Cornell Law Review

Volume 77
Article 36
Issue 5 July 1992

Mandatory Pro Bono: Comfort for the Poor or

Welfare of the Rich
Jonathan R. Macey

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Recommended Citation
Jonathan R. Macey, Mandatory Pro Bono: Comfort for the Poor or Welfare of the Rich , 77 Cornell L. Rev. 1115 (1992)
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 PANEL VI
MANDATORY PRO BONO: COLLECTIVE
DISCHARGE OF DUTY OR COMPELLED
FREE SERVICE?

MANDATORY PRO BONO: COMFORT FOR THE

POOR OR WELFARE FOR THE RICH?

Jonathan R. Maceyt

INTRODUCTION

Lawyers have served indigent clients and worthwhile but impe-

cunious causes without pay for centuries.' Unfortunately, this laud-
able tradition of public service has not done much for the legal
profession's overall reputation, which continues to languish. The
age-old debate about whether lawyers should be compelled to provide
services to nonpaying clients as a condition for retaining their
licenses to practice law resurfaced recently when a committee ap-
pointed by the Chief Judge of the New York Court of Appeals to
study the legal needs of the poor concluded that lawyers should be
compelled to donate 20 hours every year to serving the poor.2
Proposals to compel lawyers to provide free legal services to the
indigent have been around for about as long as the world has been
inhabited by lawyers and poor people. No less a philosophical lumi-
nary than St. Thomas Aquinas addressed the issue in Question 71 of
the Summa Theologica, asking the question, "Whether an advocate is
bound to defend the suits of the poor?" His answer, like mine, was
4
a resounding no.

t J. DuPratt White Professor of Law, Cornell Law School. While I am indebted for
helpful conversations on the topic of mandatory pro bono with my colleagues Roger
Cramton and Chuck Wolfram, the views expressed in this essay are mine alone. This
Article was prepared separately for publication but draws upon the ideas the author
presented at the Convention.
1 David L. Shapiro, The Enigma of the Lawyer's Duty to Serve, 55 N.Y.U. L. REV. 735,
735 (1980).
2 COMMITTEE TO IMPROVE THE AVAILABILITY OF LEGAL SERVICES, FINAL REPORT TO
THE CHIEF JUDGE OF THE STATE OF NEW YORK (1990).
3 THE SUMMA THEOLOGICA OF ST. THOMAS AqUINAs, LXXI Part II, Question, at
273 (Fathers of the English Domincian Province trans., R&T Washbourne, Ltd., 1918).
4 Essentially Aquinas takes the position that providing legal services for the poor is
a corporal work of mercy that is very personal. The obligation to provide legal services

1115
1116 CORNELL LA W REVIEW [Vol. 77:1115

The reason lawyers ought not to be obliged to help the poor-

indeed the reason forcing lawyers to serve the poor is odious and
unethical-is that we can make both lawyers and the poor better off
by abandoning mandatory pro bono and providing the poor with
lump sum transfers of cash. In other words, if the rationale for
mandatory pro bono is to help the poor, then it is a peculiarly bad
way to provide assistance. Alternatively, mandatory pro bono may
really be designed to serve some other purpose besides helping the
poor. In fact, I will argue that the real effect of a mandatory pro
bono system will be to transfer wealth from solo practitioners and
lawyers in small- and medium-sized firms to lawyers in large firms.

