Mandatory pro bono: an idea past due [Commentary]

Studies document the extraordinary unmet legal needs of low and middle-income people. To appreciate this, visit Baltimore City's Rent Court, where hundreds of tenants, including families with children, face eviction and homelessness. Or watch a docket of debt-collection cases in district court, where many defendants face financial ruin; or custody cases in a circuit court, where distraught parents fight for their children. The overwhelming majority of these litigants are representing themselves, often against lawyers.

Maryland has a strong tradition of encouraging lawyers to volunteer their services (called "pro bono"), under the leadership of former Chief Judge Robert M. Bell. In 2012, 57 percent of full-time lawyers reported that they did some free work, and 22 percent reported 50 hours or more. Assuming the accuracy of these self reports, these contributions are substantial.

Yet, 43 percent of Maryland's full-time attorneys reported no pro bono work, and 78 percent contributed less than an hour a week.

The time has come — indeed, it is way overdue — to require all lawyers to provide some legal help to people who cannot afford lawyers. A 50-hour-a-year mandatory pro bono requirement — just one hour a week — would more than double the current contributed hours.

Lawyers benefit economically from the law practice monopoly. Restrictions on non-lawyers increase both the costs of legal services and our incomes. If we want to maintain the monopoly, we must do all we can to provide legal services to those within it.

The arguments against mandatory pro bono are unpersuasive.

There is the "we are not qualified to help" argument. Litigators argue that the unmet legal needs of the poor are not in their areas of practice; transactional lawyers and house counsel argue that they are not litigators. But the legal problems of the poor fall within the practices of most lawyers. Community-improvement groups need transactional assistance, and families and individuals need legal advice. For the substantial majority of lawyers, pro bono program administrators can match the lawyer's expertise with an unmet legal need.

The other lawyers are educable. At the University of Maryland-Carey law school, we require all day division students to provide, or help to provide, legal assistance to otherwise unrepresented clients. We supervise and train our students, who have no practice experience. Obviously, practicing lawyers can be trained as well.

Then there is the "it must be unconstitutional" argument. Assuming the requirement is uniformly imposed, reasonable and administered with reasonable exemptions (allowing some lawyer choice), requiring pro bono work is not a "taking" of services or compelled speech; it does not arbitrarily deny property; and it most assuredly does not violate the 13th Amendment's prohibition of involuntary servitude. It is surprising (a polite word) to hear some of our most successful entrepreneurs invoke the amendment that abolished slavery to justify their refusal to provide a little legal help to people who include the descendants of freed slaves.

A third argument is "I'll do it when doctors and plumbers have to do it." But there are health insurance programs and Medicaid and Medicare that give the poor and most modest-income people access to comprehensive medical care. And plumbers do not have a government-imposed monopoly that precludes others from helping to fix your leaking toilet.

More important, access to law and our legal system is a hallmark of our democracy. When a person cannot effectively enforce the rights to which she is legally entitled, and thus is left outside the protection of law, she is less than a full citizen.

The final argument is one I find professionally embarrassing. It is "if you make me do it, I will do a bad job," or "if you make them do it, they will do a bad job." If a law student said this, and carried through on the threat, he or she would flunk. Under our professional rules, incompetence, particularly the willful kind, is not an option, especially when training is available.

Mandatory pro bono will not, by itself, meet the legal needs of the poor. But, it can help. If it were an option, I would take adequate governmental funding for legal services without question.

Administering a mandatory system will pose challenges. We could start with self-reporting and random audits. The substantial majority of lawyers will comply. After all, we are professionals.

The grave injustices that we tolerate every day are not wholly beyond our control, if we have the will to act.

Michael Millemann is a professor at the University of Maryland Francis King Carey School of Law. His email is

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