Pro bono and its critics

To further elaborate on how the practice of law can uphold - or assault - human dignity, I want to fasten on the notion of dignity as nonhumiliation and discuss the pro bono obligations of lawyers.

My foil is an essay by two professors, Charles Silver and Frank Cross, that ingeniously criticizes the very idea that lawyers ought to perform pro bono service.^[161] They don’t deny that “all persons of means should be charitable, especially to widows, orphans, the handicapped, and others whose poverty results from circumstances that are largely or wholly beyond their control.”^[162] But they believe that legal services simply are not as important to the poor as “money, hot meals, home repairs, medical assistance, transportation, and help with chores... Lawyers should provide the forms of charity that poor people need most, especially gifts of cash.”⁶⁸ Thus, Silver and Cross reject the duty to do legal service for the poor not because they are skeptical of duties to the poor but because “poor people would rather have other things.”⁶⁹

To illustrate their point, they pose a rhetorical question: “Query: Would a poor person waiting for help at a legal aid office rather have twenty hours of a lawyer’s time... or $3000?... Three thousand dollars would be a lot of money for so poor a person to pass up.”⁷⁰

Silver and Cross seem to think that offering the money, which the poor person can spend as she wishes, pays more honor to her autonomy than offering her legal services on a take-it-or-leave-it basis. My intuition runs differently, and not only because I do not identify dignity with autonomy.

Prospective Client #1: The city is trying to terminate my parental rights and take my child away. Can you help me?

Silver and Cross: That’s a twenty-hour job. We won’t represent you, but we’ll give you $3,000.

They are honoring her autonomy. Which does she prefer, the money or the child? It’s her call.

After she leaves, clutching the child to her, the next client comes in:

Prospective Client #2: Immigration is trying to deport me back to my home country. I'll be arrested if I'm sent back, maybe tortured and killed. Can you represent me at my asylum hearing?

Silver and Cross: Oh, sure. But that will take at least forty hours to do right. Tell you what: We’ll give you $6,000 instead. That should get you across the Canadian border in style!

Next comes Client Number Three:

Prospective Client #3: Last week my boyfriend beat me up and broke my arm. Now he’s threatening to kill me. My cousin told me that you could help me get a court order to keep him away.

Silver and Cross: We could. It would take about four hours. But what if we give you $600 instead? Now you can buy a gun and take yourself out to dinner with the change.

And now the last:

Prospective Client #4: My landlord is trying to evict me, and I haven’t got the money for a new apartment. He has no right to evict me - I’ve always been a good tenant and paid the rent on time. He just doesn’t like me. My eviction hearing is next week. Can you help me?

Silver and Cross: Here's the money for a new apartment.

It's been a good day's work at the alms factory. Instead of foisting legal services on clients, they have honored the clients' autonomy by giving them money they can spend on anything they wish.

The imaginary dialogues dramatize a few points that Silver and Cross overlook. First, whether the client prefers legal services or cash depends on how urgent the legal problem is. Second, how much the case is worth to the lawyer may have nothing to do with how much it matters to the client. Third, not all legal woes translate into monetary equivalents.

Of course, nothing prevents the clients from taking the money and spending it on legal services - in effect, retaining someone other than Cross and Silver to do the legal work. But the fact that some or all of these clients will undoubtedly prefer to spend the money on legal services demonstrates that Cross’s and Silver’s question about whether legal aid clients would rather have lawyers or money is not merely rhetorical.

Though they are important, these points do not bear on the question of human dignity. The next point does, however. Even if the client’s legal problem concerns only money, as in the eviction case, it may matter enor­mously to her how she gets the money. The reason has to do with the entirely different social meanings of help and handouts. Handouts accentuate the helplessness and dependency of the recipient. They do nothing good for a person’s self-respect.

Help is different. All of us need help sometimes for some things, so there is no sense that getting help demeans us. When you help someone cope with a problem, you create a sense of shared enterprise. Your implicit aim is to reduce their dependency by removing a stumbling-block. By contrast, sub­stituting handouts for help seems very much like bribing the recipient to go away. Handouts accentuate social distance. Handouts humiliate.

Consider an instructive Biblical passage from the book of Leviticus:

When you reap the harvest of the land, you shall not reap right into the edges of your field; neither shall you glean the loose ears of your crop; you shall not completely strip your vineyard nor glean the fallen grapes. You shall leave them for the poor and the alien.^[163]

One important point to notice about this passage is that it sets out a duty, not just something that you do if you are nice. In fact, the rabbinic Hebrew word for giving to the needy - tzedakah - derives from tzedek, the word for “justice.”^[164]

The second point to notice about the duty to leave gleanings for the poor and the foreigner is that it is not a commandment to give handouts. It does not say, “After the harvest, give some grain to the poor begging at your gates.” Instead, the commandment is to leave something for the poor to gather for themselves. The poor will gain their living by work - indeed, by the same kind of work as any other harvester. It is a commandment to help the poor in a way that, to the highest degree possible, maintains their self-respect and makes their lives normal. It is a commandment to do tzedakah in a manner that honors human dignity, that spares the gleaner humiliation. As the twelfth-century rabbi Maimonides puts it, “Whoever gives tzedakah to a poor man ill-manneredly... has lost all the merit of his action even though he should give him a thousand gold pieces.”⁷³

