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Pro bono publico

Redeeming the touch of justice that brought each of us to the Bar

By Howard B. Miller
President, State Bar of California

Howard B. Miller

Unfortunately the colloquial meaning of pro bono has become legal services for free, at no cost. But the proper meaning and importance of the words is in the full Latin quote: for the public good.

Several almost simultaneous developments have brought us to a tipping point in the commitment of the legal profession to pro bono work, and in our understanding that it is for the public good.

No lawyer, no law

We were all caught unawares in the past year not only by the scope of the loan foreclosure crisis, but by the cracks and failures that it showed in our legal system. We know of too many cases where homeowners would have had legal defenses to foreclosure, but without lawyers in our California system of non-judicial foreclosure the result was a loss of homes. For over a century our legislature and courts have constructed an elaborate series of technicalities and protections for homeowners faced with foreclosure. But the existence of those protections made no difference to those who had no legal representation. It is as though all those laws did not exist, as though because there was no representation all the work and thought that went into those laws and protections had never been done.

And so we learned again, with a vengeance: No lawyer, no law.

The Elkins Task Force

In August 2007 the Supreme Court of California issued, unanimously, one of its most remarkable and greatest opinions in Elkins v. Superior Court of Contra Costa County, 41 Cal.4th 1337. In Elkins a self represented spouse had failed to comply with a local court rule requiring certain written declarations. The Court not only held that the local rule was inconsistent with state law, but in its opinion stated broad principles of access to justice in family court proceedings. The rules have to be clear and understandable to litigants. The courts must “employ fair proceedings when the stakes involve a judgment providing for custody in the best interests of the child and governing a parent’s future involvement in his or her child’s life, dividing all of the family’s assets, or determining level of spousal and child support.” (Elkins at 1368.)  The greatness of the opinion is its recognition that justice is not determined by law and doctrine alone. Justice requires fair, clear, procedures that can be understandably applied.

Following a recommendation of the Court, the Judicial Council established an Elkins Task Force, which has been chaired with great distinction by Justice Laurie Zelon. The Elkins Task Force worked in the shadow of a disturbing truth: In the most important contact with the law most people have in their lives — in family law courts — today, statewide in California, close to 80 percent of all cases in those family law courts involve self represented litigants at critical stages: child custody, support, spousal abuse, access to assets.

It is simply unacceptable that we are part of a legal profession in California in which most people have no representation at all at the time of their most critical contact with the law. That is why the Elkins Task Force report includes serious recommendations for programs to meet the need for pro bono representation in family law courts. And the State Bar will respond to do everything it can to increase that level of pro bono support.

A.B. 590

A.B. 590, authored by the Chair of the Assembly Judiciary Committee, Mike Feuer, passed in the most recent legislative session, was signed by the Governor, and establishes pilot programs, paid for by court fees, to provide funds for lawyers to represent those in need at life altering moments, such as loan foreclosures and in family law. It is the first law in the country to establish “Civil Gideon” principles, providing representation in critical civil cases as the Constitution requires now in criminal matters. But importantly, the pilot projects will also call for organizational plans, built around existing legal service programs, to train, develop, and increase pro bono representation by all lawyers. A.B. 590 is not a substitute for pro bono representation. It provides the basis for increasing that representation.

The California Bar Foundation and “Fishhook” California

As I grew up in California the great division was North-South. On some issues, such as water policy, it still is. But the greater division now is West-East — between the coastal counties and “Fishhook” California: draw a line starting in Redding, down the Sacramento and San Joaquin Valleys to the base of the San Bernardino mountains, go east to the Arizona border, turn south and come across the border with Mexico, and east of highway 15 go north through San Diego county. You will see the fishhook, one of two Californias. Though the need for pro bono representation is great statewide, the income levels and need for pro bono representation in fishhook California is substantially greater than in coastal California and its urban areas. This is sometimes also referred to, not with complete accuracy, as the Urban-Rural divide.

The California Bar Foundation, which is the charitable foundation for the legal profession in California, is committed to providing grants to legal service programs in the most dramatically underserved areas of the state. The State Bar is now working with the foundation on a program to provide cy pres funds from class action cases to help meet that need. But the Foundation also deserves all our individual and law firm support in that effort.

ABA Model Rule 6.1 and the State Bar Rules Revision Commission

American Bar Association Model Rule of Professional Responsibility 6.1 provides that all lawyers “should aspire” to do 50 hours a year of pro bono work. Our own Rules Revision Commission is in the process of a schedule to complete all its work by the summer of 2010, and one of the rules it is considering, and is in a draft recommendation, is an adoption of new California Rule of Profession-al Conduct 6.1, an analogue to the A.B.A. rule, that would call for that level of pro bono work by California lawyers. The commission is on schedule to report the recommendation on the pro bono rule to the Board of Governors at its January meeting. The recommendation will come to us in the context of the extraordinary need for pro bono services I have discussed.

The future and future lawyers

I recently was a guest lecturer at the UCLA Law School in Professor Adam Winkler’s regularly scheduled class in legal ethics. At one point I asked the class of about 100: “If you were choosing between two law firms to work for, and one had a supportive program of pro bono work, and one did not, which would you choose?” Close to ninety per cent of the class voted they would choose the firm with the pro bono program. Law firms also know that young lawyers entering the profession get it. Doing pro bono work is part of any plan to build a great practice.

We used to think of pro bono as something we did in addition to our regular practice. First we did well, and then we did good. We are coming to realize that really we do well by doing good.

Where we are going is to recognize a core value of our profession, and what defines us as lawyers, is to provide legal representation to all who need it. That is pro bono publico. It redeems the touch of justice that brought each of us to the Bar.

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