No

by Tracy Morrison

Created on: December 15, 2009

It has been suggested that Attorneys should be required to provide legal services free, or Pro Bono as it is often called. While several writers have suggested that Pro Bono does not necessarily mean free of charge, let's examine the terms utilized. The term Pro Bono is actually short for Pro Bono Publico. As it's name should suggest to anyone with a history with any Latin-based language, it means For the Good of the Public, or for the Public Good. Assuming that attorneys are not practicing law to the detriment of all of society, there is some public good involved in all practice of law. Therefore, all attorneys already practice Pro Bono Publico to some extent. Thus, what is being suggested here is that Attorneys be mandated to practice law for free, under the guise of Pro Bono Publico.

Should an attorney be mandated to practice for free? No. The last time it was checked, the 13th Amendment to the US Constitution abolished slavery. Forcing a person to practice their profession for free amounts to nothing less than slavery.

While it has been argued here as part of this debate that Criminals do not deserve and/or should not be entitled to free legal assistance, this is incorrect as well. It is settled law that Gideon v. Wainwright 372 U.S. 335 (1963) established a criminal defendant shall have the right to legal assistance pursuant to the 6th Amendment to the US Constitution, even if there is no ability to pay. With all due respect to one writer here, the case of Miranda v. Arizona 384 U. S. 436 (1966) did not establish the right to an attorney, it only established the right of a criminal defendant (in the case of Miranda, to an accused robber and rapist) to be notified of his already established constitutional rights at the point that he or she is in a police custodial situation, and to ensure that he/she understands those constitutional rights and voluntarily waived them.

With regard to the concept that in civil cases, a party should be entitled to counsel, the US Supreme Court has again spoken. In Lassiter v. Department of Social Services of North Carolina 452 US 18 (1981), the Supreme Court held that even when the government is removing or terminating a mother's parental rights, due process does not entitle her to counsel. In addition, the Court also created a test for appointing civil counsel that is virtually impossible to meet.

It is fascinating that there are those who believe that because people have embarked on a career to practice law, that these said same individuals with legal educations therefore owe free work to those who believe they are entitled to free legal work. This position begs the question: Are attorneys the only practitioners of a career or profession who are expected to perform for free? Considering that even circus animals are fed and rewarded for performing on cue, there would be, at the very least, some inequality to this position.

What's more, the 5th Amendment to the US Constitution bars the taking of a liberty or property interest by the US government without due process of law. The 14th Amendment to the US Constitution applies this same approach to the States. Is requiring free service an impingement upon a liberty or a property interest? It would appear so.

Moreover, the previously mentioned positions did not apply equal protection under the law (See US Constitution, Amendment 14.). If attorneys are to be expected to provide free services to those who might qualify, then why are electricians not expected to re-wire houses for those who don't feel like paying? Why can't any person with a business demand that individuals with business degrees manage their businesses for free? Why are plumbers not required to clear pipes 'off the cuff'? Why can I not order the man who mows my paying neighbor's lawn to mow mine as well? Indeed, why not? He is in the neighborhood. The lawnmower is already out, and the engine is warm. So, why not? Because in this country of ours, slavery is still illegal. And while this position might appear myopic to those who feel as though they are entitled to freebies, it is the logical approach.

It was argued that because attorneys are in the business of helping people, they should be expected to supply legal services for free. The logic is apparently that people need it, and it would help those people in need. It is easy to see, however, that any person(s) with a trade or profession are also in the business of helping people. To apply that rule equally, daycare workers would have to watch children for free. Piano teachers would be required to teach piano for free. Accountants would be obligated to do taxes for free. Prostitutes would be forced to service customers (where it is legal) for free.

And while at it, why stop at service professions? Would it not be equitable to force those entities that produce or sell goods to give it away for free? Should I think, therefore I am entitled to free food at McDonald's be fair to the franchisee or to the company? It sounds very much to this writer as an institutionalized form of theft. And so it would be in the case of requiring service workers to supply free services to those who wish to avail themselves of the education and skills of those service workers, but do not feel the need to pay. When a person goes to an old woman in a grocery store, and takes her purse because they are entitled, we call that robbery. It should be no less a situation here.

In short, while there may be arguments that can be made for forcing attorneys to supply free services, these arguments are all weak and short-sided, designed only to enrich some at the expense of others. That should not be allowed.

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