December 1, 2002 Jan Pudlow Associate Editor Regular News Should government lawyers be exempt from the pro bono plan? Associate Editor What about government lawyers? Should they continue to be exempt from pro bono representation of the poor?Yes and no, were the mixed answers during oral arguments November 7 (in case No. 02-1050) regarding a petition to modify Rule 4-6.1, Rules Regulating The Florida Bar.Natasha Permaul, chair of the Standing Committee on Pro Bono Legal Services, petitioned the court to modify the rule to remove the deferral of government lawyers from the pro bono plan because she said it would remove confusion.Anthony Musto, on behalf of the Government Lawyer Section of The Florida Bar, asked the court to deny that petition. Instead, he asked the court to encourage the Bar to lobby the legislature for statutory changes to lift the prohibitions altogether for government lawyers. Otherwise, Musto said, pro bono service would become so broad it would lose its original mission to provide free legal representation for the poor. He warned it could actually result in all lawyers doing less actual representation of the poor, as they would instead take pro bono credit for general community service, like coaching Little League.Buddy Jacobs, general counsel for the Florida Prosecuting Attorneys Association, reminded the court why the deferral is necessary for assistant state attorneys, who are not equipped to handle civil cases for poor people.“We have substantial evidence that government lawyers who are prohibited by statute, rule, or regulation are providing pro bono legal services to the court,” Permaul told the justices. “Government lawyers with legal prohibitions have determined that there are ways to provide pro bono legal services to the poor and not violate the statutes, rules, or regulations that apply to them.”Justice Peggy Quince asked: “But aren’t there some government lawyers who are, in fact, not providing these kinds of services, based on the statutes and rules and regulations?”Permaul answered: “Your honor, I believe that there is confusion as to what the definition of legal services to the poor includes. The choice has been made that, to be careful, not to step across the line. But what the regulations actually say is that the attorneys cannot engage in the private practice of law.”In her petition, Permaul said, she asks the court to add to the definition of pro bono service that it is “overall a public service.” An example Permaul gave of acceptable legal service for government lawyers is handling the closing paperwork on a Habitat for Humanity house, knowing that house will benefit the poor. She said the court has given direction to government attorneys in the comment to Rule 4.6-1 and the activities listed in Rule 4-6.5. In Orange County, she said government lawyers help the elderly in nursing homes fill out public benefits assistance paperwork or help poor people apply for earned income tax credits. She stressed that the court had wanted to encourage more attorneys to participate in improving access to justice for the poor and working poor.“By removing the deferral for government attorneys, those who are somewhat hesitant about participating now know that the court is encouraging them to participate in the program,” Permaul said.But Musto warned against broadening the narrow definition of what a lawyer’s obligation to pro bono service should be all about.“We, as lawyers, are in a unique position. We are the only people who can walk past that bar and come into a courtroom and represent people. And, therefore, we have a unique obligation,” Musto said.The types of activities that Permaul’s committee has listed in its report, such as gun safety education and Teen Court, while worthy community service, Musto said, is “not what the purpose of the pro bono rule is all about.“You go down a slippery slope, because how do you say ‘no’ to the lawyer that coaches the Little League team and says, ‘Hey, I talk to them, I keep them off the streets, I tell them not to take drugs.’”Musto reminded the court that in the original opinion adopting pro bono rules, “you said specifically that although other public service by the legal profession is important, no authority exists for this court to address uncompensated public service not directly related to the needs of the poor. You already held you do not have the authority to do it.”Most importantly, Musto said, is that “what you may get is an increase in the number of public service hours performed by government lawyers, but you are also going to have all of those nongovernment lawyers, the 50,000 or 60,000 out there, who say, ‘Oh, I can meet this requirement in this manner or that manner,’ instead of actually handling cases. And I submit to you that, if you expand it that way, the bottom line will be an overall reduction in the number of hours spent actually handling cases for the poor.”Jacobs, speaking on behalf of Florida’s prosecutors, told the justices: “I submit to you that our people are involved in helping people around the state. We render service to the poor every day, by the nature of what we do as prosecutors. Unfortunately, because of the demographics of our state, a lot of poor people are victims of crimes.”Prosecutors are a lot like judges, Jacobs argued, and while they are involved in bettering their communities, they can’t take cases on behalf of poor people.“We are supposed to be seeking justice. We are not supposed to just prosecute everybody,” Jacobs said.“We are the chief law enforcement official in each circuit in Florida. And we have to be impartial. And so, to have us involved in representing people in civil cases, which we are prohibited to do anyway, I believe is a wrong thing.” Should government lawyers be exempt from the pro bono plan?