2nd Circuit Chief Judge Says Pro Bono Work is ‘Anti-Social’

Al Tidom
Oct 16, 2008 3:16 PM CST

Yes, I agree that Pro Bono can be cathartic for us lawyers.  It makes us realize that others are not so fortunate and that we should give back in service, even if not in dollars. Unclear what Jacobs was trying to get at.

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Stiles
Oct 17, 2008 4:23 AM CST

If an attorney finds something to believe in or a worthy client, by all means attack the challenge.  If pro bono work maintains humility in the attorney, that’s something everyone could use a solid dose of.

But so many pro boners, clad in a shallow hood of “justice” or a blind hatred of the rich / corporations / government, must take a good hard look at motives and merits.  Serial pro bono practitioners have the amazing ability to undermine their own efforts by failing to pick the right fights—THAT is antisocial.

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Steve Perkins
Oct 17, 2008 4:44 AM CST

One of the more mysterious groups in European anthropology are the historic Celts.  They are hard to study, because the only surviving records of their culture and history are writing made by the Romans.  You get an incomplete and indirect reflection, when your only context for something is provided by that something’s arch-nemesis.

Likewise we here have a blog post by the ABA, briefly summarizing a blog post by the American Constitution Society, which in turn briefly summarizes an event of… the Federalist Society.

I’m sure there will be much argument and fuss on this thread, just as there is among historians discussing the Celts.  In both cases, the picture you’re working with is pretty incomplete and undoubtedly distorted.  Flame on.

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Charles Novins, Esq.
Oct 17, 2008 5:03 AM CST

I understand the critique perfectly.  In evaluating pro-bono work, the proper standard is justice.  If the client is too poor to pursue his cause, that alone is meaningless.  What cause?  Why the poverty?  Most blindly assume “pro-bono” means “for a worthy cause,” and that’s just straight-up ignorance.  And why is the client poor?  It matters if laziness is the reason, and there is often a failure to put the money where the mouth is - a desire to get something for nothing.  In other words, the merits - or demerits -  of any “pro-bono” enterprise is context-dependent.  Most observers are ignorant of this simple fact, and for larger and wealthier firms, pro-bono litigation is in fact a type of marketing.  When the other factors are in place, i.e., worthy cause and/or client, this is a fabulous win-win for all.  Where those factors are absent, pro-bono work is a menace.  Sadly, the latter is typical of most pro-bono work actually being done.  The only real debate here is whether the judge’s citation of the pre-Katrina litigtation-debacle is typical of pro-bono, or an aberration.  FWIW, I vote door #1.

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Richard
Oct 17, 2008 6:55 AM CST

Better to spend our time in pubic-spirited advocacy for big, wealthy corporations.

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Charles C. Sweedler
Oct 17, 2008 7:01 AM CST

I think the notion that pro bono work is “anti-social” is wrong and reprehensible.  The fact that one’s client lacks the means to pay the typical lawyer’s hourly rate says precisely zero about the merits of his or her claim/defense, just as the fact that another client has the means to do so says precisely zero about the merits of his or her claim/defense.

In fact, because the lawyer is volunteering his or her valuable time, the probability is quite high that he or she is doing so because he or she is committed to doing so on a personal as well as professional level.  The inherent nature of pro bono work logically suggests that the attorney believes the case to be pro-social.  Few if any lawyers accept pro bono cases randomly. 

I am amazed that a sitting federal court of appeals judge would denigrate an entire class of litigants and attorneys based on nothing more than their pro bono status.  Not only does it contradict the message that every reputable legal organization (e.g., law schools, bar associations, state licensing entities, etc.) puts forth, it is also illogical and mean-spirited.

What could he have been thinking?

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JR
Oct 17, 2008 7:10 AM CST

Rather than pro bono being anti-social, Judge Jacobs’ elitist and nasty point of view is anti-social.  I suppose the judge thinks it ok for the powerful to run rough-shod over the downtrodden and the rich to oppress the poor. Recall that the effofts to expose the Bush Administration’s shredding of the Constitution came from pro bono lawyers. 
As for not taking responsibility for the consequences of their work, does Judge Jacobs equally denounce corporate litigators who run up the bill on discovery and other delaying tactics to wear out the opposition? No because if not him some of his colleagues in the private bar earned their money that way.
A man with such a crabbed view of justice does not belong on a court, especially one as distinguished as the Second Circuit.

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Law Student in Madison
Oct 17, 2008 7:48 AM CST

Exactly what is wrong with being a member of the Federalist Society?  Nothing, just as nothing is wrong with being a member of the ACLU.

Back to the substance of this “article.”  Obviously, pro bono work is commendable.  However, we have to admit that sometimes attorneys take pro bono cases simply to meet bar or firm standards.  Some of them could care less about the case.  Some of the “causes” they end up fighting for are worthless from a social perspective and hence, anti-social.

