the other.

If one agrees with the reasoning of

both Judge Vilhjalmsson and Mr.

Justice Gannon, one might be so bold

as to suggest that the Bar Council

ought to be examining the efforts

made by its colleagues, rather than

those made by the Minister, to

vindicate the right of access to justice

of indigents.

In such a context, that

which follows attempts to outline the

scope of the moral and ethical duty

which lawyers have to work

pro bono

publico,

at all times bearing in mind

the fact that, as Brown and Marriott

point out:

Even for those who can afford it,

civil litigation is an extremely

expensive and hazardous

undertaking. Only if very

considerable sums of money or

fundamental rights principles are at

stake, is it worth contemplating. In

certain kinds of disputes the costs of

delay in resolution may be wholly

disproportionate to the amount in

issue.

The Origins of the

Pro Bono

Tradition

The idea of lawyers volunteering their

services

pro bono publico

seems to

have first been mentioned in an

EnglisH statute of 1495 which

provided that if a plaintiff could

establish that he was worth less than

£5 he could sue

in forma pauperis

and

have a sergeant-at-law appointed to be

his advocate.

If, however, such a

'pauper' lost his case, and could not

afford to pay the defendant's costs, he

i was condemned by the law to be

"whipp'd".

It does not stretch the

imagination very far then, to suggest

that this threat deterred at least some

thin-skinned souls.

Almost two centuries later, in

Scroggs

case,

the English Chief Justice, Sir

Matthew Hale, warned uncharitable

lawyers that "[i]f the court should

assign [a serjeant] to be counsel, he

ought to attend; and if he refuse we

would not hear him, nay, we would

make bold to commit him."

The provision by lawyers of services

free of charge to indigent litigants has

also been something of a tradition in

the United States, where it most

commonly occurred in the late

nineteenth and early twentieth

centuries. In 1868, for example,

Cooley thought it far from unusual to

state that a lawyer appointed to

represent an indigent defendant "shall

be paid by the Government'"

but if no

payment is authorised, the lawyer

owes a duty to his profession, to the

courts and to justice to serve without

compensation. Unfortunately, the

tradition has since largely died out,

although as late as 1965, in

United

States v Dillon)

the federal courts