Summary
The contentious debate about mandatory pro bono work by attorneys should be reformulated in terms of the public assets that are conferred on attorneys, confidentiality and loyalty. Traditionally, the debate has focused on moral obligations and personal freedom. If it is acknowledged that lawyers are granted the public asset of maintaining secrecy and that they profit from this grant, the requirement that they donate time to do pro bono work can be characterized as a tax or user fee. Couching pro bono requirements in terms of welfare economics avoids many moral and political problems.
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Extract
A 'public assets' theory of lawyers' pro bono obligations.
Introduction
A. Mandatory Pro Bono Obligations B. The Public Assets Theory I. The Call For Pro Bono Programs A. Crisis In Legal Services 1. Lawyers' Role 2. Officers of the Court B. Monopoly Theory C. Moral Obligation and Good Will II. The "Public Assets" Theory A. Ethics Based Assets 1. Confidentiality 2. Conflicts of Interest B. Evidence-Based Assets 1. Attorney-Client Privilege 2. Work Product Doctrine 3. Costs of Evidentiary Privileges a. Suppression of Truth b. Increased Litigation Costs c. Work Shifting to High-Priced Providers C. Summary III. Conditioned Access To Information-Assets: Other Examples A. Air Waves B. Scientific Research C. Other Examples IV. Arguments Against Mandatory Probono Plans A. Efficiency B. Competence C. Constitutionality V. Tax Or Draft Conclusion Introduction This Article presents a new theory of lawyers' obligations to provide free representation to the poor. In putting forward our views, we hope to break, or at least loosen, the current logjam in the debate over mandatory pro bono programs. Much of the discussion has been hampered by a lack of common ground. Pro bono advocates argue from need, responsibility, even morality, while opponents emphasize equally compelling principles of autonomy and freedom. Framed often as a contest between polar positions, there is little perceived room for compromise. If pro bono representation is a bedrock professional duty, then lawyers simply have to do it. Period. On the other hand, if it is an unwarranted encroachment on personal freedom, then mandatory programs must be staunchly resisted. Period. We believe, however, that there is a way to shift the discourse away from absolutes and into more fruitful territory. As we will develop in the course of this Article, our "public assets" theory posits that lawyers are, at least in part, concessionaires. Attorneys are granted exclusive access to certain publicly created commodities which they subsequently provide (at a price) to clients. Thus, a portion of lawyers' income is directly attributable to their ability to market "lawyer-commodities" that have been provided to them, at no charge, by the public. The exaction of a pro bono obligation can therefore be seen as a simple recapture of some of the profit derived from access to this asset. In this Article we set out four publicly created lawyer-assets, each of which provides rights of privacy and information control. We submit that clients pay their lawyers for access to secrecy, which comes in the form of ethics-based duties such as confidentiality and conflicts protection, as well as the evidence-based protections of the attorney-client privilege and the work product doctrine. If we are correct that secrecy is a commodity, of which lawyers are the vendors but not the creators, then the conversation may shift to consideration of the consequences of lawyers' use of that commodity. In other words, probono duty becomes the equivalent of a user fee--neither a moral imperative nor an assault on individual rights and freedoms, but rather a familiar and legitimate consequence of economic relationships. We advance this position as a first step, recognizing that much will remain to be debated even if our arguments are as persuasive as we hope them to be. How extensively do lawyers exploit privacy-commodities? In what ways should lawyers be treated differently from other professionals and merchants who also utilize public assets? What would constitute fair recapture of the benefits lawyers realize from their ability to "sell" secrecy? A. Mandatory Pro Bono Obligations For over a century, leaders of the legal profession have stressed the need for lawyers to contribute their time and energy to the needs of the underserved and disadvantaged. Increasingly, proposals have come in the form of mandatory pro bono plans, which would require every lawyer to devote a specified number of hours annually to representing poor or middle-income clients. While luminaries ranging from a president of the American Bar Association(1) to a Justice of the United States Supreme Court(2) have exerted their moral authority in support of one plan or another, to date no state has adopted a comprehensive pro bono requirement.(3) The principled opposition to mandatory pro bono plans is based upon considerations of fairness, efficiency and freedom of choice.(4) These are important objections. Indeed, we recognize that the standard pro-pro bono arguments have been inadequate to the task of refuting the major intellectual criticisms.(5) The typical argument in favor of mandatory pro bono obligations begins with a statement of need: the poor and middle classes are dramatically underserved by lawyers. Next comes a statement of duty based, variously, on moral obligation, necessity or the so-called "monopoly theory." While the need for broader legal services is relatively easy to demonstrate, it has not been r...See the full content of this document
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