No Bono


Yesterday’s news: the Supreme Court of Mississippi is considering forcing lawyers to provide 20 hours of pro bono representation each year. It’s not suprising: Mississippi’s poor have great difficulty getting a basic education to the poor; I shudder to imagine the quality of representation they get.

Scott Greenfield, noting lawyers’ protestations that mandatory pro bono is forced servitude, says:

Lawyers are given a monopoly to practice law.  We are not like other occupations, but are provided a privilege that entitles us to represent other human beings.  With privilege comes responsibility.
. . . .
There’s no question that pro bono as a social responsibility of lawyers, even as a quid pro quo, is a good thing. But there’s a very real question of whether forced pro bono actually fills the huge need for those who cannot afford counsel in civil matters.

I agree with Greenfield that we lawyers are obligated to provide pro bono representation to the less fortunate. Twenty hours a year is not enough (a tithe of 200 hours would not be excessive, considering the heavily-protected monopoly we enjoy). But pro bono legal services are provided for the good of the public, and services provided because the law requires them are not, by definition, pro bono. If the Mississippi Supreme Court donates 20 hours of a lawyer’s time to the poor, the court is arguably providing pro bono services, but the lawyer? He is just paying a tax.

It’s not even a rational tax—as Greenfield notes, aside from the difficulty in matching lawyers’ competencies with clients’ needs, 20 hours of legal work is often enough to get the client into a serious mess, without getting him out of it.

Windypundit notes a further irrationality:

If it’s a good idea for the government to provide more free legal services to poor people, then it doesn’t matter where the money comes from. And if there’s a good reason lawyers should pay a larger-than-currently-normal share of taxes, then it doesn’t matter how the money is used.

The sensible way to provide legal services to poor people is to pay for them out of the public treasury. Then you let the ways-and-means folks figure out where to get the money. Maybe they can cut spending somewhere else, or maybe they can raise taxes. Heck, maybe they can even raise the cost of a law license. But these are two separate decisions. Linking them is a purely political maneuver.

(Since it’s the Mississippi Supreme Court that’s doing this — and make no mistake, you don’t get to be a judge without politics — there’s also the fact that the courts don’t have the power to levy taxes. That’s a pretty good reason for them to want to combine these issues, and also a pretty good reason why they shouldn’t be allowed to do so.)

The economist then suggests a refinement:

Establish a system of tradable pro-bono credits. I’m sure there are plenty of mergers-and-acquisitions lawyers who would happily pay a few thousand dollars a year for somebody else to fulfill their pro-bono work for them. And I’m equally sure there are plenty of lawyers who would love to spend their whole year helping low-income people if they could pay for it by selling their excess pro-bono credits to the mergers-and-acquisitions lawyers.

In this scheme, nobody is performing pro bono services. The mergers-and-acquisitions lawyers (does Mississippi even have M&A lawyers?) are paying a tax, and the other lawyers are on the government teat. It’s an interesting idea (charge the lawyers who don’t want to dirty their hands at their highest hourly rate, and pay those who do at their lowest?) but don’t call it pro bono.

Lawyers should provide pro bono services to the poor. We have been more fortunate in our opportunities than the vast majority of humans, and that creates in us an obligation toward society. That courts and bar authorities talk about making a mingy 20 hours of pro bono work mandatory is a pathetic reminder that so many, drawn to this profession by money, enter it thinking the world owes them something, when in fact it is the other way around.


6 responses to “No Bono”

  1. Liked the post. I once consulted with a Navajo family, and we used an interpreter for the elders to fully participate in the discussion. I wanted the interpreter to translate “pro bono” as something more than “for free.” I described what pro bono meant to me, and he turned and told the family that it meant “takes off his [her] shirt and gives it to you”. That was pretty much exactly what I meant.

  2. Mark, you “shudder” to think of the representation our indigent citizens receive? As one who represents indigent clients in MS and is also intimately familiar with the level of representation rendered by several other Mississippi lawyers who represent the underprivileged in our state, I have to tell you that your irresponsible condemnation indicates that you personally 1)do not know any of the lawyers I speak of and 2) apparently have no qualms with degrading the hard work that other lawyers do without first even doing us the favor of fact checking your assumption which is based purely on stereotypes.

  3. Just to be clear, I wasn’t endorsing the refinement I proposed. I was just pointing out that even if we shared the Mississippi Court’s mixed-up values and wanted to force lawyers to bear the cost of additional legal services to the poor, there was a better way to do it.

    As for Matt Baldridge’s objection, it sounds like a this is the same issue we run into discussing public defenders. In both cases, there’s a distinction to be made between the quality of the lawyers providing the representation and the quality of representation received by poor people. Even if the lawyers are spectacular, the overall quality of representation can be dismal if there aren’t enough of them to go around. That does seem to be the problem the Mississippi Court is trying to address by dragooning all lawyers into helping.

    By the way, judges are lawyers too, right? Or would representing poor people be conveniently unethical for them?

  4. Sounds pretty much like the state wriggling out of its responsibilities to provide adequate legal aid cover – on the cheap.

    It’s not strictly correct to say that the legal profession has created and nurtured this monopoly. If the state will never recognise legal professional privilege of any interlopers, there can never be any meaningful alternative to using defence lawyers – especially in criminal litigation.

    Which part of this is not forced or compulsory labour – for a self-employed person, presumably responsible for their own workload?

    Should the Bar Association not be funding a Supreme Court challenge? Is this not in the 13th Amendment?

    Should they not put forward a black street lawyer to front a test case – for maximum embarrassment?

  5. I don’t know what the hoopla is all about, we have been reporting our pro bono to the MS Bar for a few years now. Seems like people are coming to “defend” MS indigent defense lawyers, yet having been one and shared my “stories” personally with Mark, I think I am qualified to attest the the quality of lawyering that takes place around here. Plain and simple it sucks.

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