In Pursuit of the Public Good: Lawyers who Care
University of the District of Columbia
David A. Clarke School of Law
Joseph L. Rauh Lecture
April 9, 2001
by Ruth Bader Ginsburg*
Law and lawyers, one cannot avoid acknowledging, have fared rather badly in many a song and story. In grand opera, for example, lawyers are barely there. Johann Strauss's Die Fledermaus is typical. A lawyer, Dr. Blind, has a small part in the first act of that opera, as counsel to the baritone lead. Dr. Blind's assistance is so ineffective, he manages to get for his client a few extra days in jail. There's a lawyer in Porgy and Bess, too. He ups the price for getting Bess a divorce when she tells him she was never really married before. Celebrated writers from Shakespeare to Sandburg have harbored a lingering distrust of the lawyers' trade. Charles Dickens, in Bleak House, put it this way:
The one great principle of the English law is to make business for itself. There is no other principle so distinctly, certainly, and consistently maintained through all its narrow turnings. Viewed by this light it becomes a coherent scheme and not the monstrous maze the laity are apt to think it. Let them but once clearly perceive that its grand principle is to make business for itself at their expense, and surely they will cease to grumble.1
But the legal profession has among its practitioners brave men and women who strive to change that perception, jurists devoted to, and at work for, the public good -- people who are the best of lawyers and judges, the most dedicated, the least selfish. The man whose name this lecture series bears, Joseph L. Rauh, was just such a lawyer. He would applaud, as I do, UDC's determination to nurture lawyers who will serve the public interest all the days of their lives.
In these remarks on pro bono lawyering, I will endeavor to survey the territory, to emphasize its diversity, and most of all, to reinforce the message UDC strives to convey, that a lawyer will gain large satisfaction when he or she is not simply a fee-charging artisan, but a contributor to the public good.
The main conception of pro bono legal activity originally was, and probably remains, the provision of free legal assistance to poor people. On the civil side, that service generally involves counseling and representing indigent persons who have solid legal claims or defenses but lack the means to pursue them successfully. On the criminal side, the undertaking is to defend suspected or accused individuals who cannot afford paid counsel. In the United States, the most daunting of those criminal matters currently are cases in which death may be the punishment. (I have yet to see a death case, among the dozens coming to the Supreme Court on eve of execution petitions, in which the defendant was well represented at trial.)
Public funding for the legal representation of poor people in the United States is hardly generous. In capital cases, state systems for affording representation to indigent defendants vary from adequate to meager.2 In civil cases, the combined legal services spending of U. S. local, state, and federal government agencies is, per capita, far below that of the governments of other democracies. In the 1990s, U. S. per capita government spending on civil legal services for poor people ranged around $2.25. New Zealand's government spent three times as much, per capita, funding legal aid in civil matters; the Netherlands, four times as much; and England, with a per capita outlay of $26, exceeded U. S. spending more than elevenfold.3
This is not to say that the United States lacks a long tradition of lawyers providing legal services to those who cannot afford it. The picture resembles the one for funding music and art in the United States. The government contribution is unimpressive; the private sector provides the lion's share of funding,4 many times more than the private sector does abroad.
Roots of what came to be called "poverty law" and a major alert to the need for "legal aid" trace to one of Boston's oldest law firms, Hale and Dorr. In 1919, Reginald Heber Smith, a partner at that firm, published Justice and the Poor, a groundbreaking study of how the economically disadvantaged fare in U.S. legal systems. Smith exposed vast differences in the quality of justice available to the rich and the poor. His exposé led to endeavors to narrow the gap, including the establishment of the first national legal aid organization (National Association of Legal Aid Organizations).5
Reginald Heber Smith galvanized a national movement to provide lawyers for those who could not afford to pay counsel. But he did not neglect the remunerative side of work in the law. Among his other distinctions, Smith is credited with inaugurating the practice of calculating lawyers' fees by "billable hours." Yet he fully perceived the need for devoting part of a lawyer's working time to the pursuit of justice for people who could not be billed.
The U. S. pro bono model, relying as it does on the voluntary services of private lawyers, may not suit other legal systems. In South Africa, for example, the state-funded Legal Aid Board, endeavoring to meet the demands of the nation's new (1996) Constitution, has tried out a variety of arrangements. Ultimately, the Board concluded that its aims and the nation's needs could be best met if, instead of relying on volunteers, the Board engaged its own staff of full-time, salaried lawyers to deliver criminal and civil legal services to the poor.
