Pro Bono Publico

It means “for the public good” in Latin. There is a very long-standing tradition in the law that obligates every lawyer to render free legal services to indigent defendants (criminal and civil). This tradition dates back to the 15th century.

In terms of criminal cases, lawyers are required to represent defendants if appointed by the court. In 1965, one lawyer tried to get out of an appointment by filing suit against the government claiming his appointment was a violation of the takings clause of the 5th Amendment (a rather crafty argument I think–some other interesting arguments have been made based on the takings clause, see this law review Article written by Kaimi Wenger; he argues slavery was a violation of the Takings Clause). The attorney claimed that his services as an attorney should be considered a taking for public use. He lost. His appeal was denied. The 9th Circuit Court said the follwoing to the attorney:

An applicant for admission to practice law may justly be deemed to be aware of the traditions of the profession which he is joining, and to know that one of these traditions is that a lawyer is an officer of the court obligated to represent indigents for little or no compensation upon court order. Thus, the lawyer has consented to, and assumed, this obligation and when he is called upon to fulfill it, he cannot contend that it is a ‘taking of his services.’ U.S. v. Dillon, 346 F.2d 633, 635 (1965).

In civil cases the law is only a little different. In the late 80s a Federal Court in Iowa required a newly admitted bankruptcy attorney to represent several indigents in a civil rights case. He refused. The fight went all the way to the Supreme Court and the attorney argued his own case and won a narrow 5-4 victory. Mallard v. U.S. District Court, 490 U.S. 296 (1989).

Nevertheless, the Model Rules of Professional Responsibility obligate attorneys to render 50 hours of unpaid services to indigents every year. California Business and Professions Code Section 6068(h) specifically states the following:

It is the duty of every attorney to never. . .reject, for any consideration personal to himself or herself, the cause of the defenseless or the oppressed.

My question is simply this: why is it that no other professional occupation is required to provide free services? Why can’t I go into my doctor’s office and get a free check-up once a year? After all, I’m poor as dirt! It all just seems so weird to me. Attorneys are constantly bashed and thought of as unethical thugs (and I don’t necessarily disagree with this generalization). But it seems a bit ironic to me that it’s the only profession giving so much of its time and services to indigents, free of charge!