A "public assets" theory of lawyers' pro bono obligations.

• Author: Lubet, Steven

Introduction

1. Mandatory Pro Bono Obligations

2. The Public Assets Theory

   1. The Call For Pro Bono Programs

1. Crisis In Legal Services

   1. Lawyers' Role

   2. Officers of the Court

2. Monopoly Theory

3. Moral Obligation and Good Will

   2. The "Public Assets" Theory

1. Ethics Based Assets

   1. Confidentiality

   2. Conflicts of Interest

2. Evidence-Based Assets

   1. Attorney-Client Privilege

   2. Work Product Doctrine

   3. Costs of Evidentiary Privileges

   1. Suppression of Truth

   2. Increased Litigation Costs

   3. Work Shifting to High-Priced Providers

3. Summary

   3. Conditioned Access To Information-Assets: Other Examples

1. Air Waves

2. Scientific Research

3. Other Examples

   4. Arguments Against Mandatory Probono Plans

1. Efficiency

2. Competence

3. Constitutionality

   5. 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?

1. 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 rigorously established that individual lawyers should bear the burden of meeting that need. Obligations premised on moral duty or necessity ultimately fail analytically because it cannot be shown persuasively that only lawyers should bear the social responsibility of fulfilling unmet legal needs. The monopoly theory seeks to provide just that linchpin, but it fails empirically. With nearly one million American lawyers in sharp competition with one another,(6) it is difficult to show that there is a monopoly in any conventional sense.

   We believe that lawyers should be required to devote a portion of their professional time to pro bono representation. Despite the weaknesses of prior pro bono arguments, we are optimistic that our "public commodities" theory will prove both intellectually and empirically rigorous in establishing the analytical basis for that duty.

2. The Public Assets Theory

   In brief, the public assets theory is based upon the concept that every lawyer profits from the sale to clients of certain publicly created assets. A mandatory pro bono plan, therefore, should be regarded as comparable to an in-kind user fee, severance or commission, returned to the public in exchange for the right to exploit a public resource.

   What do lawyers sell? For the most part, counsel's services consist of the attorney's own accumulated human capital: knowledge, skill, education, experience, reputation, discretion and good judgment.(7) Consider these and similar services to be a bundle of commodities, sold to the client as a package, each supplying a benefit to the client, and each justifying a portion of the lawyer's fee.

   In addition to the lawyer's self-generated assets, attorneys also sell certain publicly created assets. Chief among these are certain rights of confidentiality and enforceable duties of loyalty.(8) Unlike the lawyer's human capital, these assets were created by the public, either through statutes, judicial codes of conduct, or the operation of common law. While it is generally understood that these resources were conceived primarily to confer benefits upon clients, it is certain that they also enhance the value of lawyers' services, and that they therefore increase lawyers' fees.(9) In other words, all lawyers constantly engage in the sale of publicly created resources. Because the lawyers themselves did nothing to create the assets, but are nonetheless able to sell them at a profit, economists would refer to this as the extraction of rents or quasi-rents.(10) Our argument for a mandatory pro bono obligation is that the public, having created the assets and assigned them to lawyers, is entitled to recapture some portion of the rent in the form of in-kind services.

   Part I surveys the principal arguments that have been put forth in favor of mandatory pro bono plans, critiquing them and demonstrating their analytic flaws and persuasive failings. Part II describes and develops our own "public assets" theory, which we think is free from many of the shortcomings of the other approaches. Part III provides examples of other "in-kind" duties imposed in consequence of the use of public assets. Part IV addresses the previous arguments against mandatory pro bono plans, explaining that they are insufficient to overcome the public assets theory. Finally, Part V deals briefly with the tax or draft question: Must pro bono obligations be met by providing personal services, or should there be a "buy out provision?

   1. The Call For Pro Bono Programs

   The ideal of law practice as public service is as old as the profession itself. For many, altruism has always been the defining feature of true professionalism.(11) Nonetheless, the early development of professional standards did not include required pro bono services. The 1908 Canons of Professional Ethics make no mention of a general duty to provide free services.(12) The 1969 Code of Professional Responsibility addresses the issue, but only through exhortation: Every lawyer, regardless of professional prominence or professional workload, should find time to participate in serving the disadvantaged. (13)

   In 1977, the American Bar Association established a special Commission on Professional Standards, assigned to draft a new set of ethics rules. Chaired by the late Robert Kutak, the Commission eventually produced the Model Rules of Professional Conduct, which have since been adopted in whole or part by over forty United States jurisdictions.(14) In an early draft, the Kutak Commission proposed that every lawyer, as a condition of membership in the bar, be required to provide forty hours of pro bono services each year (or the financial equivalent).(15) Prompted by heavy opposition from members of the bar, this rule was watered down through successive stages of the process until the ABA's House of Delegates finally adopted a purely voluntary rule: "A lawyer should render public interest legal service."(16) The pro bono provision is the only rule in the entire Model Rules that is not mandatory.(17)

   Notwithstanding the compromise nature of the eventual...