Forcing Lawyers to Perform Pro Bono Services, Part II

Posted in: Law Practice

Last July, I argued that the government should not force lawyers to perform pro bono services. The following month, Joseph A. Sullivan, Special Counsel and Director of Pro Bono Services at Pepper Hamilton, LLP, wrote a thoughtful rebuttal. His arguments merit a response. We both agree that it is a good thing when lawyers decide to give their time to help the less fortunate. Where we part company is on the issue of the state’s compulsion.

We also agree, “lawyers have a monopoly in that only licensed lawyers can practice law.” Then disagreements begin. He says, “In order to justify a monopoly that excludes others, those holding the monopoly should be expected to give something back that reflects and justifies the privileged position they hold.”

Granted, the law gives lawyers a monopoly to practice law. Unauthorized practice of law is typically a crime. Nonlawyers cannot represent others in court (although they can represent themselves). However, the state gives dentists a monopoly. Only dentists can engage in the practice of dentistry. Yet, the law does not require dentists to offer free dental services for the poor.

By the way, laws in many states license a host of other occupations. The list often includes manicurist, undertaker, hair stylist, and so forth. The law does not require them to perform pro bono services. If someone dies with no money to pay for a funeral, the state picks up the cost. It does not force the undertaker to work for free.

The state typically justifies its reasons for granting a monopoly to protect us. Lawyers typically tout the license as a way to protect clients from incompetent nonlawyers. That purpose does not justify using the monopoly as an excuse to tax lawyers by requiring them to offer free services, just as the monopoly for dentists does not justify forcing dentists to provide free dental care.

Many people think that people should have basic medical care even if they are too poor to afford it. Hence, the federal government created ObamaCare. It did not simply order all doctors to give free medical services to the less fortunate. Instead, it created a complex (indeed, massively complex) statute to provide for universal coverage; taxpayers and all who pay insurance foot the bill for others. Society pays for this societal good.

Mr. Sullivan acknowledges that “requiring 50 hours of pro bono may be ‘akin to a tax,’” but it “is a tax imposed in exchange for a privilege, namely, the right to practice law to the exclusion of non-lawyers who cannot do so.” That seems to argue that the purpose of granting the monopoly to lawyers is not to protect consumers but to give lawyers a monopoly in order to make them serve some people without pay—indigents now. Later, the politicians may add other categories. (E.g., free lawyers to navigate the complete election finance laws, so politicians don’t have to pay.) If that’s the purpose of the monopoly, we should eliminate it.

Mr. Sullivan next argues that the state must force lawyers to provide free legal services because people cannot “‘opt out’ of the system.” Hence, “all those affected by the operation of law should have some level of access to it, particularly in areas of fundamental legal needs and rights, such as legal defense in housing and eviction proceedings, and hearings that can lead to termination of parental rights.”

The cases do not go nearly as far as he suggests. For divorce, in one case, welfare recipients seeking divorce challenged state requirements for payment of court fees and costs for service of process. Boddie v. Connecticut did not give them free lawyers, but only invalidated the court fees, as applied to those too poor to pay them. That means that society, as a whole, must absorb the loss of those fees. Boddie imposed no burden on lawyers.

In other cases, the Court is even less sympathetic. You could be too poor to go bankrupt. United States v. Kras upheld the provisions of the Bankruptcy Act imposing fees as a condition of discharge in voluntary bankruptcy.

In Ortwein v. Schwab, indigents objected to paying a $25 appellate filing fee: without the filing fee, they could not appeal the adverse welfare decision reducing benefits. The Court rejected the claim. The sought-after increase in welfare benefits is not a fundamental right, and payment of welfare to the poor is in the area of economics and social welfare where the Equal Protection Clause is satisfied by a showing of rationality. The Court never required the state to provide free lawyers, only to provide a hearing. As for the appeal, the Court did not require the state to waive the filing fee for indigents.

Little v. Streater invalidated, as applied, a Connecticut statute that provided that in paternity actions, the party requesting the blood test must pay the costs. There was a denial of due process to require indigents to pay for them in light of the “unique” quality of blood grouping tests as a source of exculpatory evidence and the state’s prominent role in litigation. (The state was a party to this action and would receive any court-ordered support payments.) Yet, even here, the Court did not require counsel to provide free services.

Even in criminal cases, there are limits to the power of courts to force lawyers to work free. In 1987, DeLisio v. Alaska Superior Court, for example, reversed the contempt conviction of a lawyer who refused to accept a trial court’s order to serve as appointed counsel. Quoting from an 1854 Indiana opinion the court said that a lawyer’s “professional services are no more at the mercy of the public, as to remuneration, than are the goods of the merchant, or the crops of the farmer, or the wares of the mechanic.”

