Friday, July 20, 2007
Page 7
PERSPECTIVES (Column)
State Bar President Shelly Sloan Speaks Without Authority
By ROGER M. GRACE
Pending before the state Legislature is a Senate bill that, as amended in the Assembly last Tuesday, would add a Business & Professions Code section proclaiming that every California lawyer is “expected” either to provide pro bono services personally or to make financial contributions to organizations that do. Audaciously and inaccurately, State Bar President Sheldon Sloan has remarked that the organization he heads supports that language, as does the Legislature.
In an interview Wednesday with MetNews staff writer Tina Bay, he said of the language added by the amendment:
“I think it’s indicative of both the bar’s desire and the Legislature’s desire that lawyers volunteer pro bono time, and it kind of sets forth guidelines for those who want to do that.”
Neither the Legislature nor the State Bar has declared that pro bono services or financing is “expected” of all lawyers. Even if the “civility rules” which Sloan is pushing are approved by the Board of Governors today, as expected, the State Bar will not be on record as expecting pro bono support from lawyers. The proposed provision in the original draft that would have had such an effect has, like many parts of the guidelines, has been watered down. It now reads:
“An attorney should be mindful that, as individual circumstances permit, the goals of the profession include improving the administration of justice and contributing time to persons and organizations that cannot afford legal assistance.”
Here’s the language which the pending Senate bill, SB 686, would add to the State Bar Act:
It has been the tradition of those learned in the law and licensed to practice law in this state to provide voluntary pro bono legal services to those who cannot afford the help of a lawyer. Every lawyer authorized and privileged to practice law in California is expected to make a contribution. In some circumstances, it may not be feasible for a lawyer to directly provide pro bono services. In those circumstances, a lawyer may instead fulfill his or her individual pro bono ethical commitment, in part, by providing financial support to organizations providing free legal services to persons of limited means. In deciding to provide that financial support, the lawyer should, at minimum, approximate the value of the hours of pro bono legal service that he or she would otherwise have provided. In some circumstances, pro bono contributions may be measured collectively, as by a firm’s aggregate pro bono activities or financial contributions. Lawyers also make invaluable contributions through their other voluntary public service activities that increase access to justice or improve the law and the legal system. In view of their expertise in areas that critically affect the lives and well-being of members of the public, lawyers are uniquely situated to provide invaluable assistance to benefit those who might otherwise be unable to assert or protect their interests and to support those legal organizations that advance these goals.
That verbiage—concocted by Assembly member Dave Jones, D-Sacramento, a former legal aid attorney, and concurred in by the bill’s author, Sen. Ellen Corbett, D-San Leandro—would be an obvious foot-in-the-door for those who want to create mandatory pro bono.
And mandatory pro bono is a concept entailing conscription of lawyers…exacting involuntary services from them, or, if buying their way out is allowed, exacting from them what amounts to a special tax.
If society ought to provide free legal services to the poor, then that is an obligation befalling society in general, and financing for it should come from the general fund.
Here’s how Court of Appeal Presiding Justice Arthur Gilbert of this district’s Div. Six (then an associate justice) put it in a Feb. 6, 1986 opinion invalidating a scheme in Ventura under which judges ordered lawyers to provide free representation to indigents in paternity actions:
“It is a legitimate state function to assist the poor…, but, under the Constitution, this goal cannot be accomplished at the expense of one particular group of people. It is a denial of equal protection when the government seeks to charge the cost of operation of a state function, conducted for the benefit of the public, to a particular class of persons….
“An attorney who is appointed to represent an indigent without compensation is effectively forced to give away a portion of his property—his livelihood. Other professionals, merchants, artisans, and state licensees, are not similarly required to donate services and goods to the poor.”
Sloan, in addressing the expectation which SB 686 would create of pro bono services or financing from all lawyers, told Bay: “I don’t think it can be construed as mandatory.”
Of course he is right that creation of an “expectation” on the part of the state is not tantamount to a mandate. But it comes close. The lack of pro bono activities could be cited in disciplinary cases. More significantly, Sloan, a lobbyist and political behind-the-scenes person, should appreciate that a statutory provision that brings on the scene a lion without teeth could create a popular acceptability of the presence of that lion, to be replaced later by one with a full set of teeth.
Following my columns criticizing the original draft of the civility standards, Sloan sent us a March 1 “letter to the editor” in which he remarked: “As an individual, I have never supported mandatory pro bono requirements, and I do not personally support them now.”