I
MANDATORY PRO BONO AND THE POOR

Contrary to popular belief, mandatory pro bono will not help

the poor. To understand why this is so, one must first understand
that the real reason why the poor do not presently consume more
legal services is because they are rational. Given their limited
wealth, the poor simply would rather spend their money on other
things. In other words, legal services are very, very low on a poor
person's shopping list. Food is higher. Shelter is higher. Clothing
is higher. And even after all of those expenses are covered, lawyers
should not be surprised to learn that a poor person might choose to
allocate his resources in ways other than hiring a lawyer-like buy-
ing a car or obtaining an education.
The low demand for lawyers' services by the poor and the mid-
dle class provides strong evidence that most people regard legal
services as an expendable luxury rather than as a necessity:
Except for a narrow range of property-related matters-convey-
ances, wills, and marital separations-the middle class makes just
about as little use of legal services as those who literally cannot
afford them. Even prepaid legal insurance plans have proved sur-
prisingly unpopular. Why? Because people do not want to give

for the poor depends on the individual circumstances of each particular case. Because
no man has the resources or the capacity to provide help to all who need it, the obliga-
tion arises from the existence of a relationship between the person in need and the
provider:
He that lacks food is no less in need than he that lacks an advocate. Yet
he that is able to give food is not always bound to feed the needy. There-
fore neither is an advocate always bound to defend the suits of the
poor ....
... Now no man is sufficient to bestow a work of mercy on all those
who need it. Wherefore, as Augustine says... I since one cannot do good to
all, we ought to consider those chiefly who by reason of place, time, or any other
circumstance, by a kind of chance, are more closely united to us.
Id. at 274 (citation omitted).
1992] MANDATORY PRO BONO 1117

up what they would have to in order to buy a little more of our

lawyer justice, except when the expected benefit is worth the cost.
People's priorities are different. 5
In other words, poor people do not hire lawyers because they use
their limited resources to buy things that they value more than legal
services.
Given a choice between $2500 in cash and twenty billable hours
of legal services provided by a partner at a Wall Street law firm (val-
ued at around $10,000), most people-middle class or poor-would
take the $2500 in cash.
In other words, if the lawyers compelled to provide pro bono
legal services to poor clients were permitted to negotiate with their
indigent clients, both the lawyers and the clients quickly would
agree that the clients should accept cash in lieu of legal services.
The lawyers could put the time they saved to more productive uses,
and the clients could buy some of the virtually infinite array of
goods and services they actually need. Everybody would be better
off.
Thus, requiring lawyers to provide legal services to the poor is
wasteful and inefficient. Both lawyers and their clients could im-
prove their circumstances if lawyers could donate money directly to
the poor. The poor could then decide for themselves how best to
spend this largesse.
Ironically, the increased consumption of legal services by the
poor may actually harm the indigent rather than help them. For ex-
ample, among the primary justifications for a regime of mandatory
pro bono is that poor people need representation in landlord-tenant
and matrimonial disputes.
Lawyers forced to do pro bono work will spend much of their
time representing people involved in matrimonial disputes who are
unable or unwilling to pay for legal representation. People getting
divorced may decline to hire lawyers to represent them for a variety
of reasons. The most plausible explanation for the failure of indi-
gent people to hire lawyers in matrimonial disputes is that there are
not enough assets in the matrimonial estate to justify the expense.
A recent, study by Marsha Garrison shows that 31 percent of divorc-
ing couples in New York State had a net worth of less than $5000
and 18 percent of divorcing couples had a negative net worth.6 In
light of these statistics, it is not hard to see why many couples ra-

5 John A. Humbach, Serving the Public Interest: An Overstated Objective, 65 A.B.A. J.

564, 564-65 (1979).
6 Marsha Garrison, Good Intentions Gone Awry: The Impact of New York's Equi-
table Distribution Law on Divorce Outcomes 34, tbl. 8 (1992) (unpublished manuscript,
on file with author).
1118 CORNELL LAW REVIEW [Vol. 77:1115

