April 5, 2012
Sanction: Pro Bono
The Rhode Island Supreme Court has ordered an attorney to devote 75 hours of community or pro bono community service as a disciplinary sanction.
The attorney had represented the client in a medical malpractice matter. He did not reply to discovery requests made on behalf of the doctor. The case was dismissed as to that defendant and the attorney failed to so advise the client. After he failed to respond to the hospital’s discovery, he agreed to dismiss against that defendant (without his client’s knowledge or consent) and the litigation ended.
The court held that an order of community and/or pro bono service served the purposes of professional discipline. (Mike Frisch)
Should pro bono service be used as a sanction in the context of lawyer professional discipline? From this writer’s perspective, the answer is “no.” I’ll leave to others the arguments pro and con from an ethics point of view. My belief is that requiring pro bono service as discipline undercuts the value of pro bono to the profession and to the clients served.
Every lawyer has a professional responsibility to use their legal skills to serve those in need. Remember that oath you took when you were admitted to practice? Are you aware of the rules of professional conduct in your state regarding pro bono service? Imposing pro bono service as discipline implies that the offender is being asked to do something that is somehow beyond the scope of their professional responsibility. We certainly would not want lawyers to draw a conclusion that the only time they might ever have to do pro bono work is if ordered to as a lesser sanction to disbarment or suspension for an ethical violation.
Then there is the question about the pro bono clients who might “benefit” from the sanctioned lawyer’s pro bono service. An old saw that one sometimes hears is that having some lawyer is better than not having one at all. Is that always the case? Why should pro bono clients be “sanctioned” by receiving something less than high quality representation?
As an advocate for quality, effective and meaningful pro bono legal services for the poor I want to ensure that pro bono lawyers are familiar with the pro bono organization and its causes, have training in the areas where help is needed, and are committed to providing zealous representation on their client’s behalf. Will the lawyer providing pro bono representation as a sanction for poor ethical performance be up to the task? The pro bono client should not be put in the position to find out.
What are your thoughts? Please share them in the poll and in the Comments below.