ESKIŞEHIR, TURKEY — Pro bono publico are three noble words uttered in law offices around the world. They’ve become a shorthand phrase to sum up the legal profession’s contributions to the public good. And that’s the problem, because our responsibility for the quality of justice is so much greater than that.
At the 8th Worldwide Global Alliance for Justice Education [GAJE] Conference at Anadolu University, which I attended here last month, one thing on the minds of 350 educators from more than 50 countries was how to increase pro bono service — legal work done for free for people without resources — especially from commercial law firms.
Some countries, including India, much of Europe, Russia and the United States, have well-developed networks of lawyers willing to do legal work for free. Others, including, for example, Pakistan, Nigeria and Jordan, are taking steps to create a culture of pro bono service.
Has access to justice improved?
But if a primary goal of pro bono is to improve access to justice in the United States and around the world, have we made progress? By most measures, the answer is no. The 40-year-old pro bono movement in the U.S. has not decreased the gap between those who can utilize competent legal help and those who have little hope of that.
No state requires pro bono service by lawyers. They encourage it, some make lawyers report their voluntary hours, and New York recently began to require 50 hours of service from law students, but not from lawyers.
American Lawyer, the industry publication, now gives points in its annual law firm rankings for pro bono hours reported, and there’s much chest-thumping about it, even though the publication noted recently that pro bono work is actually down across the U.S. As many as 80 percent of lawyers claim they do pro bono work. Yet in Minnesota, only 4 percent of lawyers reported that they gave 50 hours or more of pro bono service in 2014.
We should applaud the commitment that moves good-hearted people to give away skilled work to people who really need it. Other countries are seeing the meaning and challenge that pro bono work can provide to lawyers, exposing them to the dark realities of those who cannot get justice, when, for instance, they are cheated by a lender or employer, when their home or family relationships are threatened, or when they are displaced by war.
Unmet legal need is high and growing
The fact is, oft-touted reports of pro bono service can distract from other realities that the profession is not addressing. Unmet legal need is high and growing. Lawyers’ fees continue to climb to absurd levels, even as new graduates have difficulty finding jobs at law firms. Half of the people who are eligible for free civil legal services are turned away, as funding for legal aid has fallen to about half of what it was in the early 1980s. The only solid study of people of modest means, done more than 20 years ago, showed then that more than 60 percent of them didn’t go to a lawyer for help with a legal problem. That percentage has got to be higher today.
Plus, there are ways that pro bono culture has actually reinforced the poor justice record in the U.S. Over the years, as some legislatures cut funding for legal services, they often pointed to pro bono services as a substitute. In countries without any government-funded free legal services, pro bono may be desperately needed, but it must be implemented somehow without decreasing pressure on governments to pay for some services for those who cannot. Some employment discrimination lawyers believe that pro bono culture influences judges to reduce attorney fee awards, reasoning that if this is public interest work then the lawyers shouldn’t expect to be paid much for it. Their belief is that public interest work is defined as work done for free.
Government attorneys do work on behalf of the public by definition, but they and lawyers at nonprofits should not be the only attorneys who earn a living doing work for the good of the public.
A special responsibility
Indeed, our historic mission as lawyers, as embedded in the Rules of Professional Responsibility, includes the idea that every lawyer has a duty to her client, to the court, and is also “a public citizen with a special responsibility for the quality of justice.” That special responsibility can’t be borne with the donation of about one hour of work every week.
And as my friends in Pakistan, Nigeria, Jordan remove the barriers to constructing volunteer lawyer networks, and as colleagues in other countries seek to expand their volunteer lawyer networks, I urged them at our conference last week to keep this in mind: We must find ways in all of our work, paid and unpaid, to serve the public good and to improve the quality of justice.
Without affordable, meaningful access to justice, all of our societies fail in one of their most basic responsibilities, and, if we fail at justice, all the charity work in the world may mask, but will not undo, that truth.
Professor Ann Juergens is co-director of the Rosalie Wahl Legal Practice Center at William Mitchell College of Law in St. Paul.
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