Lot of deep thinkers on this board. You guys are really good at separating out the relevant issues and analyzing them in a thoughtful way. I can’t resond right now–the brilliance of the last few posts has me in a swoon.
And my counter to this argument is: the rules do make ASPIRING to do pro bono a requirement.
Please demonstrate your reasoning on that point. The model rules plainly say that a lawyer “should aspire” to do pro bono, but nothing happens to those who don’t aspire. Therefore, aspiring is not a requirement. The Illinois rules reach the same result in different words.
An interesting insight into the darkness of the tighty-righty mind: if there is no coercion, there is no requirement. As much as you piss and moan about coercion, its the only thing that would move you to do the right thing. This is so central to your cramped and constipated world-view, you assume it is true universally, that everyone thinks like you do, or if they don’t, there must be something wrong with them.
Luci, again, and like lots of other people in this thread, you are missing the point. The issue is whether a set of rules require an action. If one can fail to take such action and the rules do not provuide for any consequences, then the rules do not require that action. Therefore, a person who promised to abide by those rules has not broken that promise.
All throughout this thread I have repeatedly said that I am only talking about what the rules require. But you and several others take what I’m saying to mean that I won’t do anything unless I’m coerced to do so, which is a completely asinine conclusion to draw from what I’m saying.
Also, luci, your view is the one that is cramped and constipated. You take it as a given that doing pro bono work is the right thing for a lawyer to do, and you think that there must be something wrong with anyone who disagrees.
We of the Mother’s March Against Cognitive Dissonance have not yet selected our 2010 poster child. Have you, by chance, a recent photo?
I really can’t imagine anymore more richly deserving of a permanently harshed buzz than this illiberal doosh.
Douche, douche, douche…Douche of IRL, douche, douche, Douche of IRL…
I thought I had, upthread. To recap: apart from the plain meaning of the words in the code and the commentary thereon, we have the curious result from your reasoning that a requirement can only exist when enforced by a sanction.
So – let’s put it plainly: Is it your position that a requirement can only exist, by definition, if it is enforced by a sanction for non-compliance?
Again I draw your attention to the hypothetical I proposed earlier. If the Committee had desired to impose pro bono service requirements, but also wished to avoid situations where complying with such a mandate would be onerous, could they have crafted a similar code provision? Let’s assume they wished to avoid crafting a bright-line rule, and simply left to to each lawyer’s sense of honor to judge his or her compliance and the existence of sufficient onerous circumstances to justify the exception.
Wouldn’t the rule in those circumstances look very similar to this rule?
In other words, what could the committee have written to convince you that aspiring to pro bono work was a requirement if they did not wish to apply a sanction and a bright-line test?
If Rand Rover is not of good character, are there any penalties in regards to his continued action as a lawyer?
Edit: Psst, Bricker? We were talking in another thread about social security. I forget the thread. I asked you a question, can you answer it? I’m actually really interested in the matter, and you’re the only person with a brain that I know that’s supported it.
Why do you call that “a curious result”?
Say a client asks you to read a set of rules and determine whether the rules provide that he must do action x. You read the rules and determine that if the client does not do action x, then absolutely nothing will happen to the client or otherwise change in the world. And nothing happens if he does action x either. Stated another way, if one could create two worlds, one in which the client does action x and one in which the client does not do action x, then, vis-a-vis the set of rules you are looking at, one would not be able to tell the difference between the two worlds.
In that situation, are you telling me that it would be possible for you to counsel the client that the rules require him to do action x?
Yes.
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Your question is internally inconsistent. You have posited that the rule makers want to impose a requirement, but they don’t want to impose a sanction for failing to adhere to the requirement. That is impossible by the nature of a “requirement.”
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This is a curious bit of legal reasoning, especially coming from you. You are essentially determining the meaning of a statute based on your supposition of the writer’s intent. In other contexts, you stick to the plain text of the statute. The plain text of this statute quite plainly imposes no requirement.
I responded to this upthread. They could have provided that a lawyer “must aspire” to do pro bono or “must use his/her reasonable best efforts” to do pro bono. If the lawyer doesn’t do any (or enough) pro bono, then a disciplinary hearing could determine whether the lawyer had satisfied the requirement to aspire to do pro bono. A lawyer that fails to show that he/she aspired to do pro bono could be subject to some sanction (e.g., suspension or disbarment).
OK, Good. we’ve identified the crux of our disagreement, and it’s definitional in nature.
But the canon of ethics is not a criminal statute, to be construed strictly against the government and any conflict or ambiguity resolved in favor of an accused person. It’s a set of guidelines intended for officers of the court.
Yes . . . ? I assume that’s not it, is it Bricker?
So a promise is not binding unless there is coercion to compel it?
That would seem to be RR’s belief. Therefore, his word is worth nothing unless it is secured by the threat of punishment if it is not kept.
Well, thats what Rand Rover says, here:
However, Rand Rover has bested him with this rebuttal:
I think the rest of us would do well to stay out of this, until **Rand Rover **resolves his differences with Rand Rover.
Your “Therefore…” statement does not follow from its precursor.
Imagine you say to a child, “I promise to buy you an ice cream cone.” If you change your mind and refuse to buy ice cream for the child, you have broken that promise. The fact that there are no rules to compel you to buy ice cream for the child is irrelevant. The fact there there is no penalty for not buying the ice cream is irrelevant.
You may want to argue about whether you in fact made such a promise at all, but a penalty, or lack of one, is not relevant to keeping or breaking that promise.
Except that your credo that you aren’t bound by any promises you make, unless you can be punished for breaking them, makes you a scumbag.
OK, now tweak the facts a bit as follows:
You just paid several tens of thousands of dollars to be in the position to make the promise to the kid. The kid says “Hey, no skin off my ass (or yours) if you don’t buy the ice cream. But it’d be swell for you to promise to buy it (even though there will be no repercussions for actually failing to buy it). And, by the way, I won’t let you get the benefit of all that money you paid if you don’t promise to buy the ice cream.”
Who’s coercing whom in this scenario?
What the hell are you talking about? The promise I was talking about was the promise I made to abide by the professional responsibility rules. If those rules require pro bono work, I’ve broken that promise. If they don’t require pro bono, I haven’t. A set of rules requires an action if and only if there is some punishment for not doing that action. The professional responsibility rules don’t require one to do pro bono because there’s no punishment for not doing pro bono, so my failure to do pro bono does not mean I’ve broken my promise.
Your example is not on point because it’s not about a promise to abide by a set of rules.