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

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

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.


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.

Doctors and veterinarians and nurses donate their time to heal the sick. Sports figures and actors donate their celebrity to raise money for causes they hold dear. What can lawyers do? They can sue. They can sue to ask basic constitutional questions and seek the redress of grievances that many people are too poor, or too disenfranchised, to seek for themselves. When I went to law school, my best friend, who had just graduated from law school, wrote me a note. "Do well," he wrote, "but also remember to do good."

Want to know why every American, no matter how poor, is constitutionally entitled to a lawyer in a criminal case? It's because the venerable Washington law firm of Arnold & Porter represented Clarence Earl Gideon, the indigent defendant at the heart of the United States Supreme Court's seminal 1963 case of Gideon v. Wainwright. Today, you can pick virtually every major social cause before the federal courts and at the heart of it you will find lawyers working for free, or at reduced costs, to help carry their cause.

Some lawyers devote their lives to pro bono work. Three years ago, for example, the prestigious international law firm Squire Sanders brought on board George H. Kendall, one of the nation's leading death penalty attorneys, to help lead the firm's "Public Service Initiative," a remarkable program dedicated to helping people in need. You may or may not agree with the causes brought by pro bono attorneys, but that's the part of the point: We generally don't make value judgments about the charitable work people perform. Instead, as a general rule, we respectfully acknowledge the gesture for its own sake.


When Chief Judge Jacobs asserted in that Cornell Law School speech in 2009 that too few lawyers are helping military families while too many lawyers are representing terror defendants, he made two terrible arguments. First, he made a value judgment on the merits of the pro bono work being offered by some of the nation's finest attorneys. And, second, he ignored the fact that lawyers all over the country are today helping veterans, military families, and other organizations affiliated with our nation's armed forces.

The first argument comes from a dark place within the chief judge that, in my view, raises serious questions about whether he ought to be presiding over any future cases involving the detainees at Guantanamo Bay. The prisoners are men, not monsters, and they deserve under our rule of law to be represented by attorneys. This is so because by providing these men with lawyers we say, both to the detainees and to the rest of the world, that we are better, that we are fairer, than those we fight.

The second argument, made by the chief judge and repeated by Templeton, is just plain ignorant. Continuing a tradition of volunteer legal service for our troops that goes back at least to World War II, the American Bar Association today has a Standing Committee on Legal Assistance for Military Personnel. The ABA also has the Military Pro Bono Project, which effectively helps all sorts of American military personnel. Here's what its website says:

The ABA Military Pro Bono Project accepts case referrals from military attorneys on behalf of junior-enlisted, active-duty military personnel and their families with civil legal problems, and it places these cases with pro bono attorneys where the legal assistance is needed. The Project is also the platform for Operation Stand-By, through which military attorneys may seek attorney-to-attorney advice to further assist their service member clients.

What sorts of cases? The kinds that don't make headlines. Yesterday, for example, a volunteer lawyer was able to reverse a default judgment entered against a Marine in a landlord/tenant dispute. The landlord had taken advantage of the Marine's absence overseas. Early this month, meanwhile, a pro bono attorney helped a service member see his son before deployment. Last month, a volunteer attorney helped a Marine who had discovered that he was the victim of identity theft. Here are many more examples.

We can have a debate in this country, in and out of our courtrooms, about whether America does enough -- and spends enough -- to help protect the legal rights of its veterans and service members. I happen to think that we don't do nearly enough or spend nearly enough, and that the problem will only get worse in the coming years as our troops come home from Iraq and Afghanistan. But that's a whole different argument than the one first made by the chief judge and then repeated by reader Templeton.

The men and women who represent the detainees on grand constitutional issues like habeas corpus and due process deserve no less praise for their professional sacrifice than the men and women who are working pro bono to help our troops get divorced, or to avoid civil judgments, or to see their kids via visitation rights. Instead of criticizing the charitable choices our attorneys make, we should instead be grateful that they've made the choice at all to sacrifice their time to help other people in need.