Ethics vs. Morals: Do Lawyers Have an Obligation to Help the Poor?
It is clear that we live in a world that is increasingly becoming economically polarized, for many socio-economic reasons. This has been true since time began, because people have different intelligences, different skill sets and grow up under different circumstances. As lawyers, our education usually ensures we sit close to the top of the economic food chain.
Does this mean that we have an ethical duty to help those less fortunate? A moral duty? And are these questions different or the same?
Early in the history of common-law countries, lawyers – or their precursors – worked without compensation. Today of course things are much different. Lawyers expect clients to pay for their services. But look around you – how many potential clients can afford to pay a lawyer $500 an hour? Or even $150?
There are what I call “ethical guidelines” in California that exhort lawyers to help the poor and disadvantaged. For example, Comment 5 to the California Rule of Professional Conduct 1.0 states that a lawyer “(…) should be aware of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor; cannot afford adequate legal assistance. Therefore, all lawyers are encouraged to devote professional time and resources and use civic influence to ensure equal access to the system of justice for those who because of economic or social barriers cannot afford or secure adequate legal counsel. In meeting this responsibility of the profession, every lawyer should aspire to render at least 50 hours of pro bono public legal services per year. The lawyer should aim to provide a substantial majority of such hours to indigent individuals or to nonprofit organizations…”
I sat on the Commission that drafted the current Rules and this language. I remember how badly I wanted to have a Rule that did more than provide a recommendation but instead compelled pro bono work. We did draft such a rule. But any mandatory pro bono rule is an electrical third rail, or at least it was in the past as lawyers fought any disciplinable obligation to help the poor. Lawyers argued it was a “taking” and unconstitutional. They argued it was yet another obligation like MCLE when they had little time left over after their working days. The California Supreme Court was likely concerned too and sent our Rule back to us because they could see the very real problems with enforcing non-compensated work. The aspirational language above became the final result.
This language is in contrast to California Business & Professions Code section 6068 (h) which seems to compel pro bono work, at least in the narrow circumstances where someone cannot find a lawyer willing to take that client. That legislatively mandated Code section states that it is the duty of every lawyer, “never to reject, for any consideration personal to himself or herself, the cause of the defenseless or the oppressed.” This is very broad language, and it reads more like a “moral” obligation vs. an “ethical rule-based” obligation. It seems interesting that the public would clearly see a strong obligation to provide pro bono services while our Rules, written by lawyers, would reflect only an aspirational obligation without the stick of discipline behind it.
Statistics in the past decade show that legal services organizations cannot meet the public needs. The ratio of free legal services attorneys available to the number of low-income Americans who need one is 1-6,415. Yes, you read those figures right. And the number of low-income Americans qualifying for free legal help over ten years ago was 63 million. One third of them were children. Think of what the figures must be now. One has to assume these figures have not gone down, especially with inflation pressing in from all sides. These figures and many others on the unmet need for low-income legal services can be found in David Liu,
- Civil Legal Aid By the Numbers, Center for American Progress.
It would be ideal if volunteer lawyers could fill the gap. But I recently read an article by Glen Gamboa in the Santa Fe New Mexican on volunteerism. He says that while there are a lot of young people who want to volunteer for all kinds of causes, a lot of organizations do not have the processes, the tools or the projects to harness that desire. He also opines that because people are on the move now since the pandemic, they tend not to commit to a community and its needs. He opines that volunteerism is tied to long ties to a community, and even though volunteerism is an American value from back when our county was formed, it erodes when citizens are not stakeholders in a city.
Our Rules of Professional Conduct have not entirely left the poor in the lurch. Recently, language was added to Rule 5.4 to allow a civil litigation lawyer who handles a case for a non-profit to share a court-awarded legal fee with non-profit legal aid, mutual benefit or advocacy group as long as they are not engaged in the unauthorized practice of law and employed, retained or recommended employment of the litigation lawyer. The Rule gives, as an example, a non-profit organization’s operation of a law practice incubator program. In the past, this would have been an unlawful fee arrangement, because it would be the sharing of fees with a non-lawyer.
But there are other important Rules that give a leg up to the lawyer wanting to help the poor. Rule 6.3 is a tweak on our conflicts Rule 1.7 that gives more leeway to a lawyer in fighting for a poor client even if the case might tangentially be adverse to a current client of the firm. Rule 6.5 allows a lawyer to provide “one stop quick advice” where there is no expectation that the lawyer will provide further services. An example of this is Law Day at your local bar association where you sit with a lot of good-hearted lawyers and help out whomever sits down in front of you (this is one of the most rewarding and fun things a lawyer can do). Rule 6.5 does require the client’s informed consent, and that is easily obtained when the client signs a form before the advice is given. In addition, the lawyer ordinarily does not have to run a conflicts check.
While there is still no actual enforceable obligation to provide pro bono services, I think there is a moral one. Why? Well, it is hard to put into words, but I think we have a monopoly on legal services with barriers to entry, so few can provide legal services to the poor. Larger barriers exist too, like law school, burdensome student loans and the Bar exam. In addition, you have to be intelligent and hard-working to be a lawyer. Not everyone has these qualities.
We can prevent injustices, and devote a little time every year to a cause we believe in, or write a check if we are time constrained. I think we should aspire to be more than just 40-hour-a-week lawyers. We should be “Renaissance” men and women – well-rounded and balanced and lift people to their higher ground.