Is Pro Bono Work 'Anti-Social'?

By TChris, Section Social Justice
Posted on Mon Oct 20, 2008 at 03:54:57 PM EST
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Speaking to a gathering of the Federalist Society (where he was preaching to the choir), Judge Dennis Jacobs, chief judge of the Court of Appeals for the Second Circuit, told the crowd that pro bono work is an anti-social activity. He particularly dislikes pro bono work for environmental causes, which he considers "legal activism."

"No public good is good for everybody," Jacobs said.

Perhaps Judge Jacobs meant to distinguish the helping hands that lawyers lend to the indigent in divorce and domestic abuse cases, landlord-tenant disputes, social security disability and veterans benefits cases, and all the other kinds of legal work that help individuals rather than the broader public. Even if that's so, it's shocking to think that a federal judge would disparage pro bono representation in lawsuits against the government. Making the government obey the law isn't an invitation to judicial "activism."

Helping society for free, rather than corporate clients for a healthy hourly rate, isn't anti-social. It's in the finest tradition of the bar to use the judicial system to help improve lives. Lawyers who do so should be praised, not scolded.

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Is Pro Bono Work 'Anti-Social'? | 21 comments (21 topical)

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It's in the finest tradition of the bar... (5.00 / 1) (#4)
by jerry on Mon Oct 20, 2008 at 04:28:02 PM EST

In all seriousness, perhaps then, it should not be up to the individual lawyer (or firm?) who gets the advantage of their free services.

Perhaps there should be a queue where people and organizations can request free services from lawyers, and lawyers willing to work pro-bono should be assigned randomly (within their area of expertise) to clients.

: Such organizations do (none / 0) (#8)
by eric on Mon Oct 20, 2008 at 04:59:05 PM EST

exist. This is one that I know of in Minneapolis. There are others, as well.

What is the difference (5.00 / 2) (#5)
by NYShooter on Mon Oct 20, 2008 at 04:34:13 PM EST

between lawyers doing pro bono work for indigent clients and doctors doing the same? And why are doctors compelled by law to service poor people regardless of payment, while lawyers do so based on personal whim?

The difference is obvious (5.00 / 1) (#7)
by eric on Mon Oct 20, 2008 at 04:56:49 PM EST

Doctors are only compelled to treat injury or a threat to life. There is no similar problem in the legal context. The closest would be if one is charged with a crime that threatens one's life or liberty, and we have public defenders for those facing charges.

Pro-bono representation is best seen as the equivalent of doctors who volunteer to do work outside of the context of an immediate need for medical care. Just as a lawyer can volunteer and the legal aid clinic in a poor neighborhood, so too a doctor can volunteer at a medical clinic.


There is no similar problem in the legal context. (none / 0) (#9)
by jerry on Mon Oct 20, 2008 at 05:11:50 PM EST

I disagree. Ignoring criminal law, I think there are many civil cases in which people face absurd financial penalties (RIAA/MPAA), confiscation of property (Kelo), absurd restraining orders (Letterman, et. al.), and destruction of families (custody battles), that are every bit as important to life, liberty, and the pursuit of happiness as having a doctor treat a person for being run over.

Facing a lawsuit and being too poor, or just too overwhelmed to understand it, or deal with it, probably IS life threatening, and probably in the extreme acts to make people homeless, jobless, depressed, and suicidal.


Gotcha (none / 0) (#10)
by NYShooter on Mon Oct 20, 2008 at 05:23:10 PM EST

Thanks....I guess I could have worded my query a little better.

I guess it's a question of degrees. If a poor person has a cold, or poison ivy, or something similar, an emergency will treat him/her. What would be the legal profession's equivalent service? If a poor person, let's say, hires a plumber who does a lousy job, what can he/she do?

Can't hire an attorney @ $350/hr. Hope for pro-bono? Try to maneuver through a bureaucratic maze aka the consumer protection agency?


: Best shot (none / 0) (#17)
by eric on Tue Oct 21, 2008 at 10:56:29 AM EST

would be to go to a legal aid organization. They usually can help with stuff like this. I have a friend that does this - she helps people with housing issues. Of course, this may not be available everywhere, but where I live, there are lots of lawyers and some of them even volunteer.

This postiion is sooooo odd (5.00 / 1) (#6)
by befuddledvoter on Mon Oct 20, 2008 at 04:37:23 PM EST

I do wonder what this judge thinks of conscription of attorneys to perform indigent defense functions?? There is enough case law out there in federal and state courts in support of our duty as "officers of the court." I know this as there was a work stoppage in my state due to the fact that indigent defense attorneys (both civil and criminal) had not had an increase to their rates of compensaiton in almost 25 years. There is definitely strong case law that supports the premise that "pro bono" work is our responsiblity.

Next time I am conscripted I will remember this position. LOL GAWD, what a different point of view.