tionally decide that hiring a lawyer would not make sense. When
there is simply no material estate to fight over, it does not make
sense to hire lawyers a. combatants. What is difficult to understand
is why the supporters of mandatory pro bono think that anybody
benefits by providing impecunious couples with free legal represen-
tation. With the possible exception of matrimonial work, lawsuits
against landlords are expected to occupy the lion's share of the time
that lawyers compelled to provide legal services for the poor would
spend on mandatory pro bono. If more marginal lawsuits are
brought against landlords because lawyers need something to do to
fulfill their mandatory pro bono obligations, the landlords' costs of
providing housing to the indigent inevitably will go up. As the cost
of providing housing goes up, rents will increase, and the supply of
housing for the poor will go down. The benefit that some poor peo-
ple derive from having representation in landlord-tenant disputes
must be weighed against the increased costs to tenants that will re-
sult from a regime of mandatory pro bono in which lawsuits are
brought against landlords regardless of whether the expected bene-
7
fits to the tenants outweigh the costs of the suit.
Litigation often produces benefits for plaintiffs and for society
as a whole because individuals who expect to pay damages for the
harm they cause have an incentive to reduce their harmful activities.
But pro bono litigation is different. When clients must incur costs
to hire a lawyer, they will only bring lawsuits when the expected
benefits from litigation outweigh the costs of bringing suit, includ-
ing the costs of hiring a lawyer. In the case of pro bono lawyering,
however, the cost of mounting litigation is reduced to zero, and cli-
ents will pursue litigation that produces little or no benefits.
Mandatory pro bono significantly exacerbates this problem be-
cause lawyers are forced to find client matters to fulfill their pro
bono obligations:
[S]uppose that lawyers, looking for ways to fill their quota [of re-
quired pro bono legal work], start impeding debt collection or
complicating evictions of nonrent-paying tenants. The immediate
result is to increase the fees to the lawyers of landlords and
merchants, thus increasing the costs of those suppliers [of goods
and services to the poor]. The longer-run effect is likely worse: to
increase the price or decrease the supply of housing and credit to
the poor.8

7 Humbach, supra note 5, at 566.

8 Id.
1992] MANDATORY PRO BONO 1119

II
MANDATORY PRO BONO AND TRANSFERS OF WEALTH
WITHIN THE LEGAL PROFESSION

If mandatory pro bono does not help the poor, then one must
wonder why it receives such enthusiastic support from elite groups
within the legal community. The basic reason stems from a linger-
ing misconception among American lawyers that prosperity, virtue,
and inequality simply can be legislated away. As a distinguished Eu-
ropean journal of public affairs recently observed, "[t]o a lot of
Americans, it now seems that prosperity can be bought like insur-
ance." 9 Thejournal went on to point out that while social engineer-
ing has become unpopular in Eastern Europe, it seems to be
flourishing in the United States. 10
A second reason for the support given to mandatory pro bono
programs is probably more psychological than philosophical. Peo-
ple generally, including lawyers, believe (or cause themselves to be-
lieve) that the work they do contributes to the good of mankind.
Therefore, lawyers, like other people, desperately want to believe
that society would benefit from maximizing, rather than merely opti-
mizing, the total level of legal services provided.
Putting self-deception aside, the ineluctable reality is that no-
body really believes that mandatory pro bono programs will help
the poor. Nonetheless, mandatory pro bono regimes find strong
support in the upper strata of the legal profession. This is not sur-
prising because these upper strata will be the real beneficiaries of
mandatory pro bono programs.
It is no coincidence that the big push for mandatory pro bono is
coming from big firm lawyers at a time when demand for the serv-
ices of those firms is lagging appreciably behind the available sup-
ply." This temporary disequilibrium is evidenced by layoffs of
partners and associates at large law firms.
Mandatory pro bono programs will help large law firms by in-
creasing the demand for lawyers to defend suits brought under such
programs. Lawyers forced to bring cases on behalf of poor people
will usually be bringing them against defendants who must pay to
hire lawyers to defend those suits. In other words, mandatory pro
bono programs artificially expand society's demand for paid legal
services. In particular, the demand for the services of lawyers at
large firms who specialize in representing defendants will increase.
As one commentator presciently has observed, "[W]henever clients

