In defence of John Edwards


A reader responds to Professor Bainbridge's criticism:

To say that Edwards took no "pro bono cases" is a half-truth at best. Every case a trial lawyer like Edwards handles is taken on a contingent basis. That means the lawyer takes no money from the client up front. In fact, the lawyer normally funds all the costs of the case from his own pocket. Those costs can run into the millions of dollars, all being funded by the lawyer and with no guarantee he'll get any of it back.

So the "no pro bono cases" remark, coming from the Washington Times, is intentionally misleading. Every case Edwards handled is "pro bono" in the sense that he asks for nothing from the client up front. Or to put it differently, a lack of funds does not prevent poor people from gaining access to the legal system - the classic definition of "pro bono."

But the irony of the remark from the Washington Times goes beyond that. Right wing publications like the Times frequently object to the contingent fee arrangement because it gives people too much access to the courts, thereby (in the view of the right wing) resulting in spurious litigation. For the Times first to criticize trial lawyers from making litigation too easy and then criticize John Edwards for not taking "pro bono" cases is laughable.

Just to add one point. Perhaps my introduction wasn't clear enough, but some of the e-mailers seem to think I actually wrote the Bainbridge post. (Similarly, although I ran a libertarian's book choice the other day, it doesn't mean I'm a libertarian. I have no idea who I'd vote for in 2008 - if I had a vote, that is. My interest in trench warfare politics is at an all-time low right now.)

Incidentally, I've been asked what happened to my co-bloggers. I'm not sure, to be honest. As soon as I have news, I'll pass it on.

UPDATE: Edwards isn't quite in the clear, according to this reader:

I'm sorry, but the response to the effect that John Edwards's contingency cases are, in effect, "pro bono" is simply laughable. A lawyer works pro bono when he has no expectation of receiving his customary fee. A lawyer works on contingency when he expects to receive his customary fee (or higher) at the end of the case. The client in a contingency case still pays the lawyer, the payment just comes from the client's recovery. Some contingency cases do end up being pro bono, but that's a function of bad case selection, not an intention to provide for the public good.

I'm a contingency lawyer and I would never have the temerity to suggest that my cases qualify as pro bono work when I report my pro bono activities to the state bar.

None of the above should be taken as a defense of Bainbridge's knock on Edwards to the effect that Edwards should have taken more pro bono cases during his legal career.  Most lawyers (even very successful ones) don't take on much pro bono work because their areas of specialization are not relevant to the type of legal representation required by the vast majority of indigent people.  A mergers and acquisitions attorney is going to do a poor job of representing a tenant in a dispute with a landlord and even a highly accomplished civil litigator would not be my first choice as a defense attorney in a criminal trial.