Public Citizens and Greater Fools: Why We Must Teach the Values of Pro Bono Publico

By Buck Lewis , Chair of the ABA Pro Bono and Public Service Committee

In the 2012 HBO series the Newsroom, we begin to get to know the main character, Will McAvoy, played by Jeff Daniels, when we see him on a panel discussion on a college campus.  In the first episode, a young woman from the business school asks the panel why America is the greatest country on earth?  The other panelists say freedom, diversity and opportunity.  After a pregnant pause, Will says he doesn’t believe America is the greatest country on earth.  He embarks upon an abusive rant which cites illiteracy, low rankings for math and science, falling life expectancy, rising infant mortality, and incarceration per capita, to name a few.  The rant lands Will in a good deal of trouble with the public and with his cable news network where he anchors the evening news.

I was reminded of the episode recently when interviewing a client at a pro bono clinic.  The woman was able of body and mind, had a college degree and a job but, nevertheless, was on the precipice of becoming homeless along with her children.  She had a low level job for a city school system, but had recently become a teacher’s assistant and was on track to become a teacher.

When she became a teacher’s assistant, she began to be paid once a month instead of every two weeks.  Her take-home pay was so low that after paying her rent and her utilities, she and her children needed to live off about $10 a day plus food stamps.  The change in the cycles of her paychecks had caused her to be six days late on her rent and her apartment manager had immediately moved to eject her from the apartment, notwithstanding the fact that her children’s toilet, her dishwasher and her refrigerator never had worked.  The apartment complex had not made these repairs despite many requests.  To add insult to injury, she lost a voucher from the local housing authority to pay for one month’s rent because when the housing authority came to inspect the apartment on three occasions, her apartment failed each inspection because of the problems with the toilet, the dishwasher, and the refrigerator.

Then something happened I have never experienced at one of these clinics.  We were walking down the hall together and she pointed in the room two doors down from us and said, “I think that’s the lawyer who sued me to have me thrown out of my apartment.”  I asked how she knew what he looked like and she explained that she had gotten behind on her rent a couple of years before and he had given her payment terms, with which she complied meticulously.  We patiently waited until the apartment complex lawyer finished helping the pro bono client he was counseling.  He recognized my client and agreed to sit with us and see if something could be worked out.  When he learned what had happened, especially that she was about to be on the streets with her children and that the apartment complex had never fixed the toilet, the dishwasher or the refrigerator, I could see tears welling up in his eyes.  Right then and there, at that clinic held in a church surrounded by a poor neighborhood on a cold Saturday morning, this chance meeting resulted in her being rescued from homelessness.

We Are All Supposed to be “Public Citizens.”

Law school leadership programs all need to teach our students the “dos” and not just the “don’ts.”  Ask a hundred law professors or law students if much time is spent in their legal ethics course discussing the Preamble of the Rules of Professional Conduct and you will usually get puzzled looks.  That’s because almost 100 percent of the time spent teaching ethics is spent teaching students what they need to know to avoid being disciplined.  Very little is time spent teaching the ideals of the profession.  What does the rule of law mean?  What does it mean to have a fair and impartial judiciary?  What does it mean for everyone to have access to justice?  These are bedrock ideals of our profession which get little or no air time in the average law school curriculum.

The Preamble to the Rules of Professional Conduct makes it absolutely clear that all lawyers are to give of their time, resources, and civic influence to ensure that we all have equal access to justice.  The Preamble discusses the fact that lawyers should be “public citizens.”  Most law students and most lawyers cannot even recall hearing that term before or after law school.  The Rules conduct provide that, “[A] lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system and a public citizen having special responsibilities for the quality of justice.”

These ideals trace their history back to at least the 1890’s and arguably back to DeTocqeville.  See Reynoso:  The Lawyer As A Public Citizen, Maine Law Review, Vol. 55, No. 2 (2003).  In almost every leadership curriculum, there is some mention of the concept of being a “servant leader.”  This term, of course, also embraces unselfish, public service as an ideal of our profession.  Lawyers have no monopoly over public service, but public service should be an integral part of the life of all lawyers.  Teaching these values will help many beleaguered law students reconnect with the reasons that they went to law school to begin with and give them a road map for feeding their souls throughout their career, as they hop from one job to the other in varying roles as is the custom these days.

A recent report issued by the Tennessee Supreme Court indicates that about fifty percent of my home state’s lawyers do some pro bono, twice what it was ten years ago.  Of course, it is wonderful that Tennessee has come so far, but I find myself simultaneously proud and ashamed of that fifty percent number because that means that there are thousands of lawyers who do nothing.  I just wish these lawyers could experience the joys of using their legal education and their experience to make a profound difference in someone’s life.  I wish those lawyers could have their hearts warmed as we did that cold Saturday morning.  I wish those lawyers could discuss their work with their children and bring their children to pro bono clinics, so they could experience firsthand how it feeds our souls.  I often wonder where that number would be if they experienced that joy in law school.

