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As a young lawyer, you might be struggling to believe that you can make a difference and to figure out how to do so. You might also be wondering how to gain the courtroom experience seemingly necessary to build a legal practice. If either of these is true, consider how pro bono litigation has impacted our legal system and could impact your career. Even if you read no further, take this advice: volunteer for pro bono cases.

In Gideon v. Wainwright, 372 U.S. 335 (1963), the Supreme Court held that the Sixth Amendment, as incorporated against the states by the Fourteenth Amendment, guarantees an indigent defendant the right to state-appointed counsel in any felony criminal prosecution. Id. at 343–45 (overruling Betts v. Brady, 316 U.S. 455 (1942)). Gideon “recognize[d] that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him”; that is, at least for felony cases. Id. at 344. And the Supreme Court later described Gideon as a necessary step in “protect[ing] the fundamental right to a fair trial.” Strickland v. Washington, 466 U.S. 668, 684 (1984). In fact, Gideon is the only procedural right ever characterized as “watershed,” so to apply retroactively to cases on collateral review. Beard v. Banks, 542 U.S. 406, 417 (2004).

Some jurists have challenged the historical justifications for Gideon’s central holding. See, e.g., Turner v. Rogers, 564 U.S. 431, 451 (2011) (Thomas, J., dissenting) (“[A]s originally understood, the Sixth Amendment guaranteed only the ‘right to employ counsel, or to use volunteered services of counsel’; it did not require the court to appoint counsel in any circumstance.” (quoting Padilla v. Kentucky, 559 U.S. 356, 389 (2010) (Scalia, J., dissenting)). But whatever your view of Gideon’s merits, nobody denies the sea-change that Gideon affected on state criminal-justice systems: Gideon “is still recognized as pivotal in making legal representation a reality for defendants accused of serious crimes.” See 60 Years Later, Gideon’s Legacy Lives On, U.S. Courts (Mar. 16, 2023) (link). As one of Gideon’s appointed lawyers put it, the decision “reflects the present Supreme Court’s deep and abiding concern with the problems of individual rights and civil liberties,” and “it stands as a notice that in the free world no man shall be condemned to penal servitude without a lawyer to defend him.” Abe Krash, Right to a Lawyer: The Implications of Gideon v. Wainwright, 39 Notre Dame L. Rev. 150, 154 (1964).

Today, Gideon is a keynote case in every constitutional law textbook, but aspiring litigators often overlook that Clarence Earl Gideon’s case wound up at the Supreme Court because of his handwritten, pro se petition for a writ of certiorari. Id. at 150–51. With the assistance of his prison’s library and paper, Gideon argued that “all citizens tried for a felony crime should have aid of counsel.” Petition for Writ of Certiorari at 3, Gideon v. Wainwright, 372 U.S. 335 (1962) (No. 890). The Court granted certiorari, and then it appointed future Supreme Court Justice Abe Fortas to represent him. See Krash, supra, at 150–51. The rest is history.

Okay, so we’re not all Abe Fortas. And pro bono work isn’t a golden ticket to a Supreme Court nomination. But the story of Gideon’s path underscores the need for lawyers—regardless of their pedigree or experience level—to volunteer for pro bono work inside the courtroom. It also highlights an open door for young lawyers to gain valuable experience that might otherwise be reserved for those more senior. This short article recounts some of the reasons why young litigation lawyers should jump out of their chairs to volunteer: doing so provides a weighty benefit to society at large and the young lawyer looking to develop skills and experience. This article also provides a few lessons learned and wisdom gained from my own exposure to the world of pro bono litigation.

The Need for Pro Bono Volunteers and Doors It Could Open

Begin with this unsurprising premise: Regardless of your pedigree or experience, your help is needed. Litigants without a lawyer “make up a sizable and normatively important chunk of civil litigation in the federal courts,” including “more than a quarter of nonprisoner civil cases,” Roger Michalski, et al., Mapping the Civil Justice Gap in Federal Court, 57 Wake Forest L. Rev. 463, 464 (2022), and around 90 percent of all prisoner cases, Mark D. Gough, et al., (Un)changing Rates of Pro Se Litigation in Federal Court, 45 L. & Soc. Inquiry 567, 576 (2020). The assistance of an attorney is also statistically likely to be fruitful—in other words, representation by an attorney positively impacts success rates for litigants who otherwise would proceed without an attorney. Research “suggests that unrepresented litigants are less likely to win than represented litigants.” Michalski, supra, at 472. Other research recognizes the pitfalls of “unequal bargaining
power of represented litigants over their unrepresented adversaries.” Id. And, of course, the assistance of counsel diminishes the possibility “that judges and lawyers associate” the otherwise unrepresented “litigant[] with weaker claims.” Id. Your decision to volunteer might well be the difference between winning and losing; between justice served and justice denied.

