In Defense of Pro Bono Legal Service, Whatever Form It Takes

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Some lawyers provide free counsel to our troops. Others represent the terror detainees. Each performs a service worthy of our gratitude.

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Scott Fenstermaker, a pro bono defense attorney for one of the Guantanamo detainees, walking into court in 2009. (Reuters)

My post Wednesday chronicling the sound and fury of 2nd U.S. Circuit of Appeals Chief Judge Dennis Jacobs included several risible quotes from the angry jurist about his perceptions of the disconnect between the military and legal establishment. Most of the quotes were taken from the transcript of a 2009 speech the judge gave at Cornell Law School, an extraordinary lecture in which he posited, Glenn Beck-like, that the entire legal profession is prejudiced against the military. One of the quotes was this:

Many inmates at the facility at Guantanamo Bay find themselves well-lawyered. Yet, in some family courts, parents are found to be unfit because they are soldiers being deployed abroad; they can look in vain for such high-powered legal assistance.

The clear implication of the remark is that the dedicated men and women working pro bono on behalf of the imprisoned detainees are choosing, in a particularly unpatriotic fashion, to defend suspected terrorists rather than defend America's service personnel and their families. (Pro bono, from the Latin, loosely means public service performed by professionals). This choice, Chief Judge Jacobs explained, is further proof of a vast ongoing conspiracy in the legal profession to disregard and defy the military.

To a commentator identified as "John Templeton," the quote quickly created a challenge he asked me to meet. Here is "Templeton"'s post:

Why not answer his question, Andrew: "Many inmates at the facility at Guantanamo Bay find themselves well-lawyered. Yet, in some family courts, parents are found to be unfit because they are soldiers and sailors being deployed; they can look in vain for high-powered legal assistance." Why is that? Maybe because protecting and defending pro bono those in the military don't get you the right "cred" when it comes time to hobnob or try to make partner at your firm.

It's a great question -- because it illustrates the depths to which many Americans fail to understand the concept of pro bono work as it applies to the legal profession. Like Chief Judge Jacobs (who ought to know better), Templeton evidently believes that lawyers and paralegals are choosing to help the terror detainees, rather than our military families, out of careerist motives or because of some elite indifference to the problems of our military class. The implication is an ugly one, touching upon the some of the worst caricatures many Americans have about lawyers, and it warrants a response.

It warrants a response also because Templeton (and Chief Judge Jacobs) are not alone in their confusion. In 2010, Liz Cheney gratuitously attacked the principles of Obama-era Justice Department lawyers who had, during the Bush administration, represented Gitmo detainees. And in 2007, Charles "Cully" Stimson, deputy assistant secretary of defense for detainee affairs, attacked the virtues of the law firms whose attorneys were providing pro bono representation for some of the detainees. Stimson lost his government job because of those remarks -- and he should have. Here's why.

WHAT PRO BONO MEANS

At its core, pro bono legal work is charity work. It is done by those with a particular expertise -- lawyers, paralegals, investigators -- on behalf of those who cannot afford to help themselves. It is both a gift and an ethical obligation that the legal community in America has undertaken since before the Revolution. Every day in this country, in every state of the union, lawyers of all political persuasions and religious beliefs represent citizens who have a case and a cause that deserves to be heard.

The American Bar Association has a Standing Committee on Pro Bono and Public Service and has generated a model rule designed to aid state bar associations in regulating such work. The first sentence: "Every lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should aspire to render at least (50) hours of pro bono publico legal services per year." One of the Comments to the rule helps illustrate the type of work contemplated by its terms:

Paragraphs (a)(1) and (2) recognize the critical need for legal services that exists among persons of limited means by providing that a substantial majority of the legal services rendered annually to the disadvantaged be furnished without fee or expectation of fee.

Legal services under these paragraphs consist of a full range of activities, including individual and class representation, the provision of legal advice, legislative lobbying, administrative rule making and the provision of free training or mentoring to those who represent persons of limited means.

Now, it's true that there is a great deal of debate, both within and beyond the legal community, about how this sort of work should be counted, when it should be reported, and what it means in the context of each lawyer's professional responsibilities to her or his state bar. But I have never heard any lawyer anywhere ever proclaim that the concept of pro bono work isn't an admirable way to put one's legal training and expertise to use for a special cause or for the common good.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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