More than three years ago I wrote this column for the Connecticut Law Tribune:
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. •
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.