The American Bar Association may adopt new rules of professional conduct this year. For the most part, the rules proposed speak about professional responsibility once a lawyer and client have come together; they deal with the lawyer-client relationship. But the proposed rules also call on lawyers to reach out beyond their normal circle of relationships -- to give of their talents to persons unable to pay. Lawyers, we are told, "should render public interest legal service." Unlike the other proposed rules, however, this is only an entreaty, not an enforceable norm.
Rightly or wrongly, we are on the verge of making it clear once again, as a profession, that when it comes to making our services available to persons who cannot afford them, each of us is to decide individually how much to give -- if any at all.
I think we have to accept the premise that in a society of finely tuned laws and regulations affecting virtually every aspect of our lives, we cannot in good conscience deny any person legal assistance for a credible civil claim or defense just because that person cannot afford a lawyer.
You or I may have solid reasons to believe, for example, that rent control laws or welfare regulations or consumer credit rules are born of the devil; but if they are on the books, creating legal rights and obligations on both sides of a transaction, there is no justifiable basis for denying legal assistance to a tenant, or a welfare recipient, or an installment buyer -- just because he or she is indigent -- while the landlord, or the government, or the retailer has the significant advantage of a lawyer. My premise, in short, is equal access to the legal system, as a reality. Equal access to justice.
Both the general public and the legal profession share that obligation. The government has a responsibility as the custodian of the public welfare, and lawyers have a responsibility as the principal instruments of the legal process.
I know I beg a number of questions. There is, after all, a big difference between charging the government with a duty to provide for the poor and arguing that the profession should do it. There is a big difference between laying a breach of that duty on the conscience of the entire public and attempting to pin it on the consciences of individual lawyers. And there is obviously a big question of what we mean when we seek to guarantee, without a market mechanism, the availability of competent legal assistance that is not too much or too little.
But no matter how hard we work on these larger philosophical and economic -- call them institutional -- issues, they are not likely to be resolved in your lifetime or mine; and while we work on these issues, injustices will always be with us, with legal machinery there to be used -- and with lawyers necessary to make it work properly.
Even if we all were to agree that government has the principal responsibility, I don't believe anyone seriously can believe that the government will, in the decade ahead, provide a lawyer for every indigent person who genuinely needs one.
On the other hand, any lawyer who disparages government involvement in favor of voluntary efforts will also be disingenuous unless he or she personally participates and calls on every other lawyer to do so as well. It is hard to understand a lawyer who criticizes federal funding but does not personally handle legal aid cases.
Over the past two years in the District of Columbia -- where we have excellent neighborhood legal services, legal aid resources, law student clinics, and lawyer pro bono programs -- we produced some startling statistics. Putting aside small claims, landlord-tenant, and domestic relations cases, we found that 22 percent -- over one-fifth -- of the contested civil court cases had at least one party without a lawyer, primarily because of indigency. And in landlord-tenant court, 99 percent of the contested cases had a litigant representing himself. In domestic relations proceedings more than 85 percent of the cases had one of the parties going it alone. And now, in the District of Columbia alone, we have lost over $700,000 in federal funding for civil legal services to the poor as part of a nationwide 25 percent reduction of Legal Services Corporation funding.
Even before these federal cutbacks, the judicial conferences of both the District of Columbia and the District of Columbia Circuit adopted resolutions emphasizing "that every lawyer has a professional responsibility to budget a portion of his or her time for pro bono legal service." Our resolutions say that every lawyer, at a minimum every year, should accept one uncompensated court appointment, or provide 40 hours of other pro bono legal service, or contribute the lesser of $200 or 1 percent of earned income to a legal assistance program. That's the very minimum, applicable to every lawyer. More, of course, is needed now.
I hope that every bar association and judicial conference very soon will assess the local need for legal services in light of federal cutbacks.
It is critical that every community have a pro bono coordinator to recruit, train and refer volunteer lawyers so that their interests and abilities can be properly matched with client needs.
So where is the time for pro bono?
Very frankly, if we cannot find the inclination or the time or the money for our own pro bono contribution, or if we are skeptical about the resolve of other lawyers to do so, I hope we will recognize that the Legal Services Corporation stands as the most reliable response to the need and deserves our vigorous support for more and more money, not less and less.
The need for civil legal services to the poor is greater than volunteers can handle. It is greater than even government can handle. We need both.