Pro Bono Attorneys: Preserving the Framers While Serving the Public by Cristina Drakeford
July 14th, 2017
On Mar 18, 1963, in a 9-0 majority ruling for the case Gideon V. Wainwright, the Supreme Court decided that the sixth amendment applied to state courts. This made it a requirement that defendants in criminal cases that could not afford counsel would have one appointed to them (“Gideon v. Wainwright”). Now, 54 years later, there are still significant barriers that low and middle-income Americans face in acquiring legal representation. Public defenders and civil legal aid attorneys are overbooked and overburdened. Unfortunately, this results in many plaintiffs navigating a complex legal system alone and representing themselves in court. Pro bono work helps to serve individuals/groups that are unable to receive quality legal representation through conventional means. I hope to one day work for a law firm that has a longstanding commitment to pro bono service; giving back to my community has always been one of my top priorities.
Unfortunately, our legal system underserves those with limited financial means. Public defenders have an incredible number of cases assigned to them. In 1973, the National Advisory Counsel on Criminal Justice Standards and Goals published recommendations for annual caseload maximums for public defenders. Although some argue that even these standards are too high because criminal cases in the modern-day are more complex than thirty years ago, public defenders often exceed the maximum number of cases that was recommended by the Counsel (see appendix figure 1). Data suggests that 6,900 more public defenders would be needed in order to achieve the recommended hours to cases ratio (Lee et. al., 2013). This means that, currently, public defenders are not spending enough time with each of their clients.
Even worse, there is no right to counsel for civil cases, and the story for civil legal aid attorneys parallels that for public defenders; there simply aren’t enough to meet demand. In a 2009 testimony before the House of Representatives, President of the LSC (Legal Services Corporation) Helaine M. Barnett reported that “[f]or every client served by an LSC-funded program, one person who sought help is turned down because of insufficient resources…” (Barnett, 2009). A 2013 law review article stated that the typical legal services client makes 25 dollars hourly and cannot afford even relatively low rates of 125-150 dollars hourly for an attorney (Herrera, 2013). Shockingly, a national survey by the LSC found that about 80 percent of people represent themselves in family court (LSC, 2009). In fact, three-quarters of all civil cases have at least one party that is representing themselves. This is likely because there are only 0.64 civil legal aid attorneys for every 10,000 citizens living in poverty. Some states are worse than others—in South Carolina this figure is just 0.24 (Covert, 2016).
I believe that self-representation is problematic. Many examples illustrate that our legal system is far too complex for citizens without proper training to navigate it alone. In Gideon v. Wainwright, Clarence Earl Gideon was sentenced to five years in prison before his Supreme Court appeal. During his second trial, he was equipped with a defense attorney that was able to undermine the prosecution’s case against him. Consequently, a jury acquitted Gideon and he was released (“Gideon V. Wainwright,” 2006). Also, The Atlantic published a story about a middle class Harvard physicist that decided to represent himself in a case against his landlord because he could not afford a lawyer. He credits winning to having a network of friends/acquaintances with JDs, and stated he would have been lost without their guidance (Zuckerman, 2014). On a personal note, my mother almost gave up on her divorce proceedings because of her inability to find a lawyer that she could afford or to represent herself. I believe that pro se legal representation entails more negatives than positives. The reason that lawyers exist is because of the specialized training necessary in order to successfully engage with the legal system.
Pro bono work is beneficial to the legal system because it aligns our practices more closely with principles stated in our constitution, in turn benefiting the community. I would argue that it is evident from the text of the sixth amendment that the framers placed a high value on legal representation for everyone; it reads, “[i]n all criminal prosecutions, the accused shall… have the Assistance of Counsel for his defense” (U.S. Const. amend. VI). Pro bono work helps to fulfill this, even extending this right to civil cases. It also helps to fulfill an important purpose of our legal system—to resolve disputes in a predictable manner (Brickley & Gottesman 2017; Long, 1994; Holder, 1974). It is likely that many people representing themselves receive a less favorable outcome than if they had acquired a lawyer. Additionally, because of the immense number of cases public defenders have assigned to them, attorneys working pro bono may be able to achieve a more favorable outcome for clients. This all helps in order to make outcomes for clients more predictable; i.e., more dependent on the facts of the case rather than the form of representation clients were able to acquire.
