In the words of the Honorable Julian Houston (’71)—The Dire Deficit of Pro-Bono Service
Judge Julian Houston ('71) retired in 2006 after 27 years on the Massachusetts bench. In the fall of 2007, he was one of two recipients of the Victor J. Garo Public Service award. Judge Houston has long championed the duty lawyers hold in serving the public good. His list of accomplishments includes creating and chairing the “Long Road to Justice” project, a travelling exhibit and teaching curriculum that details the experiences of African Americans in the Massachusetts court system since the age of slavery, and developing Roxbury Youthworks, Inc., a program that encourages teenagers to seek independence and avoid juvenile delinquency. Here, Judge Houston discusses why it’s important that law students and lawyers prioritize public service and how that can be done in light of financial impediments and court-system shortcomings.
Lawyers are uniquely positioned to contribute to the public good. By virtue of their training, as well as the authority conferred upon them by the state, they have an entire branch of government at their disposal. However, lawyers are expensive—so expensive that increasing numbers of litigants are choosing to represent themselves in court. The results, particularly when there is opposing counsel, are predictable. Pro se litigants do poorly. Providing representation for those who cannot afford counsel, therefore, is an area that is now particularly ripe for involvement by public-spirited members of the bar. In the old days – the sixties and seventies – there were publicly funded legal services programs that provided broad civil representation to the poor; however, they were eviscerated by the Reagan Administration. President Reagan bitterly recalled his jousts with legal services programs in California when he was Governor. He was determined to destroy them and he virtually succeeded. Today, there are a few modest programs to provide legal counsel for the poor, but the demand vastly exceeds the supply.
The cost of practicing law today, abetted by our national economic difficulties, is staggering. Inevitably, this cost is passed on to the client, but for most people in our society legal services are beyond reach. One must ask, therefore, “Who will represent the poor?” Years ago, the Supreme Judicial Court proposed to adopt Rule 6.1 which required all members of the bar to contribute 25 hours of pro bono service a year to persons of limited means or organizations serving those of limited means. The proposed rule also required lawyers to contribute $250 or 1 percent of their professional income to an organization providing legal services to persons of limited means. The outcry of opposition from the bar was embarrassing. To its credit, the Court ignored the opponents, and Rule 6.1, modeled after an American Bar Association Proposed Rule, was adopted. But one can only wonder, given the complexity of legal matters that come before our courts, how much representation can a poor person get today from a lawyer who is obligated to donate 25 hours of his or her time a year? And where is the system that matches a client to a lawyer with the expertise that would best address the client’s problem?
I am speaking, of course, of the need for representation of parties of limited means in civil matters. Criminal defendants have had the benefit of the Sixth Amendment and decisions of the Supreme Court of the United States, beginning with Gideon v. Wainwright, for many years. In Massachusetts, the state-funded public defender agency, the Committee for Public Counsel Services, provides excellent lawyers, experienced and well-trained, to indigent defendants. The problem lies with providing representation to those involved in civil matters, and for them, sadly, we have yet to come up with a solution.
When I entered Boston University School of Law in 1968, I hoped to find work in the civil rights movement after I graduated. I had worked extensively in the movement as an undergraduate, and, like many in my generation, I had been deeply influenced by its idealism. During the course of my law school career, it became clear that the civil rights movement, as I understood it, was winding down. At the end of my first year, I was hired by Ralph Nader to work as a “Nader’s Raider” in Washington. That experience opened my eyes to a more complex view of the law and how it affects institutions. When I returned to law school for my second year, I met Attorney William Homans, a great trial lawyer, who took me under his wing, gave me my first job when I graduated and taught me virtually everything I know about being an honorable lawyer. The opportunity to observe him in the courtroom, to see the respect he commanded, to witness how he dealt with clients who were often uneducated and had little money, to see firsthand the extent to which he sacrificed himself, often to the point of exhaustion, on behalf of his clients, was a rare and humbling experience. During his career, he briefed and argued nearly 100 appeals to the Supreme Judicial Court. I daresay he did not receive a fee in more than a third of them. Every law student should have an opportunity to be mentored as I was. It not only made me a better lawyer, it made me a better human being. Having a Rule of Court that makes pro bono representation obligatory is an important, if modest, step in developing public spirit within the bar, but there is no substitute for having great lawyers like Bill Homans, Ed Barshak, David Nelson, Jerry Facher, Victor Garo and others—towering figures of the bar who have not only served as models of public spiritedness, but who were and are willing to encourage younger lawyers to come to the aid of those in need of legal assistance regardless of compensation and, in so doing, to become better human beings.
- Hon. Julian T. Houston (ret.)
Superior Court of Massachusetts