F.R. Duplantier reporting Behind The Headlines
Week of:
May 21, 2000
Masquerading as 'Pro Bono Publico'

F.R. Duplantier

by: F.R. Duplantier

Not everything a lawyer does pro bono is really for the public good, and not all of it's for free, either!

"Pro bono publico law went through a radical transformation in the 1960s," reports Heather Mac Donald of the Manhattan Institute; "ever since," she says, "it has been the vehicle through which elite corporate lawyers could participate in the entitlements revolution, in the litigation revolution that turned lawyers and judges into unelected legislators, and in the cultural revolution that turned America into a nation of victims."

In the current issue of City Journal, published by the Manhattan Institute, Mac Donald recalls that American lawyers once "understood their pro bono obligation -- their obligation to serve the public good without pay -- to mean ensuring the fair administration of justice. They helped courts as unpaid arbitrators and mediators and served on bar committees to improve the law. Equally important," she adds, "they represented politically unpopular clients for free, to ensure justice for all."

Mac Donald emphasizes that the legal aid societies that began to appear in the late nineteenth century "unapologetically distinguished the deserving from the undeserving poor. The deserving poor were those who worked," she explains. "Like virtually all their peers, early legal aid practitioners took for granted a distinction between courts and legislatures," Mac Donald continues. "The courts were for the adjudication of existing rights, they believed; reform of the laws, including reform to help the poor, took place in the legislature. They also assumed that legal aid was a private-sector obligation."

What happened to this levelheaded and effective approach to pro bono practice? "The nation's massive culture change during the 1960s brought into currency a radically different philosophy of helping the poor, one that entailed a novel use of the courts," Mac Donald contends. "During the War on Poverty," she notes, "America jettisoned its traditional distinction between the deserving and the undeserving poor. It jettisoned as well traditional social work's effort to change self-destructive habits in the poor. Entitlements to government aid were the War on Poverty's panacea, and anti-poverty warriors from the academic and legal left insisted that government help should be automatic and free of moralizing."

The federally funded "legal services" agencies established in the 1960s "could not have been more different from the traditional voluntary legal aid societies," asserts Mac Donald. "The goal of the [original] legal aid societies had been due-process justice," she recalls; "making sure that the poor have their day in court. The new legal services agencies had something quite different in mind: the redistribution of political and economic power."

Mac Donald questions whether pro bono programs really do "serve the public good. The problem of the long-term poor today cannot be solved with litigation," she asserts. "Though the pro bono industry pushes for bigger and bigger cases," Mac Donald explains, "what the most troubled poor need is on the micro level: an understanding of work, the commitment to stay in school, a stable family. If benefits and more government spending could solve juvenile delinquency, nonwork, or illegitimacy," she declares, "we would have solved them long ago."

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