Mandatory Pro Bono Work Is Not the Route to Justice for Indigents in Civil Cases

The unmet need for volunteers to represent indigent clients in civil cases is growing at a faster rate than the glut of lawyers graduating from American law schools. Is the solution then to compel lawyers to accept court-appointed clients without compensation? The U.S. Supreme Court will tackle this question today when a young Iowa lawyer argues his first case before the high court.

John E. Mallard practices business law in Fairfield, Iowa. In June of 1987, he was appointed by the U.S. District Court to represent three inmates at the Iowa State Penitentiary who had filed a civil rights suit against prison administrators. The suit claims that the prison officials endangered the inmates by exposing their role as informants. Mallard, citing his lack of litigation experience, asked to withdraw from the case. The court refused to let him off the hook, and Mallard ultimately petitioned the U.S. Supreme Court to review the pro bono, or no fee, appointment. When a hearing was granted, bar associations lined up on both sides of the case to file “friend of the court” briefs. Bar groups that support mandatory pro bono requirements for lawyers, such as the Bar of the City of New York, are opposing Mallard. The State Bar of California is supporting him.

The most difficult issue in Mallard’s case is posed by the claim that federal courts have “inherent authority” to order lawyers to accept cases. This claim is supported by historical precedent for criminal cases. For many years, before public defender offices were established, courts would simply appoint whatever lawyer happened to be in the courtroom that day to represent an indigent defendant. Often forgotten, however, is the sordid doubled standard of justice that prevailed under this system. Appointed lawyers frequently sought the earliest opportunity to plead their clients guilty. Also overlooked is the fact that a century ago, most lawyers went to court, and the burden of taking appointed cases could be spread among the entire bar.

Today, the vast majority of lawyers seldom see the inside of a courtroom. Limiting appointments to those who are litigators means that the burden of pro bono representation falls on relatively few shoulders.

Ironically, the assertion of judicial authority to mandate acceptance of court-appointed clients may undermine the voluntary programs now in place. The thousands of lawyers who participate as volunteers maintain control over their caseloads. As long as they are free to reject a case that may be too burdensome or costly, or demand competence in unfamiliar terrain, they remain willing to accept their fair share. Once the courts begin mandating the acceptance of pro bono clients, then few lawyers will volunteer to take cases not meeting that mandatory obligation. A process of displacement could occur, in which only the needs of indigents whose claim for counsel has been recognized by the courts would be met. Others equally deserving would be left unserved.

No one seriously suggests that the health needs of indigents should be met by compelling doctors to accept indigent patients. Providing a minimal level of health care is perceived as a public responsibility, not just a responsibility of the medical profession. Yet, for eight years, funding for legal services for indigents has been mercilessly cut, and the clients turned away are left to seek handouts from volunteers.

Giving courts the power to compel acceptance of clients in civil cases is likely to accelerate the process of public funding cutbacks and institutionalize a double standard of justice. One class of justice would be reserved for paying clients, while appointed clients would receive the kind of justice that indigent, criminal defendants received a century ago.

As Meyer Goldman, a founder of the public defender movement, put it: “Too frequently, the services (of appointed lawyers), if rewarded by small fees, are half-hearted or openly negligible . . . The client pays the penalty, perhaps not for the crime charged, but often for his poverty.” The public defender system has worked well in providing competent representation for indigent defendants in criminal cases. Publicly funded legal-aid clinics come closer to our ideal of “equal justice for all” than a system of judicially mandated charity.

Clearly, some lawyers are shirkers. A recent poll commissioned by the American Bar Assn. reported that only one out of five American lawyers volunteer to handle pro bono civil cases. But today’s level of specialization simply means that many lack the competence to handle the kinds of cases where indigents need representation. Many such lawyers contribute to their communities in other ways. In arguing his own case before the Supreme Court, Mallard faces a paradox. The more brilliant his advocacy, the less compelling will be his claim that he lacks competence in litigation skills. But more than the personal competence of John E. Mallard is at issue in the case of Mallard vs. U.S. District Court.