Lawyers' Services Should Be Theirs to Give Away….
More than three years ago I wrote this column for the Connecticut Law Tribune:
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Connecticut Law Tribune – June 8, 2007
(This column comes on the heels of the recent Second Circuit Decision regarding pro bono fees, as a I promised.)
It's been a year since I read an Illinois Supreme Court ruling regarding mandatory pro bono reporting and I'm still feeling claustrophobic as the legal universe we are permitted to function in gets smaller and smaller.
That state's new rule, celebrating it's one year anniversary this month, requires lawyers to "annually report their pro-bono activities, including hours worked and any money contributed to pro-bono efforts." The rationale behind the rule is that, by having to report what they do (or don't do) by way of pro bono work or financial gifts to recognized legal aid organizations, lawyers will somehow be shamed into actually doing some, or do more than they're already doing.
It doesn't take a genius to see where this is really going. Although structured as simply a confidential reporting program for the purpose of accruing an aggregate total of pro bono hours, lawyers who fail to report their numbers to Illinois authorities face possible suspension of their law licenses. With this framework in place, if actual pro bono hours do not increase in a voluntary fashion, is it really a stretch to see pro bono work being mandated in order to continue practicing in the state of Illinois? (Note: Illinois is home to the American Bar Association.)
Who will have the hardest time meeting these requirements? Not large law firms that use their pro bono efforts as a tool for self-promotion. How much does it really cost them, anyway? At most large firms, it's low-level associates who do the majority of the firm's pro bono work. The firms write it off as a loss. At their worst, they take on high-profile cases in an effort to gain incalculable publicity. Mandatory pro bono wouldn't hurt large law firms. Rather, they will profit on many levels including financially in certain matters.
Solos, however, will be the ones injured. They will look ungenerous and self-serving, as they single-handedly face the everyday struggles to stay in business.
As the pro bono numbers generated by solos, the largest body of lawyers out there, fail to increase appreciably, what will be the next logical step? Forcing them to take on a minimum number of pro bono hours or face suspension? It is certainly plausible.
And as word is spread to the general public regarding an attorney's obligation to do pro bono work, is it unreasonable to believe that lower-income clients will demand lawyers represent them for free or at sharply reduced rates?
Yes, mandatory pro bono would be a great image enhancement for the legal profession, particularly large firms. But for solos, it would be a daily migraine.
Shouldn't Illinois officials be looking to catalog aggregate results rather than aggregate hours if the stated goal of this self-aggrandizing exercise is to actually help indigent clients? If painters took two days instead of two weeks to paint your house, wouldn't you applaud their speed and efficiency? We should be measuring effectiveness through results, not inefficiency through racked up hours.
And, of course, we can't let Illinois get all the glory for being so benevolent when giving away our services. All the states will want to jump on board for fear of looking mercenary and uncaring. They, too, will want to crack the whip and give away our time and money.
As a lawyer, I believe the role of the judiciary and national and state bar associations should be to provide a de minimus framework of what we can't do in order to avoid risking our law licenses. Outside of that, they should be a source of professional support and information.
It is not their job to legislate or mandate how I should aspire to be a better person or lawyer. Nor should they tell me that I must give away my services.
But that is where they are heading. Please don't order me to tithe to the Church of the American Bar Association. I still believe in freedom of professionalism. •
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Why am I reposting this June 8, 2007 post? Because of this new article in the Wall Street Journal which proves my predictions were spot on:
The Mississippi Supreme Court is considering a proposed rule to require lawyers in the state to provide at least 20 hours of pro bono work.
Here is my favorite comment to the WSJ article:
The real issue is the refusal of state legislatures to adequately fund the representation of indigent defendants by court-appointed counsel. Involuntarily conscripting lawyers to fill the gap, under the guise of mandatory pro bono work, would violate the 13th Amendment.
What do you think? I hope you have thoughts to share because if this legislation passes it may very well come home to roost in your jurisdiction. It's hard enough to earn a living as a solo practitioner. To be required to give away your time while trying to put food on the table…especially in this economy…is just ludicrous.
