The Gazette 1995

GAZETTE JANUARY/FEBRUARY 1995

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. •

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, 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 (1710), (Cambridge, Mass., 1966), 120-131. 27 Karlin v Culkin 248 N.Y. at 470-71. See

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