Many lawyers acknowledge the beneficial aspects of pro bono and make time for it. In 2011, the average attorney spent 56.5 hours on this type of work. However, twenty percent of lawyers did not engage in pro bono at all (Buczek et. al., 2013). I would like to advise attorneys in the latter group that pro bono not only benefits our community and our legal system, but it could benefit them as well. The spirit of investing in others is real; some have even compared the feeling of performing pro bono work to the spirit one acquires during the holidays (Kutik, 2005). Over the years, I have learned that giving back to the community makes you feel like a better person and gives you a purpose. In middle school, I joined the National Junior Honor Society; in high school, I became the president of Community Club; at Cornell, I founded a club that helped immigrants pass the high school equivalency test. Every step of the way, I have always found immense value in giving back. As a lawyer, I know that I will find value in pro bono work as well.
Pro bono work benefits the community, improves the functioning of our legal system, and gives attorneys purposeful work and the means to give back. In criminal cases, pro bono alleviates some of the burden on public defenders that have more cases than they arguably should. In civil cases, where the right to counsel is not guaranteed, it allows citizens to have quality representation when they might have otherwise represented themselves. I firmly believe that if the American Bar Association’s recommendation for every lawyer to provide 50+ hours of pro bono work per year was achieved by all lawyers, our society would be better off as a whole.
About the Author
Christina Drakeford of Buffalo, New York, is the Second Place Winner of the 2017 Excellence in Ethics Annual Scholarship, which is just one of the Annual Simmons and Fletcher, P.C. Scholarship Contests. She will be attending Harvard Law School in the Fall of 2017.
Brickley , S. D., & Gottesman, B. M. (2017). Chapter 3: Purposes and Functions of Law. In Business Law Basics. Retrieved June 29, 2017, from http://www.businesslawbasics.com/business-law-basics
Buczek, J., Faith-Slaker, A., & Stuth, K. (2013). Supporting Justice III: A Report on the Pro Bono Work of America’s Lawyers (pp. 1-34, Rep. No. 3). Chicago, Illinois: American Bar Association.
Bureau of Justice Statistics. (2013). Retrieved June 29, 2017, from https://www.bjs.gov/
Covert, B. (2016, May 11). Poor people don’t stand a chance in court. Think Progress. Retrieved June 29, 2017, from https://thinkprogress.org/poor-people-dont-stand-a-chance-in-court- 7e46bd4e5719
Long, R. T. (1994). The Nature of Law Part II: The Three Functions of Law . Free Nation Foundation . Retrieved June 29, 2017, from http://freenation.org/a/f14l1.html
LSC. (2009, September). Documenting the Justice Gap in America: The Current Unmet Civil Legal Needs of Low-Income Americans (Rep.). Retrieved June 29, 2017, from Legal Services Corporation website: http://www.lsc.gov/sites/default/files/LSC/pdfs/documenting_the_justice_gap_in_americ a_2009.pdf
Gideon v. Wainwright (1963). (2006). Retrieved June 29, 2017, from http://www.pbs.org/wnet/supremecourt/rights/landmark_gideon.html
Holder , A. R. (1974). The Legal Systems in the United States. The Jama Netword. Retrieved June 29, 2017, from http://jamanetwork.com/journals/jama/article-abstract/358498
Kutik, D. A. (2005, Oct. & nov.). Pro Bono: Why Bother? GPSolo Magazine . Retrieved June 29, 2017, from https://www.americanbar.org/newsletter/publications/gp_solo_magazine_home/gp_solo_ magazine_index/2005_oct_nov_probono.html#globalnav
Lee, J., Levintova, H., & Brownell, B. (2017, June 24). Charts: Why You’re in Deep Trouble If You Can’t Afford a Lawyer. Retrieved June 29, 2017, from http://www.motherjones.com/politics/2013/05/public-defenders-gideon-supreme-courtcharts/
Luz, H. E. (2013). Training Lawyer-Entrepreneurs. Denver University Law Review, 89(4), 887-939. Retrieved June 29, 2017, from http://www.law.du.edu/documents/denver-university-law-review/v89- 4/HERRERA_FROM_ME_EIC_FINAL_M.pdf
Testimony Before the House Judiciary Subcommittee on Commercial and Administrative Law by LSC President Helaine M. Barnett, October 27, 2009, House of Representatives Cong. (2009) (testimony of Helaine M. Barnett).
U.S. Const. amend. VI.
Zuckerman, M. (2014, May 30). Is There Such a Thing as an Affordable Lawyer? The Atlantic. Retrieved June 29, 2017, from https://www.theatlantic.com/business/archive/2014/05/isthere-such-a-thing-as-an-affordable-lawyer/371746/