In countries where law is a first degree, which is the case in most nations in the world, law graduates are required to serve internships or apprenticeships before being admitted to the practice of law in their own right. A legal services model like South Africa's could be supplemented by instituting, as part of the credentialing process for new lawyers, a period of time working as an aide in state-licensed legal services office.6 I have in mind a VISTA type program. How much healthier to enlist young people in this kind of community service than to sign them up for armed combat.
Litigation, of course, is not the only or even the most secure means of aiding the poor and promoting social change. In the very era Reginald Smith pioneered pro bono lawyering, other lawyers, seeking to advance the public good, recognized that their best forum for enduring change was often the Legislature, not the generally restrained, precedent-bound Judiciary. Burnita Shelton Matthews, counsel to the U. S. National Woman's Party in the 1920s, and the first woman to be appointed to the federal trial bench (she was appointed to the District Court for the District of Columbia by President Truman in 1949) fits that description.7
Matthews, a gentle woman from Mississippi, aided National Woman's Party leader Alice Paul in urging passage of an equal rights amendment. Although that endeavor, launched in 1923, has not yet succeeded, Matthews made much headway on particular measures. She successfully worked for passage of a 1927 law that allowed women to serve on juries in the District of Columbia. She framed a 1935 statute revising the District's law on descent and distribution to eliminate preferences for males. She had a hand in writing laws for Maryland and New Jersey that gained for women teachers pay equal to that received by their male colleagues. Matthews also assisted in changing South Carolina's law so that married women could sue and be sued without their husbands' permission. And she helped to achieve 1931 and 1934 federal nationality law changes that, in large but not total measure, evened out citizenship rights for women and men.
The local (D.C.) bar knew Burnita Matthews less for her feminist activities than for her expertise in the field of eminent domain. When the federal government condemned the headquarters building of the National Woman's Party near the Capitol, Matthews' skilled representation led to the largest condemnation award the United States had yet paid. (The condemnation had, from my vantage point, a worthy purpose. The property on which the Woman's Party headquarters once stood is today occupied by the U.S. Supreme Court. The Woman's Party remains on the scene, housed on Constitution Avenue just a block from the Court, in the historic Sewall-Belmont House.)
Another innovator in the 1920s was Roger Baldwin, founder of the American Civil Liberties Union (ACLU). Baldwin was not himself a lawyer (he held a degree in anthropology), but he enlisted the aid of lawyers, first in defense of World War I draft resisters, then for a wide range of First Amendment causes.8 (Coincidentally, another Roger Baldwin figured earlier in pro bono representation in the United States. That Roger Baldwin was a lawyer. He represented the rebel slaves on the ship Amistad and helped to secure their freedom and return to Africa in 1841.) The ACLU took on individual legal cases - for example, early on, in 1925, the Scopes Trial about the teaching of evolution in Tennessee public schools9 -- not simply to secure free speech for particular individuals in isolated instances, but to advance for all people freedom of thought, expression, and association, and later, the equal protection of the laws as well.
Revered among test case litigators, Charles Hamilton Houston trained and inspired scores of lawyers to assist the NAACP in its long struggle against state-imposed segregation.10 Hamilton, the first African-American editor of the Harvard Law Review and the mentor of Thurgood Marshall, faced the intransigence of Southern legislators committed to maintaining racial segregation. He therefore turned to the courts to trigger change. Hamilton crafted the NAACP's strategy in the 1930s and 1940s, step-by-step to dislodge Plessy v. Ferguson11 and end official apartheid in America.
The NAACP and the ACLU set a pattern for myriad other public interest legal organizations - for example, the Mexican-American Legal Defense and Educational Fund, the National Organization for Women Legal Defense and Education Fund, the National Women's Law Center, and the National Partnership for Women and Families (formerly, the Women's Legal Defense Fund). And law teachers assisted those organizations or worked cooperatively with them.
In my days at Columbia Law School, for example, from 1972 to 1980, I conducted a clinical program in which students assisted in the sex equality cases I litigated under ACLU auspices. And I recall vividly from those years the efforts of Harriet Rabb, co-founder and director of the Columbia Law School Employment Rights Project. Harriet mounted arduous and ultimately victorious challenges to sex discrimination then rampant in business and commerce. She propelled overdue change in hiring and promotion practices, notably in leading New York law firms, the New York Times, and AT&T.
