A christian lawyer's mandate to provide pro bono publico service

Fordham Law Review

Volumn 66, Issue 4, 1998, Pages 1393-1404

  Escalera, Nitza Milagros ^a,b,c,d  

^a Syracuse University ^*

^b SYRACUSE UNIVERSITY   (United States)

^c NEW YORK UNIVERSITY   (United States)

^d Och Spine at New York Presbyterian Hospitals   (United States)

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[No Author keywords available]

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EID: 0032372254     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (71)

1. Pro bono publico is defined as being "[f]or the public good; for the welfare of the whole. For example, 'pro bono' legal work is providing legal services to indigents without charge." Black's Law Dictionary 1203 (6th ed. 1990).
2. David Hoffman, A Course of Legal Study, Addressed to Students and the Profession Generally (2d ed. 1836).
3. Id. at 758.
4. Id.
5. George Sharswood, An Essay on Professional Ethics 153-54 (3d ed. 1869).
6. Selected Statutes, Rules and Standards on the Legal Profession 331 (John S. Dzienkowski ed., 1992): The ABA adopted 32 Canons of Professional Ethics at its thirty-first annual meeting on August 27, 1908. Between 1908 and 1969, the ABA added Canons 33 through 47. Although the Canons were in effect for 61 years, the general aspirational approach of the Canons proved to be outmoded to regulate the conduct of lawyers in the 1950s and 1960s. The Canons were superseded in 1969 by the Model Code of Professional Responsibility. Id.
7. Id. at 332.
8. The following is a description of the Model Code: The distinctive feature of the Model Code is its organization into canons, ethical considerations, and disciplinary rules. The canons provided the Model Code with a theoretical structure . . . . [and were] a general directive to lawyers about the law of professional responsibility. The ethical considerations . . . discussed actual fact situations that arose under each canon . . . . [and were] only aspirational in nature . . . . The disciplinary rules were the provisions that lawyers needed to follow to avoid disciplinary liability. Id. at 219.
9. Ethical Consideration 2-25 states: Historically, the need for legal services of those unable to pay reasonable fees has been met in part by lawyers who donated their services or accepted court appointments on behalf of such individuals. The basic responsibility for providing legal services for those unable to pay ultimately rests upon the individual lawyer, and personal involvement in the problems of the disadvantaged can be one of the most rewarding experiences in the life of a lawyer. Every lawyer, regardless of professional prominence or professional workload, should find time to participate in serving the disadvantaged. The rendition of free legal services to those unable to pay reasonable fees continues to be an obligation of each lawyer, but the efforts of individual lawyers are often not enough to meet the need. Thus it has been necessary for the profession to institute additional programs to provide legal services. Accordingly, legal aid offices, lawyer referral services, and other related programs have been developed, and others will be developed, by the profession. Every lawyer should support all proper efforts to meet this need for legal services. Model Code of Professional Responsibility EC 2-25 (1980).
10. Debra D. Burke et al., Mandatory Pro Bono: Cui Bono?, 25 Stetson L. Rev. 983, 994 (1996).
11. Model Rules of Professional Conduct Rule 6.1 (1991).
12. ABA House of Delegates, Summary of Action Taken by the House of Delegates of the American Bar Association, Aug. 9-10, 1988, at 43.
13. Model Rules of Professional Conduct Rule 6.1 (1994). A lawyer should aspire to render at least (50) hours of pro bono publico legal services per year. In fulfilling this responsibility, the lawyer should: (a) provide a substantial majority of the (50) hours of legal services without fee or expectation of fee to: (1) persons of limited means or (2) charitable, religious, civic, community, governmental and educational organizations in matters which are designed primarily to address the needs of persons of limited means; and (b) provide any additional services through: (1) delivery of legal services at no fee or substantially reduced fee to individuals, groups or organizations seeking to secure or protect civil rights, civil liberties or public rights, or charitable, religious, civic, community, governmental and educational organizations in matters in furtherance of their organizational purposes, where the payment of standard legal fees would significantly deplete the organization's economic resources or would be otherwise inappropriate; (2) delivery of legal services at a substantially reduced fee to persons of limited means; or (3) participation in activities for improving the law, the legal system or the legal profession. In addition, a lawyer should voluntarily contribute financial support to organizations that provide legal services to persons of limited means. Id.
