15 Docket Call 1 (1980-1981)

handle is hein.journals/dcktcll15 and id is 1 raw text is: U                                                                          ul                                            I


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

SCHEDULE ............. 4
REPORT............... 7

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