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“A Lawyer and Yet Not a Thief, to the Wonder of the People”: A Brief History of Pro Bono Work

By: Seán Beatty BL

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Introduction

It is very common to see lawyers working for clients on a pro bono publico basis; that is, “for the public good”. Noonan J. has written that “[s]olicitors frequently provide pro bono help to their clients” (KBC Bank Ireland Limited v. Flynn and Anor. [2017] IEHC 79, para. 13), while Simons J. has mentioned the “proud tradition in both the barristers and solicitors professions of pursuing litigation pro bono publico, i.e. without any expectation of remuneration (Zalewski v. Workplace Relations Commission and Ors. [2020] IEHC 226, para. 39).

In a leading judgment, the United States Supreme Court held in 1989 in Mallard v. United States District Court for the Southern District of Iowa, 490 U.S. 296 that a court can “request” but not “compel” an attorney to represent a civil litigant without fee. The majority of the Court referred to the fact that:

“[l]awyers… have obligations to their calling which exceed their obligations to the State. Lawyers also have obligations by virtue of their special status as officers of the court. Accepting a court’s request to represent the indigent is one of those traditional obligations… it is precisely because our duties go beyond what the law demands that ours remains a noble profession” (at 310–311).

In the dissenting judgment of Justice Stevens, which held that lawyers could be required to act pro bono, he pointed out that a:

“lawyer’s duty to provide professional assistance to the poor is part of the ancient traditions of the bar long recognized by this Court and the courts of several States” (at 1824).

But pro bono efforts have not always existed. For example, in Greenclean Waste Management Limited v. Leahy (No.2) [2014] IEHC 314, Hogan J. stated that the torts of maintenance and champerty were first formulated at a time when diverse concepts such as legal aid and pro bono work "all lay far into the future" (para. 11).

So, when did pro bono work start? The concept is old. In Ireland, the earliest references emerge when the Irish Law Reports referred to what we would now simply call “cases” as “cases at law”. Those early references include Delacour v. Murphy (1848) 13 Ir. Law Rep. 195, Webber v. Adams (1869) Ir. 5 Cl. 146, and Re Burke (1882) LR Ir. 24. But they are general mentions relating to everyday life. None of them concern lawyers discharging legal duties without fee. It seems that the practice predates the name.

The Origins of Legal Pro Bono Work

It has been said that there is an absence of material on where pro bono work comes from, and what has been written seems to be up for debate (Deborah L. Rhode, ‘Cultures of Commitment: Pro Bono for Lawyers and Law Students’ (1998–1999) 67 FLR 2415, 2426); Lorne Sossin, ‘The Public Interest, Professionalism, and Pro Bono Publico’ (2008) 46 OHLJ 131, 134).

One potential origin is the explosion of national organizations working for civic improvement” in the US from around 1890 to 1917 (Susan D. Carle, ‘Re-Envisioning Models for Pro Bono Lawyering: Some Historical Reflections’ (2001) 9(1) JGSPL 81, 82). This would reflect the idea that, “[f]or most of its history, the legal profession has [not] provided a substantial amount of voluntary pro bono service” (Deborah L. Rhode, Pro Bono in Principle and in Practice: Public Service and the Professions (Stanford Law and Politics 2005) 12).

But these commentators appear not to have looked far enough into the past. While there is evidence of law from civilisations as old as 2113 BCE, the “attorney-client relationship likely originated in ancient Greece and Rome” (Jan L. Jacobowitz, ‘Chaos or Continuity? The Legal Profession: From Antiquity to the Digital Age, the Pandemic and Beyond’ (2021) 23(2) VJETL 279, 281–282). Did pro bono work exist then? It is now well documented that the earliest “provision of benevolent legal services” or “representation to those unable to afford such services” comes precisely from those societies (Ysiah Ross, Ethics in Law: Lawyers’ Responsibility and Accountability in Australia (5th edn, LexisNexis 2009) 20; Christina M. Rosas, ‘Mandatory Pro Bono Publico for Law Students: The Right Place to Start’ (2002) HLR 1069, 1071).

To guide us is the recent and very informative PhD thesis of Lamin Khadar entitled ‘Expanding Access to Justice: An exploration of large firm pro bono practice across Europe’ (unless otherwise indicated, references below are from Dr. Khadar's paper).

He describes how, in Ancient Athens, no requirement for professional lawyers existed until courts first materialised after 600 BCE. While citizens at first represented themselves, soon individuals were employed to speak in court or write speeches on behalf of litigants. However, payment for such services was soon prohibited:

“a prominent justification for the belief that paying for legal services was undemocratic was the idea that allowing lawyers to be paid would benefit the rich at the expense of the poor. The poor, it was felt, would be unable to afford the most talented and thus most expensive advocates. Another important justification was the idea that Athenian democracy should be rooted in mutual solidarity and compassion between citizens and, as such, legal advocacy should be an act of civic duty rather than a means to make a profit.”

