PRO BONO PUBLICO: A PERSPECTIVE
By Robert VanDervort, Esq.

I have always been very pleased and encouraged to read the stories here of those of us who devote our time to pro bono representation. Lately, in conjunction with the State Bar meeting, I attended the pro bono auction for the first time and was very impressed to see that the group included lawyers there of virtually every make and model. I was therefore quick to accept Jean Audet's invitation to contribute some of my own thoughts and discuss my own experiences at pro bono work thinking that a good cross section of our legal community might likewise be interested and encouraged by my writing.

As stated in the Preamble of our Rules of Professional Conduct, we all share a significant responsibility for the quality of justice, and this includes "being mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance, and . . . devot[ing} professional time and civic influence in their behalf." We all therefore underwrite the policy of equality in the application of our laws and availability of recourse in our courts. The Pro Bono Referral Project and its sponsors including the West Virginia State Bar administer this fundamental policy in non-criminal matters.

To me, the most fascinating aspect of the policy at work is that persons who cannot afford adequate legal representation are often involved in circumstances which present complicated legal issues potentially affecting important constitutional and statutory rights. Of all of our clients, our pro bono clients therefore often have the most to lose. Occasionally, we have pro bono cases which have potential to affect the law applicable not only to our particular clients but to whole groups of such persons. In all respects, pro bono attorneys essentially perform a public function on a case by case basis by raising these sorts of issues as they perceive them in our Courts. The entirety of the latin phrase is pro bono publico, for the public good.

Since I began practicing law over 14 years ago, I have taken on many pro bono cases, mainly appointed federal criminal cases. I therefore had a fair amount of experience in 1996 when Jean called to ask if I would be interested in representing pro bono the parent of a child expelled from school in Doddridge County for a violation of West Virginia's Safe Schools Act. Matthew Alexander had represented the parent in proceedings in Doddridge County and obtained an injunction against the Doddridge County Board of Education. The School Board appealed, and the case was in our Supreme Court. I did not have to bait a single trap to get Mike Kawash interested in the case. It involved constitutional and countervailing public policy issues. I learned in speaking with other lawyers that there were many cases of the same sort in other counties, and School Boards were looking for some definition of the law which might give them guidance. Ultimately, the Supreme Court sorted all of the issues out in a plurality decision. Cathe A. v. Doddridge County Board of Education, 200 W.Va. 521, 490 S.E.2d 340 (1997). To date, the case has been discussed in another matter by our Supreme Court and in several law review articles. I have also had the opportunity to work through the law established in the case in one other pro bono Safe Schools Act case. While I found it quite gratifying professionally and personally to contribute to the development of this law along with the other lawyers in the case, my involvement in the case was only coincidental. After all, any number of us would have taken the case. But this case exemplifies, I think, what work pro bono publico means in the context of non-criminal cases, and the important function the Pro Bono Referral Project serves in assigning them among us.

Generally, the contribution pro bono lawyers have made and are making in our State and on the national level is indeed impressive. For example in the context of criminal appointment work, according to a 1991 Bureau of Justice Statistics survey about 75% of State prison inmates and about 50% of Federal prison inmates had been represented by court-appointed lawyers. I have recently read that about 85 to 90 % of all Federal criminal defendants are represented by a Federal public defender or a Criminal Justice Act appointed attorney. William D. Mathewman, Crisis in the Criminal Justice Act, The Champion, April, 1999. This is largely a consequence of the representation of Mr. Abe Fortas who was appointed by the United States Supreme Court to represent Mr. Clarence Gideon in the habeas case which resulted in that Court's decision in Gideon v. Wainwright, 372 U.S. 335 (1963). Of course, the Court concluded in that case that indigent defendants in State criminal cases are entitled to appointed counsel.

About the author: Mr. VanDervort is in private practice and presently the Criminal Justice Act panel representative for the Southern District of West Virginia