I agree with you. (none / 0) (#1)
by oculus on Mon Oct 20, 2008 at 03:57:40 PM EST

But, if you've ever attended a meeting of the Federalist Society, you might discover there is an alternative universe you never knew existed. At least, that was my impression of the one meeting I went to (Janice Brown was the speaker).

What he is really saying (none / 0) (#2)
by eric on Mon Oct 20, 2008 at 04:23:28 PM EST

here is that he doesn't like it when the little guy gets a voice. The proper order of things is for litigants with money, the big guys, the defendants to have lawyers. If you don't have money, you shouldn't get a lawyer, and you shouldn't win. But he can't say that.

Instead, he disguises his position by attacking pro bono representation because that is the thing that upsets the proper order of things.

Let's face it (5.00 / 1) (#11)
by NYShooter on Mon Oct 20, 2008 at 05:48:36 PM EST

Lawyers are out of reach for most Americans, not only the poor. Other than minor stuff like house closings, incorporating, etc. who can afford the time and money to bring an action?
I hired an architect and a builder to design and build my retirement house. When it was almost completed, I got a heads up from one of the carpenters that there were severe issues with the structure. After I hired a structural engineering firm to do an analysis, they condemned the building, said both the design and workmanship were unacceptable, and the house had to be torn down.
I sued both the architect and the builder. It's now 8 years, and $200,000 later, the money is not recoverable (not even tax deductable) and we're not finished yet. The total claim was only $335,000, so I'll be thrilled if I at least win enough to cover my legal bills.
Plain and simple, the system stinks. "Justice delayed is justice denied." Bulls#@%t!!!


That is soooo awful (none / 0) (#13)
by befuddledvoter on Mon Oct 20, 2008 at 06:36:46 PM EST

You will get interest, I think, from the date of filing. There are some statutes that also may allow attorneys fees, especially if the defense has been uncooperative and frivolous. Go for the gold!! Since your attorneys are being paid they may not even be thinking that attorneys fees may be recoverable. Ask! Be a pain in the butt.


Thank you (5.00 / 1) (#15)
by NYShooter on Mon Oct 20, 2008 at 08:41:41 PM EST

Yes, interest is being accumulated, but even that is archaic; It's not compounded like the rest of the world practices, just plain simple interest. And in NY, at least, unless the original contract states that attorney's fees are borne by the loser, you're screwed.

My point is, as a lay person, should I be punished for a quarter million dollars for want of a single sentence? It's not like they give a Miranda, or something.

The problem is that so few people are actually involved in serious litigation, they just don't have it up on their radar screen as an issue.

And since the majority of Congress are lawyers, don't hold your breath for any reform.


In Mass (none / 0) (#20)
by befuddledvoter on Tue Oct 21, 2008 at 03:58:47 PM EST

there is a statute that says that if there is an offer of settlement and the other party refuses and then goes to verdict and looses, the damages are something like doubled. Look for something similar in your state. Also, you must have some statute or rule about frivolous defenses. If you can get a judge to use the magic word, you may be entitled to attorneys fees. Look, research, stay on it. I really hate to see this!!


: I'll check it out...... (none / 0) (#22)
by NYShooter on Tue Oct 21, 2008 at 10:03:36 PM EST

Thanks.

Wow, that sucks. (none / 0) (#18)
by eric on Tue Oct 21, 2008 at 10:59:07 AM EST

BTW, this is right up my alley. Construction defect litigation is all I do. (I usually defend, btw).

What state are you in? Why is it taking so long?


: "NY"? Shooter..., lol. (none / 0) (#19)
by NYShooter on Tue Oct 21, 2008 at 12:50:52 PM EST

After four years and eleven delays and postponements (the defendants even fired their legal team on the eve of the trial) the judge had had enough. The jury was sworn in, all the participants were there, and he said "enough is enough," the trial will go on." I won a unanimous verdict, got every penny I asked for.
They appealed, and the appellate court said, "you should have given them a twelfth postponement;" remanded back for a retrial."
The supreme court judge who heard the case was incensed. The appellate court would even give a reason, or any precedence.
While he couldn't order them to agree to binding arbitration, he told the lawyers that they have put the plaintiff through Hell, and that if they ever wanted to practice in his city again, they would agree to the arbitration.
So that's where we are, four years later and the "speedy" arbitration just concluded.
They said it will be about April,'09 before I get my judgment.

Pro-bono divorce work -- gender biased? (none / 0) (#3)
by jerry on Mon Oct 20, 2008 at 04:24:54 PM EST

In general, I think pro-bono work is a good thing. But my guess is that it is gender biased.

Are there really lawyers doing pro-bono divorce work for men?

