Pro Bono Services: Why, When and How

Why provide pro bono service? You will enjoy the variety of people you will meet, and you’ll sleep better at night. But still we ask “What’s in it for me? Doctors are under no ethical duty to provide pro bono medical services for those without means to pay. The Hippocratic oath, ‘first do no harm,’ does not say ‘You’re fortunate to have access to this specialized education and knowledge. Use it wisely for the common good.’”

Historical foundation of pro bono service. Marlene Coir’s essay[1] “Pro Bono and Access to Justice in America” locates the foundation of pro bono legal service in the ancient paradigm that lawyers are members of the governing class. It was a tradition based on the idea that attorneys, as court officers, provide access to government, and should work in pursuit of the common good.

“In the twentieth century, governing-class lawyers advocated for the common good through organizations such as the NAACP and the National Consumers League while enjoying lucrative employment within the private sector. Cause lawyers, working for and paid by public-interest organizations, evolved in pursuit of the same goals as the governing-class lawyers; however, their services is said to come from a sense of moral commitment to a particular set of issues or objectives.”

Access to Justice and the European Model. Taking a comparative law approach, “legal services” for those who cannot afford a lawyer in some countries are provided by new lawyers who do not yet have an established clientele. In Italy, counsel may be appointed but are not compensated from public funds. The task of representing persons of modest means is left to less experienced and younger members of the bar. In some countries, the “cost of legal representation is ameliorated by ‘fees schedules.’” Agreements for a higher fee are subjected to stringent requirements to protect against exorbitant fees. Even when exorbitant fees are agreed and charged, they may be reduced by the court.

In Europe, persons of modest means may not face the up-front costs of litigation that we have in the United States. The prevailing rule in the United Kingdom and continental law, unlike the rule in the United States, allows the prevailing party to recover attorney’s fees from the losing party as part of “costs.” As a policy, this tends to reduce litigation but it heightens risk and creates a less dynamic legal system. To alleviate this risk, there is commercially available legal-expense insurance. Further, in many civil-law countries, legal aid is a public function regulated by law. See, Perspectives on Legal Aid: An International Survey (1979) F.H. Zemans, Ed.

Under these statutory schemes, which differ from country to country, counsel is provided in civil as well as criminal cases. The plaintiff makes a basic showing of a meritorious claim, meaning the claim is not frivolous. There are formulas for determining in pauperus and modest means qualification. These areas of the law are rapidly changing, and the assistance may only extend to help in preparing legal documents.

However, contingency fees are prohibited in civil law countries, as they are considered unconscionable. Ethics aside, contingency fee cases allow litigants in the U.S. (in those cases where they are permitted) to obtain counsel without payment of hourly attorney fees.

Pro Bono and Volunteer Services in Contra Costa County. You might consider joining the Contra Costa County Law Library’s Lawyer in the Library program, now in its seventh year. Lawyers work together to give direction and advice to regular citizens who cannot afford private counsel. To join us, call the Public Law Library at (925) 646-2783 or email Carey.Rowan@LL.cccounty.us for more information.

Other attorneys volunteer to be trained as mediators and provide free mediation services at the Contra Costa County Superior Court. Since 2002, The Congress of Neutrals, a not-for-profit, has trained scores of attorneys in mediation skills, and these and other mediators have mediated more than 8,500 civil cases (small claims, unlawful detainer, civil harassment) cases at the courthouses. To be trained as a mediator, please contact Barbara Suskind, Board Chair, The Congress of Neutrals (925) 937-3008.

Contra Costa County also has many workshops and clinics published monthly in the CC Lawyer. To see a sampling of how attorneys volunteer their time, please look at http://www.cccba.org/flyer/Legal_Workshops.pdf. The Senior Self-Help legal clinic provides a legal clinic every Tuesday morning. The Family Justice Center provides service in two locations, Richmond and Concord. Their services are victim-based, and focus on domestic violence, child abuse, elder abuse and sexual assault. Persons seeking service receive an hour-long meeting with an attorney, who helps them fill out paperwork, check forms, whatever is needed. Both the Family Law Section and the Probate Section of the County Bar Association are active in providing clinical assistance in their respective areas. See the calendar here. 


Tom Cain is a member of the Board of Trustees, Contra Costa County Public Law Library. He is a member of the Board of Directors, The Congress of Neutrals, and teaches mediation to law students at John F. Kennedy College of Law in Pleasant Hill.  

[1] 54 Michigan Law Journal (October 2011)

 

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