The Gazette 1995

GAZETTE

JANUARY/FEBRUARY 1995

minimum levels of expected behaviour.

j rejected a lawyer's constitutional ! challenge to an appointment to serve I without fee as counsel for an indigent ' prisoner, 20 and an empirical study | published in 1975 concluded that an ! average of 6.2% of American lawyers' billable time was devoted to working for little or nothing in "public interest ! practice." 21 Some 30.2% of the lawyers ' surveyed, however, contributed no such hours. In Ireland, pro bono work would not appear to be particularly prevalent. As | Brian Harvey, Information Officer of j the Simon Communities, pointed out ! in 1988: [LJawyers are literate, they are | versed in argument, they have access to knowledge, to information, to books, to texts, to libraries, they I are tested in the courts, they are skilled people. Yet very few put these skills at the disposal of | voluntary organisations. . . [PJro \ bono work. . is conspicuous by its 1 absence here. 22 ! In such a context, it is worth noting that, in recent years, American writers such as Gaetke 23 and Rosenfeld 24 have | proposed that a mandatory obligation to perform pro bono work should be j imposed on the Bar. Gaetke attempts to justify his argument by examining the role of the lawyer as an officer of the court; a label which places the lawyer apart from other professionals j services. This view of the lawyer is not | a new one. 25 As far back as 1710 it was | being argued in the U.S. that lawyers should not approach their work as experts for hire but rather as men I devoted to fairness and justice. 26 The ! idea has also received support from : members of the judiciary, such as j Chief Justice Cardozo, who has I observed that a lawyer admitted to practice "was received into that ancient fellowship for something more than private gain. He became an officer of the court, and is, like the court itself, an instrument or agency to advance the ends of justice." 27 Mandatory Pro Bono Activities by stripping him of the right automatically to charge for his

j the role of the lawyer is not very J different to that of Chief Justice Hale. Unfortunately for American indigents, ! however, the court of Chief Justice ! Cardozo was far less likely to sanction uncharitable attorneys, preferring instead to rely on the fallacy that - lawyers remain "above" the market 28 and will view themselves as being ethically bound to serve. As Schnapper points out, however, "one searches in S vain for a lawyer disciplined for j failing to give free legal assistance to the indigent. . . although the frequency of these occurrences is common knowledge." 29 Gaetke provides a somewhat ironic solution, suggesting, as he does, that lawyers be compelled to live up to "the ethical aspirations of the profession." Such an idea is not a new one. The Kutak Commission, 30 for example, first proposed, in 1979, a mandatory requirement of service pro bono publico of forty hours per year or j the (financial) equivalent thereof. The Association's House of Delegates in its adoption of the Model Rules in January 1980. Instead it was watered down to a mere recommendation that lawyers become involved in such activities. 31 proposal, however, failed to win support from the American Bar In 1986 the A.B.A.'s Commission of ! Professionalism, 32 formed at the urging j of Chief Justice Burger, once again stopped short of mandating pro bono activities. The Commission proclaimed that "it would be j antithetical to the tenets of public service to have to conscript lawyers to Í assist the poor." 33 The courts have purpose. 34 Rosenfeld contends that this "judicial backlash" reflects, more than anything else, the concern that it is unfair to single out the legal profession to bear a burden that should be more widely shared. 35 Gaetke, however, remains unconvinced. While admitting that "it would be preferable if all lawyers freely fulfilled their ethical duties," he contends that ethical dictates are necessary to bring the less conscientious in the profession up to similarly become reluctant to "conscript" lawyers for such a

It would appear in practice, however, that the lack of a pro bono obligation in both the U.S. and Ireland, has been i brought about by the professions' self- interest in avoiding the imposition of one. 36 While the majority of lawyers will readily admit the indigent's need of a champion, they will themselves serve only those who offer a purse as reward. For that reason, it is submitted that some consideration might be given to the introduction of a scaled ; system of mandatory pro bono work, perhaps with the number of hours work demanded by the professional bodies reflecting the lawyer's | income. 37 Lawyers may find such a I scheme unappealing, but as Chief j Justice Burger has said: "the dynamics of the profession have a way of rising j to the burdens placed on it." 38 The potential benefits of such a | mandatory pro bono scheme cannot be doubted. 39 The State civil legal aid scheme still precludes the Legal Aid ! Board from issuing legal aid certificates in particular categories of cases. 40 A mandatory system of pro bono work could plug some of those gaps. Perhaps more importantly for the legal profession, such a pro bono system would serve to put a gloss on its reputation. If the profession is to be credible when it criticises the Scheme of Civil Legal Aid and Advice, then it must be willing, on occasion, to throw off the cloak of the mercenary and I bear the device of the indigent's champion upon its shield. As Mr. : Justice Brennan pointed out only five ! years ago, "[i]n a time when the need for legal services among the poor is growing and public funding for such services has not kept pace, lawyers' ethical obligation to volunteer their time and skills pro bono publico is manifest." 41 One of the fundamental tenets upon which our system of justice is built is that the law applies equally to all. Unfortunately, it remains the case that the law is not as accessible for many as it might ideally be. Indeed one can ' justifiably argue that many indigents Conclusion

1 Chief Justice Cardozo's perception of 38