Re-Envisioning Models for Pro Bono Lawyering: Some Historical Reflections
16 Pages Posted: 21 Mar 2016
Date Written: 2001
Pro bono publica, literally, for the public good. ABA Model Rule of Professional Conduct 6.1(a) defines this term as the provision of legal representation without a fee to persons of limited means.! In my remarks I want to explore an implicit dichotomy underlying this definition of pro bono work-namely, the way it sets up a rigid binary opposition between public and private, and also between altruism and self-help. I'm going to take a somewhat provocative position and argue that this understanding of pro bono law is based in outmoded, early twentieth century ideas that do not serve us well today.
More specifically, I will argue, drawing on two historical case studies as examples, the core model for pro bono lawyering reflected in Model Rule 6.1 embodies a conception of pro bono lawyering out of a sense of noblesse oblige. That model can be traced to elite lawyers affiliated with leading public interest organizations at the turn of the uventieth century. The Model Rules' adoption of this vision of pro bono lawyering overlooks another model of public interest lawyering from the same period, which involved grassroots efforts by lawyers who were not part of the professional elite. These lawyers took on public interest cases out of a commitment to the same political and social goals as their clients, and did not rigidly distinguish between self and other, public and private, and no fee versus paid services. I question the consequences of our contemporary privileging of the first elitist model for public interest lawyering over the second, and urge us to discard the rigid and anachronistic dichotomies on which our thinking about public interest lawyering rests.
Keywords: pro bono lawyering, history
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