Attorneys know it’s something they can do and probably something they should do as often as possible.
But even with those who contribute as much time as they can, there is much work left to be done, according to the research presented in Marion Superior Judge David Dreyer’s 51-page paper, “Culture, Structure, and Pro Bono Practice.”
The paper is his thesis for his Master of Judicial Studies from the University of Nevada – Reno. He completed the paper and the degree in 2006, and later learned the Journal of the Legal Profession would publish it June 2009.
“(I wanted to report) what’s happening, what’s not happening, and why,” he said, and how lawyers can help bridge the gap between indigent citizens and the legal system.
The term he used in the paper was “mandatory access,” to explain “what is needed, what we have to do.”
He visited local law libraries, and traveled to the Georgetown Law Center’s Equal Justice Library in Washington, D.C., and the American Bar Association’s law library in Chicago for some of his research.
The judge doesn’t discredit the hard work of legal aid organizations and pro bono efforts, which do make a difference to individual clients and to the attorneys who help clients through pro bono or legal services. He also acknowledged that the numbers of attorneys and hours given for pro bono have increased through the years overall.
But there will always be more people who have a need, and those still not being reached must be considered, he added.
Personal experience
While Judge Dreyer, who has been on the bench since 1997, has seen firsthand the difficulties faced by litigants who can’t afford representation, he has also seen it from an attorney’s perspective.
For six years after he graduated from Notre Dame Law School in 1980, he worked for Legal Services Organization, a precursor to Indiana Legal Services Inc. He was then in private law practice from 1986 to 1991. He served as chief counsel in the Marion County Prosecutor’s Office from 1991 to 1994, before serving as special counsel to the state of Indiana from 1995 to 1996.
The Neighborhood Christian Legal Clinic in Indianapolis recently recognized him for his volunteer work, and he has worked with the Heartland Pro Bono Council, which serves residents in central Indiana.
Among those who have written about the role of attorneys in the legal system and were cited in Judge Dreyer’s paper are Scott L. Cummings of University of California – Los Angeles School of Law, and Deborah L. Rhode of Stanford Law School.
“But it’s those two people in the whole country (reporting in-depth about pro bono), and that’s it,” Judge Dreyer said.
He hopes his paper will help start a larger collection of articles about the subject.
‘Mandatory access’
Regarding the phrase he coined for the paper, “mandatory access,” he wrote, “… all attorneys are necessarily mandatory access providers. Access is not an optional charity. So-called ‘mandatory pro bono’ for lawyers is the condition for an efficient legal system – and an orderly community. Instead of considering only what is preferred by the profession, we must focus on what is necessary to maintain the system.”
He compares how lawyers should help society to the role of doctors.
“Doctors rarely question when they’re needed if they have to serve a patient, so why do we?” He asked.
While the concept of legal aid societies in the United State dates to at least the 1920s, it was in the 1960s when the needs of the poor were further examined. At that time, “some studies report less than 1 percent of the nation’s 39 million poor people received legal assistance from legal aid societies.”
When the nationally funded Legal Services Corp. faced criticism for its work to provide grants to local legal aid societies in the 1990s, along with other issues, the legal profession re-evaluated the effectiveness of legal aid and pro bono, he wrote. This helped to get lawyers more involved, but the real issue was with those who still weren’t getting access to the legal system.
“But there is one notable difference regarding lawyers’ failure to practice pro bono: lawyers are not just citizens ignoring their own democracy; they are stewards of the democracy ignoring their own citizens,” he wrote. “The stakes are higher and consequences greater when lawyers fail to provide a legal system accessible to all – but do lawyers realize or care?”
He added lawyers can be moved by specific issues like the mortgage foreclosure crisis, which is a good start, but there have been and always will be other issues to consider.
“According to a variety of studies, unprovided access to legal services in the United States is truly alarming. … It is worth repeating that the American Bar Association determined that: 47 percent of low income households have a need for a lawyer at some time; 2 out of 5 of these household do nothing to access the system; of the households who try to access the system, 14 percent do so without a lawyer,” Judge Dreyer wrote.
Indiana pro bono
While the paper’s research provided a national perspective, Indiana data was included.
For example, approximately 19 percent of Indiana attorneys report pro bono work; the national average is about the same.
But even in states that emphasize pro bono participation more than Indiana, no one was near 100 percent. In Florida, 35 percent of attorneys provided pro bono service in 2004; in Maryland, 48 percent of attorneys provided pro bono in 2004; and 46 percent of New York attorneys provided pro bono in 2002, according to Judge Dreyer’s research.
While updating certain data for the 2009 journal publication, Judge Dreyer noticed there weren’t many updates for the studies he referenced. And for those that had updates, the change was insignificant.
What will shed more light on the Indiana situation is a soon-to-be-released report by Indiana Legal Services Inc., the Indiana Bar Foundation, and the Indiana State Bar Association.
Judge Dreyer also considered that some attorneys are adverse to the idea of mandatory pro bono, but he compared the situation to a war.
“This is not to say we’re going to draft you into the Army. … But the way to look at it is there is a struggle going on to make our legal system whole,” he said. “We can leave it to the people who can only volunteer when they can, which will never work and hasn’t worked, or we can all agree that it’s necessary and very prudent and certainly very doable to provide mandatory access” through participation.
While the paper doesn’t provide solutions, Judge Dreyer said he hopes this will at least open a dialogue about what can be done differently. He has provided the paper to a few other judges and attorneys but has yet to receive feedback.
The article is available through the Journal of the Legal Profession by contacting the University of Alabama School of Law, www.journalofthelegalprofession.org.
Attorneys know it’s something they can do and probably something they should do as often as possible. 
For six years after he graduated from Notre Dame Law School in 1980, he worked for Legal Services Organization, a precursor to Indiana Legal Services Inc. He was then in private law practice from 1986 to 1991. He served as chief counsel in the Marion County Prosecutor’s Office from 1991 to 1994, before serving as special counsel to the state of Indiana from 
