© 2005  Karen Selick
Pro Bono?  No Thanks--I Gave at the Office
An edited version of this article first appeared in the March, 2005 issue of Canadian Lawyer
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Pro Bono?  No Thanks--I Gave at the Office

 Like many lawyers in the field of matrimonial law, I occasionally reduce my fees or even work free of charge for selected clients.   There are many different reasons.  Sometimes I think that the law or the courts or even their former spouses have handed them a raw deal, so I try to make them feel there’s at least one person in the world willing to give them a break.  Sometimes I know they just can’t afford to pay full fees, but their case is an interesting one.  Sometimes the client asks for a reduction and simply happens to catch me in a benevolent mood.  Whatever the reason, the only person I ever consider is the individual client.  I never think to myself, “I’ll cut my bill to give something back to the community.”

That phrase “giving back to the community” has become the mantra of pro bono advocates.  I wince whenever I hear it.  It implies that lawyers in the ordinary course of their practices take something from the community—something they haven’t earned, something they need to make restitution for. 

You never hear anyone say that hairdressers should give a few haircuts for free, or that mechanics should fix a few cars for free, in order to give back to the community.  The suggestion seems to be reserved for high-income professionals—mostly doctors and lawyers—as if the mere fact of above-average earnings were proof, in itself, that we’re doing something sinister.

It isn’t. 

Every voluntary commercial transaction in our society improves the well-being of at least two members of the community.  If I buy something, it’s because I expect to get greater satisfaction out of having that item than out of having the corresponding amount of cash in my pocket.  Conversely, the seller must anticipate having greater satisfaction from owning the cash than from owning the item, or else he wouldn’t sell.  The trade makes us both better off.

As a lawyer, I don’t drag people in off the street and force them to hire me.  Clients seek me out, hear what I propose to charge, and decide whether I’m worth it or not.  If they choose to retain me, then they obviously value my services more than they value the money they agree to part with.

The mere fact that I have been able to remain successfully in business means that I must already have given something back to the community.  I have made my clients’ lives better than they would otherwise have been, as demonstrated by their own willingness to pay for my services.  So when the pro bono groups come knocking and asking whether I’d like to give something back to the community, my answer is, “No thanks, I gave at the office.”

Lawyers and doctors will probably always earn more than hairdressers or mechanics because of differences in the supply structure for the various careers.  Lawyers and doctors contribute more up-front capital to their careers.  They go to school longer, spend much more on tuition and forego a regular income for many extra years.  Few would make those sacrifices in their early years if not for the greater rewards available later. 

Nevertheless, some lawyers may have good reason to feel guilty about their above-average incomes, particularly if they advocate measures that propel lawyers’ incomes to levels that the marketplace wouldn’t ordinarily sustain. 

For instance, there are lawyers who want to limit entry into the profession by limiting law school class size.  There are lawyers who want to avoid competition from paralegals by having them licensed, or by prosecuting them for infringing on lawyers’ monopoly to practice law.  This is always done in the name of ensuring high standards, of course, but the result of limiting entry and competition is inevitably to raise the amounts that established lawyers can charge.

Then there are lawyers who advocate the perpetual expansion of laws and regulations—again, always in the name of some noble cause—but again with the result of increasing the public’s need for a limited supply of lawyers, thereby forcing up the prices lawyers can charge. 

There’s a third group:  litigation lawyers who have helped warp tort law from a system of compensating the injured into a scheme for extracting windfall gains for a few lucky plaintiffs, plus billions of dollars for the lawyers, at the expense of deep-pocketed defendants.  See Walter Olson’s book The Rule of Lawyers, or Peter Huber’s Liability: The Legal Revolution and Its Consequences for details.  Lawyers in Canada are making haste to cash in on this American trend.  Does it improve the quality of life in the community?  Huber argues that such litigation actually harms society by, for instance, driving obstetricians out of practice or making new products unavailable due to prohibitively expensive insurance costs. 

Lawyers in these categories may indeed owe something back to the community, but the solution is not for them to continue with their loathsome, community-harming ways and then toss a few alms back into the pot to salve their consciences.  The solution is for them to understand why what they’re doing is wrong and to stop doing it in the first place. 


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May 23, 2005