DeLisio added, “requiring an attorney to represent an indigent criminal defendant for only nominal compensation unfairly burdens the attorney by disproportionately placing the cost of a program intended to benefit the public upon the attorney rather than upon the citizenry as a whole.” An attorney should receive “just compensation,” defined as the rate reflecting compensation received by the average competent attorney operating in the open market.

The fact that the ethics rules do not, should not, or cannot impose a mandatory pro bono obligation on lawyers does not mean that lawyers should not do pro bono work. The essence of volunteerism is that the person volunteer, and mandatory pro bono is not volunteering. It reminds me of the old definition of a liberal: he doesn’t care what you do as long as it’s compulsory.

As Mr. Sullivan notes, I argued that “if the concept of mandatory pro bono was extended to current members of the bar, senior partners in large firms would simply delegate the pro bono work to young associates.” His response is to make the pro bono obligation non-transferable. “However, if the pro bono service rule were personal to each lawyer, i.e., it could not be transferred to another lawyer, then senior lawyers could not shift their pro bono duties to more junior colleagues.”

In practice, that is not what the Bar ever does. It imposes the burden on the younger lawyer. Hence, in late August, California Governor Jerry Brown vetoed a state law that would have required prospective lawyers to complete at least 50 hours of supervised pro bono work before admission to the bar. He said, “it would be unfair to burden students with the requirements set forth in this bill.”

If the purpose of pro bono is to help indigents, requiring senior lawyers to perform the work personally is counterproductive. Let’s say a New York partner charges $850 per hour for her services, primarily mergers and acquisitions. The law will make that lawyer perform 50 hours of pro bono, for an opportunity cost to the lawyer of $42,500. If the court assigns the lawyer to a divorce matter (many pro bono matters are divorces), she may spend that time interviewing the client, negotiating support or separation terms with the adversary lawyer, learning what the law is in this area, learning where the family court is, making several appearances in court, and so on. She may complete one or two divorces during that time. How is society better off if the lawyer spends 50 hours doing what a full time family practice lawyer could do in 10 hours for substantially less than $850 per hour?

If the purpose of the pro bono rule is to help the indigent, it makes more sense for society to spend that $42,500 to hire other lawyers who specialize in indigent family matters. That illustrates, by the way, why mandatory pro bono is really a tax. But, why should only lawyers pay the tax?

Society should tax all of us to help the poor — that’s what we do to implement food stamps. Instead, Mr. Sullivan is arguing that society should force lawyers to work without pay. In practice, the rule always places the burden on the younger lawyers, not the senior partner. It’s a regressive tax. If the courts impose a transparent tax on lawyers based on their ability to pay, one wonders where they get that power. I thought the legislature imposes taxes and set the rates, not the state court.

Mr. Sullivan is certainly correct that working on pro bono cases (or any cases) can provide “skills training and perspectives to young lawyers that might not otherwise be available to them.” That is why some lawyers might want to engage in pro bono work. It is a utilitarian reason and not an altruistic one, but if it encourages lawyers to volunteer to engage in pro bono work, I’m all for it. However, it is no justification for compulsory pro bono, for it just says, the state knows better than you do what is better for you. Remember that old saw, “I’m from the Government and here to help you”? There’s a reason people laugh when you say that.

There is an old Chinese proverb, if I recall correctly. If you want to be happy for an hour, take a nap. If you want to be happy for an afternoon, go fishing. If you want to be happy for a month, go on a vacation. If you want to be happy for a year, get married. However, if you want to be happy for a lifetime, help someone. That will give you contentment that will last. There is no such contentment if the state forces you to do it.

Posted in: Law Practice

Tags: Legal, Pro Bono

5 responses to “Forcing Lawyers to Perform Pro Bono Services, Part II”

  1. Dom Greco says:

    Excellent reasoning. Very persuasive if one approaches the issue from the perspective of reason, rather than emotion. Unfortunately that is not the approach I expect that many will take.

  2. Greg says:

    Prof. Rotunda makes a good point that requiring pro-bono services of lawyers that do not possess relevant skills is a poor use of time and money, particularly in the form of opportunity cost. Similarly, he correctly points out a number of problems with the specific details of how these programs may be proposed or implemented in ways that disproportionatly impact early-career lawyers. Nevertheless, there are a number of factual and conceptual problems with this article that undermine some of what would on its face appear to be its stronger arguments.

