Mississippi Considers Pro Bono Mandate for Lawyers
By David Harrison, Staff Writer
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For every client helped by a Mississippi legal aid office, another is turned away for lack of resources. And for every client who walks in the door of one of these offices, many more are entitled to help but don't seek it. Faced with these grim statistics, Mississippi's Supreme Court is considering a radical solution: requiring attorneys in private firms to perform volunteer work or pay a fee.
Part of the state Supreme Court's formal mission is to make sure residents have proper access to the justice system. But funding for indigent legal services is tight and the recession has brought a flood of pleas for legal help. If adopted, the proposal would make Mississippi the first state to mandate that lawyers perform what until now has been volunteer work. A committee of the court is studying the idea, after which it could be presented to the full court. There is no timetable guiding the committee's work.
The rule change would apply mostly in civil cases. In criminal cases, defendants have a constitutional right to an attorney, and courts in Mississippi and other states routinely appoint lawyers and offer them a modest compensation to represent indigent criminal defendants.
Under the current proposal, about 6,000 of the state's roughly 8,500 lawyers would have to do 20 hours of pro bono legal work a year or pay a $500 fee. Lawyers who work in specialized parts of the law or lawyers who work for the court system, the government or legal aid offices would be exempt from the requirement. A recent public comment period on the idea drew over 100 responses, many of them opposed. But Justice Jess Dickinson of the Mississippi Supreme Court says there are few alternatives. "This is not just some power grab by the court to force lawyers to do something," he says. "We're desperately struggling to find some way to address this huge problem."
State courts throughout the country have been swamped with housing and family court cases, many involving litigants who can't afford a lawyer, according to the Legal Services Corporation , a national nonprofit group. Unemployment compensation cases grew nationally by 63 percent in 2009, and food stamp cases increased 37 percent, according to the LSC. Mississippi courts are under an additional burden: They are still dealing with lawsuits stemming from Hurricane Katrina five years ago.
Since 1974, legal aid offices in the states have received funding from Congress, distributed through the Legal Services Corporation. But the federal support has not kept up with the increase in demand. In the 1980s in Mississippi, there were more than 100 legal services lawyers working out of 29 offices. In 2008, there were only 31 working out of 10 offices, according to a report from the Mississippi Access to Justice Commission.
Increasingly, litigants are showing up in court without legal representation, a phenomenon that troubles judges who struggle to guide self-representing litigants through the process without influencing the outcome of the case. According to the LSC, federal funding would have to be five times larger to provide low-income people with proper representation.
"The system's not fair," says Dickinson. "People without money don't have the same opportunity to access the judicial system and be successful in it. They just don't. And if it is that way then whose responsibility is it to address that? My personal view is that it's the court's responsibility and if it is our responsibility what are we supposed to do?"
Resistance from the bar
But not everyone agrees that lawyers should be required to donate their time. Don Lacy, an attorney in Flowood, Mississippi, wrote a letter to the state Supreme Court, quoted by the Jackson Clarion-Ledger , in which he called the proposal "an unprecedented and unjustifiable unilateral extension of the authority of the court." John Gillis, an attorney in private practice in Water Valley, Mississippi, says that "the whole premise of pro bono is it's a voluntary activity."
Keeping track of the volunteer work performed by 6,000 attorneys would be challenging for court systems, Gillis says. In addition, he argues, lawyers would have to pay expenses such as transportation and court reporting costs with no promise of reimbursement. Some have suggested that the proposal violates the 13th Amendment to the U.S. Constitution, which prohibits involuntary servitude. In October, the board of commissioners of the Mississippi Bar voted unanimously to oppose the plan.
Volunteer work has long been a staple of many law firms, but state bar associations and supreme courts have recently started monitoring the extent to which lawyers perform pro bono duties. According to the Mississippi Bar Association, about 4,000 lawyers in the state did some pro bono work last year and about 1,000 contributed money in lieu of pro bono activity.
According to the American Bar Association, 29 states have adopted resolutions urging attorneys to perform a certain number of hours of pro bono work as part of their rules of professional conduct. The association recommends that attorneys put in 50 hours of volunteer legal work per year.
In seven states, lawyers are required to report the amount of pro bono work they perform every year. Eight states have turned down such a requirement.