Not when it’s their christian name…
In that case, don’t they generally say, “Judge Hand”?
For Maeglin:
The gist of the article is that it has only been in the last few decades that pro bono service has come to mean actively seeking out causes to work on for free. Prior to the 1970s, pro bono obligations were more associated with an obligation to sometimes take clients that came to you without regard to their ability to pay. Consequently, it was an obligation that simply didn’t apply to many kinds of lawyers.
The arc of change has been toward more proactive obligations. In the intervening decades, the revisions of the ABA model rules included heated debate over creating a mandatory pro bono requirement enforceable by disciplinary procedures. Each time, the provisions have been rejected in favor of aspirational provisions that are not enforceable by disciplinary measures.
With respect to the 2000 amendments, the author writes:
Judith L. Maute, Changing Conceptions of Lawyers’ Pro Bono Responsibilities, 77 Tul. L. Rev. 91, 146 (2002).
Thank you very much. I’ve been giving this subject way too much thought lately given that I am not even an attorney. The author’s interpretation certainly does not seem crazy though by no means above question. I am skeptical of the idea that the rule “clearly” rejects the passive professional paradigm on the grounds that the phrase itself is a bit of a weasel.
But for my part, I am definitely persuaded that the rules are heading in that direction. Reflexive, pat interpretations of obligation (more precisely, lack of such obligation) or whatever remain as uninteresting and unconvincing as ever.
Bolded here for you:
IMHO, the big shift that the ABA is signaling is for lawyers to move from a mostly passive pro bono position to a much more proactive pro bono position.
Lawyers tend to provide pro bono services on an ad hoc basis, mostly by continuing to carry clients who have tanked, by occasionally taking on a worthy client or worthy cause more or less by happenstance, by taking legal aid clients (resulting in some payment but tremendously less than cash client files – around here about ten to twenty cents on the dollar), or by getting legal information into the community or across the profession. Few firms have formal pro bono programs. My take on what the ABA is ultimately moving toward is for lawyers to actively set up pro bono programs on a much more formal basis, so that pro bono will be a part of a lawyer’s regular practice, and people seeking pro bono services will have greater access to such services.
For example, here in Ontario, a fairly recent development is Pro Bono Law Ontario, which assists lawyers setting up pro bono programs, and through it’s Law Help Ontario program, matches potential clients with lawyers offering pro bono programs. It is not politically correct to oppose such developments, but at the same time there is not a line up of lawyers enrolling in this program. My guess is that if that there was a push for make participation in the program compulsory, there would be a groundswell of opposition.
From my own personal position, although I perform a lot of pro bono work (about a new car per year’s worth), I run with my hair on fire away from formalizing pro bono services and from attempting to make pro bono services more pro active, for every hour I spend dealing with a pro bono program’s bureaucracy will be one less hour that I will spend actually performing pro bono work. I like the freedom and flexibility of not being in a formal program. I expect that a lot of other lawyers might feel the same way, despite their already performing pro bono services and their already recognizing their responsibility to perform pro bono services.
I also expect that a lot of lawyers might be a bit miffed at pro bono being made compulsory, when society itself is not willing to fund those services. Certainly I would oppose pro bono being compulsory, despite my performing a lot of pro bono services, for I would look at it as the government dodging its responsibilty. I guess that’s the Canadian socialist side of me coming out.
Finally, I think one needs to look at who is pressing for more formalization of pro bono services. It is not the recent calls who are putting in brutal hours just to keep from being booted out the door, or the sole practitioners or small firms who are struggling to keep aflloat. It is the well established lawyers who have the resources to devote to changing the system, be it by being benchers, or by participating in the ABA, or by setting up pro bono programs at the state/provincial level. If they were to make pro bono compusory, it might be the staw that breaks the camel’s back, so they instead make incremental changes to the system that are less likely to meet significant resistence, for example, in the instance of Illinois, by reminding lawyers of their responsibility to provide pro bono services, but not going as far as to assign a penalty for failing to meet that responsibility.
I can see why the ABA drafted its model the way it did, and I can see why Illinois drafted its rules and commentary the way it did. As it stands, pro bono is acceptable to the profession, but if a more pro-active and more formalized pro bono were pushed on the profession in part through making it compulsory, there might very well be a backlash that would set the cause back rather than move it forward.
Ironically, Muffin, it is the lawyers like Rand Rover who choose NOT to do any pro bono work in part because there are no rules forcing them to… that will eventually lead to just such a situation that does not work for you. A situation where, to eliminate the hair-splitters and cheaters like Rand Rover, a bureaucracy of a compulsory pro bono system will have to be put in place.
So Rand Rover’s stance is leading the way towards a compulsory, complex, mandated system of pro bono work for all lawyers.
I’m going to laugh my ass off when that happens. It’ll be almost as good as the comeuppance Rand Rover received after he “danced upon the grave” of health care reform.
An excellent assessment of the issue. Law professionals are not an easy group to push into doing something they don’t want to.
This makes absolutely no sense. That’s like saying childless families who don’t adopt orphans are eventually going to be mandated to adopt. Good luck with your fantasy.
A ridiculous analogy. Not all childless couples are fit to adopt orphans; in many cases that is why they are childless. My late wife was 18 years older than I, and when we got married I was 31 (you do the math). We actually considered fostering kids, since she had been a foster child and had an interest in “paying it forward”. Then we found out what we would have to go through to be permitted to take in foster children - her age and health was a prime stumbling block, and to be frank at the time I had a bit of an anger issue problem, which did not enter into our relationship but I suspect would have limited my ability to have the patience in dealing with children.
