The Role of Lawyers in a Time of Unrest
I've spent a lot of time ruminating on my role as an attorney in light of all that I am observing—the disparate impact of COVID-19, the political unrest over elections, the rising up of oppressed people all over the nation.
December 17, 2020 at 12:36 PM
9 minute read
I have spent a great amount of time during the pandemic comfortably working from home to the sounds of sirens and helicopters. Maybe if you live in an urban area, you can relate. I've spent a lot of time ruminating on my role as an attorney in light of all that I am observing—the disparate impact of COVID-19, the political unrest over elections, the rising up of oppressed people all over the nation. In this season of social unrest—where more people than ever are mobilized around issues like housing, police violence, livable wages, health care, etc., where the consequences of not addressing those issues are more obvious than ever—what is our role as lawyers?
- Lawyers should aspire to use their skills for the public good.
First, we must begin with the premise that we have a role. Nowhere does it say that doctors ought to provide free medical services, or accountants should do taxes for free. But lawyers are told that they have a professional duty to just that—practice their craft for free. Rule 6.1 of the Model Rules of Professional Conduct states, in part, that "A lawyer should aspire to render at least (50) hours of pro bono public legal services per year." Pro bono, short for the Latin phrase pro bono publico, literally translates as "for the public good." Lawyers should aspire to offer their free services toward the public good. Why? Law has such a fundamental place in our society because it establishes the rules that everyone is supposed to play by. The legal system is supposed to be the means by which we ensure that everyone adheres to those rules and that when rules are broken, the harm is redressed. Justice Joseph Story once said "without justice being freely, fully, and impartially administered, neither our persons, nor our rights, nor our property, can be protected. And if these, or either of them, are regulated by no certain laws, and are subject to no certain principles, and are held by no certain tenure, and are redressed, when violated, by no certain remedies, society fails of all its value."
Besides having special access to the courts, lawyers have played a preeminent role in the formation of our nation. Consider that just under half of the signers of the Declaration of Independence were lawyers. It was lawyers who, after the Revolutionary War, developed the common law still in use today. And most of our presidents have been lawyers. Inherent in these facts is the reality that lawyers and the legal system have historically not represented the interests of all Americans. Many whose lives are profoundly impacted by the legal system—women, people of color and poor people—were traditionally excluded from the legal profession and played little to no role in the system's development until the mid-20th century. By the time these groups were able to wield any influence in the system, many of its rules, practices and presumptions were stacked against them.
- Lawyers must do pro-bono because the adversarial process only produces justice when both sides are evenly matched.
The basic assumption behind our legal system is that justice is produced by the adversarial process. However, the reality of our justice system is that adversaries do not have equal resources. So the outcome of a dispute is often less a reflection of justice and more a reflection of which side had greater access to attorneys, resources, and experts. Pro bono representation provides a Band-Aid level response to this problem by providing some individuals with representation who would otherwise be going to court alone. Public interest firms and organizations facilitating or providing pro-bono representation are not able to provide representation to every individual in need of it due to limited resources and those with flawed cases tend to be denied.
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