Why Lawyers Owe Pro Bono

Pro Bono Under Rule 6.1

Why Lawyers Owe Pro Bono

Rule 6.1 opens with a sentence that admits no exception: "Every lawyer has a professional responsibility to provide legal services to those unable to pay."¹ The rest of the rule says how a lawyer should carry that responsibility out, with an hours figure and categories of service that later sections of this chapter take up in turn. Those mechanics make sense only once a prior question is answered: why does the profession assign this duty to lawyers at all?

The label itself points toward part of the answer. Pro bono publico means, literally, "for the public good," and the expectation of such service traces back to the origins of law as a profession.² Medieval lawyers regarded it as a mark of their superiority over other craftsmen that they furnished their specialized skills to economically and socially disadvantaged persons without compensation.³ The Preamble to the Model Rules carries the idea forward by describing a lawyer, as a member of the legal profession, as "a public citizen having special responsibility for the quality of justice," and Rule 6.1 turns that general responsibility into a specific one toward people who cannot pay.⁴

History explains where the expectation comes from, but it does not explain why the duty attaches to lawyers today. That answer lies in who controls the legal system. Lawyers created it, and only those regularly admitted to practice are trusted to offer a map to the people who enter it. To the average person the system looks like a confusing maze, and anyone who tries to find a way through without counsel is at a disadvantage. The disadvantage is greatest for the poor, who typically lack the skills and information that self-representation demands.⁵ The obligation follows from those facts. The people who built the maze, and who alone may give directions, owe something to those who cannot pay for directions, and pro bono service is how the profession opens the door wider for people who would otherwise stay outside.⁶

Public programs cannot close the gap alone. Society shares the responsibility to fund legal aid programs and indigent criminal defense adequately, and the lawyers who work in those programs are the essential backbone of legal help for the disadvantaged. Even so, the need can never be fully met without the diligent commitment to volunteer service and financial support by lawyers who have been granted the privilege of admission.⁷

The profession's self-governance supplies a further reason. Members of the profession agree to restrain self-interest, to promote the profession's ideals (particularly public service), and to maintain high standards of performance, while society in return allows the profession substantial autonomy to regulate itself through peer review.⁸ Legitimacy supplies one more link. Because access by the poor to legal services is a necessary precondition to the legitimacy of the legal process, lawyers must accept a duty of service. Otherwise they are left to retail their trade, providing legal services to paying clients, in a legal system that has lost its legitimacy.⁹

These reasons rest on the profession as a whole, so they do not stop at the lawyers who happen to have free time. Comment 1 applies the responsibility to "every lawyer, regardless of professional prominence or professional work load."¹⁰

Court appointments sit in a different category. Under Rule 6.2, a lawyer "shall not seek to avoid appointment by a tribunal to represent a person except for good cause." In standard practice, courts appoint only lawyers who have volunteered to be available and who have shown experience and competence in the type of case, and appointed lawyers typically are entitled to payment.¹¹ Rule 6.2 thus governs a specific appointment with a specific client, while Rule 6.1 speaks generally of people unable to pay.

The responsibility is broad in reach, then, but the framers chose not to define it as formally binding on all lawyers or to enforce it through disciplinary sanction.¹² The next section takes up that choice.