Tuesday, February 27, 2007
Page 7
PERSPECTIVES (Column):
If Proposed State Bar ‘Civility’ Standards Are Adopted...
Lawyers Would Be Prodded Into Pledging to Perform Pro Bono Services
By ROGER M. GRACE
Thirty years ago, the president of the State Bar of California, Ralph Gampell, was pushing the idea of mandatory pro bono for lawyers. Forty hours a year of forced labor would have been exacted from each active member of the State Bar, under his plan.
The idea was a bad one, and it fizzled.
The current president of the State Bar, Sheldon Sloan, is now pushing for the establishment of civility rules. The draft of “California Attorney Standards of Civility and Professionalism,” released last week, declares that the “goals of the law” include a lawyer “contributing uncompensated time to persons who cannot afford legal assistance,” adding:
“A lawyer should contribute pro bono time to community activities and to individuals who cannot afford legal services.”
In my column of March 4, 1977 (then appearing in another newspaper), I noted that a past president of the American Bar Assn., Robert Meserve, had “urged that the ABA take a stance that each lawyer should devote five to ten per cent of his practice to free charity work.” I remarked: “But ‘should’ is quite different from ‘must.’ ”
I’m not sure that they’re that far apart in the present context.
The proposition that lawyers “should” provide pro bono services certainly cannot be equated with Gampbell’s plan which would have suspended lawyers from practice if they failed to comply with a set pro bono requirement. However, that tenet does gain teeth—though perhaps only baby teeth—by virtue of the proposed effort to prod lawyers to sign a pledge of obedience to the standards, should they be adopted by the Board of Governors. Those baby teeth could, over time, develop into fangs.
Before the California Supreme Court adopted a Code of Judicial Ethics, effective January 15, 1996, there were unofficial canons. They had been developed by a private association in which membership was purely voluntary, the Conference of California Judges, which became the California Judges Assn. Despite the non-governmental status of that group, judges drew discipline from the Supreme Court based on violations of the canons.
Given that heed was paid to pronouncements of a group with no official status, it is realistic to suppose that State Bar Court and Supreme Court disciplinary decisions would take into account attorneys’ noncompliance with such official “standards” as might be adopted by the State Bar, viewed by the state high court as a governmental entity. Indeed, Sloan said last week in an interview with a MetNews reporter that he would hope judges will come to “feel comfortable referring to this code and imposing appropriate sanctions for violators.”
Institution of “Pro Bono Compliance Cards,” due annually, would be destined to be instituted in but a few years once an official policy were established that the rendering of pro bono services was expected of all practicing lawyers.
The notion of the state conscripting attorneys into service was wrong 30 years ago and is wrong now. Pro bono should be neither the subject of legislation nor even a loose “standard” which could gradually be tightened into an enforceable one.
I’ve expressed these views to one member of the State Bar Board of Governors but found I was preaching to the choir. She and I generally have agreed over the past 40 years of our marriage.
Just in case you missed my column of March 4, 1977, here are portions of it:
Ralph Gampell’s “President’s Message” in the current issue of the State Bar Journal is titled “The Time is Now.” It’s a piece in which the bar chief touts his proposal for forcing each lawyer to dedicate 40 hours a year to pro bono labor.
(He sometimes speaks in terms of 20 hours.)
I agree that the time is now for action on the proposal. The action that should be taken is overwhelming repudiation by California’s lawyers of a plan to socialize their profession...
Gampell’s argument, voiced in a recent interview with this column, is this:
“When you realize that the near poor just don’t have the money to pay regular [attorney] fees—and I don’t mean gouging fees, just regular fees—then I say there’s a need. Now, will it be difficult to administer? Not if there’s enough goodwill. Will ‘voluntary’ work? Well, all I can say is that voluntary is apparently what is going on right now and it doesn’t appear to be working.”
And what would the sanction be if a lawyer failed to put in the required time?
