A Necessary Flogging:
Why Pro Bono is Part of the Deal
By Michael J. Ford

It seems that every Bar president has to flog about the hindquarters that doughty steed we call “pro bono.”  I had hoped that by the time I was asked to write these columns that we as a profession in Minnesota would sit well enough in this particular saddle that our mount would surge ahead without further prompting.

Sadly, I must report that recent conversations with attorneys whom I respect a great deal have convinced me that much as I feel this subject has been flogged inordinately in the past, another Bar president must yet again take up the subject.

Charity It’s Not

What caught my attention lately was the argument that pro bono was “charity work”—that to represent the indigent without expectation of payment was fine as far as it went, but that it was charitable work and that the organized bar had no business telling attorneys how and in what way they should be charitable. 

Pro bono representation is not charity; it is part of the deal that we made when we signed up to be officers of the court and members of the bar. 

For example, University of St. Thomas School of Law Professor Neil Hamilton recently penned an article in The Professional Lawyer entitled “Professionalism clearly defined.”  In that article Professor Hamilton notes that:

Public service is an important element to all these professionalism definitions.  Each lawyer should devote professional time to serve the public good, particularly by representing pro-bono clients … .”1

And, of course, we have the Rules of Professional Conduct, Rule 6.1 of which carefully explains what we are to do with respect to the representation of the indigent.2

Pure self-interest on the part of the practicing bar dictates that the unmet legal needs of the indigent be addressed.  Doing so is not “charity.”  It is part of the social contract, part of the “deal” between the larger society and the profession. 

The Social Contract

On the one hand, attorneys are allowed to self-regulate and control the professional aspects of their practices.  On the other hand, the profession agrees to provide all members of society with equal access to the legal system entrusted to us.  To the extent that the profession fails to fulfill the access component of that social contract it invites more regulation by state and federal agencies (think about the accountants for a moment in that regard).

Let me make one further point and I will shut up (for now).

Closely allied to the “it’s charity” argument is the notion that attorneys are being asked to do something that no other profession or group in society has to do and that it is unfair to expect us to do that. 

Sorry, I don’t have much sympathy for that argument.   We have service men and women right now (some of them now members of the legal profession) fighting and dying in the armed forces.  That’s something that the rest of us don’t have to do, something that most of will never be asked or agree to do. 

But, it’s something they signed up for; it’s part of their deal with society.
Just like satisfying the unmet legal needs of the indigent is part of our social contract with society as attorneys.

Not a Tough Issue

Dithering about the nature and meaning of this responsibility leaves the legal needs of the indigent unmet, puts our relationship with society at risk, and detracts from our ability to work on all of the other real issues confronting the profession.  Pro bono should not be a difficult issue to understand.

So let’s give the steed its head, sit high in the saddle, and make sure we all give it its due.  It reflects poorly on the profession that we need to keep flogging it. s

Notes
1 Hamilton, “Professionalism Clearly Defined,” 18 The Professional Lawyer 4 (2008), note p. 60.
2 Rule 6.1: Voluntary Pro Bono Publico Service
Every lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should aspire to render at least 50 hours of pro bono publico legal services per year. In fulfilling this responsibility, the lawyer should:
(a) provide a substantial majority of the 50 hours of legal services without fee or expectation of fee to:
(1) persons of limited means; or
(2) charitable, religious, civic, community, governmental, and educational organizations in matters that are designed primarily to address the needs of persons of limited means; and
(b) provide any additional services through:
(1) delivery of legal services at no fee or substantially reduced fee to individuals, groups, or organizations seeking to secure or protect civil rights, civil liberties, or public rights, or charitable, religious, civic, community, governmental, and educational organizations in matters in furtherance of their organizational purposes, where the payment of standard legal fees would significantly deplete the organization’s economic resources or would be otherwise inappropriate;
(2) delivery of legal services at a substantially reduced fee to persons of limited means; or
(3) participation in activities for improving the law, the legal system, or the legal profession.  In addition, a lawyer should voluntarily contribute financial support to organizations that provide legal services to persons of limited means.

MICHAEL J. FORD is president of the Minnesota State Bar Association. A shareholder in the law firm of Quinlivan & Hughes, P.A., St. Cloud, Minnesota, he is a graduate of St. John’s University and received his J.D. from the William Mitchell College of Law. He concentrates his practice in the areas of civil litigation, insurance coverage, employment and government liability, and land use and general casualty law.