Scales of Justice

This Memorial Day Weekend post is dedicated to the men and women serving in our nation's military, both past and present. Without their brave defense of liberty, it is indisputable that the topics I blog about would not exist.

I wrote recently, here and here, about pro bono service. Those posts addressed volunteer representation in general, and a particular immigration matter of mine. In New Jersey, there is an unbroken history, dating to colonial times, of each lawyer's ethical and enforceable obligation to accept pro bono assignments for indigent clients. Madden v. Delran Twp., 126 N.J. 591, 603 (1992).

Indeed, New Jersey may have been the first State to enact a compulsory representation statute for indigent criminal defendants. This statute, enacted by New Jersey legislature on March 6, 1795, stated "[t]he court before whom any person shall be tried upon indictment, is hereby authorized and required to assign to such person, if not of ability to procure counsel, such counsel, not exceeding two, as he or she shall desire." Id.

The United States Supreme Court waited 168 years to impose a similar obligation on state courts with respect to the representation of indigents in felony matters. That case, of course, is Gideon v. Wainright, 372 U.S. 335, 344 (1963).

The obligation to appoint counsel for indigent defendants applied in full force in federal courts before Gideon. The Gideon Court selectively incorporated this Sixth Amendment obligation into the Fourteenth Amendment, and made it applicable to state courts. To paraphrase the Gideon court, "This is America." Id. at 344 ("The right of one charged with crime to counsel may not be deemed fundamental and essential to fair trials in some countries, but it is in ours.")

New Jersey's 1795 compulsory representation statute was repealed around 1952. Furthermore, in 1966 the Supreme Court discontinued the practice of appointing members of the bar to provide pro bono representation for indigents in criminal matters. State v. Rush, 46 N.J. 399 (1966). Even so, the spirit of these laws did not disappear. Indeed,New Jersey Law as to compulsory representation and the effective assistance of counsel continues to apply to indigent Municipal Court defendants. N.J.S.A. 2A:158A-5.2. This system of appointment is administered as follows:

The Assignment Judge of each vicinage prepares a list of every attorney licensed to practice in New Jersey whose primary office is in that vicinage. Put differently, each lawyer licensed to practice in New Jersey falls under the jurisdiction of the Assignment Judge of the vicinage where the lawyer has his primary office. Using this list, any Municipal Court Judge in the vicinage may assign a pro bono client each year to each lawyer on the list. Defendants qualify for pro bono representation only if they qualify as indigent. Indigency shall be determined by the court uniformly and in accordance with standards provided by the AOC. Madden, supra, 126 N.J. at 606.

By stipulation of the New Jersey Supreme Court, each attorney who voluntarily gives free legal assistance through a Legal Services program, and performs a minimum of 25 hours of pro bono service, will be exempt from court appointed pro bono assignments for the following year. Notably, the stipulation applies to any indigent client in any litigated matter.

In my situation, I volunteered to represent an indigent immigration client. Among the other considerations I blogged about previously, I undertook this responsibility as a way to discharge my pro bono duties. This duty may be discharged with 25 volunteer hours. Without disclosing the number of hours I have committed so far for my client, I am inclined to say I have exceeded 25 hours. This does not include travel time for client visits, witness interviews, and court appearances. With the outcome of this matter yet to be decided, I anticipate spending more time on this matter before it comes to a close. Irrespective of the court's final determination, my representation of this client has enabled me to serve the public.

This post began with a dedication to our men and women in uniform, and they remain on my mind at its close. Just as it would not be possible for me to write about these topics without their brave defense of liberty, similarly I would not be able to serve the public in this capacity were it not for their sacrifices. The criminal justice system encompasses many values. These values often appear to conflict. Nevertheless, these are deeply rooted American values. One can begin to appreciate this more fully when one realizes that many people died to protect these values. This is one reason I am grateful to our soldiers, both past and present, this Memorial Day Weekend.