9 From There to Intolerance, THE ECONOMIST, July 20, 1991, at 15.

10 Id.
I Saundra Torry, Skadden's Layoffs Signal an Uneasy New Erafor Lawyers, WASH. POST,
Oct. 7, 1991, at F5.
1120 CORNELL LA W REVIEW [Vol. 77:1115
who cannot pay get more legal services, clients who can pay need
more legal services. This results in new business for the bar."' 12
A mandatory pro bono requirement will increase the demand
for lawyers in large law firms in other, subtler ways. First, under the
New York plan, lawyers at large law firms could credit the excess pro
bono hours of some lawyers in the firm to meet the obligation of
other lawyers in the firm. 13 This flexibility will benefit large firms
far more than small firms, because large firms can more easily afford
to hire lawyers to specialize in pro bono work. In large firms the pro
bono activities of these lawyers can be amortized over a large
number of lawyers. In addition, at any given time, large firms pre-
dictably will have excess capacity in certain practice areas and no
room for additional work in others. These large firms can amelio-
rate this problem by shifting the burden of pro bono work onto the
shoulders of the lawyers with extra time in their schedules. This is a
luxury that smaller, more specialized firms lack because all of the
lawyers in such firms are likely to have slack times and busy times
simultaneously.
Even if lawyers in large law firms were prohibited from as-
signing the burden of their pro bono obligations to other, more jun-
ior lawyers in the firm, satisfying the burdens of a mandatory pro
bono obligation would still be easier for a large firm. Suppose, for
example, that a solo practitioner is scheduled to make a court ap-
pearance on a particular day for a pro bono client. During that day
the solo practitioner will be unable to represent any of his paying
clients. By contrast, a large law firm simply can reassign personnel
(many of whom will have expertise in the relevant area of law) to
handle the work of the absent lawyer.
In addition to the disproportionately heavy burden of reallocat-
ing caseloads on lawyers in smaller firms, solo practitioners and law-
yers in small firms are less able to amortize the fixed costs of a
mandatory pro bono program across the firm as a whole. Moreover,
most pro bono plans, including the one being discussed in New
York, allow lawyers in small firms (10 or fewer) and solo practition-
ers to buy their way out of their obligations for a flat fee.14 Thus the
lawyer in the solo or small practice must pay retail to satisfy the pro
bono requirement, while the lawyer in the large firm can satisfy the
requirement by purchasing legal services wholesale by utilizing
intra-firm talent. Despite the fact that lawyers in large firms cannot
buy their way out of the proposed pro bono legal obligations, the

12 Humbach, supra note 5, at 566.

13 Roger C. Cramton, Mandatory Pro Bono, Address Before the Tompkins County
Bar Association (Nov. 16, 1989).
14 Excerptsfrom the Recommendations, N.Y.L. J., Dec. 8, 1989, at 1.
1992] MANDATORY PRO BONO 1121

plan is still highly regressive. As a result, the plan is unpopular with

the relatively impecunious lawyers who practice at small firms.
Mandatory pro bono programs also benefit large firms at the
expense of smaller firms because under some pro bono plans, large
firms can fulfill their obligations by doing work for foundations and
other low-pay/high-prestige clients that such firms normally repre-
sent. Similarly, unlike small firms and solo practitioners, large firms
can use mandatory pro bono programs as vehicles for training asso-
ciates because younger lawyers working for large firms that deal al-
most exclusively with very high stakes legal issues understandably
do not get as much courtroom experience or contact with paying
clients as lawyers at smaller firms that litigate smaller stakes issues.

