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15 Docket Call 1 (1980-1981)

handle is hein.journals/dcktcll15 and id is 1 raw text is: U ul I SECTION OF GENERAL PRACTICE * AMERICAN BAR ASSOCIATION * VOL. XV * NO. 1 * SPRING 191 mandatory pro bono? no! Tom Greene* There is a lot of loose talk about the legal profession's obligation to meet and fulfill an allegedly unmet need for the performance of legal services in America, for no pay or low pay. It is conceived by some that the answer to this problem would be man- datory enlistment of lawyers to perform so-called pro bono work, which is variously de- fined from the providing of legal services to the poor to other forms of public interest type service to virtually anything which is generally in furtherance of the goals of society and the legal profession. However it is defined, it is submitted that mandatory pro bono is an idea whose time has not come; in fact, mandatory pro bono is an idea whose time should never come. i. nature of the pro bono obligation The only truly historical antecedent of a compulsory nature with respect to the so-called attorney's obligation is founded upon the appointment by a court of an at- torney to defend indigent criminal defendants without compensation. From this precedent, aided and abetted by the legal profession's own deep sense of commit- ment, the concept of pro bono has come to embrace many additional services of a civil nature, including legal assistance to the poor and persons of limited means, legal assistance in pursuit of causes, such as anti- discrimination and environmentalmatters, services for charities, schools, churches and the like, a variety of ser- vices aimed at improvement of society and legislation *Mr. Greene is chairman of the General Practice Section's Committee on National Legal Services Corporation. Copyright @ 1980 American Bar Association and a whole variety of services in the nature of organized bar activities including legal education, professional im- provement, etc. However pro bono is defined and whatever its scope may be decided to be, its true vitality has been based upon voluntarism. Pro bono services constitute a matter of personal conscience which ultimately rests upon the individual lawyer. That is the scope of the present ethical consideration in terms of the voluntary versus mandatory aspect. It is a professional aspiration. A desire to perform a personal charity; the act of giving. It has become a self-imposed sense of duty, a matter of per- sonal ethics. In short, it can be said to have become the legal profession's magnificent obsession. ii. fundamental objections Current proposals would scrap the voluntary aspect of pro bono services and substitute for it a mandatory kind of approach. This would constitute the creation of a legal duty and impose a condition on an attorney's license to practice law. It would be a required donation ratherthan a voluntary discharge of one's own sense of giving. The following objections are not meant to be ex- haustive or definitive, but certainly include some of the more fundamental problems encountered both in the conception and implementation of mandatory pro bono. Philosophically, mandatory pro bono appears to be a contradiction in terms. It would seem to represent a man- dated donation, a compulsion of conscience or a re- quired gift. All of these are self-contradictory terms. More significantly, mandatory pro bono would require a transformation from professional aspiration, individual conscience and personal charity to legal duty and condi- tioned precedent to the practice of law. It is submitted that in such a transformation there would be lost the true ethical significance of the pro bono concept. Actually, continued on page 10 Produced by the ABA Press contents CHAIRMAN'S CORNER ...... 2 ANNUAL MEETING SCHEDULE ............. 4 NOMINATING COMMITTEE REPORT............... 7

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