14. Esther F. Lardent, Structuring Law Firm Pro Bono Programs: A Community Service Typology, in The Law Firm and the Public Good, 59, 83-84 (Robert A. Katzmann ed., 1995).
15. Neta Ziv compiled a list of known mandatory pro bono programs and the number of required hours: Columbia University School of Law (40 hours); Florida State University College of Law (20 hours); Loyola Law School (40 hours); Northeastern University School of Law (30 hours); Southern Methodist University School of Law (30 hours); Stetson University College of Law (10 hours - not required to be law related); Touro College Jacob D. Fuchsberg Law Center (20 hours); Tulane University School of Law (20 hours); University of Hawaii School of Law (20 hours); University of Louisville School of Law (20 hours); University of Pennsylvania School of Law (70 hours); University of Washington School of Law (60 hours); Valpareso University School of Law (20 hours); Western State University College of Law (20 hours). Neta Ziv, Law Schools Fostering a Commitment to Public Service - What More Can Be Done? 15 (May 1997) (research paper presented to Lawrence Friedman, Marion Rice Kirkwood Professor, Stanford University School of Law and Deborah Rhode, President-elect, Association of American Law Schools and Professor & Bernard Bergreen Faculty Scholar, Stanford University School of Law, on file with the Fordham Law Review).
16. In January, 1995, the Bar of the City of New York's Committee on Legal Assistance "urge[d] the 15 law schools in [New York] state to institute mandatory pro bono programs as a means of teaching future lawyers the value of public service." Matthew Goldstein, Bar Urges Pro Bono Rule for Law Students, N.Y. L.J., Jan. 26, 1995, at 1. To date only Columbia University School of Law and Touro College's Jacob D. Fuchsberg Law Center require pro bono service as a condition of graduation. Id.
17. See Burke et al., supra note 10; Debra Burke et al., Pro Bono Publico: Issues and Implications, 26 Loy. U. Chi. L.J. 61 (1994); Tigren W. Eldred & Thomas Schoenherr, The Lawyer's Duty of Public Service: More than Charity?, 96 W. Va. L. Rev. 367 (1993-94); Zino I. Macaluso, That's O.K., This One's On Me: A Discussion of the Responsibilities and Duties Owed by the Profession to Do Pro Bono Publico Work, 26 U. Brit. Colum. L. Rev. 65 (1992).
18. See Burke et al., supra note 10; Debra Burke et al., Pro Bono Publico: Issues and Implications, 26 Loy. U. Chi. L.J. 61 (1994); Tigren W. Eldred & Thomas Schoenherr, The Lawyer's Duty of Public Service: More than Charity?, 96 W. Va. L. Rev. 367 (1993-94); Zino I. Macaluso, That's O.K., This One's On Me: A Discussion of the Responsibilities and Duties Owed by the Profession to Do Pro Bono Publico Work, 26 U. Brit. Colum. L. Rev. 65 (1992).
19. See Burke et al., supra note 10; Debra Burke et al., Pro Bono Publico: Issues and Implications, 26 Loy. U. Chi. L.J. 61 (1994); Tigren W. Eldred & Thomas Schoenherr, The Lawyer's Duty of Public Service: More than Charity?, 96 W. Va. L. Rev. 367 (1993-94); Zino I. Macaluso, That's O.K., This One's On Me: A Discussion of the Responsibilities and Duties Owed by the Profession to Do Pro Bono Publico Work, 26 U. Brit. Colum. L. Rev. 65 (1992).
20. Burke et al., supra note 10, at 987.
21. Id. at 988.
22. "The religious communities were a major institution in medieval society. . . . [They] provided society with artists, . . . political advisors and leaders, as well as theologians, priests, and ministers." Dennis M. Campbell, Doctors, Lawyers, Ministers: Christian Ethics in Professional Practice 18-19 (1982).
23. Macaluso, supra note 17, at 66. But see Jonathan R. Macey, Mandatory Pro Bono: Comfort for the Poor or Welfare for the Rich?, 77 Cornell L. Rev. 1115, 1115 (1992). No less a philosophical luminary than St. Thomas Aquinas addressed the issue [of a lawyer's obligation to provide pro bono publico service] in Question 71 of the Summa Theologica, asking the question, "Whether an advocate is bound to defend the suits of the poor?" His answer . . . was a resounding no. Id. (quoting The Summa Theologica of St. Thomas Aquinas, LXXI Part II, Question, at 273 (Father of the English Dominican Province trans., R&J Washbourne, Ltd., 1918)). Some legal historians, such as Harvard University law professor David Shapiro, find no historical basis establishing a duty on the part of lawyers to engage in pro bono publico service. David L. Shapiro, The Enigma of the Lawyer's Duty to Serve, 55 N.Y.U. L. Rev. 735 (1980). Shapiro asserts that "Romans treated the legal problems of the poor with 'some indifference,'" id. at 740 (citing Mauro Cappelletti et al., Toward Equal Justice: A Comparative Study of Legal Aid in Modern Societies 6-16 (1975)), and that the English, while allowing indigents access to legal services on a contingency fee basis, whipped claimants who lost and could not pay the defendant's costs "for wasting everybody's time," id. at 745 (citing Charles Viner, 16 A General Abridgement of Law and Equity 261 (1st ed. 1743)).
