The following article was published in the Winter 2003 (Volume 72, Number 2) edition of the UMKC Law Review, titled "Symposium on Innovations in Pro Bono Practice." To order a copy of the issue please visit the University of Missouri-Kansas City School of Law's website.
Introduction: Symposium on Innovations in Pro Bono Practice
Esther F. Lardent*
I am honored to provide the introduction to this edition of the University of Missouri-Kansas City Law Review and am delighted that the topic of pro bono publico service has now come into its own to such a degree that an entire issue of a law review has been dedicated to examining the various dimensions of pro bono practice. It is notable that this aspect of the lawyer's professional identity has evolved to a level of maturity and importance that warrants in-depth examination, greater scrutiny, and even reasoned disagreement.
The articles assembled for this publication underscore the dual nature of pro bono. Its growing impact and visibility arise not simply because it is a vital, if supplemental, tool for the delivery of legal services to the poor, disadvantaged, and disenfranchised, but primarily because pro bono is a symbol and a critical indicator of our vision of a just society, what it means, in a fast-changing world, to be a lawyer, and of how lawyers view and value themselves.
This compilation provides meaning on two levels. First, it offers practical and concrete guidance on pro bono practice to a degree relatively uncommon in law reviews. It also operates at a more theoretical and conceptual level, offering perspectives on the larger issues impacting our society and the lawyer's role in the world. Though my daily responsibilities focus on the former arena, my passion for pro bono stems from the latter - i.e., that our assumption, as lawyers, of a responsibility larger than and distinct from our obligations to our individual clients speaks volumes about our profession and our justice system.
In that context, the individual articles in this issue provide fascinating insights into a variety of larger concerns, including: whether society or the profession has the ultimate responsibility for ensuring justice; what it means, at the dawning of the millennium, to be a good lawyer, given the impact of, and response to, an increasingly dichotomized, de-personalized, and economically driven society and legal profession; and, finally, the roles that mediative institutions - most notably mega-law firms and law schools - can and should play in shaping the ethics and behavior of individual lawyers.
Public Versus Profession
While every other mature democracy, and many emerging democracies, unequivocally articulate a fundamental right to counsel in matters essential to liberty, fairness, and, in many societies, quality of life, and back that commitment with substantial per capita funding for both civil and criminal legal assistance, the United States stands out for its lack of public will to ensure meaningful access to justice. The absence of a right to counsel in vitally important civil and quasi-criminal matters (including child custody disputes, right to housing, habeas corpus appeals, immigration matters), coupled with severe under funding of the indigent defense function - the one aspect of representation where a constitutional right to counsel has emerged - are fundamentally at odds with our vision of the United States as a just society in which disputes and wrongs are resolved peaceably and fairly in the level playing field of the justice system. One major impetus for pro bono work in the United States, and one key reason that the U.S. has the strongest pro bono culture in the world, is the vast gap between the need for legal assistance and the limited legal resources available to the poor and disadvantaged.
How should the profession deal with this tragic and intolerable denial of justice? Who has responsibility for bridging the gap between need and resource - the legal profession, society as a whole, or both? Frustrated by the inability to secure substantial increases in funding for civil legal services and demoralized by the marginal impact of voluntary pro bono, a number of commentators and advocates increasingly support compulsory measures. Examples of such measures include a strategy to obtain a "Civil Gideon," i.e., a constitutional right to appointed counsel in civil legal matters, and altering ethics rules to transform the individual lawyer's currently aspirational pro bono responsibility into a mandatory requirement, subject to discipline.
Professor White's article on the occasion of the 40th anniversary of Gideon v. Wainright, a legal triumph which established a constitutional right to counsel for criminal defendants, offers a cautionary note for those enamored of the "Civil Gideon" strategy.1 She points out that the right to counsel, in a vastly under-resourced criminal system, often translates into a miscarriage of justice.2 If this is the case in the more easily defined, court-centered world of indigent defense, what would a right to counsel mean in a more nuanced and complex civil context, where many rights are most effectively enforced outside the courtroom, poor persons are plaintiffs as well as defendants, and the opposing party is not the state, but, often, another poor person? While conventional wisdom supports the push for a Civil Gideon, the shameful experience in the criminal context suggest caution, at best, about a solution that may provide no more than the semblance of justice, without real access and impact.
