In the 17th century, the concept of a court-appointed paid advocate and the tradition of a professional duty for lawyers in private practice to provide pro bono legal assistance crossed the Atlantic to the American colonies. Today, the American situation could scarcely be less like that of its British cousins. In what most accept as a knockout victory, American history has declared the duty of private lawyers (and public interest lawyers funded by charitable donations largely from the legal profession) to provide pro bono legal services for civil matters and criminal appeals the clear winner over government-funded legal aid. But closing this access-to-justice gap cannot be done by pro bono alone. Are there any signs the government could do more? And what does history tell us about the most impactful ways the private bar can help?
The origins of pro bono legal services
King James V of Scotland was not happy. “We are daily infested by the complaints of many of our poor lieges [in search of] justice,” he wrote to the nascent Scottish bar in 1535, “which is therefore postponed in default of advocates to procure it for them.” Struggling with a system rooted in the medieval king’s duty to dispense justice but operating in a much more populous society, King James had reached the limits of his patience for dealing with unrepresented litigants and the challenges they posed for the legal system and themselves. (I was led to the story of Scottish advocatus pauperum by Michael Millemann’s “Mandatory Pro Bono in Civil Cases: a Partial Answer to the Right Question: For,” Maryland Law Review, Volume 49, Issue 1, 1990.)
He could not simply ignore the problem, for he had not only a moral duty, but also a legal duty to address it. During the reign of David I in the 12th century, an act of the Scottish Parliament had established that “all destitute of help from all others are in the care and protection of the King.” The fittingly named David “acted as a judge of first instance in the minor and summary complaints of poor people, sitting at his palace gate, or on circuit, and prescribed procedure in such cases.” This legislation and kingly role originated in the Roman tradition of the wealthy patron (called patronus in court) acting free of charge for his dependents (called clients) and ultimately for people not in his household (giving rise to how we use the term “client” today). These Roman roots were extremely strong: at least one scholar has noted that during the Republic and early Empire “we find no serious complaints that advocates’ fees prevented the small man from litigating.”
This value was transmitted through centuries of ecclesiastical legal practice, which included appointing clerical advocates to serve the poor. The French get credit for being the first to jump from the ecclesiastical to the secular courts. In perhaps the first instance of state-funded legal aid, the French Parliament acted in 1400 and 1414 to provide legal counsel for the poor.
The Scottish Parliament of 1424 then acted in a similar vein, perhaps unsurprisingly in light of the Auld Alliance between the French and Scottish kingdoms. The Act of 1424 offered James V a way forward, with what may be the first legislation calling for mandatory pro bono from a lawyer appointed by the court.
If there be any poor person, for want of sophistication or expenses, that cannot or may not follow his cause, the King for the love of God shall order the judge, before whom the cause shall be determined, to obtain and get a loyal and a wise advocate, to follow such poor person’s causes; and if such causes are successful, the wrong doer shall compensate both the party wronged, and the advocate’s costs and travel.
James took this and ran with it straight to the infant bar. He asked the bar to choose “one man of good conscience [who] shall be called advocatus pauperum, [whom]ye shall cause [to]swear that he shall administer to all our lieges coming to him for help that will make faith they [have not the means] to pursue justice [on their] own.” The bar conscripted two “volunteers,” each of whom was given 10 pounds a year as an honorarium, along with the risk that he could be “deprived of his right to plead before the court if he failed to discharge his duty.”
Scotland’s advocati pauperum served clients (usually tenants who were sometimes close to serfs, and therefore in a more or less direct line from the clients of the Roman patrons) with a wide range of legal needs, but theft appears to have been a particularly common complaint. The “poor tenants of the lands of Grenok” sought justice after their goods were “spuilzied” (stolen), a “poor tenant of the lands of Campsfield” suffered from the theft of his oxen, and the “poor tenants in the lands of Haystoun” claimed they were wrongly denied reimbursement for stolen goods. In a trickier case with an unfortunate outcome for the poor tenants, a dispute between the abbot of Arbroath and the relevant archbishop over the rights to the tithed crops of the abbey’s tenant farmers led to a countersuit by the farmers, who availed themselves of pro bono legal assistance. The case ended up before the Scottish House of Lords, sitting as Lords of Session, who succumbed to ecclesiastical power politics over common sense and ordered the tenants to tithe to both the abbot and the archbishop.
