Dean Erwin Chemerinsky’s attack on Chief Judge Dennis Jacobs of the 2d U.S. Circuit Court of Appeals epitomizes what a lawyer should not do. [NLJ, Oct. 27.]
Federal judges are normally inhibited from defending themselves against personal attacks because, as judges, they are expected to refrain from media give-and-take. Thus, Chemerinsky must have known that Jacobs was effectively foreclosed from joining him in the mud-soaked trenches to meaningfully respond. To make it worse, Chemerinsky, supposedly commenting on a speech given by Jacobs, totally misrepresented what Jacobs in fact said. In this regard, Rule 8.2 of the American Bar Association’s Model Rules of Professional Conduct states that a “lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to the truth or falsity concerning the qualifications or integrity of a judge.”
While Chemerinsky opened his article by asserting that Jacobs “should be ashamed of himself,” in fact it is Chemerinsky who should be ashamed of himself.
The crux of the professor’s article is his representation in the first paragraph that Jacobs “ridiculed lawyers who do pro bono work.” Tellingly, this professor does not quote any portion of Jacobs’ talk that contains that statement, whether in words or substance. Indeed, Jacobs explicitly praised lawyer’s pro bono work: “I . . . encourage the kind of pro bono activity [by lawyers] that is an aspect of traditional American volunteerism . . . .When I was in practice, I met my firm’s benchmark hours for pro bono service, and I am appreciative about work done for the public good as anybody else. The 2d Circuit often reaches out to prevail on lawyers to represent parties and points-of-view that lack other representation, and we are grateful for such services rendered. To the extent that lawyers act as volunteers for the relief of those who require but cannot afford legal services, lawyers’ work is beyond praise . . . .I think of wills for the sick, corporate work for non-profit schools and hospitals, and the representation of pro se litigants whose claims have likely merit.
“These services are in a great tradition of American volunteerism . . . .When lawyers contribute their professional services they are making a contribution.”
Indeed, it is difficult to reconcile Chemerinsky’s attack on Jacobs with most of the dean’s own description of the desired pro bono services that both he and Jacobs applaud: “to help those who cannot afford legal services,” and his quoting the ABA’s Model Rules of Professional Conduct, that “every Lawyer has a professional responsibility to provide legal services for those unable to pay.”
So why the attack on Jacobs by this dean? Because Jacobs dared to have the open mind to ask the legal profession — lawyers and judges — to “consider dispassionately whether” all pro bono activities today really are “pro bono publico” — in the public interest. And he answered, “sometimes yes, and sometimes no.”
To put some meat on the bone of this issue, Jacobs provided two real-life examples. He first quoted former New York Mayor Ed Koch’s reference to pro bono lawyers who represented “a woman . . . who had several dozen birds in her City-owned rental apartment,” whom the “City sought to evict . . . on the ground she was . . . creating a health menace involving some kind of bird-caused disease.” As Jacobs described it, Koch “was asserting the authority of his elected office as against pro bono lawyers who have neither a general responsibility for public health, nor an interest generally in the conditions or amenities enjoyed by residents of public housing.” Jacobs posed the question: Were those pro bono lawyers “represent[ing] the public interest in any real sense?”
Jacobs’ second example: “In the 1980s, six environmental organizations brought suit objecting to the Sicily Island Levee Project, a federal project to abate backwater flooding in Catahoula Parish, LA.” This project “had been planned in 1975,” litigation against it “began in 1983,” and as “late as 2002,” the project could not be put on track due to the litigation, resulting in Sicily Island being “one of the areas hardest hit by Hurricane Katrina.” Jacobs was asking us to consider whether these “pro bono” attorneys who successfully frustrated the project — resulting in death and destruction to that community — were in fact acting in that public’s interest.
What is wrong with raising these issues for serious consideration? Nothing; indeed it is truly in the interest of the profession and of the public to have a serious consideration of whether all activities that lawyers call pro bono are ipso facto good and thus sacrosanct because the lawyer says so. Chemerinsky has a closed mind: If it is labeled pro bono, it is good. Jacobs properly asked for open minds in considering whether, like everything else in the world that has a good side to it, too much or misuse may also be bad.
Judges and lawyers who raise questions as to the value of what others accept as beyond question should be applauded. It is irrelevant whether we would agree with Jacobs as to where to draw the line between good and bad pro bono representations. But we do know that Jacobs’ opening this subject can only enhance the quality of the legal profession — unless one is totally closed-minded to any thought contrary to that person’s current view.
Why have we written this article? Because it is our obligation as lawyers as set forth in comment 3 to Rule 8.2 of the ABA’s Model Rules of Professional Conduct: “To maintain the fair and independent administration of justice, lawyers are encouraged to continue traditional efforts to defend judges and courts unjustly criticized.” That obligation is particularly applicable here, where the premise for the attack is totally without merit.
Gerald Walpin is currently serving as inspector general of the Corporation for National and Community Service. William Francis Kuntz II is a partner at Baker Hostetler and vice president of the Federal Bar Council, the bar association for attorneys and judges within the 2d Circuit. The authors wrote this article in their personal capacities as members of the bar.