Is it time for mandatory pro bono?
Thursday, September 15, 2011
- Organization: The National Law Journal
The U.S. legal system is facing a crisis of unparalleled proportions that threatens the heart of our democracy — our commitment to the rule of law, our courts and our legal profession. The gap — more accurately now a chasm — between the need for legal assistance and the availability of free legal services for the poor has been repeatedly documented in legal needs studies and most recently highlighted by The New York Times. With the spike in the U.S. poverty population resulting from the Great Recession and the precipitous drop in funding and staffing of legal services programs, it's likely that the documented 80% of low-income Americans without access to a lawyer has grown to an unthinkable 90%. Today, poor families in the wealthiest nation in the world — and moderate-income people as well — have a far better chance of winning the lottery than of finding the justice we promise our people.
If the legal services crisis isn't troubling enough, we now have a crisis in the courts. As the Times has also noted, "deep budget cuts and increased caseloads have created long delays and a denial of basic access to justice." Courts are reducing and furloughing staff, delaying hearings and trials, and even closing their doors. The lack of legal assistance for the poorest and least knowledgeable litigants has exacerbated the pressure on the courts and added to an already overwhelming caseload. Studies indicate that unrepresented litigants are flooding the courts. As an example, between 90% and 99% of those coming to court to fend off evictions from their homes do so without the assistance of the lawyer.
Looming over all of this is the most disturbing aspect of the current situation — the fact that the response to the crisis outside of the legal profession has been, for the most part, government inaction and public silence and apathy. The legal aid crisis and the courts crisis have morphed into a justice-system crisis. Other than lawyers, who is standing up in support of our nation's prized justice system? At a time when, in Middle East nations and elsewhere around the world, people are risking their lives for what we have — the rule of law, an independent judiciary, an ethical and trusted legal profession — we are at risk of losing what we have created and nurtured since our nation's inception. When our people and our policymakers believe — and see — that our justice system is inaccessible, it is not surprising that they are not rushing to its defense.
Given the dimensions of the crisis — and its roots in the lack of access to justice and lawyers — is it time for the profession to address the lack of access by mandating pro bono service by every lawyer for those in need? That option is certainly under consideration by bar associations and legislatures in jurisdictions as diverse as Mississippi and California. My answer to the issue of mandatory pro bono, despite the unparalleled dimensions of the current crisis, is not yet. For both philosophical and highly pragmatic reasons, I believe that mandatory pro bono should be the last possible resort. However, there is much that the legal profession — all segments of the profession — can and should do to ease the crisis and restore the public's faith in our justice system before resorting to mandatory pro bono. We must take bold steps now.
• "Voluntary plus" pro bono. Without mandating pro bono, we can and should assume that every lawyer will undertake pro bono service and should act accordingly. The current pro bono distribution system spends inordinate amounts of time on recruiting individual attorneys. Instead, the courts, legal services and pro bono programs should reverse the operating assumption and view all lawyers as volunteers, unless they specifically opt out of participation. This fundamental shift in culture and perspective will require more streamlined and efficient systems for distributing pro bono work and more resources for the public interest groups and courts that will do so.
• Law student pro bono. This is one area where pro bono participation can and should be mandated. Including a substantial pro bono contribution to the American Bar Association law school accreditation standards — e.g., 150 hours during the course of law school as a condition of graduation — would create additional pro bono resources while promoting an appetite for pro bono and teaching tomorrow's lawyers how to integrate pro bono into a busy schedule. It is also time for a more profound change in legal education — one that ensures that law schools are more affordable, while providing the tools and skills to make students marketable in a transformed legal market and in a manner that truly serves the needs of the public.
• Pro bono as a criterion for leadership. No lawyer should be eligible for any leadership position — the bench, public office, bar association board or officer positions — who has not consistently undertaken pro bono work.
• Revise ABA Model Rule 6.1. As one of the co-authors of the ABA's model rule on pro bono adopted in the early 1990s, I can candidly state that it is seriously out of date. Given the scope of the crisis we are facing, the rule's overly broad definition of pro bono — which currently includes discounted fees and bar association service — cannot and should not stand. Pro bono should mean free legal work done on behalf of low-income or disadvantaged clients, period.
• Bar association contributions. Bar associations — local, state, specialized and national — need to walk the walk when it comes to pro bono. That means that all bar associations should include in their annual budgets a significant financial contribution to one or more legal services programs in their area. And bar associations should also make support for adequate funding for the Legal Services Corp. at the federal level and legal assistance programs at the state and local level their highest legislative priority and act accordingly. If we truly believe that pro bono and access to justice are the highest values of our profession, our professional associations need to act in a manner consistent with that belief.
• Make pro bono reporting meaningful. Although several states require annual reporting of pro bono time, and others strongly encourage such reporting, the current reporting system — mandatory or voluntary — is ineffective because only the aggregate results are available and because there is no effort to ensure the accuracy of the information provided. To be useful, pro bono reporting needs to be disaggregated and transparent, with procedures in place that promote consistent and accurate reporting.
• Triage and simplification. The growing trend toward self-representation in legal matters has created enormous burdens for the courts and may, absent quality-control measures, result in bad outcomes and bad law. We need an effective triage system — one that diagnoses clients' legal problems and determines the best and least costly legal intervention. For some clients and matters, that will mean brief service and advice, education about legal issues and rights, pro se representation, mediation and negotiation, unbundled legal services or nonlegal assistance; for others, full representation with zealous advocacy by a lawyer. At present, we fail to distinguish the nature of the need and the optimal and practical legal process; given the crisis in resources, we cannot continue to do so. And, we must accept the fact that our justice system, as currently configured, is far too complex and adversarial. We need to simplify the law, delegalize those matters that are not be st dealt with in a courtroom setting, and admit that, in appropriate matters, trained nonlawyers can provide effective assistance.
The proposals above require major changes in our access-to-justice system. Those changes will not come easily, and critics will find many reasons and practical concerns regarding why they can't or won't work. We need to be willing to work out those details and embrace change — the current crisis leaves us no other option. We cannot continue to accept and live with a justice system that is profoundly broken. As the Times article stated, "these courts may continue to process cases, but they will be less and less able to deliver justice."
If we are committed to delivering justice, to being part of a profession and a system of justice of which we can be proud and which the public respects and values, we must accept the responsibility of making profound changes now. If we do not, it will not be long before others — most notably state legislatures, which are becoming restive — will make those changes for us, ending our long tradition of self-regulation. When that happens, the question of whether we should mandate pro bono and/or tax ourselves to support legal services will be out of our hands.
Esther F. Lardent is the president and chief executive officer of the Pro Bono Institute.