Law and Lawyers

Obligation Born of Privilege: The Lawyer’s Duty to Enable Civic Access for All

Any lawyer reading this has experienced that moment, when a friend or family member has been confronted with a legal document or procedure, and gets this forlorn, slightly overwhelmed look. If you are a young lawyer, as you are explaining and demystifying, you might feel generous and slightly superior. You know the secret handshake. Your three years of school privileged you with the proverbial keys to the kingdom, and now you get to unlock that mystery for your friend or a loved one. In this piece, I want to explore what that privilege means in the context of those who do not come from a world where they have lawyers for friends and family members. They feel the same forlorn disorientation as does your a loved one, but they do not have you riding to the rescue. I say that the obligatory cost of our privilege is that, at least to some degree, they should.

This idea first occurred to me in March 2012 when I was honored by Young lawyers section of the Connecticut Bar Association with their diversity award. I was asked to exhort the young lawyers to public service. Along with some good-natured ribbing on the idea that I had been asked to give an exhortation, I did my best to explain why I believe that lawyers have an obligation to perform pro bono service, and why I think that the most important such projects are the most humble. I told them this story.

When I was a junior associate, a partner of my then law firm approached me because she had been approached by a judge of the Surrogate’s Court. A mother had come into court seeking a Surrogate’s guardianship for her adult child with intellectual disabilities, so that she and his father could continue to partner with him in making the necessary legal decisions so that he could live his life. Surrogate’s guardianship in New York is a simple process specifically for people with a particular type of intellectual disability. It does not require a lawyer. In this case, the New York County Surrogate determined that the young man was not a good candidate for this type of guardianship, and needed a traditional guardian appointed through the main court system.

Thus was this mother stymied, and reduced to tears at the prospect of a legal proceeding that would require a lawyer, something beyond her means. The Surrogate, who was in my opinion a woman of great wisdom and compassion, was not willing to compromise the legal standards, but reached out to our firm in hopes that she could remove the practical barrier to this family getting what they needed.

I spent the next 6 months going through the mechanical and legalistic process of an uncontested guardianship appointment. Though uncontested, it required multiple filings, and the questioning of witnesses in open court. While no legal ingenuity was required, this simply could not have been accomplished without a lawyer, and I feel that this process was one of the most useful things I have yet done with my law license.

This story is not unique. Everything from buying a house in most states, to obtaining even a no-fault divorce or appointing an uncontested guardian requires a lawyer in our system. We have made critical tasks in individual lives dependent upon our profession. And, rightfully given the need to earn a living, we charge for our services, often quite a bit.

To compensate for these high fees, we donate some of our services pro bono publico, for the good of the public. In fact, we are taught that this is our obligation in exchange for the privilege of being considered professionals. It is an obligation that is becoming increasingly universally accepted. There is no question, that is a good thing.

Most of us, however, want to do sexy pro bono. In my firm must popular pro bono was marriage equality work, followed by some Guantánamo work, and some criminal appeals. People did some domestic relations, but it never felt like it had the same draw. In other firms, armies of associates work on death penalty cases, or impact litigation. All of this work is critical, and world changing. Yet it does nothing to serve the basic needs of people like my clients, who just wanted to be able to help their son.

My exhortation to the Young lawyers, therefore, was more than just to do pro bono. Certainly, I do not want them to cease their important work on the types of cases described above. We can and must move forward as a society on these big issues. What I request, however, is that they take some time to help with the little things.

I do not know if it is particularly desirable that lawyers are necessary for things to be accomplished in our society. I suspect that it is not. That, however, is beyond my ability to change, and largely beyond the ability of even the collective of young people that I spoke to in 2012. What we can do, what we must do, and what I ask any lawyers among my readers to continue doing, is take some time to help people navigate the system, addressing the problem one person at a time.

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