24. Macaluso, supra note 17, at 66. But see Jonathan R. Macey, Mandatory Pro Bono: Comfort for the Poor or Welfare for the Rich?, 77 Cornell L. Rev. 1115, 1115 (1992). No less a philosophical luminary than St. Thomas Aquinas addressed the issue [of a lawyer's obligation to provide pro bono publico service] in Question 71 of the Summa Theologica, asking the question, "Whether an advocate is bound to defend the suits of the poor?" His answer . . . was a resounding no. Id. (quoting The Summa Theologica of St. Thomas Aquinas, LXXI Part II, Question, at 273 (Father of the English Dominican Province trans., R&J Washbourne, Ltd., 1918)). Some legal historians, such as Harvard University law professor David Shapiro, find no historical basis establishing a duty on the part of lawyers to engage in pro bono publico service. David L. Shapiro, The Enigma of the Lawyer's Duty to Serve, 55 N.Y.U. L. Rev. 735 (1980). Shapiro asserts that "Romans treated the legal problems of the poor with 'some indifference,'" id. at 740 (citing Mauro Cappelletti et al., Toward Equal Justice: A Comparative Study of Legal Aid in Modern Societies 6-16 (1975)), and that the English, while allowing indigents access to legal services on a contingency fee basis, whipped claimants who lost and could not pay the defendant's costs "for wasting everybody's time," id. at 745 (citing Charles Viner, 16 A General Abridgement of Law and Equity 261 (1st ed. 1743)).
25. Some of the rewards of pro bono publico service articulated by legal scholars include: close up space developing contacts, a good reputation, expansion of one's legal knowledge, and the amelioration of skills that have atrophied. Macaluso, supra note 17, at 69.
26. Eldred & Schoenherr, supra note 17, at 381-82 (quoting Model Code of Professional Responsibility EC 2-25 (1986)).
27. Id. at 381 (quoting Model Code of Professional Responsibility EC 2-25 (1986)).
28. Mary Coombs, Your Money or Your Life: A Modest Proposal for Mandatory Pro Bono Services, 3 B.U. Pub. Int. L.J. 215, 217 (1993).
29. Id.
30. Id.
31. Id.
32. Id.
33. Id.
34. Id. at 216.
35. Matthew 22:37-40 (New International Version). Biblical citations are to the New International Version.
36. "Don't you know that you yourselves are God's temple and that God's Spirit lives in you?" 1 Corinthians 3:16.
37. See Acts 20:35 ("In everything I did, I showed you that by this kind of hard work we must help the weak, remembering the words the Lord Jesus himself said: 'It is more blessed to give than to receive.'"); Luke 12:33 ("Sell your possessions and give to the poor. Provide purses for yourselves that will not wear out, a treasure in heaven that will not be exhausted, where no thief comes near and no moth destroys."); Matthew 5:42 ("Give to the one who asks you, and do not turn away from the one who wants to borrow from you.").
38. Gregory Lee Jackson, Prophetic Voice for the Kingdom: The Impact of Alvin Daniel Mattson Upon the Social Consciousness of the Augustana Synod 117 (1986).
39. Christian social responsibility directs Christians "to minister to the physical and temporal needs of our fellow men . . . . [It] is also concerned about the conditions which produce the need for charity . . . . [It further] implies a concern for the elimination of those things in the structure of society which produce indigent people." Id. at 118-23.
40. Id. at 117.
41. See Proverbs 21:3 ("To do what is right and just is more acceptable to the Lord than sacrifice."); see also Deuteronomy 16:20 ("Follow justice and justice alone, so that you may live and possess the land the Lord your God is giving you."); Psalm 82:3 ("Defend the cause of the weak and fatherless; maintain the rights of the poor . . . .").
42. "And you are to love those who are aliens, for you yourselves were aliens in Egypt." Deuteronomy 10:19.
43. "Carry each other's burdens, and in this way you will fulfill the law of Christ." Galatians 6:2.
44. "Love must be sincere. Hate what is evil; cling to what is good." Romans 12:9.
45. "May the Lord make your love increase and overflow for each other and for everyone else, just as ours does for you." 1 Thessalonians 3:12.
46. See Isaiah 58:6-10.