“Lift his ticket,” Gampell said, pantomiming with his thumb and his forefinger the act of picking up an object—in this case, a law license earned by demonstrating fitness to practice a profession and, in our charade, lost by refusing to heed the commands of Big Brother.
Stepping forth to defend the Gampell Plan is former State Bar President David Robinson, who calls it “an excellent idea.”
.…
He continued:
“I do object to the idea that the lawyers might try to impose that (a pro bono requirement) on other professions—because I don’t think what the [other] professions do is any of our business.”
That remark was a retort to Gampell’s notion that the State Bar should cause the introduction of legislation forcing not only lawyers, but also dentists and doctors, to give free services. This notion is in reaction to State Bar opposition last year to a mandatory pro bono bill which singled out the legal profession.
The singling out of three professions for socialization instead of one simply makes the proposal three times as odious.
Builders should not be forced to provide free construction of housing projects, journalists should not be required to turn out free press releases for charitable groups, landscape artists should not be compelled to provide free shrubbery for hospitals. Why? Because it’s inimical to our free enterprise philosophy, our traditional belief in limited government.
If the United States does not stand for these principals any longer, it has lost its basic cause.
Here’s a portion of a column published March 18, 1977:
[I]t was heartening to read in last Friday’s Daily Journal that the Lawyers’ Club has taken a stance against the Gampell Plan….
The position was expressed in a letter to the State Bar Board of Governors from Lawyers’ Club President Malcolm H. Mackey. It would be involuntary servitude, the letter said, to mandate the rendering of free services—and that violates the Thirteenth Amendment.
Gampell has repeatedly scoffed at the contention that his plan calls for “slave labor” by lawyers, just as he’s ridiculed the objection that it’s socialistic. His defense takes the form of demeaning the criticisms. He fails to come forth with refutation of any substance.
“His views certainly don’t reflect those of the rank-and-file of the legal profession,” Mackey said in an interview. “Yet, he’s acting as our spokesman.”
Mackey, as you probably know, is now a judge of the Los Angeles Superior Court. Gampell became administrative director of the courts under Chief Justice Rose Bird, and died in 1988.
Since the time the “Gampell Plan” bombed in 1977...
•Sec. 17053.81 was added in 2002 to the Revenue and Taxation Code to provide a tax credit to attorneys, chiropractors, optometrists, physicians and surgeons based on their pro bono work for nonprofit charitable organizations.
•The State Bar Conference of Delegates in 2002 considered, but decided not to sponsor, a proposal to award minimum continuing legal education credit for performing pro bono services.
•Bus. & Prof. Code §6072 went into effect on Jan. 1, 2003. It requires, as a condition of landing a state contract for legal services for $50,000 or more, a pledge by the law firm of “good faith” efforts to meet specified pro bono standards: 30 hours a year per fulltime lawyer in the firm, or services worth 10 percent of the contract.
Sec. 6072 is on a par with requirements by some governmental entities that contractors agree to pay their employees while on jury duty. Yet, serving on a jury has long been commonly understood to be a personal obligation of the individual employee, as a citizen. In fact, Code of Civil Procedure §204 spells out that “jury service is an obligation of citizenship.” It does not say that it’s an obligation of employers. If jury service is deemed to be too onerous a burden, financially, for most citizens, the answer is to raise the daily stipend for them (now a barebones one, $15 a day after the first day)...using tax money or boosted jury fees.
Likewise, if societal notions of fair play dictate that legal services be provided in civil cases at no charge to the impecunious, or for free or at cut-rates to those with low incomes, then this obligation logically falls nowhere other than on society in general. To condition the award of a government contract to a law firm on its providing pro bono work is to utilize a criterion unrelated to the vendor’s ability to perform services to the governmental entity; it coerces the expenditure of labors entirely unconnected with the purpose for which the contract is let.
•The Legislature last year enacted Bus. & Prof. Code §6033 which authorizes the State Bar to collect contributions from members in the form of “voluntary financial support for nonprofit organizations that provide free legal services to persons of limited means.”