Pro Bono - A Practical Approach to an Ethical Obligation

On Friday I blogged about a few practical reasons for solo practitioners to provide a portion of their services pro bono. Notwithstanding the "return on investment," every lawyer in this state has an ethical obligation under the New Jersey Rules of Professional Conduct (RPC) to provide legal service to those of modest means. New Jersey RPC 6.1 provides,

Every lawyer has a professional responsibility to render public interest legal service. A lawyer ‎may discharge this responsibility by providing professional services at no fee or a reduced fee to ‎persons of limited means or to public service or charitable groups or organizations, by service in ‎activities for improving the law, the legal system or the legal profession, and by financial support ‎for organizations that provide legal services to persons of limited means.

Accordingly, based on both RPC 6.1 and the reasons I reviewed yesterday, my business plan allots for public interest legal aid. Legal Services of New Jersey has opportunities to volunteer in various practice areas, including Immigration, Bankruptcy, and many others. I volunteered to assist in Immigration Law. To be candid, I am not an immigration lawyer, and I do not hold myself out to the public as one. I made this perfectly clear when I applied. Legal Services, nevertheless, was delighted and assigned a mentor to help me. In addition to the ethical obligation, I had additional reasons for choosing this category.

In my previous post I explained staying on top of legal developments is one reason to volunteer. In July 2009 the Supreme Court of New Jersey determined it is ineffective assistance of counsel under state law for a criminal defense lawyer to fail to advise a client of the immigration consequences of a guilty plea. State v. Jose Nunez-Valdez. Similarly, the Supreme Court of the United States determined more recently in Padilla v. Kentucky that this violates the right to effective assistance of counsel under the Sixth Amendment. As I mentioned above, I had my own reasons for choosing to volunteer in the Immigration section. Based on these recent developments, I decided I needed to learn and gain experience with immigration law - not necessarily with a goal to practice but certainly in order to provide the representation the law now requires.

Selfless Taking - A Reasoned Approach to Pro Bono

As a new lawyer, and an even newer solo practitioner, I have sought out the advice of more experienced attorneys. Needless to say, starting a private practice requires confidence, and succeeding in private practice requires both patience and tenacity. In addition to these and other character traits, a solid business plan is very important.

One particular piece of advice has made a very big difference. In pursuit of this advice, I have devoted a significant portion of my time during my initial start-up months to pro bono representation. For those who do not know, bar associations encourage lawyers to volunteer a portion of their services to the indigent for free. The Sixth Amendment guarantees effective assistance of counsel to criminal defendants, and the Office of the Public Defender in New Jersey assures this right is provided to indigent defendants. But there is no analogous right to counsel for individuals in any other litigation. Nevertheless, many states have organizations to fill the gap. Legal Services of New Jersey plays that role in this state.

Helping the poor, like any idealistic aspiration, can provide personal fulfillment. In addition to this and other idealistic reasons, many practical motivations exist for solo practitioners to devote a portion of their time to pro bono clients.

First, general practitioners are certainly encouraged to refine and expand their skill set. This endeavor results, of course, in a broader scope of expertise. As a new lawyer, this is imperative. Similar to employers who narrow the scope of employment opportunities to experienced applicants, prospective clients demand the same, especially in exchange for the legal fees they will be expected to pay. Pro bono representation provides an excellent opportunity for a lawyer to gain practical, hands-on experience. Although the representation will be free, in the future the lawyer can do the same work based on his pro bono experience and earn a fee.

Second, lawyers must stay on top of legal developments that relate to their field of practice. Perhaps the most common way lawyers fulfill this obligation is to attend Continuing Legal Education courses. An alternative is to gain practical experience handling files on a volunteer basis.

Finally, pro bono volunteerism goes hand-in-hand with professional networking. In addition to establishing oneself among other lawyers, a volunteer lawyer may receive a referral for an individual who does not qualify for pro bono services but cannot pay the full fee lawyers typically charge. The attorney benefits because he adds a new client to his base, and the individual benefits from an attorney willing to charge a discounted fee and perhaps even arrange a payment plan.

In conclusion, an apropos aphorism comes to mind. "If I am not for myself, who will be for me? But if I am only for myself, who am I? If not now, when?" The reasons explained above illustrate only a few of the practical considerations for solo practitioners to participate in pro bono volunteerism.