The Gazette 1995

GAZETTE

JANUARY/FEBRUARY 1995

rejected a lawyer's constitutional

! challenge to an appointment to serve

I without fee as counsel for an indigent

' prisoner,

and an empirical study

| published in 1975 concluded that an

! average of 6.2% of American lawyers'

billable time was devoted to working

for little or nothing in "public interest

practice."

Some 30.2% of the lawyers

' surveyed, however, contributed no

such hours.

Mandatory

Pro Bono

Activities

In Ireland,

pro bono

work would not

appear to be particularly prevalent. As

| Brian Harvey,

Information Officer of

j the Simon Communities, pointed out

! in 1988:

[LJawyers are literate, they are

| versed in argument, they have access

to knowledge, to information, to

books, to texts, to libraries, they

I are tested in the courts, they are

skilled people.

Yet very few put

these skills at the disposal of

| voluntary organisations. . .

[PJro

\ bono

work. . is conspicuous by its

absence here.

! In such a context, it is worth noting

that, in recent years, American writers

such as Gaetke

and Rosenfeld

have

| proposed that a mandatory obligation

to perform

pro bono

work should be

imposed on the Bar. Gaetke attempts

to justify his argument by examining

the role of the lawyer as an officer of

the court; a label which places the

lawyer apart from other professionals

by stripping him of the right

automatically to charge for his

j services. This view of the lawyer is not

| a new one.

As far back as 1710 it was

| being argued in the U.S. that lawyers

should not approach their work as

experts for hire but rather as men

I devoted to fairness and justice.

The

! idea has also received support from

: members of the judiciary, such as

Chief Justice Cardozo, who has

I observed that a lawyer admitted to

practice "was received into that

ancient fellowship for something more

than private gain. He became an

officer of the court, and is, like the

court itself, an instrument or agency to

advance the ends of justice."

Chief Justice Cardozo's perception of

the role of the lawyer is not very

different to that of Chief Justice Hale.

Unfortunately for American indigents,

! however, the court of Chief Justice

! Cardozo was far less likely to sanction

uncharitable attorneys, preferring

instead to rely on the fallacy that

- lawyers remain "above" the market

and will view themselves as being

ethically bound to serve. As Schnapper

points out, however, "one searches in

S vain for a lawyer disciplined for

failing to give free legal assistance to

the indigent. . . although the frequency

of these occurrences is common

knowledge."

Gaetke provides a somewhat ironic

solution, suggesting, as he does, that

lawyers be compelled to live up to

"the ethical aspirations of the

profession." Such an idea is not a new

one. The Kutak Commission,

for

example, first proposed, in 1979, a

mandatory requirement of service

pro

bono publico

of forty hours per year or

the (financial) equivalent thereof. The

proposal, however, failed to win

support from the American Bar

Association's House of Delegates in

its adoption of the

Model Rules

January 1980. Instead it was watered

down to a mere recommendation that

lawyers become involved in such

activities.

In 1986 the A.B.A.'s Commission of

! Professionalism,

formed at the urging

of Chief Justice Burger, once again

stopped short of mandating

pro bono

activities. The Commission

proclaimed that "it would be

antithetical to the tenets of public

service to have to conscript lawyers to

Í assist the poor."

The courts have

similarly become reluctant to

"conscript" lawyers for such a

purpose.

Rosenfeld contends that this

"judicial backlash" reflects, more than

anything else, the concern that it is

unfair to single out the legal

profession to bear a burden that should

be more widely shared.

Gaetke, however, remains

unconvinced. While admitting that "it

would be preferable if all lawyers

freely fulfilled their ethical duties," he

contends that ethical dictates are

necessary to bring the less

conscientious in the profession up to

minimum levels of expected

behaviour.

It would appear in practice, however,

that the lack of a

pro bono

obligation

in both the U.S. and Ireland, has been

brought about by the professions' self-

interest in avoiding the imposition of

one.

While the majority of lawyers

will readily admit the indigent's need

of a champion, they will themselves

serve only those who offer a purse as

reward. For that reason, it is submitted

that some consideration might be

given to the introduction of a scaled

; system of mandatory

pro bono

work,

perhaps with the number of hours

work demanded by the professional

bodies reflecting the lawyer's

| income.

Lawyers may find such a

I scheme unappealing, but as Chief

j Justice Burger has said: "the dynamics

of the profession have a way of rising

to the burdens placed on it."

The potential benefits of such a

| mandatory

pro bono

scheme cannot be

doubted.

The State civil legal aid

scheme still precludes the Legal Aid

! Board from issuing legal aid

certificates in particular categories of

cases.

A mandatory system of

pro

bono

work could plug some of those

gaps. Perhaps more importantly for the

legal profession, such a

pro bono

system would serve to put a gloss on

its reputation. If the profession is to be

credible when it criticises the

Scheme

of Civil Legal Aid and Advice,

then it

must be willing, on occasion, to throw

off the cloak of the mercenary and

bear the device of the indigent's

champion upon its shield. As Mr.

: Justice Brennan pointed out only five

! years ago, "[i]n a time when the need

for legal services among the poor is

growing and public funding for such

services has not kept pace, lawyers'

ethical obligation to volunteer their

time and skills

pro bono publico

manifest."

Conclusion

One of the fundamental tenets upon

which our system of justice is built is

that the law applies equally to all.

Unfortunately, it remains the case that

the law is not as accessible for many

as it might ideally be. Indeed one can

' justifiably argue that many indigents