Today clinical teaching is an integral part of law school curricula, at once educating in law and involving student participants in needed work. Clinical programs span a wide range--the representation of tenants, small businesses, community organizations, children in special education, youths in the juvenile justice system, people who test positive for HIV, prisoners. Programs in all those areas are ongoing at UDC. At most law schools, clinical work is optional; UDC is among the few institutions that require clinical work as conditions of graduation.12 I am hopeful that the trend towards caring for the community, so marked at UDC, will take permanent root, so that students at every U.S. law school will encounter as commonly as the Uniform Commercial Code the satisfaction of pro bono service.
A major public interest initiative was sparked by President John F. Kennedy in 1963 when he convened a meeting of bar leaders at the White House. Kennedy invited the leading lawyers' aid in assuring that civil rights guarantees would be effectively enforced. In response to the President's call for assistance in confronting our nation's civil rights problems, several of the attorneys he brought together founded the nonpartisan, nonprofit Lawyers' Committee for Civil Rights Under Law.13 The Lawyers' Committee has a small permanent staff, but it relies dominantly on volunteers to accomplish its aims. Its national office in D.C. endeavors to promote legal reform on issues that touch and concern the urban poor, including employment opportunities, voting rights, fair access to housing.
Lawyers serve the public interest in diverse domains. A devoted district attorney, who resists the lure of private practice, and instead pursues prosecutions vigorously but fairly, is also a pro bono lawyer, using his or her skills not just for personal gain but for the good of the public. The same may be said of the criminal defense lawyer at the other counsel table, putting the Government to its proof, and protecting the rights of the accused against overzealous police and prosecution. Lawyers in private practice serve the public good when they take time out to assist an immigrant in navigating the sometimes bewildering, protracted course toward citizenship, or to draft a will for an elderly person of limited means, or to aid a parent in obtaining an appropriate education for a child with special needs.
Many of the organizations, individuals, and activities I have so far described express generally "liberal" or "progressive" views of the law. And to many people -- especially people sympathetic to the causes those organizations support -- the idea of pro bono lawyering itself has a distinctly liberal tint. But the pro bono universe is not confined to the representation of poor persons, equal rights advocacy on behalf of racial minorities or women, free speech promotion or separation of church and state enforcement.
A highly respected Supreme Court Justice, Lewis F. Powell, Jr., before his appointment to the Court, helped to promote pro bono initiatives of a then untraditional kind. He urged volunteer advocacy by and in defense of business interests. In 1971, Powell, then a lawyer in private practice, counseled the business community to safeguard free enterprise through legal action much as the ACLU watches over free speech.14
Powell's idea took hold as an array of public interest legal foundations were established to represent "conservative" or business groups, for example, the Washington Legal Foundation, the Pacific Legal Foundation, the Mountain States Legal Foundation. Commercial free speech has been among the particular concerns of the Washington Legal Foundation. And if an ACLU lawyer thinks first of the privilege against self-incrimination when one mentions the Fifth Amendment, so the Pacific Legal Foundation lawyer may think first of that Amendment's declaration that private property shall not be taken for public use without just compensation.
Competition can be a healthy thing in the pro bono sphere as elsewhere. Our system of justice works best when opposing positions are well represented and full aired. I therefore greet the expansion of responsible public-interest lawyering on the conservative side as something good for the system, and hardly a development to be deplored.
Lawyers may serve the public good, as well, in diverse out-of-court settings. Vilma Martinez, for example, from 1973 to 1982 president of the Mexican American Legal Defense and Educational Fund, now a partner at a Los Angeles law firm, sits on corporate boards keeping her colleagues alert to the benefits equal opportunity policies can yield.
It sometimes takes the vision and will of one individual to propel legal advocacy in support of a cause. Two notable examples, the first one, already mentioned. Charles Hamilton Houston attended law school following his 1917 to 1919 military service in a segregated unit of the American Expeditionary Forces. While in service, he experienced and witnessed virulent racial discrimination and harassment, including the unjust court martial of an innocent black officer. "I made up my mind," he later wrote, "that I would never get caught again without knowing something about my rights; that if luck was with me, and I got through this war, I would study law and use my time fighting for [people] who could not [themselves] strike back."15 Houston did just that in the years he served as dean of Howard Law School and, simultaneously, Special Counsel to the NAACP Legal Defense and Educational Fund.