Even early in your career, the stakes of your volunteering can be as high as the difference between life and death. A young lawyer in Birmingham, Alabama, argued the appeal of Clemente Aguirre—an innocent man who had spent 14 years in prison, and 10 of them on death row—before the Florida Supreme Court, which “unanimously reversed [his client’s] convictions and ordered a new trial,” and which ultimately resulted in Aguirre’s exoneration. Case Study, Bradley Attorney Lindsey Boney Wins New Trial for Florida Death Row Inmate, Bradley (last visited April 16, 2024) (link). That lawyer was a sixth-year associate when he argued the appeal, his second high-stakes appellate argument in his first decade of practice. He didn’t let being an associate get in his way. Neither should you.

Slightly changing course, consider the benefits that might accompany your involvement in pro bono litigation. Suddenly, the associate who hardly ever sees the inside of a courtroom is advising the client first-hand, leading the strategic decision-making process, signing pleadings, taking depositions, arguing motions, conducting mediation, and leading the charge at trial. The same is true for pro bono appellate work in both direct- and collateral-review proceedings. You might be busy with other matters—everyone is— but pro bono work provides a tangible path towards gaining the experience vital to professional growth. The experience you gain doing pro bono work will make you an asset to your firm in billable matters. Your client will be better for it; you will be better for it; and your firm will be better for it. So go for it.

A Few Lessons Learned Along the Way

Every case presents its own idiosyncrasies and challenges, and pro bono work is no exception. Here are a few reminders—based on my own experiences and discussions with more seasoned advocates—that can help set you on a path towards successfully representing the underrepresented.

1. Research available opportunities. Many (if not most) federal district courts and courts of appeals encourage voluntary pro bono representation, and those courts have programs that place unrepresented litigants with lawyers like you. See, e.g., Plan for Pro Bono Counsel for Qualified Unrepresented Parties in Civil Cases, U.S. DISTRICT COURT FOR THE N.D. ALA. (Nov. 18, 2016) (link); Pro Bono Program, U.S. COURT OF APPEALS FOR THE FIFTH CIRCUIT (last visited April 4, 2024) (link). Your firm also likely has a pro bono program that facilitates work on these kinds of matters—often with hourly credit indistinguishable from billable matters. If you haven’t done so already, I encourage you to speak with your firm and submit your application to participate in your home courts’ pro bono programs.
2. Take these cases seriously. Once you get involved, remember that there should be no difference in your day-to-day conduct between pro bono cases and billable cases. Your ethical duties of competence and diligence apply no less to an incarcerated individual’s case than to a Fortune 500 company. And your assistance will matter greatly to your pro bono client—after all, these cases often involve serious violations of their person and constitutional rights. Take them seriously.
3. Manage expectations and communicate proactively. Be ready for a barrage of out-of-the-blue calls or letters asking for updates and advice. You should always strive to effectively manage your client’s expectations, anxieties, and emotions. And always thoroughly explain to your client your recommendations (and the bases of them) on strategic decisions, obtain your client’s approval, and make a paper record of these decision-making processes. On the flip side, remember not to set expectations that are too grand: these cases are often difficult to win, so don’t allude to a result you cannot guarantee. And remember that your firm likely will have a limited engagement with your client—this means that you’re his or her lawyer for this case, but not for others. Your firm will appreciate your adherence to the scope of engagement.

There unquestionably is a societal need for our help. Perhaps fortunately, your volunteering can open the door to experience that will make you a better, more marketable lawyer. Do not pass up this opportunity. It could be the difference-maker in your client’s case; in your career; and even in the constitutional jurisprudence of the Supreme Court of the United States.

Republished with permission. This article, "Pro Bono Litigation: Why Every Young Lawyer Should Volunteer" was published in The Brief Case: DRI Committee News, Volume 3 Issue 5.

 

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