California Bar Journal
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Taking care of the poor
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On June 16, the U.S. Supreme Court in a 5-4 decision ruled that IOLTA (interest on lawyers’ trust accounts) belonged to the clients and not to the government, no matter how well-intentioned its use.

In Texas, these funds were used by the Texas Supreme Court to pay for services for the poor. It did so on its own authority, and it should have realized that it was performing a legislative function, not a judicial one.

The interest on the money of the client in the lawyer’s trust account belongs to the client, not to the government (in this case, the state Supreme Court). Of what benefit is it to my client whose money was taken from my trust account to assure that legal services to the poor are delivered?

None whatsoever.

It may be laudable and of a superior morality if, after full disclosure to him or her, he voluntarily agreed to do this. But the government, in the form of the Supreme Court, has no right to simply come in by its own fiat and tell him that he must contribute to the delivery of legal aid to the poor. We don’t do this for any other profession and for no other services, except for criminal process against the indigent poor who face a possible prison sentence of six months or more. But this comes from legislation, not from public funds.

In addition, the court was anxious to strike a correct balance between the federal and the state systems so as to not unduly burden states.

Last year, the court, in the name of federalism, annulled part of the Brady bill which mandated states to require background inspection of new gun owners without paying the states for the burden of doing so (Printz v. U.S.).

Once again, if the federal government mandates states to do something, it must help pay for the same.

The same is true with regard to delivering legal services to the poor. This is the state’s responsibility by legislation and not by means of confiscation of money from a particular group of people (via lawyers’ trust accounts).

The federal government may encourage such services by offering a subsidy to states which institute such programs but cannot issue empty mandates to the states.

The supreme courts of the several states have other, more legitimate and legal ways of financing legal services to the poor. The right to practice law is not a right but a privilege, and once admitted to the bar, each lawyer is an officer of the court. This is because the bench/bar does not deal with widgets or foodstuffs or autos or construction.

It deals with justice. Its object is unique and different from all other professions. There are special responsibilities for lawyers which are not incumbent on any other profession.

Because of that unique end of lawyering, the supreme court of the several states may morally and legally mandate pro bono requirements on each and every member of the bar. The courts can justly mandate that 10 percent of all the time of the lawyer must be given to the poor or as a subsidy for services to those unable to fully pay.

Some will argue that such a burden is not required of any other profession. That’s because the legal profession is unique and qualitatively different from every other profession because it deals with justice and not with widgets.

Clearly the mandate would have to be couched in reasonable terms. The services must be in the field of expertise.

A fixed amount would be paid equal to 10 percent of his or her net pay. Those lawyers making less than the average worker in the U.S. ($30,000 per year) would be excused altogether.

This would not be a perfect system, but it would be a far better system than the one we have now, where the poor receive no legal help or are dependent on the generosity of a few very high-minded lawyers.

Their sacrifice is not enough. The obligation is incumbent on the whole legal profession and on each individual member as officers of the court in the administration of justice.

Given that many in our society cannot afford legal services, the bench/bar must assure them of such.

And since every other way has been tried, and since we have no right to foist this obligation on our fellow citizens by added taxation, the bar can and should be obligated to give free pro bono legal services to the poor.

Its time has come.

Peter J. Riga, a Houston attorney, has been a member of the California bar since 1979.