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And what happens after you log your 20 hours on a 50 hour case? Do you get to pull out? Stupid rule.
Exactly. You’re not going to get released from a case to which you were assigned because the person was indigent and needed counsel. That sets off a whole other round of ethical alarms. But the writing is on the wall. Especially in this economy with jammed dockets of pro se litigants, a pro bono lawyer will never be released from a case unless they’re dead…maybe.
I’m a Mississippi lawyer who will be subject to the rule if it is implemented. I oppose the rule for the following reasons.
No jurisdiction has a mandatory pro bono service requirement. Seven states have mandatory pro bono reporting (Florida, Hawaii, Illinois, Maryland, Mississippi, Nevada, and New Mexico). Eight states have rejected mandatory pro bono reporting (Colorado, Indiana, Massachusetts, Minnesota, New York, Pennsylvania, Tennessee, and Utah). For example, the Colorado supreme court rejected mandatory reporting stating it was the first step toward mandatory pro bono — a destination the court did not want to arrive at, hence it would not take the first step. Diane Hartman, CBA, Courts, Say No to Mandatory Pro Bono, The Colorado Lawyer, August 1999, p. 25. From my perspective, our mandatory reporting requirement put us on the slippery slope leading towards mandatory pro bono work. Twelve states have voluntary pro bono reporting (Arizona, Georgia, Kentucky, Louisiana, Michigan, Montana, Ohio, Oregon, Tennessee, Texas, Virginia, and Washington). Two states are considering voluntary pro bono reporting (Michigan and Vermont). (Source: ABA Standing Committee of Pro Bono & Public Service, http://www.abanet.org/legalservices/probono/reporting/pbreporting.html.)
Some proponents of mandatory pro bono point to New Jersey and claim that New Jersey has mandatory pro bono. The case addressing required pro bono in New Jersey is Madden v. Delran, 126 N.J. 591 (1992). But, Madden is limited to the constitutionality of lawyers being appointed to represent — without compensation — indigent criminal defendants in municipal court who have a constitutional right to appointed counsel. The question presented in Madden was: “[W]hether this Court should order government to pay attorneys who are assigned by the municipal court to represent defendants too poor to pay for counsel.” The answer was, “no.”
The New Jersey rule concerning court appointed lawyers representing, as pro bono counsel, indigent criminal defendants entitled to court provided counsel is different from proposed Rule 6.1. The comment to proposed Rule 6.1 reads:
“Most pro bono service should involve civil proceedings where there is no governmental obligation to provide counsel, given that government must provide indigent representation in most criminal matters for no compensation.”
The focus of Rule 6.1 is therefore on providing pro bono services in civil cases where there is no right to counsel.
The Madden rule requires appointment of lawyers on a rotating basis, rather than a requirement that every lawyer provide X hours of pro bono work. The statistics referenced in the Madden opinion suggested that a lawyer could expect a municipal court criminal appointment once every 4.5 years. That’s very much different than proposed Rule 6.1 which requires every lawyer in the jurisdiction to provide 20 hours of pro bono work to civil litigants not entitled to court appointed counsel every year to avoid attorney discipline.
Scholar-practitioners question the efficacy of mandatory pro bono. For example, Esther F. Lardent, the president of The Pro Bono Institute, authored a paper titled “Just say No … To Mandatory Pro Bono” (available at http://www.probonoinst.org/about. esther.php and http://www.probonoinst.org/ pdfs/justsayno.pdf. See also Loder, Tending the Generous Heart: Mandatory Pro Bono and Moral Development, Georgetown J. Legal Ethics, Winter 2001 (“[A] pro bono requirement will ‘spoil’ the experience of service and stifle the altruistic tendencies of lawyers who already serve, or who are so inclined.”), available at http://findarticles.com/p/articles/mi_qa3975/is_200101/ai_n8949920/. I find the arguments presented in these articles to be informative.
