I Don’t Know Why I Take Pro Bono Cases, But I Still Do
“A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance.”
― American Bar Association, Model Rules of Professional Conduct: 2011
Pro bono publico – for the public good – the saying is one of the pillars of the private bar. It is the ideal of voluntarily performing professional services without any charge or payment. You go to law school, young and idealistic, brimming with passion, thinking that you can be Clarence Darrow, a lawyer for the damned, yet also hoping to make a good living. But the representation of monied interests slowly corrupts you, and one day you wake up to find out that rather than seeking the public good, you merely support the existing power structure and private interests. It is a letdown in expectations.
I once worked with an attorney who usually had some good insights into the motivation of others. She told me she thought I liked being a government contracts lawyer because I liked “sticking it to the man.” She was probably right. And in most of the pro bono cases I took over the years, that certainly was the case. But not every case was a big success. Often the man stuck it to me.
My biggest failure was a pro bono case I took after summary judgment was granted to the Government. I read about the decision in the legal press and thought it was erroneous. I offered up my services for a motion for reconsideration by the ASBCA. The case had gone to judgment based on the premise that a Service Contract Act wage determination had been properly incorporated into the contract. The client, bereft of counsel who had quit when she ran out of funds, had not competently defended herself pro se before the Board. Well, I noticed on review of the Board’s ruling that the solicitation provision allegedly incorporating a wage determination into the contract was a false narrative represented by the Army Corps of Engineers. The Corps referenced a “special” wage determination website which was only accessible from a government computer. My small business 8(a) client was only given a paper RFP and was never furnished the wage determination or a link where she could access it. I petitioned the ASBCA for reconsideration and when that was denied took the appeal to the Federal Circuit, who kicked me around mercilessly at oral argument and then issued a per curiam affirmance of the decision on procedural grounds Basically, they said the decision was final and no more evidence could be used to reopen it. I disappointed my client, and she lost her business due to insolvency. My lesson is that while the bar may treasure pro bono, that isn’t true about every judge.
I had another pro bono case involving a conscientious objector who dropped out of West Point just before graduation. We had a hearing at West Point and the examiner recommended that the Army let him go. But the Commandant of West Point disagreed. He directed him to serve as a private first class medic in Iraq. We appealed to the Army’s Conscientious Review Board which voted 3-2 to deny his appeal. We went to the US District Court in Greenbelt, Maryland and, after a hearing, the court ordered the Army to let him out of service. The Army appealed that order to the 4th Circuit Court of Appeals where we drew a conservative panel. Once again, in a pro bono case, the Court kicked me around in oral argument (it was especially painful) and then granted the Government ‘s appeal. We asked the US Supreme Court for certiorari, but that was denied. Only then did the Army relent and agree that the conscientious objector could exit military service.
I had one more pro bono case of note. I was working a legal services clinic when they had a walk-in with a wage and hour case. I thought, hey, that is right up my ally. I agreed to represent him and two other restaurant workers who had not received premium overtime pay for the extra hours they worked. We filed the case and things were progressing. But one day when I was taking the subway to work, I noticed a small article in a newspaper about the arrest of two men in an alleged gang rape. It turned out two of my three clients had been arrested. We had to visit them in jail, and they were unable to support my class action suit properly due to their confinement and inability to meet the bond. The third client who was free had probably the weakest claim. I was compelled to individually settle the three plaintiff’s claims and drop my collective action due to lack of a good class representative. Things turned out alright for my clients who got the settlement monies and who were released from jail -- the criminal charges were eventually dropped. But the outcome wasn’t so good for me.
I still take pro bono cases and they often continue to be messy disputes. It is as they say part of the finest traditions of the bar. But I no longer have the same naive zeal for them, given how funky my prior cases were. I have become more cynical over the years.
But I still feel called to action at times. I have a minor reputation of being a lawyer who takes long shot cases and then wins them. Since I started Abrahams Wolf-Rodda, LLC, I did have a gratifying success with an appeal of a denial of United States citizenship for a young girl age 13 separated from her mother and living in Sierra Leon, Africa. The mother had applied for citizenship for her daughter and the petition had been denied due to the poor birth records kept by the Sierra Leon government. The mother had traveled back to Sierra Leon to gather documentation and missed the 60-day window to seek reconsideration. She was now ostensibly untimely. We asked for reconsideration anyway, and the petition was denied. I then personally forked over another $800 fee or a second request for reconsideration. My petition began with the sentence : “A mother wishes to be reunited with her daughter”. On my second try, we got the decision reversed and the daughter is now an American citizen. My latest pro bono cases take me back to my earlier days handling more personal legal disputes as opposed to the less personal government contracts matters that primarily occupied my paid legal career.
I have decided that pro bono cases are the hardest cases. Because the client isn’t paying, perversely they are the most demanding of your time. And clients do the darndest things, undercutting your case. The end result is you work for free, and the judges think they can abuse you. Sometimes the outcome is very gratifying, but often you can’t really help your client. Life isn’t fair.