September 27, 2010 § 3 Comments

The only thing I am hearing on mandatory pro bono (MPB) from lawyers in east Mississippi is stony silence.  You would think that a measure with so many ramifications for lawyers, particularly small-town lawyers of which we have many, would provoke a major reaction.

Meanwhile, down the board, you will find an earlier post and some insightful comments from lawyers in other parts of the state on the subject, the latest from John Gillis in Water Valley, who makes some points that deserve your consideration. 

Although I think Mr. Gillis and others make some valid and even persuasive points, I do disagree with their argument that MPB constitutes a form of involuntary servitude.  In my opinion, that argument is is based on a business-model view of the legal profession, a view that is incomplete and incorrect.  The law is a profession and not a business.  Lawyers have a duty to the administration of justice. 

The Preamble to the Rules of Professional Conduct states:  “A lawyer is a representative of clients, an officer of the legal system and a public citizen having special responsibility for the quality of justice.”  [Emphasis added]  It goes on to say:  “As a public citizen, a lawyer should seek improvement of the law, access to the legal system, the administration of justice and the quality of service rendered by the legal profession … A lawyer should be mindful of deficiencies in the administration of justice and the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance.  Therefore all lawyers should devote professional time and resources and use civil influence to ensure equal access to our system of justice for all who, because of economic or social barriers, cannot afford or secure adequate legal counsel.”  [Emphasis added]     

Mr. Gillis is perhaps too young to remember the days when all lawyers were subject to that infamous telephone call from the Circuit Judge to come defend an indigent prisoner.  That practice persisted until counties began hiring public defenders to do the job.  Back then I did not know a single attorney who refused the judge on the ground that the requirement was a form of Marxism (as Mr. Gillis characterizes it).  Those of us who were fairly competent accepted the burden as an obligation of the profession, not always gladly I assure you, but always with the understanding that it was our professional responsibility. 

I also do not understand the significance of the point that no other state has MPB.  How does that matter?

As for the other arguments, I think they are sound and need to be considered.  I am not sold on the idea of MPB, although I do lean toward it as a solution to a major problem facing the courts and the bar. 

It does seem to me that two things are necessary before a final decision is made on MPB:  First, much more study needs to be done; and second, many more lawyers’ voices’ need to be heard.  The silence on the subject is baffling to me.

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  • John Gillis says:

    “Mr. Gillis is perhaps too young to remember the days when . . .”

    I’m 50 years old and have been a trial lawyer for 20 years. Heck, I’m eligible for AARP membership.

    Your comments actually bolster my arguments. Pro bono (or limited fee) representation is required when a local judge appoints counsel for an indigent citizen who has a constitutional right to counsel. I have no problem with that. That type of representation has everything to do with taking the government to task and forcing the prosecution to meet its evidentiary burden before a citizen is deprived of his liberty interest. As I pointed out, this is markedly different than a rule that mandates as a condition for keeping one’s law license EVERY lawyer in the jurisdiction (well, except judges, government lawyers, and those whose employer prohibits such work) provide pro bono legal services to civil litigants who do not have a right to counsel and whose liberty is not in jeopardy. We need to be very clear that counsel appointed by a trial judge to represent a citizen who has a constitutional right to a lawyer and whose liberty interest is at risk is not the same as the mandatory pro bono for civil litigants in the proposed rule. Apples and oranges, I submit.

    Please know that my position is not based on some sort of “business model view of the legal profession.” I agree with the preamble to the rules. The language of the preamble is in accord with my argument — keep pro bono as an aspirational and voluntary activity. Notice the use of the word “should” in the preamble, to-wit: “[A] lawyer SHOULD seek improvement of the law . . . A lawyer SHOULD be mindful of deficiencies in the administration of justice and the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance . . . [A]ll lawyers SHOULD devote professional time and resource . . .” (Caps supplied for emphasis.) Compare the preamble language to proposed Rule 6.1. The proposed rule is absolutely at odds with the aspirational goals articulated on the preamble.

    Despite your characterizing as repugnant my suggestion that the policy implicit in the proposed rule is akin to the Marxist philosophy of, “From each according to his [or her] ability, to each according to his [or her] needs,” I will stand on my analysis because I believe that the analysis is spot-on with respect to pro bono mandated by the state for civil litigants having minimal financial means.

    The fundamental problem with the proposed rule is that those proposing it failed to employ critical thinking to the issue, failed to do any meaningful research or investigation, and failed to consider second and third order effects.

    The preamble to the Mississippi Rules of Professional Conduct states in part: “As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients; employ that knowledge in reform of the law and work to strengthen legal education.” I think I’ve done that with respect to the mandatory pro bono issue.

    • Larry says:

      Thanks for more food for thought. You’ve obviously given this a lot of consideration.

      You and I will not agree on the Marxism thing. If you can’t see the distinction I’m trying to draw, there’s no point in belaboring it because I don’t and won’t yield to the Marxism angle.

      You do make some excellent points, particularly that this whole thing needs a lot more study and thought about the side-effects. I wonder whether the committee that cooked up this proposal had enough inpout from the main stakeholders, i.e. lawyers and clients. I know that they had hearings in at least two locations in the state. In my opinion, there should have been hearings in 6 locations with major PR to stir folks up. There seems to be a lot of apathy.

      I probably shouldn’t say this without some evidence to back me up, but my impression is that there hasn’t been a lot of input by members of the bar, and that’s a shame because bar members have a professional responsibility to take a stand, and it directly affects them. I know that silence on the issue has been the order of the day here in our part of the state.

      I do commend you for taking a stand. That’s your professional responsibility, and you are fulfilling it. You’ve given us a lot to think about.

      A final point on the silence of lawyers in these parts. The Board of Bar Commissioners today voted unanimously to reject the proposed rule change. I made a post about it. Our Bar Commissioner is Meridian’s Leonard Cobb, and I’m proud him for taking a stand. That’s what lawyers (should) do.

      • John Gillis says:

        Your points are well taken on the lack of stakeholder input and the silence/apathy of the bar. I agree that a better mechanism needs to be used for important rule changes like this one, employing just what you suggest — several venues and lots of PR leading up to the “town hall” type meetings. I do not subscribe to the Twitter service, but it seems like Twitter messages and emails from the bar or from the rules committee would be effective to get the word out on the town hall meetings.

        I generally comment on every proposed rule change. Some I have supported (e.g., in 2005 proposed Rule 26A for expedited handling of claims involving $50K or less), others I have suggested slight changes (e.g., in 2007 suggesting the change to Rule 45 include putting in place a genuine “hip pocket” subpoena procedure in all 82 counties like the federal court procedure), and others I have strongly opposed (the current proposed change to Rule 6.1 and the 2004 proposed change to the same rule which was implemented and created the mandatory pro bono reporting requirement). If no one takes the time to read the proposed rule changes, then the period for comments from the bar becomes a pro forma activity and the supreme court will implement the changes, for good or bad.

        We’ll see what happens.

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