The Gazette 1995

GAZETTE

NEWS JANUARY/FEBRUARY 1995

The Indigent's Search for a Champion: Lawyers and Pro Bono Publico Practice

by Adrian F. Twomey, B.C.L. (N.U.I.), M. Litt. (Dub.), Barrister-at-law; Associate Lecturer in Law, National College of Industrial Relations. "Lawyers cannot escape being officers of the court and cannot escape. . . pro bono publico work, which inevitably go[es] with the special and exclusive privilege of being allowed to represent others in the court. . . I believe that thoughtful lawyers would npt want it otherwise." The last two years have seen previously unparalleled improvements in the State's civil legal aid system. As the Chairman of the Legal Aid Board, Mr. Vincent Landy, S.C., notes in the Board's most recently published Annual Report 2 there has been a sizeable increase in the State grant-in- aid to the Board, 1 a substantial number of new solicitors and support staff have been recruited 4 and "a pilot project which provides for the participation of private practitioners (to a limited extent) in District Court work. . . has been put into operation.'" In addition, the Minister for Equality and Law Reform has quite recently announced that fourteen new law centres will be opened. 6 It is, therefore, with some surprise that one notes that the Chairman of the Bar Council, Mr. Frank Clarke S.C., has, in that same period, been particularly critical of the State's civil legal aid system, 7 stating, inter alia, that the Minister for Equality and Law Reform "seems to be downgrading the level of service being given to individuals who qualify for legal aid." 8 In such a context it is worth recalling that Judge Vilhjalmsson of the European Court of Human Rights held, 9 in the now almost legendary Airey case, 10 that Mrs. Airey's difficulties were with the legal - Judge Seiler, Missouri Supreme Court. 1 Introduction

fundamental rights principles are at stake, is it worth contemplating. In certain kinds of disputes the costs of delay in resolution may be wholly disproportionate to the amount in issue. 13

The Origins of the Pro Bono Tradition

The idea of lawyers volunteering their services pro bono publico seems to have first been mentioned in an EnglisH statute of 1495 which provided that if a plaintiff could establish that he was worth less than £5 he could sue in forma pauperis and have a sergeant-at-law appointed to be his advocate. 14 If, however, such a 'pauper' lost his case, and could not afford to pay the defendant's costs, he i was condemned by the law to be "whipp'd". 15 It does not stretch the imagination very far then, to suggest that this threat deterred at least some thin-skinned souls. 16 Almost two centuries later, in Scroggs case, 17 the English Chief Justice, Sir Matthew Hale, warned uncharitable lawyers that "[i]f the court should assign [a serjeant] to be counsel, he ought to attend; and if he refuse we would not hear him, nay, we would make bold to commit him." The provision by lawyers of services free of charge to indigent litigants has also been something of a tradition in the United States, where it most commonly occurred in the late nineteenth and early twentieth centuries. In 1868, for example, Cooley thought it far from unusual to state that a lawyer appointed to represent an indigent defendant "shall be paid by the Government'" 8 but if no payment is authorised, the lawyer owes a duty to his profession, to the courts and to justice to serve without compensation. Unfortunately, the tradition has since largely died out, although as late as 1965, in United States v Dillon) 9 the federal courts

I profession rather than the State. Also deserving of mention is Mr. Justice Gannon's observation, in Cosgrove v The Legal Aid Board, 11 that: The duty of administering justice and adjudicating by due process does not create any obligation on the state to intervene in any private civil litigation so as to ensure that one party is as well equipped for their dispute as is the other. If one agrees with the reasoning of both Judge Vilhjalmsson and Mr. Justice Gannon, one might be so bold as to suggest that the Bar Council ought to be examining the efforts made by its colleagues, rather than those made by the Minister, to vindicate the right of access to justice of indigents. 12 In such a context, that which follows attempts to outline the scope of the moral and ethical duty which lawyers have to work pro bono publico, at all times bearing in mind the fact that, as Brown and Marriott point out:

Even for those who can afford it, civil litigation is an extremely expensive and hazardous undertaking. Only if very considerable sums of money or

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