Pro Bono Myths and Realities: The Role of the Courts

October 29, 2015
In celebration of Pro Bono Week, this is part 5 of a 7-part series on pro bono as it relates to the key stakeholders in the access to justice cause. Each post will focus on a different group, closing with some suggestions for going forward.

Bobservations thumbnailBy Bob Glaves | CBF Executive Director

Court-based pro bono programs that address the needs of unpresented litigants can be an effective part of the larger strategy to ensure that the justice system is fair, accessible and efficient for all. There are a variety of successful court-based program models, including help desks that provide brief advice and services; lawyer for the day or other limited service appointments such as representation in mediation or settlement hearings; and panels of lawyers who provide extended representation to litigants in particular types of civil and criminal cases.

While pro bono volunteers can and do provide important assistance in ensuring access to the courts, they are not a substitute for robust and properly funded legal aid and public service entities or for a user-friendly and accessible court system. When designed and implemented well, however, these programs can provide an important supplement to these efforts in a way that is a win-win for all stakeholders.

Key Considerations in Developing Effective Programs

As is true for all successful pro bono programs, two key considerations for court based pro bono are: (1) whether there is a good match between the expertise needed and available capacity among the private bar in that locale; and (2) whether the cases will be appealing to pro bono volunteers. Experienced litigators may find these opportunities particularly appealing. These opportunities also may draw newer lawyers who are looking to develop more litigation experience or other lawyers who have experience or special interest in the substantive area involved.

In the strongest programs, the needs and viewpoints of all of the stakeholders, including the courts, the pro bono lawyers, legal aid and public service entities, the bar, and clients are considered in the design and implementation of the program. In addition, taking into account the complexity of the program, there must be appropriate staff capacity to provide the necessary training, resources and support.

An effective screening mechanism is a particularly important part of a successful court-based pro bono program. Some court-based programs may require only simple screening and matching mechanisms, while other programs require legal aid or other organizational partners that provide more robust case screening and volunteer training and support. There are multiple models for that screening, including court-based advice desks staffed by partner organizations, limited appointments of counsel for purposes of investigation, or screening by the judge. The common denominator is that cases should be screened so that pro bono volunteers are not expected or relied upon to provide extended representation unless it is established there is a meritorious cause of action or defense that the lawyer can pursue on behalf of the client.

This Checklist for Starting and Sustaining a Court-Based Program is a good resource for considering or evaluating a court-based pro bono program.

The Limits of Pro Bono in the Court Context

While pro bono plays a key role in ensuring access to the courts and improving the administration of justice, it is only one part of the solution. For example, there have been several recent cases that have suggested it was error for courts not to recruit pro bono counsel to represent indigent parties irrespective of merit of the case, which raise some troubling issues as recruit in that context effectively means appoint. Those opinions suggest that for various reasons representation should have been provided as a matter of right to litigants who could not otherwise competently represent themselves in court.

I am not questioning whether it was an appropriate finding that counsel should have been provided as a matter of right, but I am very much questioning the idea that use of appointed pro bono counsel in those instances. In other instances where counsel is provided as a matter of right, compensation is provided to lawyers providing that service, and once that threshold has been reached that no longer should be a pro bono matter. Lawyers providing services through public defender programs at the state and federal level are compensated for their services, as are other lawyers who are appointed in matters of right in Illinois.

In short, pro bono should not be relied upon when representation is considered necessary as a matter of right. There will be instances where lawyers will willingly provide the representation in civil and criminal matters where there is a meritorious angle to pursue, but courts should be very cautious in utilizing pro bono counsel in these situations. This is one more instance of the need to look at pro bono in its proper context. Like all of us in the legal community, judges should use their stature and influence to make the case to other government officials for the necessary funding to ensure that legal aid and other public service entities serving the courts are properly funded.