The proponents of proposed Rule 6.1 overlook known problems regarding the quality of services provided by lawyers participating in pro bono work. In a recent survey of leading public interest legal organizations, almost half reported extensive or moderate problems with quality in the pro bono work they obtained from outside firms. Deborah L. Rhode, Public Interest Law: The Movement at Midlife, 60 Stan. L. Rev. 2027, 2071 (2008). A related problem involves lawyers who want to do pro bono work in theory but in practice, don’t want to make the commitment. Id. at 2072. Under proposed Rule 6.1, many lawyers will not even want to do pro bono work, but must go through the motions of putting in 20 hours to avoid attorney discipline. What quality of services can be expected from those lawyers?
Consider these numbers. Assume 5,000 members of the Mississippi bar are subject to the proposed rule. Consider 5,000 lawyers in the state descending on the legal services offices closest to their homes demanding a client to satisfy a condition of keeping their law licenses. Right now, legal services offices are understaffed and underfunded. The small network of underfunded, understaffed offices will not be able to manage and coordinate the effort of 5,000 active files (or more since some matters will not take 20 hours of work) per year assigned to outside counsel.
Consider also these numbers. Five thousand lawyers each providing 20 hours of free legal services equals 100,000 hours of legal services. The last Bar survey showed that the average hourly rate for Mississippi lawyers is about $160.00. Proposed Rule 6.1 would compel the profession to provide free legal services valued at $16,000,000.00 to yet to be identified persons. On what legal authority does the Supreme Court of Mississippi or Mississippi Bar rely to enter an order promulgating a rule which would require giving away services (to persons not having a right to counsel) having such substantial value?
There is case law that holds a trial court appointing counsel for a party does not implicate the Amendment XIII prohibition against involuntary servitude. In White v. United States Pipe & Foundry Co., 646 F.2d 203, 205, n. 3 (5th Cir.1981), the Fifth Circuit rejected the Amendment XIII argument that a court appointing a lawyer to represent involuntarily someone is an involuntary servitude violation. But, the White case involved a statutory scheme which may have allowed an award of attorney’s fees. See White v. United States Pipe & Foundry Co., 646 F.2d at ¶13 (“an appointment, if the circumstances called for one, might not be ‘involuntary’ at all in that the district court might simply have found a lawyer willing to take the case in light of Congress’ complementary incentives to private attorney general suits under Title VII, such as the possibility of attorney fees under § 706(k).”). Other cases concerning the appointment of counsel also involved a trial judge’s order appointing a lawyer for a party before the court. Compare that to the proposed rule. The proposed rule is not an order by a trial judge appointing a lawyer in the local area to represent a particular party before the court where the lawyer likely will be paid something. That is a significant distinction. There is a huge difference between appointment of counsel by a trial judge pursuant to statute (where, as noted in White, statutory attorney’s fees may be available) and a rule that compels all lawyers in the jurisdiction to provide 20 hours of legal services for unidentified pro bono clients. The bottom-line is there is no legal authority supporting the proposition that the government can compel all lawyers of the bar to provide free legal services to persons not having a right to counsel in civil matters.
The mandate to provide 20 hours of pro bono work creates an unreasonable burden for the lawyers in Mississippi who will be subject to the rule. To comply with the conditions of maintaining his or her law license, a lawyer will have to find one or more indigent clients. How will we do that? Are the thousands of lawyers who will be subject to the rule going to get their indigent clients from a legal services office? Is the network of legal services offices capable of servicing the thousands of lawyers demanding clients to satisfy the pro bono mandate? I think not. Since mandatory pro bono is not voluntary pro bono, how would the Mississippi Volunteer Lawyers Project (MVLP) be involved?
What about the right to control client selection? Client selection is one way lawyers manage risk. Who will indemnify a lawyer when he or she gets sued by a disgruntled pro bono client? Will there be an exception to the rule that prohibits a lawyer from attempting to limit his/her professional liability in an attorney-client contract? Will the legislature pass a statute which provides civil liability immunity for lawyers doing pro bono work where the claim arises out of a pro bono civil action?
