Pro Bono Publico
Posted by Wade on August 31st, 2006
It means “for the public good” in Latin. There is a very long-standing tradition in the law that obligates every lawyer to render free legal services to indigent defendants (criminal and civil). This tradition dates back to the 15th century.
In terms of criminal cases, lawyers are required to represent defendants if appointed by the court. In 1965, one lawyer tried to get out of an appointment by filing suit against the government claiming his appointment was a violation of the takings clause of the 5th Amendment (a rather crafty argument I think–some other interesting arguments have been made based on the takings clause, see this law review Article written by Kaimi Wenger; he argues slavery was a violation of the Takings Clause). The attorney claimed that his services as an attorney should be considered a taking for public use. He lost. His appeal was denied. The 9th Circuit Court said the follwoing to the attorney:
An applicant for admission to practice law may justly be deemed to be aware of the traditions of the profession which he is joining, and to know that one of these traditions is that a lawyer is an officer of the court obligated to represent indigents for little or no compensation upon court order. Thus, the lawyer has consented to, and assumed, this obligation and when he is called upon to fulfill it, he cannot contend that it is a ‘taking of his services.’ U.S. v. Dillon, 346 F.2d 633, 635 (1965).
In civil cases the law is only a little different. In the late 80s a Federal Court in Iowa required a newly admitted bankruptcy attorney to represent several indigents in a civil rights case. He refused. The fight went all the way to the Supreme Court and the attorney argued his own case and won a narrow 5-4 victory. Mallard v. U.S. District Court, 490 U.S. 296 (1989).
Nevertheless, the Model Rules of Professional Responsibility obligate attorneys to render 50 hours of unpaid services to indigents every year. California Business and Professions Code Section 6068(h) specifically states the following:
It is the duty of every attorney to never. . .reject, for any consideration personal to himself or herself, the cause of the defenseless or the oppressed.
My question is simply this: why is it that no other professional occupation is required to provide free services? Why can’t I go into my doctor’s office and get a free check-up once a year? After all, I’m poor as dirt! It all just seems so weird to me. Attorneys are constantly bashed and thought of as unethical thugs (and I don’t necessarily disagree with this generalization). But it seems a bit ironic to me that it’s the only profession giving so much of its time and services to indigents, free of charge!
It’s a great question. I’m not sure there are many other professions that could do this kind of work. It makes sense for physicians—of course, hospitals are required to provide emergency services, so in that way the physicians are working pro bono. There seems to be some element of pay scale: while a school teacher could give free tutoring and a mechanic could do free repairs, it would be a significant burden to them.
And what kind of pro bono work would these professions do for the poor: police officer, research scientist, train engineer, etc.
Comment # 1 left by BrianJ on August 31st, 2006
There seems to be some element of pay scale: while a school teacher could give free tutoring and a mechanic could do free repairs, it would be a significant burden to them.
What about criminal defense attorneys and solo practitioners who make an annual income equivalent to some schools teachers and mechanics? Indeed, it is often attorneys on the lower pay-scale rungs who do much of the pro bono work. I’m not convinced that it has to do with financial burden.
You make a good point about some professionals. But it is doctors that really stand out in my mind. And is it true that doctors working in hospitals who provide emergency services to indigents don’t get paid? I’m not sure this is accurate.
Comment # 2 left by Wade on August 31st, 2006
I’m a web designer, and I do pro bono work every now and then.. one such site is Poway’s PCLI program.
Disclaimer: My mother, who is on the city council, is the one that convinced me to do it
Comment # 3 left by Connor Boyack on September 1st, 2006
Wade,
As to the question of why attorneys are treated differently than other professions — doctors or bus drives or whatever — one salient factor is that attorneys are officers of the court. This means that they (we) have a responsibility to the judicial system. Attorneys are given special protections — such as attorney-client privilege — and special authority — such as the ability to issue a subpoena under their own authority as officer of the court and the ability to enter unsworn declarations in a case (rather than sworn affidavits) in support of a brief. They also have special responsibilities, such as acting in cases where a court appoints them.
However, pro bono is not truly mandatory. Many, many practicing attorneys never put in an hour of pro bono. The model rules are model rules, not a binding statute to any specific jurisdiction.
Comment # 4 left by Kaimi on September 1st, 2006
Kaimi:
You make a good point about being officers of the court with special privileges. And I can understand the obligation in that perspective. I also recognize that pro bono work is not mandatory and that the rules are only “model” rules. Yet California’s actual rule states that it is a lawyer’s “duty” to never. . .reject, for any consideration personal to himself or herself, the cause of the defenseless or the oppressed.
I guess my question is why aren’t doctors encouraged by the ethics of their profession to provide the same kind of free services?
Comment # 5 left by Wade on September 1st, 2006
Wade,
I thought about the lawyers in the lower pay scale, but I figured they are in the minority (and are certainly not the ones making the rules) so I thought their financial struggles would be overlooked.
What I meant about the doctors: yes, they are paid for their emergency room work on the poor, but the hospital is not. I imagine that if the hospital were paid for every single procedure then it would have more money and the doctors would be able to demand a higher pay from the hospital. So in that sense, the doctors are working for free.
Comment # 6 left by BrianJ on September 1st, 2006
Doctors actually lose money on medicaid patients because the actual cost of giving services is more than reimbursement. However, they aren’t compelled to take care of them, so I guess its only the good hearted and those that are second rate that are really taking their share of the medicaid burden.
A rule requiring everyone to see a certain percentage of Medicaid patients might help by evenly distributing the burden, but then how do the poor take the bus for three hours to get to their Doctor’s swanky suburban office? The public would prbably not like a percieved step toward (gasp) socialized medicine.
Comment # 7 left by Doc on September 1st, 2006
And having trained in a hospital as it was crushed out of business by its Medicaid burden, I can say that yes, it definitely requires taking a pay cut to stay.
Comment # 8 left by Doc on September 1st, 2006
Great thoughts Doc! Your point about medicaid makes a lot of sense. Thanks.
Comment # 9 left by Wade on September 1st, 2006