And though "#5: "Domestic violence research overwhelmingly shows that women are just as likely as men to initiate and engage in domestic violence, and that only a small percentage of women's domestic violence is committed in self‑defense. Studies show that women often compensate for their smaller size by their significantly greater use of weapons and the element of surprise."", what we know is that the ABA passes out many false and gender biased facts concerning domestic violence and custody cases.

And Joe Biden, who I have pointed out in the past has annoyed many fathers groups, wants to make sure women (but not men) have a free divorce lawyer. Biden has apparently refused to answer questions as to why VAWA was written in such a gender biased fashion, contrary to domestic violence research that shows that significant proportions of men are likely to be victims of domestic violence, and contrary to various state (and most likely our national) constitutions. (see for instance, the recent California Appellate Court decision CA Appellate Court Says Excluding Men from Domestic Violence Programs is Unconstitutional

So TChris, please don't get me wrong, I think pro-bono work is largely a good thing. I think that in divorce, custody, and domestic violence cases, it's a very gender biased, sexist thing that is years behind the actual research.

And that stinks. And it hurts men, and children, and their relatives. And frankly, I think it's a significant reason why it's dubious to consider "modern feminism" to be synonymous with progressive liberal ideals, and the various court biases are a big reason why people are annoyed with liberals.

: Lots of different "equalities" there. (none / 0) (#14)
by jerry on Mon Oct 20, 2008 at 06:45:27 PM EST

Hi Donald,
I think Glenn's statistics, and recent research, show that men and women are equally likely to initiate domestic violence. Given that, if the victim is the person that didn't initiate the violence, than men are equally likely to be the victim.
I think Glenn acknowledges that once the domestic violence is in play, that women are the recipients of the majority of the injuries about 2/3rds the time. I'm not putting that into words well, but basically, everyone acknowledges that most of the injuries go to women, but the research shows that about 1/3rd the time, the men are the most injured party.
I hesitate to label victim as the person who got the most injuries.
California acknowledges that men are the injured party enough times as to make their domestic violence shelter law unconstitutional.
So again, I'd prefer to stop domestic violence, than figure out who is the most injured party.
There are disputes over the accuracy and objectivity and even the meaning of the various DOJ studies. (They are apparently studies concerning domestic violence AGAINST WOMEN, that was conducted by acknowledged feminist researchers. I acknowledge, that knowing little more than that, I tend to have my doubts about such studies' findings, especially when many of its conclusions run counter to the anecdotal information I have and the other studies I have read about.
Glenn Sacks, if you read him, frequently talks to domestic violence researchers and counselors, and they have different (and evolving opinions.) He did a whole series of essays on a very recent 2007 domestic violence conference that got little notice.
My larger point though wasn't solely about domestic violence, it was about the gender bias of pro-bono work in domestic violence, custody, and divorce.

These fantasy land (none / 0) (#16)
by JamesTX on Tue Oct 21, 2008 at 07:56:04 AM EST

capitalist cum social darwinists are about to get to me. First, they have destroyed our society using a flawed idea based in a concept tangentially related to science. They tell us all things not privately financed (including people) are best left to wither and die, citing adaptation of the fittest. To help the poor, or to champion the unfunded cause, they say, is necessarily destructive (e.g.antisocial) because it goes against nature's choices and artificially empowers a bad idea or a bad person. Not only are these idiot-philosophers using an incorrect model (evolution does not act in any decisive way over the time frames of the types of economic decisions they are obsessed with), but their logic is even defeated by the model they invoke. They want us to assume selection is best cultivated by allowing accumulation of private wealth which is passed to heirs. Their logic is flawed. Mutations in wealthy lineages continue to be, for the most part, maladaptive. Adaptive mutations in one generation in no way lead to further adaptive mutations in offspring, the current executive administration being a prime example. Accumulation of wealth which is then passed to offspring simply serves the purpose of empowering flawed future generations beyond their natural standing. The social darwinists policies actually promote the very same undesirable outcome they claim to avoid -- artificial empowerment of weak people and ideas.

Is pro-bono work sexist and gender biased? (none / 0) (#21)
by jerry on Tue Oct 21, 2008 at 04:52:39 PM EST

Yet another story of a man, named as a father, but who DNA says cannot be the father He is named as the father, "served" a subpoena while he is out of state, marked down for custody arrears, and when he gets out of prison, has wages attached.

He is told he needs a lawyer to fight this, but no lawyer will handle the case for him.

He eventually proves he is not the father and Oklahoma (like a lot of other states) says it does not matter. He was named. He did not fight it in time. What's a little money?

Are there any lawyers who will stand up for equal protection? Or to stop this and similar cases?

As I've noted, there are lots of lawyers and lots of encourage for lawyers to handle the cases of women in divorce and custody for free, but apparently not so for men.

It's okay though, what I keep on hearing at "liberal" blogs is that they don't want to hear men "whining". Men have it very easy compared to women. Ironically, many of our modern feminist websites have dozens of women lawyers....