The Ethics of Pro Bono Service

Langford.CarolEarly in recorded history, lawyers—or their precursors—worked without compensation, except for the occasional “gratuities” they received. Today of course, things are much different. But every lawyer is exhorted by the Bar to help represent the poor and the disadvantaged. Despite this, legal aid lawyers are continually overworked and overwhelmed, not to mention underpaid.

Should every lawyer be required to perform pro bono service? The issue has been debated for the past 35 years among legal services lawyers, bar association officials and other representatives of both the profession and public interest groups. But little consensus has been reached.

One of the most compelling and widely discussed statements favoring mandatory pro bono was the testimony of Orville H. Schell, then-president of the Association of the Bar of the City of New York, before a U.S. Senate Judiciary Committee over a quarter of a century ago. Schell concluded not only that pro bono was “one of the profession’s principal obligations,” but that there was a “longstanding general lack of commitment by lawyers” to do this work.

Most controversial was his view that pro bono service should be mandatory. “Not to have it enforceable will leave the providing of these services right where it is now, on the shoulders of a few lawyers of good will while the great majority go merrily on their way.” Schell’s reasoning did not rest on the frequently advanced theory that lawyers hold a monopoly on legal work through their licensing; he pointed out that “plumbers and TV repairmen” were also licensed. Instead, he cited lawyers’ role in the administration of justice.

“I am now convinced, as a philosophical matter,” Schell stated, “that lawyers, unlike groups such as plumbers, manufacturers of can openers and oil barons (unhappily), undertake an obligation to the public when they enter the Bar. That obligation is to devote some portion of their professional life to the delivery of legal services at non-compensatory rates or no fees at all. Believing then, that the profession does have such an obligation, I submit that one way or the other, it must be made an enforceable obligation.”

I fully agree; Business and Professions Code section 6068 (h) states that it is the duty of an attorney “Never to reject, for any consideration personal to himself or herself, the cause of the defenseless or the oppressed.” For that Rule to have any real meaning, it has to be read as mandatory. Our new proposed California Rule 6.1 will state that a lawyer “should aspire to provide or enable the direct delivery of at least 50 hours of pro bono publico legal services a year.” Just think: With approximately 1.2 million or more lawyers in the country, if even half did the ABA proposed and California recommended 50 hours a year, that would mean 30 million lawyer-hours a year devoted to those in need.

The bottom line is that when every lawyer, no matter how small a practice or how large, participates either by providing services or by donating to one of the many legal aid offices, not only the poor but the entire legal system benefits. It makes us better people. It makes for a better image of lawyers. And yes, it helps someone in need.

I just wrote a check to a scholarship fund to help transitional law students (students in need who left college and did not go right into law school) with their law school tuition. It wasn’t for a lot; after all, I have a son in college. But someone out there will breathe a little easier knowing they have cash to help pay for their first year law books.

I’d say that’s the best money I have spent all year.


Carol M. Langford represents attorneys, accountants, doctors and nurses in matters before their licensing boards. She is an adjunct professor of ethics at U.C. Berkeley Boalt Hall School of Law.

Filed Under: Ethics CornerFeaturedPro Bono

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