47. Is not this the kind of fasting I have chosen: to loose the chains of injustice and untie the cords of the yoke, to set the oppressed free and break every yoke? Is it not to share your food with the hungry and to provide the poor wanderer with shelter - when you see the naked, to clothe him, and not to turn away from your own flesh and blood? . . . If you do away with the yoke of oppression, with the pointing finger and malicious talk, and if you spend yourselves in behalf of the hungry and satisfy the needs of the oppressed, then your light will rise in the darkness, and your night will become like the noonday. Id.
48. Gustavo Gutierrez, a Peruvian diocesan priest, is a leader in Latin American Liberation Theology. His social ethics emphasize community and solidarity with the poor, oppressed, and outcasts of society.
49. Matthew 25:31-46. For a full reading of these verses, see infra note 49.
50. Thomas L. Schubeck, Liberation Ethics: Sources, Models, and Norms 156 (1993).
51. Luke 10:25-37.
52. Schubeck, supra note 46, at 158.
53. The following verses from Matthew illustrate this point: "When the Son of Man comes in his glory, and all the angels with him, he will sit on his throne in heavenly glory. All the nations will be gathered before him, and he will separate the people one from another as a shepherd separates the sheep from the goats. He will put the sheep on his right and the goats on his left. "Then the King will say to those on his right, 'Come, you who are blessed by my Father; take your inheritance, the kingdom prepared for you since the creation of the world. For I was hungry and you gave me something to eat, I was thirsty and you gave me something to drink, I was a stranger and you invited me in, I needed clothes and you clothed me, I was sick and you looked after me, I was in prison and you came to visit me.' "Then the righteous will answer him, 'Lord, . . . [w]hen did we see you a stranger and invite you in, or needing clothes and clothe you? When did we see you sick or in prison and go to visit you?' "The King will reply, 'I tell you the truth, whatever you did for one of the least of these brothers of mine, you did for me.' "Then he will say to those on his left, 'Depart from me, you who are cursed, into the eternal fire prepared for the devil and his angels. For I was hungry and you gave me nothing to eat, I was thirsty and you gave me noth-ing to drink, I was a stranger and you did not invite me in, I needed clothes and you did not clothe me, I was sick and in prison and you did not look after me.' "They also will answer, 'Lord, when did we see you hungry or thirsty or a stranger or needing clothes or sick or in prison, and did not help you?' "He will reply, 'I tell you the truth, whatever you did not do for one of the least of these, you did not do for me.' "Then they will go away to eternal punishment, but the righteous to eter-nal life." Matthew 25:31-46.
54. The Bible instructs us to contribute to society based on our gifts: We have different gifts, according to the grace given us. If a man's gift is prophesying, let him use it in proportion to his faith. If it is serving, let him serve; if it is teaching, let him teach; if it is encouraging, let him encourage; if it is contributing to the needs of others, let him give generously; if it is leadership, let him govern diligently; if it is showing mercy, let him do it cheerfully. Romans 12:6-8.
55. Bradley Shavit Artson, It's a Mitzvah! Step-By-Step to Jewish Living 14 (1995).
56. Mark Washofsky, May a Doctor Refuse to Treat an Indigent Patient?, Reform Judaism, Summer 1996, at 56.
57. Donald W. Hinze, To Give and Give Again: A Christain Imperative for Generosity 18 (1990).
58. The Book of Common Prayer and Administration of the Sacraments and Other Rites and Ceremonies of the Church 377 (1979) [hereinafter The Book of Common Prayer].
59. See Matthew 25:14-30; Luke 19:11-26.
60. Hinze, supra note 53, at 10.
61. Milner S. Ball, A Meditation on Vocation, in Radical Christian and Exemplary Lawyer: Honoring William Stringfellow 129, 131 (Andrew W. McThenia, Jr. ed., 1995) [hereinafter Radical Christian and Exemplary Lawyer].
62. "This stone that I have set up as a pillar will be God's house, and of all that you give me I will give you a tenth." Genesis 28:22.
63. See Matthew 25:14-30.
64. "The Biblical guideline is the tithe - 10% of [an individual's] annual income." Division of Christian Education of the National Council of the Churches of Christ in the USA, Stewardship - A Way of Life 9 (1989). This formula can also be utilized in calculating the amount of time to be dedicated for pro bono publico service.
65. Jackson, supra note 35, at 196.
66. Id. at 199.
67. 1 Corinthians 12:14-27.
68. Alfred T. Hennelly, Liberation Theologies: The Global Pursuit of Justice 24 (1995).
69. "The mission of the Church is to restore all people to unity with God and each other in Christ." Book of Common Prayer, supra note 54, at 855.
70. Id.
71. Andrew W. McThenia, Jr., An Uneasy Relationship with the Law, in Radical Christian and Exemplary Lawyer, supra note 57, at 167, 177-78.