Unless I get killed, do something very stupid, or miss my flight to Boise, I will soon join the world’s most consistently detested profession. All that’s between me and a license to practice law is my swearing that, among a few other things, I “will never reject, for any consideration personal to myself, the cause of the defenseless or oppressed . . . . SO HELP ME GOD.” This pledge turns up time and time again in feelgood speeches at bar gatherings and in law school professional responsibility classes, and judges have even used it a handful of times to justify sending court-appointed lawyers home without pay. But even if this aspiration might be a supporting ground for mandating pro bono legal work, it’s something less than an Ancient Greco-Roman ideal that lawyers do all their work for free—turpe reos empta miseros defendere lingua (roughly, “it’s disgraceful to defend the unfortunate with a purchased tongue”). We live, after all, in a time when even people who want to be poverty lawyers complain when they can’t find anybody to pay them four times the income of the poor people they want to serve.

Indeed, the fact that the profession even sets aside “the defenseless [and] oppressed” as a group to be specially mindful of, and frames “poverty law” as a niche, serves mainly to make it crystal clear that the enormous remainder of the law and the profession deal with the powerful, the oppressing, and the rich. That’s to paraphrase Stephen Wexler, who in 1970 spelled out a blazing criticism of legal aid approaches in a law review article, “Practicing Law for Poor People,” 79 Yale L.J. 1049 (1970), that’s cited all the time but never once came up in my three years of law school.

Wexler doesn’t waste any time wondering why the bulk of the profession doesn’t do enough pro bono (a standard lament, but one that’s about the same as despairing that luxury estate brokers don’t do enough to help low-income housing projects displace country clubs). Rather, he gets straight to the more fundamental problem: lawyers are too full of themselves to really help anybody who needs help. Again to paraphrase (but only slightly):

We lawyers have so much ego invested in our skills, we put so much time and effort into preparing the court papers and arguments, and we have so many laminated diplomas hanging on our walls that we cannot help believing that “our” Court of Appeals case will bring about the millenium. It is hard, of course, for such gods to talk to any mere mortals, let alone poor, uneducated ones.

But a lawyer, he says,

must realize that what make him a lawyer are accidents of birth and interest, and those accidents have not made him something special; they have only given him the opportunity to help someone else. Being in the position to help, rather than of needing help, is a privilege. The lawyer must remember that he is where he is in order to help poor people do their thing, and not in order to do his own thing.

The reality however, attorney’s oath or not, is, as Wexler puts it, that most lawyers “manage to get on with laymen . . . by charging fees that only a miracle worker could deserve,” and “by using a language that no layman can understand.”

What solution? Well, number one on Wexler’s list is—get this—community legal education. “Traditional practice [taking individual cases to court or settlement],” he explains, “hurts poor people by isolating them from each other. . . . The lawyer for poor individuals is likely, whether he wins cases or not, to leave his clients precisely where he found them, except that they will have developed a dependency on his skills to smooth out the roughest spots in their lives.” But, of course, “[m]ost people who are not poor believe that poor people are unable to take care of themselves, let alone do work traditionally reserved for professionals.” More specifically,

lawyers are taught to believe, and have a three-year investment in believing, that what they have learned in law school was hard to learn, and that they are somehow special for having learned it. It is difficult for a lawyer to commit himself to believing that poor people can learn the law and be effective advocates; but until he believes that, a lawyer will create dependency instead of strength for his clients, and add to rather than reduce their plight.

As I’ve discussed already at this blog, people are doing this critical, community-empowering, organizing+education+law work in the U.S. And there are some (barely) acceptable explanations for why more is not being done (mainly a lack of funding and significant resistance from legislative bodies and anti-legal services organizations). But, if lawyers want to give anything other than hot air to “the defenseless and oppressed,” they’ll have to do a lot more than tweak the pro bono rules. They will have to change the way they think of themselves.