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OldShark
Oct 17, 2008 7:50 AM CST

Why all this knee jerk defense of pro bono?  How many self righteous posters actively do pro bono? I do not.  The pro bono referenced here is for the benefit of left wing organizations.  It should not surprise you that a right wing, Republican appointed judge opposes such causes.
     
Pro bono is one of the biggest cons perpetuated on the legal industry.  Lyndon Johnson, the greatest president in the history of our country, won the war on poverty.  There is no real poverty left in our country.  No one is going hungry: we live in a welfare nation.

What we have left is relative poverty.  This is car or house envy – or anger your cell phone is snazzier than mine.  I represent real people not corporations.  I don’t see many folks who are unable to retain SOME attorney. (You might be surprised by how broke a number of your colleagues – particularly solos – are.)  I do see a number of “clients” looking for a free ride.

Give up the guilt trip.  Spend your time with your family or friends.  Take the time to do an activity you enjoy.  End the free lunch and self flagellation.  Enjoy another double soy latte!

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Deyseeme T. Rollin
Oct 17, 2008 7:52 AM CST

I think it’s obvious that Bono is anything BUT anti-social.  Do you see the charity work that guy does?  I mean, the sunglasses make him look like a tool, but you can’t deny that he is quite altruistic.

Also, anti-social or not, the Joshua Tree is definitely among my top 10 albums of all time.

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Joe Herrick
Oct 17, 2008 8:02 AM CST

And I hate when I type to fast . . .

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BP
Oct 17, 2008 8:24 AM CST

First of all, this just perpetuating the myth of the New Orleans levee lawsuit.  I’m from NOLA so let me clue y’all in.  First of all, the court held that the ACOE only had to do a proper NEPA EA and they could have continued with the project.  The reason they did not was b/c when they began looking at it, the design they had would have actually made flooding worse in a storm like Katrina.  That’s right - worse.  So the ACOE changed the design and built the levees.  The problem was, they didn’t build the levees to proper engineering standards so the levees in areas like the Industrial Canal, 17th St Canal and London Ave Canal couldn’t handle the storm surge.  The one’s on the 17th St Canal actually just moved 50 to 100 feet over in places causing the breach.  In other places, they just never finished the levees.  Not b/c they didn’t have time; they just quit.  So levees weren’t all of uniform height or not there at all, and where they were of uniform height, they weren’t built to standards.  And what we’ve found since Katrina, is that the contractors that have been hired to come in and rebuild the levees have done it again.  They’ve taken ridiculous shortcuts (i.e. filling levee walls with newspaper) that would have just caused us more problems had they not been discovered.

And as for poverty not existing anymore, come down to NOLA (or for that fact, any major city in America), and I will show you some absolute abject poverty.  It’s not about keeping up with the McCoy’s when you can’t afford even an old beater car to begin with.

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Joe Herrick
Oct 17, 2008 8:45 AM CST

I believe you mean the proverbial “Joneses”

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Take the Time to Read What the Other Guy Said
Oct 17, 2008 9:04 AM CST

“Posted by Jerry Glover - 1 hour, 37 minutes ago

What do you expect from a guy who apparently is either a member of or definitely supports the agenda of The Federalist Society?

Posted by Law Student in Madison - 1 hour, 1 minute ago

Exactly what is wrong with being a member of the Federalist Society?  Nothing, just as nothing is wrong with being a member of the ACLU. “

Typical straw-man fighting.  I don’t believe the poster suggested there’s anything wrong with being a member of the Federalist Society.  The poster, instead, is suggesting that the interests of the speaker are revealed by his membership in the FS, which in turn makes it fair to criticize his point of view as one that is clouded by his ideological feelings.

Unless you’re now going to suggest that the FS is nothing more than a neutral debating society of fair minded individuals?  Go ahead—Try that one.

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Covert Academic
Oct 17, 2008 9:08 AM CST

I don’t have a transcript of the speech at issue here, but the nature of other speeches given by this judge makes me think that his words have been distorted to the point of caricature:

http://www.fed-soc.org/publications/pubID.216/pub_detail.asp

http://graphics8.nytimes.com/packages/pdf/national/jacobs.pdf

The ideas ascribed to the judge by Ms. Weiss are fragmentary and incoherent, unlike those expressed in his other speeches.  The most charitable interpretation of that incoherence is that in writing her summary of other summaries, she inadvertently distorted his ideas.

If you’re less inclined to charity, you’ll want to bear in mind that the ABA’s policy positions are generally adverse to those associated with the Federalist Society, and the ACS was founded specifically in opposition to it.

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Joe Herrick
Oct 17, 2008 9:15 AM CST

To Messr. old lawyer,
Of course, it is not the case that goes off the deep end, it is the attorney that brings the case and the judge that decides it (per John Vail above).
And it is fair to criticize the Federalist Society for being dominated by conservative and libertarian lawyers—that is, after all, the audience it was created to service.  With so few non-Liberal voices in the law schools, the society filled a (still important) need.  The Federalists deserve credit for their balance, however.  Their programs often include ACLU attorneys and other progressives, because the Federalists strongly believe the logic of their arguments will always ultimately prevail.  Unfortunately the same cannot be said for most ACS events (of ABA functions, for that matter).  At least the Federalist Society does not have a legislative lobbying arm like the other organizations.