I suspect that some members of our profession pass on pro bono because of a misguided judgment about why people have low household income.  There are certainly better messengers to give you the statistics, but I can give you the result of four decades of life experiences.  Some think that people are poor because they are lazy.  My experience has been that this is mostly a myth.  In fact, low income people often work harder than medium and high income people.  Some think that people are poor because have alcohol or drug problems.  That is certainly true sometimes, but usually not.  Some even think that certain ethnic groups are not as smart or don’t take as much initiative as others.  I have seen no evidence that this is true.  In my experience, the main reasons that people have low incomes are that (1) they haven’t had an opportunity to get an education, and/or (2) some adverse life event related to their physical or mental health or family has had a profound negative impact on the course of their life.1

My mother’s family was very poor.  Sometimes, they relied on my great-uncle’s grocery store leftovers to feed the family.  I vividly remember my mother and my aunt talking about bringing their pillows, blankets, and sheets downstairs to warm by the fire before going to bed because the family could not afford to burn coal in the upstairs fireplace.  I never realized when I was growing up that there was any difference between Mom’s family and Dad’s family.  They were just as much fun to be around, just as hard working, and just as smart.  With the benefit of hindsight, I still don’t see any difference in their skills and attributes, just the circumstances into which they were born.  Sensitivity to the role of privilege should also be a part of a complete leadership curriculum.

Another reason it’s important to teach how to be a “public citizen” and the importance of access to justice to our next generation of law students is that technology is beginning to give us the opportunity to do a better job with pro bono and access to justice that we have ever done before.  This next generation of young lawyers will likely be the generation which will fully utilize these new technologies for the benefit of the public.

For example, Microsoft has just granted a million dollars to create an ideal modern online portal which each state can use for all types of access to justice resources.  The first legal wellness check-ups have just been developed and are available online.  See e.g. TN.FreeLegalAnswers.org.  The country has its first virtual online clinic, ABA.FreeLegalAnswers.org, which allows lawyers to do pro bono work anywhere and anytime they can access the internet.  Artificial intelligence is now available which will help direct clients to the best resources for them and also help pro bono lawyers give better, more thorough advice, more quickly than ever before.  Efforts are under way to accumulate data collected from many sources, including but not limited to ABA.FreeLegalAnswers and Reddit, to predict which legal problems will afflict which citizens, where, and at which time of the year, month, week, or day.2  This has the potential for finally getting us into the business of preventing legal problems before they occur.3

This technology is not some quixotic wish list.  It’s here today and will be available to our newest law graduates as they progress through their professional years.  But at every turn, we will have to muster the will to devote the resources to make these things happen on a large scale.  That requires that law students and lawyers alike understand the bedrock values of our profession and are ready to lead on the issues of the rule of law and access to justice.  Any law school leadership curriculum without significant time and resources devoted to these ideals, has a gaping hole which must be filled.

The Work of “Greater Fools” and “Public Citizens”

Speaking of Don Quixote, Will’s hero in the Newsroom is his mentor and boss, Charlie Skinner, played by Sam Waterston, a self-described Don Quixote who wants to use the newscast to make television journalism what is was in the days of Edward R. Murrow and Walter Cronkite.  As for Will, he prefers the Camelot metaphor and is particularly fond of the scene in which King Arthur meets a young stowaway named Tom of Warwick.  Of course, Arthurs knights Tom and sends him back to England to pass on Camelot’s ideals to future generations.

In the closing scene of the first season of the Newsroom, Will is in his office and sees the same young student from the opening scene across the newsroom.  Confronting her, he asks, “What are you of all people doing here?”  Using business school terminology, she says that she has watched Will and decided that she wants to be a “Greater Fool.”4  She wants to be a “foolish” idealistic young apostle, working to accomplish the goal of effectively informing our democratic electorate.  Will then says, “Ask me the damn question again!”  She sheepishly complies and asks again, “What makes America the greatest country on earth?”  to which Will replies, “You do.”

From coast to coast, our profession is filled with patriotic, idealistic, big-hearted “Greater Fools” and “Public Citizens.”  In fact, America was built on the work of lawyer leaders who were “Greater Fools” and “Public Citizens.”  We need many more of them to join us in this struggle for equal access to justice.  Don Quixote and King Arthur beckon us to the challenge and purposeful leadership in our profession demands it.

Buck Lewis is the Chair of the ABA Pro Bono and Public Service Committee and teaches Lawyers as Leaders at the University of Tennessee College of Law.  This article is based in part on an article first published in the Tennessee Bar Journal, Volume 55, No. 1 (2019)

  1. The 2014 Tennessee Legal Needs Assessment reports that only 6 percent of low-income individuals have college degrees and that 29 percent of low-income individuals are disabled and unable to work.
  2. The American Bar Association has formed a partnership with Stanford University to apply predictive analytics to the 50,000 plus questions and answers gathered by ABA.FreeLegalAnswers.
  3. New Mexico’s Legal Aid agency is doing this now.
  4. In investment parlance, the Greater Fool theory is that the price of a stock is not determined by its intrinsic value, but rather by the beliefs of market participants that there will be a “greater fool” who will pay more.