By 1784, the Act of 1424 had been amended to provide for six fresh advocati pauperum to be appointed each year, as well as four agents and four solicitors, who held the poetic title of “Writers to the Signet” (a title still in use for Scottish solicitors today). By this time there was an uproar that too many people were being admitted to the Poor’s Roll and therefore becoming eligible for legal aid. In an unsurprising move in its search for wise men to define what has become the modern practice of income qualification, Parliament turned to the church and vested the “minister and two elders of the parish in which [the applicant] resided” with the power to judge which of the poor were truly poor. Parliament also gave the applicant’s adversary the right to object to his opponent’s classification as truly poor and formalized the test for determining the probabilis causa litigandi that was the second requirement of eligibility.
Events developed similarly in medieval England, given impetus by the provision in Magna Carta’s Article 40 to “neither sell, nor deny, nor delay, to any person, equity or justice.” In 1495, Parliament enacted 11 Henry 7, ch 12: “An Act to admit such persons as are poor to sue in forma paupis.” It called for “the justices to appoint attorney and attorneys for the same poor person and persons…, which shall do their duties without any reward for their counsels help.” The 1495 Act stood until 1883, when it was repealed on the enactment of the Statute Law Revision and Civil Procedure Act, which introduced a more comprehensive legal aid regime.
Today, despite much prudent concern about the impact of recent years’ cuts in the legal aid budgets of England, Wales, Scotland and Northern Ireland, there remains substantial financial support from government and deep pro bono engagement by the private bar. Alternative funding for public interest lawyers at nongovernmental organizations is being sought, as civil society adjusts to the cuts in legal aid. The courts are also introducing reforms that will make their procedures and the law itself more transparent and more easily navigated by litigants in person. There is still a gap in representation, but responsibility is shared across sectors for ensuring that everyone who needs but cannot afford a lawyer can obtain one.
In the United States, the gaps in legal aid funding and the unrealistic hopes that pro bono legal assistance can close those gaps bear little resemblance to the shared responsibility characteristic of the British legal system. However, the true value of private sector pro bono in the U.S. lies not in its ability to close the access-to-justice gap, but in its ability to change the nature of justice itself.
Pro bono in America: Justice for One vs. Justice for Many
The case facts sound a great deal like the opening scene of the Broadway musical Chicago. During a lover’s spat in New York state in 1965, Louis Henry Burns and the red-headed vixen Doris Anderson struggled to the death with a revolver that went off either accidentally or intentionally, a whiskey bottle allegedly used as a club over the head, and a possibly poisoned pastry. The head was Louis’s, the death was Doris’s, and the pastry was fed to Louis by the police and was not, as it turns out, poisoned. But it is the pastry upon which the case turns. The appeal, that is, not the murder trial. Burns did kill Doris and was convicted. He led the police to where he had buried her body. But he said nothing to indicate it was anything other than a horrible accident until he had endured more than 30 hours without food—except one or two pastries, and even this much food is disputed—and more than 18 hours of “uninterrupted custodial interrogation.”
Burns got the dream team for his appeal. A pro bono team from Davis Polk & Wardwell, led by the distinguished partner Robert B. Fiske, Jr., obtained their man’s release from prison just before Christmas Eve of 1970. The court accepted their argument that Burns’ self-incriminating testimony had been coerced, when—after 18 hours of questioning—Burns suddenly announced he had shot Doris intentionally. The case is still cited as an example of how the police are not supposed to treat suspects. As such, it has had a much wider effect than just getting Burns out of jail, as valuable as that was to him. Sadly, it is very relevant to today’s headlines, as the U.S. justice system struggles with too many examples of police behavior ranging from inappropriate treatment of suspects or prisoners to tragically fatal brutality.
What role to play in addressing the “access-to-justice gap” is a central issue for any law firm serious about pro bono work. In the United States, the gap is huge and growing. There is no right to legal aid for civil cases at all, and no public defenders available for criminal appeals. According to the 2020 World Justice Project Index, the civil justice system in the U.S. ranks 36th out of 128 countries examined overall, though judged largely “free of corruption and undue influence.” However, the U.S. ranked an embarrassing 109th on the relative cost and availability of civil legal assistance. Studies have found that approximately 80% of the civil legal needs of low-income people in the U.S. go unmet.
This deluge of need is a torrent, not a leak, in the dyke, and it cannot be plugged without a comprehensive program of government-funded legal aid. Certainly the gap cannot be closed by pro bono activity by lawyers in private practice. There are solid theoretical justifications for a government to provide its citizens with access to the system it requires them to use if they cannot afford it on their own. The political climate in recent years has offered little hope on the national level, but there are glimmers of possibility for dialogue at the state and local level in a few jurisdictions. One such glimmer is in San Francisco, where the Right to Counsel movement, driven by a coalition including pro bono lawyers from Morrison & Foerster, led to that city becoming the first “Right to Civil Counsel City.” It provides representation at city expense to low-income litigants in civil matters involving basic human needs. We are starting to move down this path, but it will be a long hard battle with no certainty of success.