The views of Maimonides, who thought more deeply about the duty to give than any other author I know, are instructive, and his analysis of ben­evolence, which includes a subtle classification of modes of giving into eight degrees, highest to lowest, is one of the most celebrated passages in the rabbinic literature. His teaching centers overwhelmingly around the concern that gifts to the poor should never humiliate recipients or perpetuate their dependency. For that reason, Maimonides argued for the superiority of anonymous giving;⁷⁴ he thought that giving too little, but graciously, is better than giving an adequate amount grudgingly;⁷⁵ he maintained that gifts bestowed before the poor person asks are better than those given after;⁷⁶ and

emphasis is on the duty and virtue aspects of tzedakah, not the emotional and motivational aspects.

⁷³ Moses Maimonides, Mishneh Torah, “Gifts to the Poor,” Book 7, ch. 10, §7, in A Maimonides Reader, supra note 72, at 136.

⁷⁴ Ibid., §§8-10, at 137. Giving in which neither donor nor recipient knows each other’s identities is the seventh (second-highest) stage of Maimonides' eight-stage classification. Just below that is giving in which the donor is unknown to the recipient - as in the case of “the great sages who would go forth and covertly throw coins into poor people’s doorways”; and below that is giving in which the recipient is unknown to the donor, as in the case of “the great sages who would tie their coins in their scarves which they would fling over their shoulders so that the poor might help themselves without suffering shame.” Ibid., §§9-10. Why is unknown­recipient tzedakah ranked lower than unknown-donor tzedakah! Presumably, the answer lies in the fact that when the recipient knows the donor she will feel beholden; when the donor is unknown, the recipient can consort with anyone in the community on an equal footing.

⁷⁵ Ibid., §§13-14, at 137. Giving “morosely” is the first, or lowest, of the eight degrees, while giving graciously, but too little, is second-lowest.

⁷⁶ Ibid., §§11-12, at 137. Giving before being asked is the fourth stage, while giving only after the poor person asks is the third.

he regarded giving that promotes the self-sufficiency of the recipient, for example by making him one’s business partner, as the highest form of ben­evolence.^[165] Particularly relevant to pro bono is Maimonides' careful speci­fication that, if a gift cannot be anonymous, the giver should bestow it “with his own hand.”^[166] Bestowing the gift with your own hand matters because it removes the suspicion that, while you are willing to help the recipient, you aren’t willing to associate with her.^[167]

How do these ideas play out in the context of legal services? The four imaginary dialogues dramatize the way that offering money in place of legal assistance humbles and humiliates the would-be client.

Now Silver and Cross might reply that giving cash to poor people who request pro bono services actually treats them with greater respect than restricting your gift to in-kind services. The reason is one we have already seen: if it’s really legal services poor people want, they can use the cash to hire a lawyer. If not, they can use the money for something more important. Giving cash leaves the decision up to them.^[169]

I remain skeptical, however. Is the donor-lawyer giving the would-be client money to hire a different lawyer? If so, the message seems to be, “I don’t want to have to deal with you, so here’s some money so you can go away and find another lawyer.” Maimonides' injunction that a giver should provide aid “with his own hand” comes ineluctably to mind.

Or, alternatively, is the donor saying to the would-be client, “Here’s some money. You can either use it to hire me to represent you, or you can spend it on whatever else you think is more important”? This alternative is certainly better than the last - but it still transforms the nature of the encounter from a professional consultation into an occasion for handouts. Instead of a lawyer­client relationship, the offer creates a patron-client relationship. No longer is the client a person with rights at stake. Now her rights are subsumed into the category of her needs. Furthermore, now the client must regard her legal problem as fungible with all her other needs, which diminishes its significance and underlines the fact that a poor person finds desperation wherever she looks. Imagine a physician making a similar offer to an impoverished person who shows up at the physician’s office with, say, a broken wrist: “Sure, I could set your wrist for free, which is actually $1,000- worth of medical treatment. But instead, I’ll give you $1,000. That way, you can decide whether to spend it on getting your wrist set, or else live with the broken wrist while you take care of something even more urgent.” How much humiliation should a poor person have to put up with?

I do not suggest that pro bono legal assistance is always morally superior to cash assistance. Blanket generalizations in either direction are absurd. Every poverty lawyer can call to mind clients who needed money more than anything a lawyer could do for them; I suspect that every poverty lawyer has at one time or another chafed under the ethics rule forbidding lawyers to offer humanitarian financial assistance to their litigation clients.^[170] What I am suggesting is that, even when all a client wants from a lawyer is help in obtaining money, ignoring the legal problem and giving the client money creates a sorry excuse for a moral relationship. Helping those in need is an interaction, not an action, and Silver and Cross neglect the question of what kind of interactions cash transfers rather than legal services would be likely to create. They are, it seems to me, humiliating transactions. The lawyer who offers legal services may not be offering what the client needs most urgently. But the offer honors the client’s human dignity in a way that cash on the barrel-head never can.