It’s great that you’ll be enjoying the comeuppance unlike the people in need who now don’t know if the lawyer actually cares and wants to help, or putting in a halfhearted effort because he has to.
There are also couples who just don’t want to. Get the analogy now?
Yep.
This analogy would make more sense if the marriage license had a clause that every couple who entered into a marriage had a responsibility to either bear children or adopt.
I think you are just acting dense but I’ll play along.
No analogy is a perfect reflection. One could argue the couple are expected to bear or adopt children because of the benefits they get from the system by the virtue of being a family.
The point you are pretending to miss is, even if you bring that clause into the license you probably wouldn’t see a rise in adoptions, rather a drop in marriages itself or people looking for some other loophole. Not to mention such a clause would not be fair and those who do so out of coercion might not do a good job.
You can’t force goodwill and charity, it has to come from within.
To further complicate the matter, there is the conflict between law societies and governments in a couple of areas.
First, there is the issue of self-regulation. Lawyers want to regulate themselves through their own law societies. Governments want to govern. Law societies tend to be concerned that if they do not meet the concerns that the public presents to the government, then the government will step in and start regulating lawyers for whatever those concerns might be, rather than continuing to let the lawyers through their law societies decide how to meet the public’s concerns.
Second, there is the issue of paying for the public’s legal needs. Access to justice is a cornerstone of first world civilization. Most people cannot afford legal representation in serious matters. To try to deal with this conundrum, governments usually provide legal aid funding for the poorest of the poor, but even then there are nowhere near enough funds to do the job. At the same time, a great many people in the general public do not want to see their hard earned dollars taxed by the government and spent on criminals being defended so they can continue to rob and murder, or on welfare bums fighting for custody of the children they are abusing. Law societies tend to be concerned that if they do not negotiate some degree of downloading, then governments will step in and force even more downloading onto the backs of lawyers.
Here are a couple of examples to illustrate how this plays out.
Here in Ontario, we have a legal aid system that is funded by the government and the lawyers together. In 2008, the government provided $283,888,000, and the lawyers kicked in $56,419,000 by way of handing over the interest earned from their general trust accounts. The most recent issue of Canadian Lawyer reported that the actual rate received for legal aid work was $36 per hour (a result of a low basic rate of about $100 per hour combined with severe limits on how many hours will be paid for regardless of how many hours a lawyer must work on a file). This has led to most lawyers either not accepting legal aid cases, or only accepting a very limited number of legal aid cases. That in turn has led to the courts being clogged with self-represented people, which leads to increased court costs, and to more people not having access to justice. Everyone agrees that the legal aid system is in crisis due to underfunding, however, it is easier for the government to tell lawyers that they should work for free than it is to tell the public that either taxes have to go up or access to justice has to be reduced. The result? The founding of Pro Bono Law Ontario by the lawyers. From a lawyer’s perspective, it is far safer to put a voluntary pro bono program in place that is run by lawyers than to risk the government making pro bono services mandatory in a scheme run by government bureaucrats.
In Victoria, Australia, the legal aid system has been in crisis just as it has in Ontario (and a great many other jurisdictions as well). The greater the problem of underfunding legal aid became, the greater the pressure to find other ways of providing access to justice, and the greater the push to download the government’s responsibility for access to justice onto the backs of lawyers by making pro bono mandatory. In this instance, pro bono was not made mandatory across the board, however, the government legislated that if a law firm wants to do legal work for the government, then 5% to 15% of its total billable hours must be pro bono, with the firm with the higher percentage of pro bono hours being given greater consideration than the firm with the lower percentage when awarding the government tender. Essentially, it is a legal kickback scheme, with free legal services going to third parties who otherwise would be funded by the government, rather than cash being directly exchanged.
What it comes down to, is that society has a great appetite for legal services, but governments do not want to pay the tab, so instead, a lot of pressure is put on lawyers to work for free. Law societies try to negotiate the best arrangements they can, with a view to keeping the legal profession self-regulating, and with a view to avoiding having government pro bono schemes imposed on lawyers.
No, the problem is your analogy misses the point entirely.
The point is that if I willingly and voluntarily choose to take on a position, whether it be a bar certification, a job at a company, or as a spouse in a marriage, and there are rules and responsibilities associated with that position, then it doesn’t matter what kind of enforcement there is or how much I agree or disagree with them. I agreed to abide by them, and by not abiding by them I’m shirking my responsibilities at the very least, at which point it’s not unreasonable for someone else to wonder why I took on the position if I wasn’t going to take on the responsibilities associated with it.
Restating again: The fact that the responsibilities are written out and understood before the position is ever accepted is the whole freaking point, which is why your analogy fails, because there is currently no expectation, written or otherwise, that a couple must procreate or else adopt.
Bosstone, thew whole issue here is that you, SFG, EL, and others are not understanding the scope of the “reponsibilities” that a lawyer takes on my becoming a member of the bar. A lawyer does not promise to do pro bono by taking the oath.
The analogy is for your benefit. It is to help you understand the pitfalls of the argument you are supporting. Feel free to not catch the line I’m throwing you (another analogy).
Then you take on the penalty set up by the institution, fair enough?
Exactly, because it would be ridiculous and wouldn’t work out even if you wrote it out or expected. So, we shouldn’t even look into whether it is written out or expected. It wouldn’t work either way because of the voluntary nature of the act, just like adoptions.
Um. Right.