Nevertheless, pro bono legal services have an important role to play. Individual representation is often described as the gold standard of pro bono, and I suggest that is true for two reasons. Despite the fact that pro bono lawyers cannot make a dent in the need in the United States, each life saved or made better is a precious and priceless “good” in moral terms. But it is also true that the body of access-to-justice work by pro bono lawyers has had a greater impact than simply the sum of their individual representations.
An astounding number of seminal cases in the United States that have advanced the cause of equal rights, decreased discrimination, and protected other human rights have been argued and won by pro bono lawyers, as well as by public interest lawyers working in nonprofit legal service organizations. I suggest the following examples illustrate that pro bono activity in the United States has been a powerful force both to drive social change and keep the law in step with social change that advances human rights.
In 1770, John Adams, future president of the United States and a lawyer by trade, represented pro bono the eight British soldiers accused, after firing into a crowd that was taunting a sentry, of killing five men and injuring six others in what became known as the “Boston Massacre.” He won the acquittal of six, with the remaining two convicted of manslaughter, punished by having their hands branded. He wrote in his diary:
“The Part I took in Defence of Cptn. Preston and the Soldiers, procured me Anxiety, and Obloquy enough. It was, however, one of the most gallant, generous, manly and disinterested Actions of my whole Life, and one of the best Pieces of Service I ever rendered my Country. Judgment of Death against those Soldiers would have been as foul a Stain upon this Country as the Executions of the Quakers or Witches, anciently. As the Evidence was, the Verdict of the Jury was exactly right. This however is no Reason why the Town should not call the Action of that Night a Massacre, nor is it any Argument in favour of the Governor or Minister, who caused them to be sent here. But it is the strongest Proofs of the Danger of Standing Armies.”
In a case immortalized by a play-turned-Hollywood-movie, prominent criminal defense attorney Clarence Darrow, serving pro bono for the American Civil Liberties Union, represented John Thomas Scopes, the teacher accused of teaching evolution, in the circus-like but nonetheless influential 1925 “Scopes Monkey Trial” case.
Other examples include the seminal abortion rights case of Roe v. Wade, and the “Miranda rights” case of Miranda v. Arizona, which provided for the presence of counsel during police interrogation and led to the constitutional right for a defendant to be informed of his or her constitutional rights.
Many leading law firms have long traditions of pro bono work that changed law in the United States. Arnold & Porter, led by distinguished partner Abe Fortas, has had multiple influential court cases, including Gideon v. Wainwright, in which the U.S. Supreme Court ruled that states are required under the 14th Amendment to the U.S. Constitution to provide counsel in all criminal cases where defendants cannot afford one themselves. A lawsuit filed by lawyers from the Los Angeles-based firm of Klee, Tuchin, Bogdanoff, & Stern, on behalf of two consumer debtors whose lawful same-sex marriage was not recognized under federal law, led to the holding of the Defense of Marriage Act as unconstitutional and resulted in a national change in the government’s position in opposing same-sex jointly filed bankruptcies. And in 2010, a team of lawyers from White & Case in New York and Los Angeles won a landmark victory for the Log Cabin Republicans in its legal challenge to overturn the U.S. government’s “Don’t Ask Don’t Tell” policy, which prohibited gay, lesbian and bisexual individuals from serving openly in the military.
Deploying the resources and finely honed advocacy skills of private firms on major cases that test issues affecting many in need of justice is a powerful multiplier for the value of pro bono work. Such cases are often lengthy, resource-intensive, and demanding. Law firms should be encouraged explicitly to take them on by modern-day leaders in all sectors who, like King James V of Scotland, are fed up with having our courts “infested by the complaint of many of our poor lieges [in search of] justice.” Law firms who take on cases that make our laws more humane bring special value to the lives of those who require a change in the law itself to be treated equally by it.
The torrent of unrepresented litigants in the United States needs to be stopped, but pro bono work alone cannot do that. The quality and humanity of our laws in every country of the world can still be greatly improved and likely will always need improvement. Pro bono work is a powerful way to do that.
About the Author
Jo Giessler Weiss is the head of Global Citizenship at White & Case LLP, where she leads the strategic development and oversees the operations of the firm’s global pro bono practice, legal education programs, charitable contributions, volunteer activities, and environmental sustainability initiative. Any views expressed in this publication are strictly the author’s and should not be attributed in any way to White & Case LLP.