Surprisingly, not one author in this series has proposed mandatory pro bono as a solution for the existing needs-resources gap (with the exception of the law school context which, as noted below, is quite different). Proposals to mandate volunteer service for lawyers have come and gone during the past two decades, with little or no success. In part, this is due to many lawyers' passionate objections to the notion of compulsory service. In part, however, it is a recognition of the fact that while contributed services by lawyers are part of the answer, they cannot and should not be the sole or even primary means of ensuring equal access to justice. In a true democracy, providing just solutions is and should be a broader public responsibility--not simply the business of lawyers and courts. If pro bono is a flawed and partial solution, why all the attention, resources, and energy focused on it? In part, the rationale for pro bono, as articulated by Professor Russell in her article,3 is broader than simply meeting legal need. It springs from an assumption of a broader pivotal role in American society for lawyers. De Tocqueville noted, in his 1831 book, Democracy in America, that lawyers are as close to an elite or aristocracy as can be found in the United States. He demonstrated that privilege of education, status, knowledge, and monopolistic practice comes with a corollary responsibility to matters larger than one's practice, family, or daily life - a responsibility to cure injustice and preserve the integrity of the justice system.
The Good Lawyer
The practice of law has become popularized in the media and increasingly commercialized. Expectations - and the realities, for some - of compensation have reached levels unimaginable to an earlier generation of lawyers. The public and the profession increasingly define the value of lawyers in terms of notoriety and money, rather than competence and moral and ethical behavior. In the harsh light of 21st century legal practice, Atticus Finch may be viewed by many as a failure, practicing the wrong kind of law for the wrong kind of client, failing to take advantage of the C-Span and Court TV opportunities generated by a racially-charged and widely debated crime, and failing to ensure adequate payment for his services.
Pro bono offers a fundamental and important rebuke to standards of success that focus on profits per partner, media prominence, and the number of "Google" hits. The ethos of pro bono suggests that the best lawyers are those who make the time to help the poor, the powerless, and, yes, even the despised, despite the pressures of practice, and without expectation of reward or compensation. The prototypic successful lawyer is the highly-regarded expert in complex federal litigation whose services are sought by the world's most powerful corporations, who advises the nation's most powerful people, serves on distinguished bar and court committees, and is a certain draw at CLE programs. However, when viewed through the lens of pro bono, such a lawyer may not be perceived as a particularly good lawyer at all That distinguished and venerated lawyer lives in a society and a justice system increasingly polarized between "haves" and "have-nots." If this lawyer chooses to ignore the lack of due process in the criminal justice system and the erosion of human and civil rights and confidence in the justice system (due to lack of resources and access for many), then the pro bono perspective finds him or her to be lacking in ethical responsiveness and compassion - qualities necessary for a good lawyer.
It is heartening that the broader pro bono vision of good lawyering seems to be gaining. In October 2003, The American Lawyer (perhaps best known for making public, in excruciating detail, information on the revenues of major law firms and the compensation of their partners - information that in earlier times was not widely known even within the confines of the firms' partnership) launched its "A-List," an effort to redefine the qualities of great law firms.4 While profitability was, not surprisingly, one essential criterion for placement on the A-List, the other three criteria - pro bono, diversity, and associate satisfaction - reflect a new and hopeful vision of law firm credentials and success. Similarly, David Ball's piece on faith-based pro bono initiatives, while focused on the practical elements of creating an interfaith pro bono project, underscores the concept of pro bono as a corrective measure in an increasingly materialistic profession decoupled from larger notions of values and goodness.5
Law Schools, Law Firms, and Other Legal Institutions
Although the profession's ethics rules are couched in terms of the role and responsibilities of individual lawyers, institutions increasingly play a pivotal role in shaping and defining the ethical behavior of lawyers. These institutions include law schools, and employers, such as law firms, corporations, and government and public institutions.
