|President's Page||The West Virginia Lawyer||August 1999
by Darrell W. (Dan) Ringer
"Quid Pro Bono"
To do right is noble; to advise others to do right is also noble and so much less trouble for yourself.
Recompense injury with justice, and recompense kindness with kindness.
I've practiced law for more than 21 years. Now to some that seems forever; to others, I'm just getting started. To me it seems as though I ought to have seen and heard everything. In fact, I frequently tell a client who's reluctant to tell me their problem that I have heard everything and that they can't shock me. I usually say that just before I hear something shocking.
I'm also finding that I have opinions. Ok, I've always had opinions. It's just that now I'm starting to have confidence in them. They're not all original. I frequently get them from someone else. Sometimes I don't know where they come from. They just show up. The trick is to distinguish opinions from prejudices. Both opinions and prejudices are subjective. Opinions, while subjective, are based on objective information.
It is my opinion that people value things by what they pay for them.
Generally, lawyers make a pretty good living compared to the rest of society. There are reasons for that; we have nothing to apologize for. But our position in the community means that we have the ability to do things for others. Some would say that we should do things, as attorneys, for others. Certainly we have the same moral obligations that others of similar circumstances share. We should make monetary contributions to worthwhile causes. We should be scout leaders and be active in our schools and churches. But, because we have special skills and are specifically licensed to use them, we have a nearly unique obligation shared by few others. We have an obligation to perform activities using our special skills - activities done pro bono.
Lawyers sometimes jest that advice is worth what one pays for it. At least I think we're jesting. The problem is that we're encouraged to give free advice and assistance on a frequent, if not actually regular, basis.
In the business world, of which the practice of law is a part, we recognize an obligation to pay for what one gets. We summarize that requirement in the concept of "consideration." In order to have an enforceable promise there must be consideration exchanged between the parties, quid pro quo - something for something. I'll do something for you, but you must do something for me in return.
I propose a marriage of the concepts of pro bono and quid pro quo into a third concept - quid pro bono. Pro bono is actually short for pro bono publico, meaning "for the public good," and it is an essential part of the relationship the legal profession bears to the rest of society. But why not ask our clients receiving free or significantly reduced-fee services (pro bono) to do something in return (quid)? The client would have a moral, not legal, obligation to "pay" for services.
I use the word "pay" in a very loose sense, much like the legal concept of "consideration." Generally speaking, if someone doesn't give consideration for something they receive, they tend not to value the thing received very highly. I suspect that most of us, upon losing something, or breaking it, have said "Well, I didn't pay much for it, so I'm not out anything."
Sometimes this lack of consideration can be very frustrating for the person providing the thing of value. How many of us have heard someone say, "After all I've done for you, this is the thanks I get." What they mean is, "I've done something I feel is important for you, but you've done nothing to acknowledge it. I want something back."
Lawyers should donate a portion of their professional time to provide legal services to those who cannot afford them. But neither Ford nor GM gives away automobiles to those who can't buy them. Banks don't give money to those who need it because they have none. Supermarkets don't give away food. Our society as a whole responds to these needs with social programs like food stamps, unemployment benefits, workers compensation, and food kitchens. We all pay for those, even though not everyone is particularly happy about it.
There has been a sense of frustration among some members of the public. They believe that the recipients of social program benefits become dependent on the continuation of the programs. In very general terms they feel that "welfare" programs accomplish very little toward getting people to be more self-sufficient. It's frequently summed up by saying, AGive a man a fish and he eats for a day. Teach a man to fish and he eats for the rest of his life." Over the last few years social programs have been reduced, sometimes drastically, in response.
Some lawyers feel that providing legal services pro bono is similar. As long as the client can get free legal services there is no particular reason why they should seek to resolve the problems which lead to the need for the services. In simple terms, some seem to think, "If I can get a lawyer for free, why do I have to worry about it."
Certainly this is an oversimplification in many instances. Often those who need our help are true victims who are powerless to avoid the situation that gives rise to the need for an attorney. But many times the client can, and should, take charge of his or her life and resolve the problem with our help, rather than have us resolve the problem for them. Why don't they? Because they lack the self-confidence and self-esteem to believe they can help themselves.
If a person lacks confidence in themselves it is often because they have not been able to accomplish anything in which they believe they can take personal pride. Just as a person who seeks to rebuild their financial credit rating must start slowly, so must a person seeking to develop a sense of personal worth. Relatively minor tasks, well accomplished, can lead to greater self-esteem and to bigger things.
If a client is expected to "pay" something in return for legal services, they may develop an appreciation for the time their attorney spent on their behalf . Because they have satisfied an obligation they should feel a sense of satisfaction, and perhaps a bit more self esteem. They may be motivated to seek to minimize the need for such services. And they may take some personal responsibility for the resolution of their problems.
All of this would be subject, of course, to four basic but important rules:
Quid pro bono must not be employed to discourage a client from seeking assistance. The time a client would expend to "repay their debt" should not work such a material disadvantage on them that they fail to obtain needed assistance in seriously significant matters. Yes, I know that clients who pay fees often suffer a significant disadvantage by having to pay them, but it's essentially a matter of scale and fairness. By "significant matters" I refer to matters such as personal safety.
Second, our time and our client's time would be valued exactly the same. If it takes ten hours of our time to resolve a problem, the client would be asked to provide ten hours of service to "pay their bill."
Third, the services provided by the client must be for someone else, preferably a charitable or non-profit organization. Ideally, the client will select the service and the recipient. But they cannot do anything for their attorney, or their attorney's family or friends. Nor can they do something (that counts for this) for their own family. They could volunteer to do Read Aloud at a school; dust the pews at their church; cut grass for a neighbor who needs assistance; or volunteer for a charity. The possibilities are endless.
Finally, the lawyer has no right or duty to monitor the client's actions. It is sufficient to inform the client of how much time was involved on their behalf, and to encourage them to do something pro bono publico. This doesn't mean that the lawyer can't ask, or the client can't tell what they've done. It just means that neither has to do so.
Ok, I can hear some of you saying that it will never work. Nobody gives away something for free - except us. The clients will never do the service we encourage. Well, I hope you're wrong. I'd like to believe that everyone is willing to try to "Do Good."
The idea is that every good deed should beget another, but it does start with us. With apologies to Mr. Twain, it is not enough to simply encourage others to "do right."