Document Type
Article
Publication Date
1-1994
ISSN
0043-3268
Publisher
West Virginia University
Language
en-US
Abstract
The question of whether lawyers have an ethical duty to perform public service-and, in particular, whether the obligation requires that a percentage of time be devoted to providing free legal services to the poor'-has a disjointed and uneven history. Leaders of the bar, espousing various and often conflicting views of morality, compassion, noblesse oblige, and individual autonomy, have contributed to this state of affairs, creating a complicated web of vague ideals that today jeopardizes the legal profession's sense of its own public obligations. On the one hand, the legal profession remains dedicated to the traditional view that public service is a matter of personal charity, to be performed at the discretion of the individual attorney. And yet, despite the prevalence of this dominant notion, an undercurrent of thought rejects the relativistic approach to public service, arguing instead that lawyers have a professional responsibility to help assure that legal services are available to all, including those who cannot afford to purchase representation on the open market. The Code of Professional Responsibility and the Model Rules of Professional Conduct reflect both notions of public service, sending mixed signals to members of the bar as to whether their professional duties include the obligation to render free legal services to those in need. By failing to articulate a vision of legal ethics that resolves the question of whether there is a professional duty of public service, the legal profession has contributed to the legal system's inability to distribute legal services to those in need.
By exploring the contradictory visions of public service and analyzing the palpable justifications for the lawyer's duty to serve, this article seeks to articulate a clearer foundation for the lawyer's societal obligations, one that unequivocally includes the duty to provide free legal services to those in need. Part II briefly reviews the nature and extent of the crisis in legal services for the poor, recognizing that, for the most part, access to the system of justice is foreclosed to the nation's poor. Part II[ addresses the profession's competing views of public service, noting that, despite efforts to resolve this confusion, today's ethical rules remain very unclear about whether a lawyer has a professional duty to perform public service as a condition to membership to the bar. The implications of the current state of affairs is addressed in Part IV, which notes that, despite the frequent calls for public service, very few lawyers actually engage in pro bono practice for the poor. The demand for mandatory pro bono programs to redress the deficiency in pro bono activity is also discussed. Finally, Part V argues that lawyers do possess a fundamental duty of public service, which emanates from the monopoly that the bar retains over the provision and distribution of legal services. In coming to this conclusion, this section argues that the legitimacy of the system of justice depends upon the legal profession recognizing that lawyers have a fundamental duty to perform legal services for those who are too poor to retain private counsel. In addition, this section reviews the implications of this conclusion for the profession as a whole, individual attorneys, and legal educators.
Recommended Citation
Tigran W. Eldred & Thomas Schoenherr,
The Lawyer's Duty of Public Service: More than Charity?
,
96
West Virginia Law Review
367
(1994).
Available at:
https://scholarship.law.bu.edu/faculty_scholarship/4142