Civil litigation is expensive. Even basic cases usually involve several hundred dollars of expenses. For example, the court reporter fee and transcript expense for a single, short deposition run from $250.00 to $400.00. Who is supposed to shoulder that expense? The lawyer providing pro bono services? Did the proponents of proposed Rule 6.1 even consider the litigation expense issue?
Here are some more reasons why mandatory pro bono is wrong:
– The true motive of proposed Rule 6.1 is to coerce lawyers into doing pro bono work.
– Proposed Rule 6.1 fails to provide guidelines to determine the eligibility of persons seeking pro bono services from members of the Bar.
– Proposed Rule 6.1 fails to provide an organizational structure for pro bono case management for the 6,000+ members of the Bar.
– Proposed Rule 6.1 fails to provide an oversight and audit element to regulate a mandatory pro bono program.
– Proposed Rule 6.1 fails to provide an orientation and training program for the members of the Bar regarding the delivery of pro bono services.
– Proposed Rule 6.1 fails to provide any measures of effectiveness or quality assurance standards.
– Proposed Rule 6.1 fails to provide for the procurement of professional liability insurance to cover lawyers participating on the mandatory pro bono programs.
– Proposed Rule 6.1 fails to provide for funding to cover out-of-pocket expenses associated with pro bono litigation.
– Pro bono is by its very nature a voluntary activity.
– It is not necessary that every lawyer do pro bono work in order to ensure citizens of lesser means to have access to the courts. While there may be some evidence suggesting indigents need counsel in certain matters, there is no study that shows increasing access to the courts requires every lawyer to do pro bono work.
– Lawyers must be motivated to deliver quality legal services. Either anticipation of remuneration or moral conviction for those not interested in being paid for their services provide the motivation.
– The administrative costs involved in collecting and processing information, as well as in taking disciplinary action or imposing sanctions, are unreasonable.
– Pro bono will become a negative rather than positive concept when members of the bar take exception to the mandatory requirement.
Of course, there is an “out” in the rule — paying a $500.00 “contribution.” This “contribution” would be a coerced payment in the minds of many lawyers. And, since when is $500.00 an insignificant amount of money?
I submit that incentives to provide voluntary pro bono services would be a better course of action. How about six hours of CLE credit for lawyers who do 20 hours of pro bono work? Or, a 50% discount on the bar membership dues? Surely these incentives are better than either the threat of losing one’s law license (i.e., the ability to earn a living) or forking over $500.00 to avoid attorney discipline.
Pro bono should remain a voluntary activity pursuant to the current rule. We already have the MVLP to promote pro bono activities. Interestingly, the MVLP website reports that it has 1,600 lawyers signed-up as volunteers to provide pro bono services. What data suggests we need to add another 4,000 lawyers to the mix?
The Supreme Court of Mississippi has the authority to regulate the legal profession. But, proposed Rule 6.1 has both entities getting way out of its lane and moving into an area relating to the delivery of social services where the purported “haves” must give something of value to the undefined “have nots.” Bluntly, a mandatory pro bono rule implicates a policy concept very much akin to the Marxist philosophy of, “From each according to his [or her] ability, to each according to his [or her] needs.” Karl Marx, “Critique of the Gotha Program” (1875), available at http://www.marxists.org/archive/marx/works/ 1875/gotha/ch01.htm.
I spent my first 7 years as a licensed attorney happily working in the nonprofit world by choice. In the past 2 years that I’ve been in private practice solo, I have very much wanted to but been completely incapable of providing pro bono legal services. I have neither the time nor the money to give at this point in my career. I’m hoping my first 7 years & the more recent quiet, free consulting/mentoring I do occasionally for colleagues count for something. I am hopeful that I will someday soon make it to a place, solo, where I have both the time and money to give again, but I’m not there yet. For now, a mandatory pro bono requirement, applied evenly to all lawyers without distinction would be devastating to me, my firm, and my family.