Pro Bono beyond the BS – why we should do it

I don’t particularly like the “pro bono” world even though I have warm acquaintances and bona fide friends who live and work in it.  My world is the work-a-day world of the solo lawyer working hard to pay all bills on time, both lawyer bills and the personal expenses of being an adult American father and taxpayer.  So sometimes the solicitations from “Pro Bono Inc.” sound a little sanctimonious.  I don’t like them (the solicitations) and sometimes throw them into the electronic or steel can trash. I don’t like getting harangued from people whose health insurance is paid by grant money telling me how I should help their clients or projects. Worse, sometimes the pro bono agencies aren’t well run (though sometimes they ARE quite well run.)

To hell with them, I tell myself; let me work for my paying clients and pay my bills on time and be a responsible citizen. Let the millionaire lawyers in Roland Park and Gibson Island condescend to each other about pro bono work on the golf courses; I represent poor paying folks as it is and bills for myself and two autistic pre-teen sons have to get paid.

Then I get a rapid reminder of why Rule 6.1 exists.

I am changing a few details to protect privacy but the substance of the tale is true.  I recently represented a worker who was fairly new in her career.  Her employer fired her for what he described in writing as commercial reasons – no business coming in, hadn’t taken a salary himself in forever, etc.  When she inquired politely by email about her one week’s paid vacation that she believed she had earned, the employer became indignant, threatened to make her firing “for cause” and later told her that he made mid-high six figures and he could afford an attorney while she could not and would not benefit from having one.  His use of his wealth to intimidate a much poorer, younger and newer worker out of seeking legal counsel might well have worked. but it didn’t.  I represented the worker at a reduced fee.

The second was a worker who quit her job for medical necessity; her doctor told her not to use public transit due to a specific condition and she had no car.  Maryland allows a “valid circumstances” quit with a reduced penalty, but medical documentation is required.  The UI Division apparently lost her submitted documentation and declined her benefits, though she has proof of its timely production by her doctor’s office.  No one appears to have intimidated her out of getting counsel, but the cost of representation would make a market approach to justice in her case absurd at her income level.  My office is representing this worker pro bono.

Where there are no decent human beings, sometimes a decent human being must step in.  Man is flawed, but corporate man is mind-numbingly stupid; this fact is part of why attorneys as individuals must step up.  Although there are some over-enthusiastic fools pretending that the latest iPad app will replace us lawyers, the iPad hasn’t replaced the doctor, the architect or the plumber and won’t replace us.  Why? Because the exercise of our judgment and effort and our willingness as licensed practitioners to do the difficult won’t get replaced by technology.

It might be nice if we were replaceable; human judgment, temperament and character are difficult enough to assure and maintain and people (i.e. lawyers) are less reliable than some gadgets for gadget tasks.  We aren’t gadgets.  No gadget could have won Brown v. Board of Education.  Perhaps more tellingly, no gadget could have won Gideon v. Wainwright, the pro se case in which the right to legal counsel was affirmed for indigent defendants.  While most cases aren’t Supreme Court precedent-setting cases, or even close, our work cannot be “machine coded.”

A significant part of the non-gadgetable side of our work as attorneys is in handling pro bono cases.  While technology can produce an client intake form of the sort that lawyers would typically hand off to a clerk, it’s no more the practice of law than is the filling out of forms at the doctor’s office the practice of medicine.  We need not “fear” technology; what we should fear is the failure to realize that our ability to perceive the need for legal services and to deliver them – pro bono if necessary – is a core part of the profession.  It’s part of what makes the practice law a profession while arguably more difficult endeavors – writing code, composing art, selling rugs in an Anatolian bazaar – aren’t professions.

Knowing when pro bono help is needed and, within one’s capacity, delivering some of it are core parts of the profession. We cannot wait for some clerk, some app or some pro bono organization, no matter how well or poorly run, to “bop” us on the head. Sometimes, we have to be the cavalry for which we and our clients are waiting.  If we willfully refuse to help, when we can and we should, we won’t get hit for a Rule 8.4(d) violation.  The pro bono rules are hortatory, not mandatory.  But that’s not the point; if we never do any pro bono, we within the state-enforced oligopoly of the Bar are in fact standing idly by and smiling at conduct prejudicial to the administration of justice.  Either we are the sort of profession that stands idly by, or we aren’t.

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