Among pathmarkers in more recent times, Marian Wright Edelman is exemplary. Edelman entered law school in 1960, anticipating that she would help fill the large need for civil rights lawyers. In her own words: "If you don't like the way the world is, you change it. You have an obligation to change it. You just do it, one step at a time."16 In 1973, Edelman founded the Children's Defense Fund. The Fund studies and documents conditions affecting children and proposes legislation to make things better. Aided by the large store of information gathered by the CDF, Edelman educates lawmakers and successfully lobbies for measures addressing the needs of the one in five children in the United States currently living below the poverty level. Edelman's gravest concern is public apathy. Quoting Albert Einstein, she has said that the world is "in greater peril from those who tolerate evil than from those who commit it." "Democracy," she reiterated, "is not a spectator sport."17
While cause- or issue-oriented pro bono lawyering may garner more headlines,18 I should not end this talk without emphasizing once more the constant need for lawyers willing to perform the everyday services that can greatly improve poor people's lot, services that ordinarily do not implicate contentious, politically tinged issues.19 It is generally not ideology that keeps people from offering their services to poor clients. It is more likely to be apathy, selfishness, or anxiety that one is already overextended. Those are forces not easily overcome.
"Recent estimates suggest that most attorneys do not perform significant pro bono work and that only between 10 and 20 percent of those who do are assisting low-income clients. The average [of all] pro bono labor for the profession as a whole is less than half an hour per week."20 Nothing to cheer about that record. It is incumbent on anyone who regards lawyering not simply as a trade but as a true profession to advance more responsible performance, to assure that legal aid will be there, when needed. In the words of the Talmudic sage Rabbi Tarfon, "The day is short, and the task is much; the workers are [sometimes] lazy, but the reward is great."21
* Associate Justice, Supreme Court of the United States. Justice Ginsburg acknowledges with appreciation the grand assistance of her 1999 Term law clerks, Richard A. Primus and Deirdre D. von Dornum, and her 2000 Term law clerk, Robert Gordon, in composing these remarks.
1 CHARLES DICKENS, BLEAK HOUSE 509 (Bantam Books 1983) (1853).
2 See generally An Updated Analysis of the Right to Counsel and the Right to Compensation and Expenses in State Post-Conviction Death Penalty Cases (A.B.A. Postconviction Death Penalty Representation Project, 1996). The need for representation on collateral review has become more acute since the 1996 termination of federal funding once available to assist Postconviction Defender Organizations. See Brad Snyder, Disparate Impact on Death Row: M.L.B. and the Indigent's Right to Counsel at Capital State Postconviction Hearings, 107 YALE L.J. 2211, 2233-34 & n.179 (1998); Roscoe C. Howard, Jr., The Defunding of the Post Conviction Defense Organizations as a Denial of the Right to Counsel, 98 W. VA. L. REV. 863, 865-66 (1996).
Professor James S. Liebman of Columbia Law School, diligent counsel for defendants subject to the death penalty and co-author with Randy Hertz of the treatise FEDERAL HABEAS CORPUS PRACTICE AND PROCEDURE (3d ed. 1998), has recently published a comprehensive empirical study of several hundred capital case direct appeals and collateral review proceedings. See Liebman, A BROKEN SYSTEM: ERROR RATES IN CAPITAL CASES, 1973-1995. The study, funded in large part by the Open Society Institute, shows that the overall rate of prejudicial error in the capital punishment system is 68%. See id.
3 Earl Johnson, Jr., Equal Access to Justice: Comparing Access to Justice in the United States and Other Industrial Democracies, 24 FORDHAM INT'L L. J. S83, S95 tab. 3 (2000). According to Johnson's article, each Australian province has its own legal services program, and no national data are available. The one province reporting statistics--New South Wales--provides about $5 of legal services funding per capita, more than twice the U. S. figure. Id.
4 See "From Europe, Invasion of the Donor Snatchers," The New York Times, December 9, 1997, Section G, page 2.
5 For biographical information on Reginald Heber Smith, see Henry Weinstein, Legal Aid for Poor Survives Cyclical Attempts to Kill It, L. A. TIMES, Dec. 30, 1995, at A1; Erwin N. Griswold, The Changing Legal Scene, NAT'L L. J. 17 (col. 1), Dec. 30, 1991. A similarly inspired contemporary organization is the National Association for Public Interest Law (NAPIL), a nationwide coalition of law student groups dedicated to enlisting and training students and recent law school graduates for the rendition of legal assistance to low-income and other underserved people and communities.
6 See David J. McQuoid-Mason, The Delivery of Civil Legal Services in South Africa, 24 FORDHAM INT'L L. J.S111, S138-S140 (2000).
