Where’s the public good in “Pro bono publico”?

Posted Saturday, April 22nd, 2017 by Gregory Forman
Filed under Law and Culture, Of Interest to Family Law Attorneys, Of Interest to General Public

At some point the Latin phrase for the concept that lawyers should provide volunteer services was shortened from “pro bono publico” to simply “pro bono.” I have no idea when or why it happened, but in the context of family law (at least how it’s practiced in South Carolina) losing the public good aspect of volunteer legal services has diminished the activity.

The belief that lawyers should devote some time to work for the public good is baked into the system. The oath lawyers take to become licensed in South Carolina includes language, “I will assist the defenseless or oppressed by ensuring that justice is available to all citizens…” In the context of family law, legislative requirements provide that attorneys be appointed for indigent defendants (typically parents) in DSS abuse and neglect cases and in public or private termination of parental rights cases.  There is a strong public interest in insuring that the state does not interfere with parent-child relationships absent compelling reasons.  This justifies the “pro bono publico” aspect of such work.  That such cases typically pit the power to the state against individual parents further justifies the public benefit aspect of providing free legal services to such parents.

There are additional ways family law attorneys can volunteer services for the public good. I perceive educating the public about family law to have a “pro bono” component. Sitting on volunteer boards is work for the public good.

Yet the most typical way that attorneys now provide “pro bono” services for family law in South Carolina is through agencies that pair indigent parents and spouses involved in custody or divorce cases with attorneys willing to provide their services on a volunteer basis. Earlier in my career I tried to do one or two such cases every year. Eventually I stopped volunteering. I find it hard to reconcile such work with the public good. It has become akin to a lottery for indigent parents and spouses.

There are two conceptual problems with pairing volunteer attorneys with indigent parents and spouses. The first problem is there are simply way more indigent parents and spouses than volunteer attorneys. Thus the lottery metaphor above. Who gets a volunteer attorney and who has to represent him or herself pro se is largely a matter of luck. The second problem is that the due process revolution of the 1960’s and 1970’s Supreme Court made it politically incorrect to have a concept of “the deserving poor,” especially among the liberals who tend to run pro bono agencies.

Prior to the modern bureaucratic state most assistance for the poor was implemented at a local level and through religious or charitable institutions. Such services were rationed by differentiating those where were “deserving” from those who were not. Early New Deal programs granted a great deal of discretion to caseworkers to separate those who deserved public assistance from those who didn’t. The problem inherent in this method, especially once public assistance became national programs overseen by a bureaucracy, is that classism and, to an even greater extent, racism, drove many decisions on who was “deserving.” The due process revolution was intended to remove this discretion so that decisions about public aid were not driven by impermissible considerations.

Which was fine as it regarded national bureaucracies deciding who should get food stamps or medicaid. Not so fine when deciding at a local level which few of the hundreds of indigent parents or spouses should get a free attorney for their custody and divorce cases and which of the many others should do without. The end result is a system in which indigent parents and spouses are not selected for free legal representation based on the strength of their case, the(in)justice of their situation, or their willingness to cooperate with their attorney and have realistic goals. Instead it’s seemingly random.

I had a recent discussion with an attorney who runs a pro bono program and another attorney who often agrees to represent clients for this agency. Discussing potential clients and past cases two themes emerged. First, little thought was given into whether providing a potential client free legal services would actually benefit the children at issue (the one truly powerless component within the system) instead of merely benefiting the parent. If there was any public benefit in providing this parent free legal services, it was not apparent. Second, the clients this agency referred out were often uncooperative with their attorneys–failing to show up for meetings or court; failing to complete the tasks their attorneys asked them to do–and took demanding and unrealistic litigation positions that paying clients would have been constrained from taking due to budget considerations.

This discussion reminded me why I no longer offer such volunteer services. Instead I agreed to run a class teaching the family court legal process to pro se litigants so I could help them better present their cases to the court. Helping any member of the public be better able to present their case is helping the public. This I could see as being part of the “public good.” Volunteering to represent one, randomly selected, indigent parent, when dozens of others go without is a lottery.

In a do-gooder universe every indigent parent and spouse would get a volunteer attorney. To these do-gooders it seems unfair that some many folks go without attorneys when their lives would be improved if they had free legal services. One might argue it’s equally unfair that these folks don’t have the same reliable transportation or the same high quality food and housing that the more well off have. The concept of “pro bono” is what differentiates legal services from food, housing or transportation. But in removing the public component of pro bono we have not improved legal services for the poor (at least in the context of family court cases in which indigent defendants are not automatically appointed attorneys) but simply made it more random.

One thought on Where’s the public good in “Pro bono publico”?

  1. Vinay Singh says:

    Offering pro-bono services atleast once in a while is the greatest deed a lawyer can offer to the society that gave them so much and its time to give it back selflessly and compassionately.

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