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GAZETTE
JANUARY/FEBRUARY 1995
are unable to gain access to the law at
all. As British Labour M.P., Paul
Boateng, has recently suggested,
however, the undertaking of a
reasonable amount of
pro bono
publico
work by lawyers would
undoubtedly help to ease the
problem.
42
Such an opportunity must
surely be welcomed by a profession
with what might most charitably be
described as "a distinct image
problem". The gauntlet has been
thrown down by Boateng, Gaetke,
Judge Vilhjalmsson
et al.
It remains to
be seen whether or not the professions
will rise to the challenge.
43
References
1.
State v Green
470 S.W.2d 571, 574 (Mo.
1971) (Seiler J. conpumng).
2.
Annual Report and Accounts of the Legal
Aid Board, 1992,
(Dublin, 1994).
3. From £2,685,000 in 1992 to £3,206,000 in
1993. The Minister for Equality and Law
Reform, Mervyn Taylor, T.D., announced
earlier this year that the State's grant-in-aid
to the Board will be increased yet again in
1994 (to £5,000,000). See column 1154,
Dáil Debates, 23 March, 1994.
4. Twelve new solicitors and twenty-nine new
support staff were recruited in 1993. See
Annual Report and Accounts of the Legal
Aid Board, 1992, op. cit.,
at 2. The Minister
has indicated that a further twenty-four
solicitors and thirty-four support staff will
be employed this year. See column 1155,
Dáil Debates, 23 March, 1994.
5. Annual Report and Accounts of the Legal
Aid Board, 1992, op. cit.,
at 2. At page 10
the Report states that "the Minister amended
tl\e Scheme in September, 1993, to
empower the Board to engage private
practitioners to provide legal aid services. . .
A pilot project for the involvement of
private practitioners in the Scheme [in
District Court barring, maintenance and
custody proceedings] has been approved by
the Minister and the Board's Grant-in-Aid
for 1993 has been increased by £100,000 to
fund this project."
6. Ten full-time and four part-time centres.
Column 1154, Dáil Debates, 23 March,
1994.
7. See,
inter alia,
"Incoming Bar Council
chairman slams state of the country's legal
aid system",
The Sunday Press,
8 August,
1993; "Barristers angry at legal aid plan",
The Irish Independent,
19 August, 1993;
"Big money for top 20 only, says Bar's new
Chairman",
The Irish Times, 2
September,
1993, and "Slow Justice",
The Irish
Independent, 2
September, 1993. See also
"Bar Council urges review of civil legal aid
scheme",
The Cork Examiner,
9 November,
1993; "Review of legal aid system sought ,
The Irish Times,
9 November, 1993; "Bar
Council fury at new Government cutback on
legal aid".
The Irish Independent,
9
November, 1993; "Barristers threaten to
quit legal aid scheme",
Irish Press,
9
November, 1993; "No legal aid cuts, Taylor
tells Bar Council",
The Irish Independent,
10 November, 1993.
8.
The Irish Times, 2
September, 1993.
9. In a dissenting judgment.
10.
Johanna Airey
v
The Republic of Ireland
(1979) 2 E.H.R.R. 305.
11
. Cosgrove
v
The Legal Aid Board, the
Minister for Justice and the Attorney
General,
Unreported, Gannon J., High
Court, 17 October, 1990.
12. As Geoffrey Bindman of the English Law
Society's
Pro Bono
Working Party has
pointed out, it is "neither realistic nor
decent to rest content with pleas for a
reversal of Government policy." Bindman,
"Debtors to our profession", (1993) N.L.J.
1789, at 1789.
13. Henry J. Brown & Arthur L. Marriott,
ADR
Principles and Practice,
(London, 1993), at
23.
14.
11
Hen.7,c.l2(1495).
15. Punishments carried out under Cromwell's
Barbones Parliament would appear to have
been even more violent. See further, R.
Egerton "Historical Aspects of Legal Aid"
(1945)61 L.Q.R. 89.
16. Chief Justice Holt did, however, observe
that he had no officer to perform the task
and that he had never seen it done (see M.
Bacon
A New Abridgement of the Law
•812).
17. 1 Freeman 389, 89 Eng. Rep. 289 (King's
Bench 1674).
18. T. Cooley
Constitutional Limitations,
(1868).
19. 346 F. 2d 633 (9th Cir. 1965), 382 U.S. 978
(1966).
20. Without distinguishing between civil and
criminal cases, the court concluded from
examining historical precedents that the
obligation "to represent indigents upon
court order, without compensation was well
established in the traditions of the
profession."
