"Prohibition on the requirement of donation of professional services": Keeping Voluntary, Voluntary

March 15, 1999 Issue Backgrounder By Ed Lederman Synopsis: House Bill 1301 forbids the state government from forcing licensed professionals (such as doctors, lawyers, and architects) to donate their services for free. The Colorado Constitution: The Colorado Constitution: Forcing someone to work for someone else, for free, is "involuntary servitude," which is outlawed by the Thirteenth Amendment of the U.S. Constitution, and the Article II, section 26 of the Colorado Constitution. The Colorado Constitution allows "slavery or involuntary servitude" only "as a punishment for crime, whereof the party shall have been duly convicted." Receiving a license to practice law or medicine is not the same as being convicted of a crime; therefore, imposing involuntary servitude on doctors, lawyers, and other professionals violates the Constitution. Honest Language: Honest Language: HB 1301 is brief, less than a hundred words, and if passed would, unlike so many other laws, help keep the English language clear and honest. The word "voluntary" would continue to mean "voluntary" here in Colorado. Last year, Colorado Supreme Court considered imposing mandatory pro bono on lawyers. But mandatory pro bono would be an abuse of the Supreme Courts authority to regulate the legal profession. Passage of HB 1301 would be a timely reminder that words do have real meanings. Just as "voluntary" means "voluntary," rather than "coerced," the Colorado Supreme Courts power to "make and promulgate rules" means the power to regulate attorney behavior, not to conscript lawyers into involuntary servitude. Policy Issues: Policy Issues: While the language of HB 1301 encompasses all regulated professions, the impetus behind it has been the push from a strong minority on Judicial Advisory Council (which came within 1 vote of a majority) that the State Supreme Court require lawyers to "donate" a minimum hours of legal work to the poor. Or pay $1,000 in lieu of the "pro bono" service. The mandatory lawyer servitude proposal some practical flaws, such as: How would such a rule be enforced? What about regular clients who dont pay, and the attorney continues his representation? Would that count? Doesnt the fact of compulsion obliterate the whole concept of pro bono? When one reads the Advisory Councils report, three things become evident: The Council is concerned with cutbacks in federal and state funded legal aid; the Council looks to an increase in pro bono activity (including mandatory pro bono) to fill the gap; and the Council profoundly

confuses the idea of fairness and justice with process. The report refers to a particularly intriguing concept of "legal need" and scrupulously cites the definition of that phrase as developed by the American Bar Association: "a circumstance in which information, advice, and assistance by an attorney would enable a person to effectively perform his or her civil legal responsibilities or appropriately perfect his or her legal rights." Reasonable enough. Except when one considers the context in which the definition is discussed. Legal aid usually does not "assist" a client in performing his "civil legal responsibilities"? Quite the opposite. What legal aid often does--whether defending an eviction, fighting a deportation, suing for welfare benefits, or defending against debt collection efforts--is help clients avoid responsibilities. Which leads us to the second part of what 20 members of the 41-person Council want to force lawyers to do for free: help a non-paying client "appropriately perfect his or her legal rights." Note the absence of any moral judgment. If process can be invoked there is a "legal need," and therefore by extension, a need to make lawyers work without pay. Everybody who has not declared bankruptcy in the last six years may have a legal "right" to walk away from his debts. Does that mean that every person who wants to declare bankruptcy has a right to demand a lawyer who will work for nothing, so that the person can avoid his debts? Domestic law has been a very active area for legal aid. In my experience as an attorney ,every instance, repeat every instance, my experience with an opposing party represented by counsel that party did not pay for has been negative. The main problem is that the representation was cost-free to one party. When that happens, all responsibility for the temperate and good faith use of the system goes out the window. If your attorney is free, then you have no incentive not to demand that the attorney file every motion in the book, and waste everyones time. In many cases irresponsible resort to the legal process compounds rather than alleviates problems. Perhaps recognition of that reality had a little bit to do with Congress (and Colorado) cutting back the funding for legal aid in the first place. Prepared by Ed Lederman, Senior Fellow, Independence Institute