Not surprisingly, since this is a law school publication, several of the articles in this issue focus on the role law schools can or should play in supporting pro bono practice and in promoting a pro bono ethos among their students. Law schools are powerfully transformative institutions, for good and for ill. Many commentators have noted the changes in perceptions, career goals, and values that occur during law school, including, most distressingly, a sharp decrease in the number of law students committed to full-time public interest careers. The premise articulated by Spain,6 Storrow and Turner,7 and Maute and Hill8 is that pro bono experiences for law students, whether voluntary or mandatory, offer exposure to important corrective values and experiences at an early stage of lawyers' development, shaping their perceptions and behavior through their lifetimes.
Studies conducted by the University of Pennsylvania School of Law, one of the earliest law schools to require that law students perform pro bono work as a condition of graduation, support this premise, demonstrating that students who undertook pro bono work (even those who did so grudgingly) reported a significantly heightened interest in making pro bono service an integral part of their professional lives after graduation. In light of the fact that law students appear to absorb, as if through osmosis, so much of the perceived wisdom about law firm prestige, rankings, comparative salaries, bonuses, and "perks," pro bono opportunities provide a much-needed sense of balance and perspective.
Jolie Justus' commentary focuses on the role that major law firms play in promoting (or, in the worst case scenario, deterring) pro bono participation by the firm's attorneys (one important disclosure is that much of Justus' commentary reflects the work of my own organization, the Pro Bono Institution, which has published a number of articles making the "business case" for pro bono).9 Like law schools, major law firms, directly and indirectly, promote a hierarchy of values and a vision of what it means to be a good lawyer. Many of those values, including hard work and long hours, zealous and aggressive advocacy on behalf of commercial and corporate clients, the capacity to attract and retain major clients, revenues and profits that meet or exceed those of comparable or "peer" firms, reflect the economic realities of large law firm practice. Large law firms are, after all, businesses. To succeed, Justus argues (and I agree), that pro bono supporters must demonstrate that pro bono makes solid business sense.10 In a business-like environment, pro bono must not only be valued for its contribution to the bottom line (however difficult it is to quantify that contribution), but must also mimic and echo the features of other core elements of firm structure and practice, including committee structures, written policies, and dedicated staffing.
Making the business case for pro bono in 2003 is necessary, but not sufficient. As I have posited, if pro bono operates not only on the practical dimension but also as a potent symbol of the non-material, larger aspirations and goals of lawyers and the justice system, it is important that it be presented, not only as an unqualified good in the practical sense, but also as an essential element of any legal institution. It is possible and entirely appropriate to make a convincing argument that pro bono makes practitioners better lawyers and law firms and legal departments become stronger institutions when they support and promote pro bono service by their attorneys. However, it is also crucial to underscore the importance of pro bono in making our society and the legal profession whole. Without pro bono, there can be no justice. Without justice, none of us - regardless of material success or professional prominence - can truly call ourselves good lawyers.
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* Esther F. Lardent is President and CEO of the Pro Bono Institute at Georgetown University Law Center and an adjunct professor of law at Georgetown.
1 See Penny J. White, Mourning and Celebrating Gideon’s Fortieth, 72 UMKC L. REV. 5153 (2003).
2 See id.
3 See Irma S. Russell, The Lawyer as Public Citizen: Meeting the Pro Bono Challenge, 72 UMKC L. REV. 4397 (2003).
4 The A-List 2003, AM. LAW., Sept. 2003, at http://www.law.com/special/professionals/amlaw/2003/2003_a_list.html.
5 See David T. Ball, Interfaith Legal Services: Taking Stock of a Faith-Based Pro Bono Initiative, 72 UMKC L. REV. 301 (2003).
6 See Larry R. Spain, The Unfinished Agenda for Law Schools in Nurturing a Commitment to Pro Bono Legal Services By Law Students, 72 UMKC L. REV. 4757 (2003).
7 See Richard F. Storrow & Patti Gearhart Turner, Where Equal Justice Begins: Mandatory Pro Bono in American Legal Education, 72 UMKC L. REV. 4931 (2003).
8 See Judith L. Maute & Cheryl Lynn Wofford Hill, Delivery Systems Under Construction: Ongoing Works in Progress, 72 UMKC L. REV. 377 (2003).
9 See Jolie L. Justus, Using Business Strategies and Innovative Practices to Institutionalize Pro Bono in Private Law Firms, 72 UMKC L. REV. 365 (2003).
10 See id.