    One factual objection is that we do obligate certain health-care providers to give free services, or at least effectively free services, to the poor. Specifically, hospitals operating an emergency room are required to treat individuals regardless of their ability to pay. Under many circumstances, this amounts to free care in the situations where the individual is not able to pay, but is not covered under one of the existing government programs.

    As another factual problem, the government program that provides free healthcare to the poor is called Medicaid. It was established in 1965 as Title XIX of the Social Security Act. This predates the Patient Protection and Affordable Care Act by more than 4 decades. To insinuate that all medical programs that benefit the poor are aspects of “ObamaCare” is either ignorant or deceptive. (Admittedly, the ACA included some expansion of the Medicaid program, but this is insufficient to support the idea that all medical care for the poor is in the ACA.) Normally this would be an excusable minor mistake, but Prof. Rotunda appears to be trying to establish guilt by association in likening a licensing requirement of pro-bono work by lawyers to the conservative boogeyman of “ObamaCare.”

    I am willing to concede that certain cases may make requiring pro-bono work unacceptable as a matter of law (certainly DeLisio v. Alaska Superior Court makes it unacceptable in Alaska) but that doesn’t make it wrong as a matter of policy. Professor Rotunda keeps repeating that states don’t require dentists to provide free services as though this somehow proves his point that requring pro-bono services is bad as a matter of policy. It doesn’t. At best, this allusion is begging the question by assuming why we don’t require similar care from dentists. Requiring dentists to provide some specified number of hours of free dental care as part of maintaining their license makes some sense. However, dentists have significant non-labor costs such as lab fees that generally would not apply to lawyers, so requiring them to provide free dental labor would not necessarily make the provided care free to the recipient. Even this isn’t enough to establish that requiring dentists to provide free labor to the poor would be inappropriate as a licensing requirement.

    To be fair, I don’t actually have a strong opinion on this issue, and I really do think Prof. Rotunda makes some good points on the inefficiencies of enforced pro-bono policies. We both agree that enforced pro-bono work isn’t charity. However, that doesn’t excuse the use of incorrect facts or inapplicable allusions to form the basis of argument.

  3. Thomas Amoroso says:

    I will note for the record that the author was quite careful in his choice of monopolists. He chose dentists. Not, say, emergency physicians, who are obliged by EMTALA to
    provide their services for free (yes, we can bill the patient. Who is almost always very unable to pay, and so receives services for free). Or any other physician who is so unfortunate as to be on call when the uninsured person arrives. Etc. I think you get the point. I am not as sympathetic as you might like to your otherwise excellent points; if it were as simple as you say there would be less complaining about lawyers. But absent a true commitment by the bar as a whole to the concept that none shall go without an attorney or the services of law they require, as medicine has (with, I admit, no great joy), I will continue to have less sympathy than you might wish.

    • Patrick James says:

      The emergency physicians generally provide their services at hospitals. Setting aside some unique contractual issues, many hospitals employ the emergency room physicians. And, the hospitals enjoy tax free status for giving away those same charitable services. If you want to drop taxes on my law firm in exchange for 50 pro bono hours, I’d be interested in discussing that with you.

  4. Frank Willa says:

    Professor, thank you for your response to Mr. Sullivan. You can see my response to his commentary as to some of what I thought were the practical objections. My view of your commentary here lies with what strikes me as an openly hostile attitude toward liberals; that is both misplaced and misguided. The disrespect regarding the ” … as long as it is compulsory” and “…I am from the government and am here to help” are removed from context and I think that you should retract these sentences. Taking the second one first; there was a time in the 1930s when many Americans were in dire straits and when a government worker came upon desperate, and near starving citizens and offered life saving aid it was most welcome – not ridiculed. My recollection is that also paraphrases some thing that President Roosevelt said on one of his visits to rural America. As to the first I admit I have not heard that one before; it strikes me as a ” conservative slur” mis -characterizing a legitimate use of government implementing a policy that some conservative did not agree with.

    As to the notion of “compulsory” pro bono; it seems to me that it would be challenged in court starting with it may violate labor laws as a form of ” off the clock” work. I would think many lawyers would come up with many other challenges on many other grounds.
    As a liberal who thinks that the conservative ” replace government services with volunteerism and non- profits” was a policy that let the fair and non- discriminatory government that dealt with all citizens, and treated them equally under the law, be replaced with a catch as catch can, hit or miss, work some of the time, fail some of the time volunteerism; this pro bono proposal demonstrates that the concept has been taken too far – revealing the flaws and limitations.