Should lawyers be required to work for free?

Colorado considers becoming first state to mandate pro bonoservices for the poor.

If performing volunteer work were mandatory, could it still be deemed voluntary? This conundrum cuts to the core of a vociferous debate over whether Colorado should require attorneys to do 25 hours of free - or pro bono - work each year. The decision, spurred by a drop in public funding for legal services to the poor, and a decline in the amount of pro bono work performed by lawyers here, would be the first such mandate in the United States. "Equal access to the legal system is a critical part of democracy," says Jonathan Asher, executive director of the Legal Aid Society of Metropolitan Denver. "All of the studies show that between 75 and 80 percent of the legal needs of poor people are not being met by existing programs and pro bono efforts. Lawyers have a monopoly on access to the court - with that comes an ethical responsibility to help poor people gain access to the court." Historically, lawyers in the US have performed pro bono services in deference to the ideal that all Americans deserve equal access to the legal system. While the poor are guaranteed representation in criminal cases, there is no such entitlement in civil courts. Yet whether an ethical obligation should be mandated by government is, not surprisingly, a contentious issue. Even stalwart supporters of pro bono programs question whether the remedy to a dearth of low-income legal services is mandating that lawyers work for free. "I believe in pro bono. But it changes the entire flavor when you are told you have to do this," says Ernie Marquez, a Salida, Colo., attorney in private practice. "I object to the government interfering with my business. My 'goodness' is my own decision." In fact, while legal-aid woes are evident nationwide, Colorado is one of only a handful of states to even consider a mandatory pro bono program. New York and Hawaii contemplated then abandoned the idea. Florida went so far as to require that lawyers report how many hours of pro bono work they perform - but didn't make the work itself mandatory. The Colorado proposal takes a leap forward, recommending that lawyers be compelled to perform pro bono work and report it to the state Supreme Court. Under the proposal, lawyers could discharge the pro bono obligation by contributing $1,000 to an organization that helps provide legal aid to the poor. The Colorado Judicial Council is set to vote on the proposal in March. The state Supreme Court will have final say. By and large, the indignation voiced by Mr. Marquez typifies the reaction of lawyers here. Recently, the Colorado Bar Association's board took a vote to determine support of the plan. More than 95 percent voted against it. While rules of professional conduct prevail upon lawyers to accept pro bono cases, opponents say the notion of making charitable work compulsory sets a dangerous precedent that endangers civil liberties. "Once before in my life I was subject to mandatory service, and it was called the draft," says Paul Grant, a trial and appellate attorney in Parker, Colo. "This violates the concept of individual liberty." Moreover, he contends, the judiciary is circumventing the democratic process in its effort to impose the rule. "If the Colorado Supreme Court wants to get involved in political decisions, they ought to run for election in the political arena. Judges weren't appointed for that." But those who favor the proposal counter that the state Supreme Court, which holds legal authority to regulate Colorado lawyers, is operating well within its domain. "The court in each state has the right to regulate the profession. It isn't unconstitutional," says Ed Kahn, a Denver trial lawyer who is co-chair of the Judicial Advisory Council's legislative committee. "The pro bono obligation goes back more than 100 years, and it's not unreasonable to say that if people aren't doing what they should [voluntarily], they should be forced to." He also notes that while the number of lawyers practicing in Colorado has risen steadily during the past decade, the total amount of pro bono work has declined. By some estimates, as few as 20 percent of state lawyers participate in pro bono programs. And since federal and state funding for legal aid was cut by about one-third in 1996, thousands of low-income residents now have unmet legal needs ranging from fighting an eviction, to suing for child support, says Mr. Kahn. Others argue that the concept of free legal services, even if noble in theory, is inherently flawed in practice. "Legal aid doesn't work. When someone isn't paying for legal representation, they use it irresponsibly," says Ed Lederman, a Denver family law attorney. Paying clients, by comparison, are far more motivated to resolve their conflicts efficiently, he says. Another point of contention is whether forcing lawyers to provide free legal services to the poor can effectively fill the gaps in access to the legal system. "It's not just people at poverty level who have trouble gaining access to the legal system. It's everyone," says Marquez, noting that legal-aid programs exclude the middle class. "If this passes, it's going to create a lot of hard feelings within the bar, without actually serving the purpose it's meant to." A more meaningful solution, he says, would entail "a rethinking of how we resolve disputes among ourselves."

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