21. Handler, Hollingsworth, Erlanger &
Ladinsky, "The Public Interest Activities of
Private Practice Lawyers" 61
A.B.A.J.
1388
(1975).
22. Brian Harvey, "The Lawyer, the Vagabond,
the Justice and the Beggar"; a seminar on
Poverty and the Law organised by Coolock
Community Law Centre, the Free legal
Advice Centres and the Centre for the study
of Family and Social Welfare Law, held in
Trinity College Dublin on 19 November,
1988.
23. Eugene R. Gaetke "Lawyers as Officers of
the Court" (1989) 42
Vanderbilt Law Rev.
39.
24. Steven B. Rosenfeld "Mandatory Pro Bono"
(1981) 2
Cardozo Law Rev.
255.
25. For an excellent analysis of the historical
origins of this view of the role of the lawyer
see Rosenfeld
loc. cit.
26. Cotton Mather, "Officials and Lawyers" in
Bonifacius, An Essay upon the Good,
(1710), (Cambridge, Mass., 1966), 120-131.
27
Karlin v Culkin
248 N.Y. at 470-71. See
also
State v Rush
46 N.J. 399, 410, 217
A.2d 441, 447 (1966) where Chief Justice
Weintraub of the New Jersey Supreme
Court stated that: "A lawyer does not owe
free representation to any and every
indigent who chooses to demand it of him.
Rather the duty is owed to the Court, and it
is the Court's call that he is obliged to
answer. The duty is to assist the Court in the
business before it. The duty thus is an
incident of the licence to practice law. . ."
28. For a discussion of the role of the lawyer in
the market see, generally, Gerard Quinn
"The Right of Lawyers to Advertise in the
Market for Legal Services: A Comparative
Irish, American and European Perspective"
(1992) 20
Anglo-American Law Review 1.
29. Schnapper "The Myth of Legal Ethics"
(1978) 64
A.B.A.J.
202.
30. The American Bar Association's
Commission on the Evaluation of
Professional
Standards.
31. At present, the A.B.A. recommends that
lawyers provide fifty hours of voluntary
services per year.
The Times,
12 July, 1994.
32. A.B.A. Commission on Professionalism -
In
the Spirit of Public Service: A Blueprint for
the Rekindling of Lawyer
Professionalism,
(1986).
33.
Ibid.
The recently published report of the
English Law Society's
Pro Bono
Working
Party also stops short of recommending the
imposition on solicitors of mandatory
pro
bono
work. See not only the Report of the
Working Party, but also, for comment,
(1994)
N.L.J.
698, and
The Times,
12 July,
1994.
34. Shapiro
op. cit.
See cases such as
Bradshaw
v Ball
487 S.W. 2d 294, 299-300 (Ky.
1972);
State
v
Green
470 S.W. 2d 571, 573
(Mo. 1971);
Menin
v
Menin
79 Misc. 2d
285, 293, 359, N.Y.S. 2d 721, 730 (Sup. Ct.
1974), aff d, 48 A.D. 2d 985 (1975).
35. Rosenfeld
op. cit.
See also Tucker "The
Private Lawyer and Public Responsibility"
(1972) 51
Nebraska L. Rev.
367; Brennan
"The Responsibilities of the Legal
Profession" in
The Path of the Law from
1967,
(A. Sutherland, ed., 1968).
36. As argued by Gaetke
loc. cit.
37. Other alternatives are suggested by
Bindman, loc. cit., at 1790.
38.
Agersinger v Hamlin
(1972) 407 U.S. 25,
44.
39. Chief Justice Bhagwati, of the Indian
Supreme Court, claimed that public interest
litigation is "a highly effective weapon in
the armoury of the law for dispensing social
justice to the common man."
State of
Himachal Pradesh
v
A Parent of a Student
of Medical College, Simla
(1985) 3 S.C.C.
169, 176.
40. See Schedule A of the
Scheme of Civil
Legal Aid and Advice.
41. Per Brennan J.
Mallard v U.S. District
Court for the Southern District of Iowa
(1989) 109 S. Ct. 1814. Emphasis added.
42. See
The Times,
12 July, 1994.
43. This article originally formed part of a more
extensive work dealing with matters relating
to civil legal aid (a further extract from
which can be found in the 1994 volume of
the Irish Student Law Review; see Adrian F.
Twomey,
Competition, Compassion, and
Champerty: The Contingent Fee in Profile,
(1994) 4
I.S.L.R.
1). This part of that work
benefited from the perceptive observations
of Prof. Gerard Quinn, Anne Twomey and
Sinéad McSweeney. The opinions
expressed, however, are the author's own.
•