A Poverty of Representation: The Attorney's Role to Advocate for the Powerless
Texas Wesleyan Law Review, Vol. 13, p. 545, 2007
33 Pages Posted: 6 Dec 2007 Last revised: 31 Jul 2013
This paper uses the celebration of Somerset v. Stewart, the English case finding slavery illegal there, as an opportunity to look at why attorneys take cases to right the wrongs of the underrepresented. This look is particularly timely in light of a current resurgence of interest in civil Gideon policies that seek to obtain representation for the poor in matters when law can help protect their basic human needs.
In Somerset, an abolitionist hired an attorney to take the case of Somerset, a slave who would otherwise have been unrepresented, and got the far reaching result of banning slavery in England. This article argues that we do not always have patrons to pay attorneys to take cases for the underrepresented. We also do not have strong enough professional rules to convince attorneys to provide enough people with the representation they need. Although the article does not intend to minimize slavery and the imperative need to end slavery through any means possible including legal ones, the article argues that many people who cannot pay for legal representation when their basic human needs are being challenged need attorneys to step up and represent them. The article argues that the methods that we have to pay attorneys for this representation are good as far as they go and should continue to be supported, including fee shifting statutes and government sponsored legal services organizations. However, these methods do not come close to addressing the need for legal services. It further argues that ABA Model Rule of Professional Conduct 6.1 is deficient in describing attorneys' responsibilities to ensure that all are represented when they cannot pay a full fee, limiting the volunteer help that attorneys provide to meet the basic human needs of the underrepresented. It looks at the limited amount of pro bono work being done presently to meet the huge need left unaddressed by means available to pay attorneys to represent those that cannot afford representation. It suggests modifying Model Rule 6.1 to begin to address the problem more fully, in part by making responsibilities suggested in the rule more forceful and in part by adding civil Gideon language to ensure that attorneys understand that they are not complying with the Rule unless they are addressing the basic human needs of clients or client bases.
Keywords: civil Gideon, unrepresented, pro bono, legal aid, legal series, model rule 6.1, legal assistance
JEL Classification: K40
Suggested Citation: Suggested Citation