In Times of Crisis Are Lawyers Meeting Their Professional Responsibility?
by Douglas L. Colbert, professor of law, University of Maryland School of Law, and a Board Member of the Society Of American Law Teachers (SALT)
Are we in the legal academy doing enough to instill within our students a true understanding of their core ethical and professional obligation "as a public citizen having special responsibility to the quality of justice," described in the first sentence of the Preamble to the Model Rules of Professional Conduct? Specifically, I question the extent to which we as legal educators are teaching and instilling students to fulfill their pro bono duty "to provide legal services to those unable to pay." (See Model Rule 6.1)
My idea for this project grew from two catastrophic events: the terrorist attacks of September 11, 2001 and Hurricane Katrina in 2005. Although individual attorneys stepped forward to assist the many people affected by 9/11, they represented only a small fraction of the New York and New Jersey bars. With regard to Katrina, the response is even more disturbing. Again, some lawyers volunteered to help New Orleans and Gulf Coast residents. However, the overwhelming number of attorneys chose not to. Thus, to cite one example of the consequences of lawyers' passivity, the New Orleans criminal courthouse remained closed for ten months, leaving thousands of people awaiting trial in jail and without access to court or to counsel.
In response to Katrina's devastation, more than four thousand law students traveled to the Gulf Coast states during their school recesses between December, 2005 and spring, 2007 to lend assistance and create a national organization, the Student Hurricane Network (SHN). On several occasions, I accompanied and supervised Maryland law students as they entered Louisiana jails and interviewed these individuals for the first time since their arrests. Most students had just completed their first semester of law school. Afterwards, they asked: "Where are the lawyers? If we could do this with so little experience, why had so few attorneys volunteered?"
Students' questions led me to write a law review article, Professional Responsibility in Crisis, 51 Howard L.J. 677 (2008), which is included as part of Howard Law Journal's symposium about the rule of law in the aftermath of Hurricane Katrina. I sent reprints to every local and state bar association nationally to encourage a serious, thoughtful debate over the meaning of attorneys' ethical pro bono duties. Nationally, very few lawyers meet the ABA Model Rules recommended minimum of 50 hours annually, or less than one hour weekly, of pro bono service.
My article provides a social context for tracing the profession's century-old canons of ethics and commitment to equal justice, public service, and pro bono activities and referred to the SHN law students' admirable example. During my research, I discovered many judges and lawyers who shared a strong interest in the legal profession, taking public service and pro bono responsibilities seriously. Yet, they cautioned against criticizing lawyers' inaction without examining law faculty's commitment to teaching a true picture of the professional ethic of service to community. Many attorneys complained that their law school experience had not prepared them for making public service an essential part of their professional lives.
I accepted their challenge. I sent 2,500 reprints of my Howard article to law faculty who teach professional responsibility and then created a survey to determine the time faculty devote to the Model Rules' Preamble and Rule 6.1's pro bono obligation in the required professional responsibility courses. You can find my survey questions at Professional Responsibility Survey. I plan to include the results of my research in my next article, Teaching Professional Responsibility in Crisis. Because instilling an attorney's professional responsibility is a collective faculty effort and not limited to the professional responsibility course, I intend to ask law school deans to indicate the extent they believe schools are educating and reinforcing students with the ethical duty to meet their pro bono, public service.
What do you think? Are we doing an adequate job of preparing students for the practice of law and meeting their duty to serve the public? If not, how can we improve? How do we instill within our students an understanding of that special "responsibility to the quality of justice" that translates into their commitment as licensed attorneys to pro bono, volunteer work for people unable to afford private counsel?
Written By:Pennsylvania Lawyer On August 22, 2008 2:46 PM Written By:Pennsylvania Lawyer On August 22, 2008 2:46 PM
I think for the most part the lawyers that are being sent out are well prepared. If they aren't the laws of natural selection will ultimately weed them out as they won't be contacted to do work for anyone.
I think that most lawyers don't care about whether there is rule of law in their community, all they care about is their personal finances. The 3% is just lip service to non controversial causes. It would be as if people were dying in front of doctor's homes and the doctors were just stepping over them to get to their Mercedes. Kay Sieverding
The middle class and people like myself who have been injured by lawyers are the people who are really under-served.
I got involved in complaining that my neighbor the city council president was building extra buildings that weren't allowed by the zoning. You might not think this was life or death but it really affected my adjoining property, which was my major asset. The City of Steamboat Springs was actively fining and litigating against other people who had 18-inch violations but my neighbor built three entire nonconforming buildings, two with central heat and plumbing. To this day they are simply missing from the county tax rolls. This was a community where city planning issues were in the newspaper every week. It had less than 10,000 people but it had 5 full time city planners, plus a $400,000 consulting contract, plus the county also had a planning staff. Because I complained about the extra three buildings and about other boundary issues, the politician's lawyer got a judge to sua sponte rule that I molested the politician's wife even though we had essentially no contact. The police harassed my kids and myself until we sold our house to our neighbor's lawyer. (No one else would buy it). I was criminally charged also but the prosecutor wouldn't tell me or my lawyer what the probable cause was. She eventually dismissed but she gave a press conference and said the politician's wife was my "victim". Then the politician helped the prosecutor's husband get permission for a new ski area that he tried to sell for $20 million.
