by Hagana Kim

Created on: December 31, 2008

Requiring all lawyers to provide pro bono services would be analogous to requiring every American citizen to perform community service. The idea has considerable emotional appeal, especially considering the damaged state of our nation's conscience, but it simply doesn't make economic sense. This is not to say that such a requirement wouldn't have a net positive effect compared to no action at all, but if the goal is to extract the most value in terms of beneficial legal expertise, a pro bono requirement is not the optimal solution. A better solution would be to simply require a tax within the legal profession, as part of the license to practice law.

Consider the case of requiring all citizens to perform community service. If everyone was forced to do it, what would the quality of that service be? It seems logical to assume that the work ethic behind such labor would be equivalent to the work ethic, or lack thereof, which failed communism. Surely we've learned from history that compelled labor is less effective than self-interested labor.

Fortunately, American government has already worked out ways to encourage charitable behavior within an economic system that primarily promotes greed. First, there are significant tax breaks for charitable contributions, allowing people to trade some of their material wealth for more intangible rewards, such as the gratification of helping others, improved public image, and elevated social status. The legal profession could design something similar, possibly by creating a form of income-tax reduction based on the number of pro bono hours billed.

But what has proven more effective in the American system is incorporating philanthropy into each citizen's tax contribution itself, which is more or less proportional to their income. Thankfully, our country's tax revenue isn't entirely spent on bureaucratic overhead, unnecessary wars, and questionable bailouts. Programs such as welfare, student loans, and even grants for scientific research and the fine arts are all examples of ways in which Americans have democratically decided to help each other and the greater good of all. The reason that this system works better than a lower tax rate coupled with a legal requirement that people directly work for their neighbors benefit, is that it is a better allocation of the citizenry's diverse talents. Rocket scientists shouldn't be required to spend a percentage of their free time serving soup at the local homeless shelter, but they should certainly be required to pay their taxes.

If the legal profession is serious about donating their legal services, it should be in the form of a tax, perhaps as a fee to the American Bar Association, as part of the consideration for the license to practice law. The ABA could then distribute the funds to public interest lawyers, who are clearly in a better position to provide quality legal services to the indigent than mass tort specialists or architects of corporate golden parachutes. This system would also be better aligned with the general policy of avoiding specific performance.

Beyond being economically unsound as a policy, requiring charity would also be a depressing commentary on the state of the legal profession's integrity, even if lawyers have done little recently to warrant any faith in their humanity. But since most Americans find it in themselves to give to charity, or volunteer some of their time, surely a few lawyers would be inclined to donate their services to those in need.

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