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J.S. Christie
Oct 17, 2008 9:25 AM CST

Perhaps in context the judge’s comments would sound different.  Most pro bono is anonymously working at a legal clinic or serving as an appointed lawyer for someone with legal problems—for example, an abused wife needing help or an accused entitled to a defense.  One can find odd examples that can arguably be labled “anti-social,” but to suggest that such odd examples are typical is to smear many who make sacrifices for doing what they believe is the right thing to do.  Being a lawyer is a privilege, a profession, a calling.  As lawyers, we should shoulder the responsiblity to serve, with pro bono’s being one way we can all reach outside of our own self-interest and help others in need.

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Tamarah
Oct 17, 2008 9:39 AM CST

For those who think the Judge is correct “use YOUR Brain” he is expounding on anti-social or anti conservative behavior.  The ladies w/ the unhealthy bird collection deserves to have represensation in our legal system like everyone else.  As I know the cannons every person deserves legal service.  As for the people upholding a levey (LOOK IT UP PEOPLE) when you read about it they wanted to make the levey’s stronger and force the contractors to use quality items to build the levey.  As one contractor has repeatedly said of the new levey’s, They are building them with scraps and old newspapers.  Yeah my Sunday Times is going to hold back against the category 4/5 hurricane.
How about having compasion for your fellow man instead of your wallet.

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Anon
Oct 17, 2008 9:56 AM CST

Glad to see someone finally pointing out that the emperor is, in fact, naked as a jay-bird.  The core concept of pro bono is, of course, sound, and a fundamental aspect of a profession, as opposed to an industry; however, in practice, pro bono has largely become another weapon in the arsenal of those who, lacking popular support, (mis)use the courts to forcibly implement their political agendas.

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Charles
Oct 17, 2008 10:04 AM CST

This is a courageous stand that is certainly borne out by our firm’s experience. Pro bono cases has largely been a boondoggle for associates to load up their hours on less challenging “work” of dubious merit (e.g. lots of lopsided divorce decrees because one side didn’t have to pay for its lawyer) with little beneficial experience for the attorneys. Three of our most honored pro bono lawyers were also three of our most worthless lawyers. Fortunately, other firms believed the hype and they are all gone now. Good riddance.

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Hadley V. Baxendale
Oct 17, 2008 10:45 AM CST

To synthesize the comments:  First, regard “pro bono” as two things:  one is helping the poor individual who can’t afford representation and whose case has merit.  The other is the institutional work, and I belive that must be what the judge was discussing.  While the first, I think we all agree, is laudatory, the second is controversial and endorsement of the programs requires some thought.
When I was in Law School I had a philosophical problem with the Post Conviciton Assistance Program (PCAP) because its mission was to challenge convictions, especially death penalty cases.  Thus it used school, student and taxpayer resources to disrespect courts’ and juries’ findings and to presume a flaw in procedure.  It disregarded finality.  And the energetic, idealistic and naive students always fell for the convict’s tales of woe.  I think that is the type of program Judge Jacobs decries.

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old lawyer
Oct 17, 2008 11:12 AM CST

But, #43, how did that “judge with broad legal experience” get it.  Through the same “experience, knowledge, and networking” of which you disapprove when used for pro bono work.

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Andy the Lawyer
Oct 17, 2008 12:22 PM CST

Perhaps the good judge would prefer that lawyers seeking to work for free should take “Pro Malo” cases instead.

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Mark Schickman
Oct 17, 2008 1:24 PM CST

First, I’m willing to assume that the comment attributed to Judge Jacobs was taken out of context. It is such a stupid, misanthropic, uninformed comment that it’s hard to believe that ANY rational jurist would have made it.

At its core, Pro Bono recognizes that the poor don’t have equal access to justice without legal help to support their otherwise theoretical rights. To view that as anti-social is to align oneself with the cynical injustice that “the law in its majesty equally forbids both the rich and poor from sleeping under bridges.” It is sophistry unworthy of any good jurist.

Rather, our Judeo-Christian tradition recognizes that the miser will always find a good reason to withold charity from the poor, and the just will always find a way to extend a hand to the needy.  Until I see his comments in full, I’m not ready to assume that Mr. Jacobs is as selfish, silly evil and venal as his attributed quote would suggest.

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Charles C. Sweedler
Oct 17, 2008 1:32 PM CST

#45 asked “what is wrong with asking people to consider the social ramifications of legal work they don’t have to do to make money?” 

I am amazed that this poster is suggesting that some non-negligible number of lawyers who take pro bono cases do so without considering the social ramifications.  In my experience, lawyers take pro bono cases primarily, if not exclusively, because they believe the social ramifications are so important that they are willing to forego substantial amounts of money.

The very phrase “pro bono publico” should clue you in to the fact that in all but the most exceptional cases, the lawyer has considered the social ramifications.

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