7 See J.Y. Smith, Burnita Matthews Dies, WASH. POST, April 27, 1988; Kathanne W. Greene, Torts Over Tempo: The Life and Career of Judge Burnita Shelton Matthews (on file with author). See also Ruth Bader Ginsburg & Laura W. Brill, Women in the Federal Judiciary: Three Way Pavers and the Exhilarating Change President Carter Wrought, 64 FORDHAM L. REV. 281, 284-86 (1995).
8 See SAMUEL WALKER, IN DEFENSE OF AMERICAN LIBERTIES: A HISTORY OF THE ACLU (1990).
9 The Tennessee statute prohibiting the teaching of evolution in state-supported schools, pursuant to which John Scopes, defended by the ACLU and Clarence Darrow, was convicted in a Dayton, Tennessee trial court in 1925, was upheld as constitutional by the Tennessee Supreme Court. But Scopes's conviction was reversed on technical grounds. John Thomas Scopes v. State, 154 Tenn. (1 Smith) 105, 289 S. W. 363 (1927). For a recent work on the Scopes trial, see EDWARD J. LARSON, SUMMER FOR THE GODS: THE SCOPES TRIAL AND AMERICA'S CONTINUING DEBATE OVER SCIENCE AND RELIGION (1997).
A further example, in 1978, the ACLU took on the neo-Nazis' suit for permission to march in Skokie, Illinois. See Collin v. Smith, 578 F. 2d 1197 (7th Cir. 1978). See also ARYEH NEIER, DEFENDING MY ENEMY: AMERICAN NAZIS, THE SKOKIE CASE, AND THE RISKS OF FREEDOM (1979). For a view critical of the ACLU's position in this case, see DONALD A. DOWNS, NAZIS IN SKOKIE (1985).
10 See Roger A. Fairfax, Jr., Wielding the Double-Edged Sword: Charles Hamilton Houston and Judicial Activism in the Age of Legal Realism, 14 HARVARD BLACKLETTER L. J. 17, 20 (1998).
11 163 U.S. 537 (1896).
12 Some 20 law schools have made student pro bono service a requirement for graduation. For example, in 1996, in response to a student initiative, Columbia Law School adopted a requirement that each student do at least 40 hours of pro bono service, with pro bono defined broadly and non-ideologically to include work for not-for-profits, small businesses, legal service providers, and all three branches of government. Tulane, which requires students to do 20 hours of work related specifically to the provision of legal services to the poor, was the first law school to adopt such a requirement. The University of Pennsylvania mandates a greater number of hours than most of the programs -- 70 during the course of a student's second and third years -- but allows students a broad choice of pro bono projects. A few schools, such as Stetson University College of Law, have extended this requirement to their faculty members. See Memorandum from Donna Alleyne, Pro Bono Coordinator, Columbia Law School Center for Public Interest Law, to Chambers of Justice Ginsburg (August 17, 1999) (on file with author); Law School Public Service Graduation Requirements, NAPIL Briefs (NAPIL, Washington, D. C.), Winter 1996.
13 See Carl McGowan, Private Lawyers and Public Responsibilities, 80 MICH. L. REV. 183, 186-87 (1981).
14 See Lewis F. Powell, Jr., The Powell Memorandum: Attack on American Free Enterprise System 7 (Aug. 23, 1971).
15 Quoted in Fairfax, supra note 9, at 20 (citing Charles Hamilton Houston, Saving the World for Democracy, PITTS. COURIER, Aug. 24, 1940).
16 Time, March 23, 1987.
17 Quoted in Dawn Bradley Berry, THE FIFTY MOST INFLUENTIAL WOMEN IN AMERICAN LAW 281 (1996).
18 Among issue-oriented groups, Common Cause bears note. Founded by former Secretary of HEW John Gardner in 1970, Common Cause has been a leading lobbyist and sometimes litigator for campaign finance reform and for transparency in government operations.
Among newer cause-oriented organizations, the Appleseed Foundation, organized in 1993 by members of the Harvard Law School class of 1958, funds Centers (currently 13 in 12 states) for the pursuit of systemic change. The Foundation's fields of concentration include poverty, the environment, and consumer protection. It aims to attract young lawyers to advance its public interest undertakings.
19 Congress established the Legal Services Corporation in 1974 to fund local civil legal aid programs nationwide. The Corporation has suffered repeated cutbacks in funding and in the scope of services it may render. It has survived due, in considerable measure, to the vigilant efforts of the American Bar Association to prevent its demise.
20 Deborah L. Rhode, Cultures of Commitment: Pro Bono for Lawyers and Law Students, AMERICAN BAR FOUNDATION NEWSLETTER, Spring 1999, at 1.
21 The Mishnah, Avot 2:18.