While the Legislature, in enacting the statute, said in its findings that “[e]very lawyer has a professional responsibility to provide legal services to those unable to pay,” this is not contained in the statute. The duties of an attorney are delineated in §6068 and an affirmative duty of going out and providing pro bono labor is not among them. It’s true that a lawyer has a duty, under para. (h.), “[n]ever to reject, for any consideration personal to himself or herself, the cause of the defenseless or the oppressed”...but this has been applied only in the context of representing indigent criminal defendants and has been largely legislatively abrogated. There was enactment in 1941 of a statute providing for court payments to attorneys appointed to represent such defendants in trial courts, and a statute in 1955 authorizing payments to attorneys on appeal.
Under the present set-up, some lawyers will choose to donate services to charities. Some will donate cash. Some will do both; some will do neither. Likewise, some lawyers and non-lawyers alike will give books they have read to Goodwill or to public libraries for their book fairs; others will toss them in the trash. The traditional notion is that charity is voluntary. There is a right to be stingy.
The proposed standard says: “A lawyer should contribute pro bono time….” I added the emphasis. Why time? Why not money? Is not the provision of cash to a legal aid program—that is, money with which it might secure services of attorneys—not a satisfactory substitute? But does that mean that, if the standard were adopted, the lawyer “should” divert funds he or she would otherwise have donated to a cancer clinic to the legal clinic? If such a re-routing of benefaction is not to be expected, why not provide, then, that “[a] lawyer should be charitable?” But is there any greater moral obligation on the part of the lawyer than anyone else to be charitable?
The more questions that are asked, the clearer it becomes that the pro bono provision should be capsized.
The State Bar certifies for admission those who have passed the bar exam and have demonstrated moral fitness. It disciplines or recommends discipline of those who fail to live up to professional standards. These are proper and mandated functions. But it would not be appropriate for the State Bar to promulgate standards mandating, on the part of lawyers, safe and courteous driving, avoiding the splitting of infinitives, giving blood at the Red Cross, or leaving reasonable tips at restaurants. Lawyers are licensees, with statutorily defined duties, and not humble subjects of the State Bar, obliged to perform whatever task the entity might ordain.
The U.S. Supreme Court’s 1990 decision in Keller v. State Bar of California establishes that members cannot be compelled to pay dues moneys that are routed to ideological causes with which they might disagree—such as gun control or a nuclear weapons freeze initiative—where the causes are unrelated to the purposes of the State Bar. Those purposes, which are to be effectuated by the Board of Governors, are statutorily defined: to “aid in all matters pertaining to the advancement of the science of jurisprudence or to the improvement of the administration of justice.” This does, clearly, encompass promulgation of a set of civility standards designed to improve the administration of justice. By no stretch of the imagination, however, is the board authorized to use dues moneys to communicate to lawyers that the making of charitible contributions is something expected of them; that the form of the contributions should be in the donation of time, that time being expended in performing legal services; and that they should return a written pledge to comply with the board’s fiat.
Assuming that the majority of the current Board of Governors holds the personal moral view that lawyers “should” provide pro bono services, the board would have no more of a prerogative to use bar dues to promote that belief than the 1982 board did in disseminating materials supportive of the state Supreme Court justices facing a confirmation election. (The court was later to declare that activity to have been unlawful.)
The proclamation that “[a] lawyer should contribute pro bono time to community activities and to individuals who cannot afford legal services” is purely an opinion, and one which has no place in “California Attorney Standards of Civility and Professionalism.”
The standards should not be adopted with that sentence intact—and if they are adopted with such language included, attorneys should desist from signing a pledge to observe them. Even a lawyer who devotes much time to pro bono activities should recognize the utter presumptuousness of the State Bar in purporting to dictate to all lawyers that they donate pro bono labors.
There
are some other flaws in the proposed standards. I’ll discuss them tomorrow.
Copyright 2007, Metropolitan News Company