My lawyer, William C. Hibbard, said that he wouldn't sue my neighbor's lawyer because it would hurt his law practice.
There is a case in Wisconsin finding an absolute right to self-representation called Hlavinka v. Blunt, Ellis & Loewi, Inc. 174 Wis. 2d 381, N.W.2d (Ct. App. 1993) That case involved a man who sued his broker. He was broke and his lawyer quit. The court ruled that he had the absolute right to represent himself. However, that right is a right that I found hard to establish.
I think that because of the current economic upheavals and sub prime crisis there will be a lot of people in Hlavinka's position. Helping a bankrupt builder or a middle class person hurt over land use violations doesn't have the same zing as saving some one from execution or a beaten woman from a bad man, but that doesn't mean that middle class educated people don't need help. What most people in that position are looking for is unbundled legal services where they can buy advice or help for an oral hearing while doing the bulk of the research, writing, depositions etc. themselves. Judge Scalia recently said in an interview that good legal writing can be done by good writers of non fiction, that a law degree is not necessary for good legal writing. I think there are a lot of people who would spend money on legal services if they could stretch their money thru their own time and efforts. That would be true a lot in employment law, where people have claims because they were wrongfully terminated, and financial fraud, where people have claims because they were cheated.
One reason why there were less issues about the middle class finding representation years ago is that what lawyers used to make was similar to what teachers and carpenters were making. So people could compare their time spent to purchasing the time of an expert. Now, people are worried that they literally can't pursue a civil lawsuit at all unless they have hundreds of thousands of dollars to devote to it. Which means that only the rich and businesses get Access to Court for torts. The middle class find it difficult to get a hearing.
Kay Sieverding
As a young lawyer that does not do pro bono, I have a simple explanation. While "one hour per week" sounds easy enough, there are just not a lot of opportunities that offer only "one hour per week." I work in a corporate transactional department. I know nothing about family/domestic relations law or criminal law, areas that are traditionally pro bono opportunities. More importantly, as an attorney, I am aware how quickly a matter or case can spiral out of control. What begins as a three hour divorce proceeding or five hour criminal/juvenile matter can quickly become a time consuming mess. If one of the matters I adopt pro bono blows up and requires effort, my paying clients suffer. In addition, I risk malpractice liability and violating other (and actually sanctionable) Rules of Professional conduct (competence, diligence etc.). I serve my community. I mentor students and work other community service opportunities. I could do these without a law degree. But, when the day ends, and the community service event is over, there is no potential that the event could require more time than I am willing to commit. If a pro bono organization presented me with a service opportunity that GUARANTEED that a particular pro bono would require, at a maximum, X number of hours I would sign up immediately. I cannot be picking up pro bono matters outside of my area of expertise without some assurance that the matter will not blow up and require far more time and effort than I have to give.
some lawyers volunteered to help New Orleans and Gulf Coast residents. However, the overwhelming number of attorneys chose not to. Thus, to cite one example of the consequences of lawyers' passivity, the New Orleans criminal courthouse remained closed
for ten months, leaving thousands of people awaiting trial in jail and without access to court or to counse
On several occasions, I accompanied and supervised Maryland law students as they entered Louisiana jails and interviewed these individuals for the first time
since their arrests. Most students had just completed their first semester of law school. Afterwards, they asked: "Where are the lawyers? If we could do this with so little experience.
why had so few attorneys volunteered?"
This article provides a social context for tracing the profession's century-old canons of ethics and commitment to equal justice, public service, and pro bono activities and referred to the SHN law students' admirable example.
Article provides a social context for tracing the profession's century-old canons of ethics and commitment to equal justice, public service, and pro bono activities and referred to the SHN law students' admirable example. During my research, I discovered many judges and lawyers who shared a strong interest in the legal profession, taking public service and pro bono responsibilities seriously. Yet, they cautioned against criticizing lawyers' inaction without examining law faculty's commitment to teaching a true picture of the professional ethic of service to community. Many attorneys complained that their law school experience had not prepared them for making public service an essential part of their professional lives
Ace, as a recent law school graduate myself, I would encourage you not to take such a hard line, "guaranteed" only approach to pro bono service. There are many ways that attorneys can volunteer, even in areas outside of their typical practice areas, without becoming overburdened. In Professor Colbert's article, he discusses the incredible difference even first year law students, with only a semester's worth of legal training, were able to make in areas ravaged by Hurricane Katrina. Basic client interviewing and legal researching and writing skills were all that they needed to lend a helping hand to overburdened attorneys in Louisiana and Mississippi. If you are concerned about volunteering "one hour per week", have you considered a working vacation? I have known many practicing attorneys who have supervised law students on volunteer, week-long trips to the Gulf Coast, and some were even granted additional vacation days by their employer to do so. I would suggest contacting your law school, or others in your area, to see if students are in need of such assistance. Just simply by being a member of the legal profession, lawyers are granted an enormous amount of knowledge and privilege, and I think it is a real shame not to share what we have learned with others in our communities who have no adequate access to counsel. While I applaud you for mentoring students and engaging in community service, I challenge you to join the many, many others who have chosen to give back with their law degrees.
I think for the most part the lawyers that are being sent out are well prepared. If they aren't the laws of natural selection will ultimately weed them out as they won't be contacted to do work for anyone.