Enforcing this law was not easy and it was mostly ignored (Jacobowitz, at 284). Its ineffectiveness led Plato to comment that “justice was at the service of whomsoever was able and willing to pay for the services of a professional lawyer”. Yet some lawyers nevertheless acted for free due to civic or personal duty and, among other initiatives, there were also “state-attorneys” employed by the city for meagre pay to perform “important public prosecutions”.

In Ancient Rome there existed aristocratic lawyers who would usually refrain from taking a fee, deeming it below their station of nobility. There was also a sense that payment for legal services would “degrade the practice of law and reduce it to a ‘mercenary business’”. With time though, the law was professionalised leading to a decline in free services provided to those in need. Khadar provides a fascinating reason for this which will be of interest to many barristers:

“A central cause of these changes was the emergence of the ‘forensic orators’. This new breed of lawyers, somewhat equivalent to what would [now] be called barristers… had the responsibility for presenting the cases of clients in court. Unlike barristers however, the forensic orators typically did not deem it necessary to master the law, prioritizing instead the mastery of rhetoric. Being masters in the arts of theatrics and persuasion, they increasingly began to exercise decisive control over the course and outcome of litigation. Accordingly, they could demand top remuneration for their services and, often being of humbler origin than the old class of aristocratic jurist-lawyers, they were more inclined to do so. With the passing of time, they gradually began to displace the aristocratic lawyer and the logic underpinning gratuitous legal work.”

Just like in Greece, legislation was passed to prohibit the payment of lawyers, but these Roman efforts also failed.

Turning finally to the Middle Ages, organised frameworks for pro bono work surfaced, initially offered by church officials, and only later by lawyers. The rationales for such practices included Christian charitable duty and, subsequently, an emerging sense of professional duty. Sossin refers to medieval practice of bishops compelling lawyers "to provide legal services for spiritual rather than worldly compensation” (at 134–145). Therefore, it seems there is at least some element of truth to the argument that the history of pro bono work in the law “goes back to the Judeo-Christian religious tradition based on the models of Yahweh, the God of Israel, and Jesus, the Messiah” (Peter J. Riga, ‘Pro Bono: The Basis of the Gift’ (1986) 7 CLSQ 15, 15). Yet it is fair to say that this does not account for the prior emergence of free legal work, such as in Greece.

Medieval legal services were provided initially by “Christian men” free of charge, described as pro deo (for God), such as by Saint Yves of Brittany, who became the patron saint of lawyers and was memorably described as “a lawyer and yet not a thief, to the wonder of the people” (Mauro Cappelletti, ‘Legal Aid: Modern Themes and Variations Part One: The Emergence of a Modern Theme’ (1972) 24 SLR 347, 351; or, as humorously translated elsewhere: “an advocate and not a bandit, (what) a marvellous thing for the people!”). Ultimately, the Christian Church significantly improved upon the “ad hoc and semiorganized approaches of Ancient Athens and Republican Rome and move towards a more organized model of ‘pro bono’”.

This was followed by efforts across Europe which saw medieval lawyers come to regard the provision of free legal services to the economically and socially disadvantaged as a mark of superiority over their peers. Khadar states that:

“[f]or centuries to come this would be the status quo; providing legal assistance to the needy and impoverished remained an ‘honorific duty’ of the European legal professions, reliant on ‘the charity and goodwill of the bar’”.

The practice spread as the centuries rolled by, with the notable example of the “Poor Man’s Advocate” system in Sweden in 1872, where each municipality appointed a private lawyer to deal with residents' legal quandaries on a part-time basis.

Conclusion

Khadar concludes that organised pro bono practice took root across much of Europe during the 19th and early 20th centuries. Though, as described, pro bono work in one form or another has been in existence for as long as there have been lawyers practising in the courts, though it has not always been known by that name. While it has beginnings in the ancient view of the payment of lawyers being undemocratic, it has become a central aspect of the law in practice. As stated recently by the Supreme Court in Persona Digital Telephony Limited and Anor v. Minister for Public Enterprise and Ors. [2017] IESC 27, “the most common way in which litigation on behalf of insufficiently resourced parties has been conducted in the State has been by means of individual lawyers making a decision to represent clients without any guarantee of payment either in pure pro bono cases or, more frequently, under the so-called ‘no foal no fee’ system” (per Clarke J. (as he then was) at para. 2.7), with the latter being the means through which many of which the most important cases have been taken (per Denham C.J., at para. 54(vii)).

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