That letter wasn’t published. We would not ordinarily fail to convey comments from a State Bar president. However, Sloan’s expression of personal opposition to mandatory pro bono was the only substantive portion of his supposed “letter to the editor” which was merely a skimpy segue into a State Bar press release which he quoted in full. A press release, to a newspaper, is like a brief is to an appellate court; it is considered, utilized, but not quoted in full. The bulk of the information contained in that press release had already appeared in a news story. Sloan was invited to submit a letter elaborating on his views but chose not to do so.
Sloan represents himself as a Republican loyalist but where he truly stands is not always possible to determine. In his roles as lobbyist, lawyer, and power broker, you’ll find him on both sides of the fence.
While Sloan proclaims his opposition to forced pro bono, it remains that he has virtually endorsed language in a bill that would go a good long way toward promoting it. He would at the least accept an inroad for those who want to make lawyers slaves of the state in providing free legal services or financiers of legal aid efforts.
What is most offensive is that Sloan would, during his term as State Bar president, not only personally embrace the proposition that lawyers should be expected to provide free services, but would falsely represent in a public statement (to Bay) that the State Bar has already adopted such a position. It hasn’t.
ADDENDUM: These words have been added to the legislative counsel’s digest of SB 686:
“Existing law provides that it is the duty of an attorney to, among other things, never reject, for any consideration personal to himself or herself, the cause of the defenseless or oppressed.
“This bill would provide that a lawyer may fulfill his or her ethical commitment to provide pro bono services, in part, by providing financial support to organizations providing free legal services to persons of limited means.”
The “existing law” alluded to is para. h. of Business & Professions Code §6068. That provision was historically applied in criminal cases.
Even before enactment of §6068 in 1939, lawyers were expected to provide free representation of indigents accused of crimes. The California Supreme Court said in 1860:
“[I]t is part of the general duty of counsel to render their professional services to persons accused of crime, who are destitute of means, upon the appointment of the Court, when not inconsistent with their obligations to others; and for compensation, they must trust to the possible future ability of the parties. Counsel are not considered at liberty to reject, under circumstances of this character, the cause of the defenseless, because no provision for their compensation is made by law. The duty imposed in this way may, it is true, be carried to unreasonable length, so as to become exceedingly burdensome; but we have heard of no complaints of this character. It is usual for the Court to apportion the duty among the different members of the profession practicing before it so as to render it as light upon each as possible.”
A 1918 Court of Appeal opinion recites:
“[T]he Legislature has enacted section 987 of the Penal Code, whereby the trial courts are, as seen, vested with authority, in the case of an impecunious person prosecuted upon a criminal charge, to assign him counsel, selected from the membership of the local bar, to defend him without compensation, or to trust for compensation to the future ability and the disposition of the accused himself to pay for the services rendered.”
However, §987a (now §987.2) was amended in 1941 to authorize payments to court-appointed counsel in criminal trial court proceedings, and 1955 legislation created paid representation of criminal defendants on appeal.
Every county now has a public defender’s office. (The first one in the state was created in this county by the charter of 1912.)
Although para. h. still appears in §6068, its significance has dimmed. It has been cited as a basis for keeping down payments to appointed counsel in criminal cases. But it no longer serves as a basis for compelling representation in criminal cases at no cost. It has never served as a basis for ordering unwilling attorneys to provide uncompensated services for the poor in civil cases.
The picture the legislative counsel paints is that of an existing “ethical commitment to provide pro bono services,” the only change being that an attorney would be able to provide cash instead of labor. This is distortive. Attorneys are now entirely at liberty to provide no pro bono services and incur no discipline—not even a letter from the State Bar saying “tsk, tsk.”
In light of compensation now being provided for criminal representation, and compelled free representation in civil cases having been barred by the opinion Gilbert wrote in 1986, it cannot be said that pro bono services are now “expected” from lawyers. The bill would change the law by declaring that pro bono services are “expected.”
Once that went into effect, enforcement provisions would be bound to follow.
The amendment to the bill is unsound. The description of the amendment by the legislative counsel is untrue.
And who should be bellowing about that? The most logical person would be the president of the State Bar, Shelly Sloan, who should be sticking up for lawyers’ interests.
But Sloan is on the other side.
Copyright 2007, Metropolitan News Company