III
THE GOOD OLD DAYS: THE LEGAL PROFESSION AS
SOMETIME MONOPOLY

A final argument in favor of mandatory pro bono is that lawyers

are professionals, and as such, their license to practice law comes
with certain societal obligations. In less prosaic terms, the licensing
requirements of the bar have created barriers to entry that permit
lawyers to earn super-competitive profits. According to this argu-
ment, lawyers are under an obligation to perform legal services for
the poor in order to compensate society for the social losses associ-
ated with their monopoly position. Since the legal profession's mo-
nopoly allows it to charge above-market prices, this monopoly status
permits lawyers to transfer wealth from the rest of society to them-
selves. Mandatory pro bono requirements merely effectuate a re-
transfer back to society of this initial wealth transfer. But this
argument is completely flawed.
If at any time in history the legal profession was a monopoly, it
is not any longer. If one hundred years ago lawyers erected barriers
to entry that enabled them to obtain monopoly profits, those were
short-term gains that are not presently being enjoyed by members
of the profession. This is because nonlawyers, observing the eco-
nomic rents earned by a cartelized legal profession, would begin ex-
pending the resources and developing the human capital necessary
to enter the profession and obtain these rents. Thus any gains from
cartelizing the legal profession were lost long ago by competition
from new entrants.
Unfortunately, the disappearance of abnormal returns brought
about by the increased competition for entry into a cartelized legal
profession does not eliminate the lawyer's incentive to maintain the
restrictions that led to the cartelization. Lifting entry restrictions on
lawyers would increase the short-run supply of lawyers and deprive
1122 CORNELL LA W REVIEW [Vol. 77:1115
those lawyers who were practicing before the restrictions were lifted
of a normal return on the human capital investments they made in
order to become lawyers.
Thus, as with most regulations, lawyer licensing requirements,
once in place, create an incentive for the people subject to those
requirements to lobby for keeping them in place even after the ab-
normal returns from the entry restrictions have disappeared. The
point is not that licensing requirements for lawyers should be main-
tained, but rather that lawyers currently in practice are earning only
normal-not super-competitive-returns on their investments in
human capital. Consequently, the presence of entry restrictions in
the form of state bar licensing rules does not justify imposing a
mandatory pro bono requirement on lawyers currently in practice.

CONCLUSION

Perhaps the most disturbing aspects of the mandatory pro bono

debate relate to what it implies about the legal profession's view of
itself. Those who favor imposing a mandatory pro bono obligation
on lawyers make two implicit assumptions that I wish both to expose
and to dispute. First, the idea of a mandatory pro bono obligation
implies that some work done by lawyers (like representing the indi-
gent) furthers society's interests, while the rest (like representing
corporations) hurts society. But corporate lawyers who represent
corporations that are attempting to obtain capital for expansion also
provide benefits for society. Lawyers who represent clients before
regulatory agencies benefit society at least as much as lawyers who
represent indigent clients in divorce actions or landlord-tenant dis-
putes. In other words, imposing a mandatory pro bono regime per-
petuates the public perception that lawyers are a net drag on the
economy. The idea of mandatory pro bono also fuels the public's
perception that legal services provided free to poor people further
the public interest, while the provision of legal services to paying
clients serves no purpose other than to transfer wealth from society
as a whole to a few undeserving lawyers.
Similarly, a second unavoidable attribute of mandatory pro
bono programs is that they inevitably will require some bureaucratic
determination of what constitutes pro bono legal services. Making
this determination will require either a substantial bureaucracy or
some highly arbitrary determination that any lawsuit on behalf of an
indigent person or other favored group is pro bono. Neither of
these alternatives is particularly attractive.
Finally, the passionate embrace of mandatory pro bono
schemes by certain elites within the legal profession reflects a mis-
placed and somewhat disturbing vision of the role of lawyers in soci-
1992] MANDATORY PRO BONO 1123

ety. On the one hand, it seems uncontrovertible that, despite their

unpopularity, lawyers accomplish a great deal of good in society in a
wide variety of ways. But this does not mean that increasing the
general level of legal services in society by requiring lawyers to per-
form services they would not otherwise perform will benefit society.
By requiring lawyers to subsidize litigation that society would not
otherwise support, the legal profession will confirm suspicions that
our society is too litigious and that lawyers take themselves way, way
too seriously.