April 2002

Access to Justice
Pro Bono's Triple Win

by Judge William L. Dwyer

[Editor's note: The late Judge Dwyer was the honoree at the Legal Foundation of Washington annual Goldmark Award Luncheon on February 21, 2002. At the luncheon, Judge Dwyer's daughter read the speech he wrote and had intended to present.]

I am deeply honored to receive this award. I know as well as anyone that others are much more deserving of it, but that will not deter me from accepting in the full spirit or from saying a few words to you about pro bono.

This award is especially gratifying because it bears the name of my late friend Chuck Goldmark, who stood for everything that is best in the legal profession. My wife and I and our children have had the good fortune to be close friends with three generations of Goldmarks — with John and Sally, who moved to this state from the East Coast after World War II, and took up a new life as ranchers; with their two sons, Chuck and Peter, and their wives; and with the new generation of Goldmarks, which we trust will produce at least one lawyer to offset an unnecessarily high number of scientists.

The phrase "pro bono" endures as a rare survival of Latin in everyday legal talk. We don't hear much any more about res ipsa loquitur or de minimis non curat lex, but pro bono is here to stay as a shorthand way of referring to the providing of legal services without charge to those who cannot afford to pay for them. This activity of ours, it seems to me, is not a sideline, but is at the heart of our calling. It also represents a rare triple win — it benefits three distinct categories of people.

First, and most obviously, there is the client. Unequal access to justice remains a major problem in American life. About three-fourths of the legal needs of the poor go unmet because of the expense barrier, and our society as a whole has been unwilling to bridge the gap; the United States spends far less per capita on subsidized legal representation than the other western industrial societies. Pro bono alone can't fill the entire need, but it can make a tremendous difference. The client, ordinarily, would go without legal help if it were not provided free of charge. Psychiatrists are fond of telling their patients that unless they pay the full freight they will not appreciate or value sufficiently the hours of consultation. I don't believe that has ever been a problem with free legal services. In my experience, the gratitude felt by those who receive pro bono legal help is almost boundless. Some of them even decide they want to go to law school, an impulse that should be carefully monitored.

Then there is the public. Let us remember that pro bono's full name is pro bono publico — for the good of the public. When the unrepresented or underrepresented gain legal assistance, it is not just they, but all of us — all citizens, and the entire legal system — who benefit. To the extent that access to justice is denied to any segment of society because of unequal wealth, we all suffer, because we know that life is only good in a society where justice is available to everyone, not just to a privileged few.

Finally, and most often overlooked, there is the lawyer himself or herself. Pro bono cases are fun — they often form the most interesting, exciting and memorable parts of a legal career. Deborah Rhode, in her excellent recent book on the legal profession,[1] writes: "The greatest source of discontent among today's lawyers is their perceived lack of contribution to social justice." That feeling can easily be dispelled by pro bono.

I will mention as examples two Seattle lawyers who have brought honor to their profession, and happy memories to themselves, through their pro bono work.

Nancy Pacharzina I met quite recently when she worked as an extern in my chambers during her last year of law school. She graduated, passed the bar, served a clerkship in another district, and then joined a major law firm in Seattle. While there she undertook a lawsuit on behalf of migratory farm workers — the goal was to require enforcement of the laws creating standards for the housing of these workers. Nancy put in something like 1,500 hours of work, and the suit succeeded. She is likely to have a long and successful career, but I doubt that she will ever have a more personally rewarding case than this one.

Matt Kenney I met many years ago when he showed up as counsel for parties opposed to my clients in major commercial litigation. He still does that for a living — complex civil litigation — but he also devotes half of his working time to a legal aid clinic where he gives advice and assistance to the poor. Matt is a pro bono hero because he gives his time and skill unselfishly to those who could never pay his bills at the usual rates.

These two lawyers have been exceptionally generous, but they also have been exceptionally rewarded. Similar rewards are open to every lawyer who is willing to donate time and work to those who need help most desperately.

Thank you.

NOTE

1. In the Interests of Justice: Reforming the Legal Profession by Deborah L. Rhode, 2000, Oxford University Press.