Written Remarks of Judge Judith Billings - Center for Professional Responsibility

Written Remarks of Judge Judith Billings Submitted to the
Commission on Multidisciplinary Practice

 

ABA STANDING COMMITTEE
ON PRO BONO AND PUBLIC SERVICE

Comments On Professional Responsibility Of Lawyers As Set Forth In
Rule 6.1 Of the Model Rules Of Professional Conduct
Submitted to the ABA Commission on Multidisciplinary Practice

January, 1999

"A lawyer should aspire to render at least (50) hours of pro bono publico services per year."

From Rule 6.1 of the ABA Model Rules of Professional Conduct

Introduction

Since its creation in 1973, the Pro Bono Committee has led the ABA’s efforts to help all segments of the legal community -- including all ABA entities -- participate in providing pro bono civil legal services for the poor. Through policy development, programmatic efforts and technical assistance, the Pro Bono Committee works to encourage, activate, and improve pro bono activities and programs. The committee works with state and local bar associations, law firms, corporate counsel, the judiciary, law schools, government attorneys, and minority and specialty bar associations in developing model programs and policies to assist them in the implementation of pro bono initiatives.

Developing new policy initiatives is a major focus of the Pro Bono Committee. Such initiatives include drafting Model Rule 6.1 of the Model Rules of Professional Conduct relating to pro bono; drafting the Standards for Programs Providing Civil Pro Bono Legal Services to Persons of Limited Means; recommending the law school standards addressing pro bono participation by law students and professors that have been incorporated into the ABA Standards for Approval of Law Schools; and drafting a resolution for the Conference of Chief Justices that encourages judicial promotion of pro bono activity.

The Commission on Multidisciplinary Practice was appointed in 1998 to examine such trends as international accounting firms purchasing law firms. The Commission was directed to study and report on the extent to which and the manner in which professional service firms operated by accountants and others who are not lawyers are seeking to provide legal services to the public.

Commission members were also asked to analyze a number of specific issues raised by the development of multidisciplinary practice firms, including the "[a]pplication of current ethical rules and principles to the provision of legal services by professional service firms, and recommend any modifications or additions that would serve the public interest."

It is in this context that the Pro Bono Committee believes it is important to comment on the applicability of Rule 6.1 of the ABA Model Rules of Professional Conduct.

Pro Bono Responsibility of Lawyers

As our society has become one in which rights and responsibilities are increasingly defined in legal terms, access to legal services has become of critical importance. Because the legal problems of the economically disadvantaged often involve areas of basic need such as a minimum level of entitlements, shelter, utilities and child support, their inability to afford legal services can have dire consequences. The failure of a poor person to have effective legal counsel in an eviction proceeding may well result in homelessness; the failure to have legal counsel present at a hearing on public benefits may result in the denial of essential food or medical services.

The inability of the poor to obtain needed legal services is well documented. Studies have consistently found that only about 15% to 20% of the legal needs of the poor are being addressed. These studies have been consistent in recommending that lawyers – in all appropriate practice settings -- increase their level of pro bono service to help meet the need.

Every state has some provision in its rules of professional conduct focusing on the responsibility of each lawyer to provide pro bono public service. 37 states have rules identical or similar to either the current version of ABA Model Rules of Professional Conduct Rule 6.1 (adopted in 1993) or the 1983 version of the rule. Rule 6.1 (see attached) sets forth an aspirational standard regarding the pro bono service responsibility of every lawyer. It recognizes that lawyers can and should play a critical role in helping to alleviate the crisis that exists in the delivery of legal services to the poor. The current rule includes a recommended annual hourly standard and places emphasis on service to persons of limited means.

Rule 6.1 makes it clear that the ethical responsibility contained therein is an individual responsibility, personal to each lawyer. The commentary to the rule notes, however, that there may be times when it is not feasible for a lawyer to render pro bono service. Such times may include when a lawyer is serving as a judge, is prohibited by statute or regulation from engaging in the outside practice of law, or is physically or mentally infirm. In addition, the commentary makes it clear that there may be times when it is more feasible to satisfy the pro bono responsibility collectively. Forms of collective satisfaction may include a law firm’s decision to permit a small group of attorneys to devote many hours of time on pro bono service, or "lending" a member of the firm to a legal services program for a set period of time.

Impact on Multidisciplinary Practices

The Standing Committee on Pro Bono and Public Service takes no position on the broad issues being considered by the Commission on Multidisciplinary Practice. However, if multidisciplinary practices become widely accepted in this country it is important for the lawyers in these practices to meet their pro bono public service responsibility. In addition, the "firms" themselves must support and encourage their lawyers to meet this professional responsibility.

A comparison can be made to corporate lawyers providing pro bono service. Lawyers in many corporate law departments participate in pro bono work and there is a growing movement toward more corporate counsel offices developing organized pro bono efforts. Corporate counsel report that their pro bono experiences give them additional practical experience, personal fulfillment and professional satisfaction. The corporations have identified important benefits from their support of the invaluable work their lawyers perform for the community.

These benefits have been achieved in the corporate counsel environment because individual lawyers have committed themselves to fulfilling professional responsibility to engage in pro bono service, and their employers have been willing to support these efforts. This same result can and should be achieved in the context of multidisciplinary practices.

Conclusion

The Pro Bono Committee strongly urges Commission members to remain cognizant of the critical public service responsibility of each American lawyer during their deliberations regarding multidisciplinary practices. Regardless of the practice setting, each lawyer must strive to meet this professional responsibility, for themselves and to serve those in need in the communities in which they practice.

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