TO WIT: PRO BONO PUBLICO, AND HOW HE GREW
Though some may disagree, I yet maintain that the practice of law is a noble profession. To keep up with changes in the law, do we not go to all ends of the highly civilized Earth, twice annually? What other profession so carefully monitors and policies its own, removing from client contact the most unethical of offenders for at least three years at a clip, you should pardon the expression? And what other profession holds so close to its ethical bosom the notion that at times we ought to give away those services which, under the best of circumstances, we might not get paid for anyway?
Of course, I refer here to pro bono work, and what brings that specifically to mind is a recent encounter. I had walked into my favorite restaurant for lunch and noticed a colleague alone in a booth, slumped down, his cold plate lunch getting colder. His pale blue eyes, usually quite keen, seemed to follow me around the room without actually moving. Sensing that I had no real choice in the matter, I joined him. “How ya doin’,” I said, throwing caution to the wind.
He proceeded to relate as to how one of his better clients, whom he had just seen through some protracted and expensive litigation, had filed for bankruptcy, using another lawyer and listing him as a major creditor. His hard-earned and as yet unpaid fee was teetering on the brink.
“It happens,” I commiserated. “Just chalk it up to pro bono, and forget about it.”
“Yeah,” he said, a little flash returning to his gaze. “I’ll call it pro bono, and the hell with it.”
Now I believe in pro bono work, even when it appears for certain I could not profit a whit from it. (I know, I’ve used that line before, but I like it.) I remember so clearly my law school days when I first became acquainted with the concept. It came up in discussion with our con law professor, or as we were wont to call him, our con law professor. “Pro bono work is the noblest endeavor in the law,” he said, “and we must all be prepared to do our share.” My respect for his unstinting commitment to the highest ideals of the profession remains to this day unwavering despite my coming to realize that at the time, he had no practice from which to dispense his largess.
I remembered enough high school Latin to know that pro bono means “for good”, and at first I drew the only possible inference for a would-be lawyer. Imagine my surprise to learn that it meant exactly the opposite of being paid. In short order, I came to know that pro bono publico means “for the public good” and that the tradition is deeply rooted in the history of the bar.
I have never been one to take things exactly as presented. Even today I tend to view the Supreme Court’s denial of my petitions for re-argument as only a temporary setback, and as a law student, I was much feistier. I took it upon myself to research the origins of pro bono, the better to satisfy myself as to its true meaning. What I discovered was very interesting. Maybe not too funny, but very interesting.
It is not from the expression “pro bono publico” that the custom got its name. Rather the custom derives from an early Roman lawyer named Probono of Publicus. He apparently was note very swiftus, and was having a tough go of it. He first tried to make his name specializing in workman’s compensation cases for surviving gladiators, but when the incidence of claims, and hence premiums, rose to unacceptable levels, the Emperor turned thumbs down on the whole scheme, eliminating all claims and claimants simultaneously.
Nest Probono urged the creation of the first neighborhood legal services office, to be staffed by him and funded by the Emperor. “I half like it,” said the Emperor, and thus the concept of free legal services was created, for both recipient and supplier.
After that, Probono fades into obscurity, save for a reference in the third volume of Caesar’s Gallic Suits pertaining to an inscription engraved on a wall in a public lavatorium which, freely translated, means “Probono gives it away-call MXC-IIVD.”
There is a gap of several hundred years before another mention of the custom can be found. In 150 A.D., an unknown author wrote the biography of Flagellus, a very famous trial lawyer whose gender was apparently up in the air. Called “The Oddest HE’, it contains an anecdote about the time Flagellus got stiffed for a rather substantial fee. “What you gentlemen fail to realize,” Flagellus is quoted in response to the jibes of his colleagues, “is that I was handling this matter in the style of Probono, and I never contemplated payment. I have ennobled the profession thereby, and I have ennobled you, though Jupiter knows you don’t deserve it.”
Flagellus went on to cite as his authority the precedent established by Probono, and his colleagues had no alternative but to accept his explanation at face value. We are speaking now of ancient Rome, and Shepardizing was not only unavailable, it was punishable by law.
The practice soon spread to other civilizations. In Turkey, there are old references to the custom, there called feh-kuck-teh. In Egypt, it was called farshtunken. Even the Plains Indians of early North America had a variation of the practice known as me-shugass. Whatever the name, one thing remains clear. Wherever the practice has become entrenched, it reflects that bar’s notion of the value of public service by lawyers, particularly on behalf of clients who cannot pay, for whatever reason.
Despite its dubious origin, the ethical notion of pro bono publico is indeed grand and truly does ennoble the profession with a fair degree of style and grace. It elevates us to a status high above such mundane matters as money, and when, as happened to my recent luncheon companion, such matters are flung beyond my grasp, I’ll settle for status. It is a poor second to mundane, but it sure beats the hell out of nothing.
© 1985 – S. Sponte, Esq.