Doreen D. Dodson Re: Model Rule 6.1 - Center for Professional Responsibility

June 21, 2000

Hon. E. Norman Veasey
Chair, ABA Commission on Evaluation
of the Rules of Professional Conduct
Supreme Court of Delaware
11 th Floor
820 N. French St.
Wilmington, DE 19801

Re: Model Rule 6.1

Dear Justice Veasey:

I write on behalf of the Standing Committee on Legal Aid and Indigent Defendants to submit comments in response to the Commission's Memorandum Inviting Public Comment on Model Rule 6.1. We have also reviewed the comments submitted by the Standing Committee on Pro Bono and Public Service, and join wholeheartedly in the views expressed therein. We start our own analysis with the premise that the Commission and the Standing Committee on Legal Aid and Indigent Defendants share the same goal: increasing the availability of legal services for the poor. The question of how we strive toward that goal is a matter of practical strategies. It has been our experience "during many years of work in this area" that a voluntary approach to pro bono service and reporting is far more likely to yield positive results.

Mandatory Service

A model rule calling for mandatory service would be both ineffective in broadening access to justice and impractical to implement.

Mandatory pro bono service is likely to provide, at best, only the illusion of improvements in access to justice. We note that a central concern in the national debate about the death penalty is the ineffective counsel provided by appointed lawyers at the trial level. Recent studies indicate that lawyers appointed to take such cases often perform inadequately. From this analogous situation, the evidence is clear that conscripts make poor lawyers. Similarly, poor clients in civil matters deserve lawyers who want to represent them and who will do it with vigor.

We fervently hope that each lawyer will embrace a set of fundamental values will have an internal moral compass that calls him or her to give something back to society, to provide legal services to those who cannot afford to pay. At the same time, we remain convinced that the desire to do so, and to do so with an acceptable level of competence and enthusiasm, must come from within. In short, you can't legislate morality.

An unintended byproduct of a mandatory pro bono service rule is that it is very likely to be implemented in such a way that it actually weakens the current rule, which makes clear that the primary focus of pro bono service is provision of legal assistance to persons of limited means. If every lawyer were required to provide pro bono service, a significant broadening of the definition of pro bono is likely to ensue, to include, for example, service on the symphony board. The pro bono ethic within the bar has long held that lawyers have an obligation to put their legal talents to work on behalf of giving access to the justice system to those who might otherwise be excluded. A retreat from that position might benefit other institutions, but is likely to make legal services less available to individual clients.

No state has adopted a mandatory service rule. Experience in every jurisdiction in which there has been a proposal for a mandatory pro bono rule has shown that the proposals are not only futile, but are counter-productive and have resulted in a backlash against pro bono participation. This suggests that it would be a futile gesture for the ABA to promulgate a rule calling for mandatory pro bono service.

ABA promulgation of a mandatory pro bono rule that has no realistic prospects of being adopted would weaken the stature and credibility of the entire Model Rules construct. The ABA has for many years been seen as a source of leadership and vision. The Commission well knows that leadership does not emanate from an idealized view of the world as it ought to be, but instead reflects careful calculation of what is possible based on experience.

Conscripting lawyers into service for the poor raises a host of practical issues as well: Will lawyers take cases that they are not competent to handle merely to fulfill their obligation? Will disciplinary and malpractice claims mushroom, as lawyers practicing in unfamiliar areas of law before unfamiliar tribunals make more mistakes? Claims experience against pro bono lawyers has been almost non-existent. As a result, malpractice coverage for pro bono lawyers is readily available at very low rates. Will this continue? Disciplinary counsel have very full dockets handling serious lawyer misconduct. Will not a mandatory pro bono rule become yet another illusory obligation one that disciplinary agencies do not have the resources to pursue? Will judges be tolerant of lawyers who are clearly serving against their will, and/or in areas of law they do not fully grasp? Will appellate courts find that their dockets swell, with a large number of cases where there has been pro bono representation with significant error?

The burdens of a mandatory rule will fall disproportionately on some segments of the bar.

Our work with local pro bono referral agencies has revealed that solo and small firm lawyers those who focus their practices on providing personal legal services already provide a major portion of pro bono service. A mandatory rule would weigh most heavily on this segment of the bar, requiring additional record-keeping and inflexible additional obligations that may put at risk law practices that operate with thin margins. These lawyers have given pro bono service, and can be expected to continue to do so. We should not impose a mandatory service rule on them.

We applaud the Commission's compassion for the poor, and desire to expand the availability of legal services to those unable to afford such assistance. We respectfully urge that you rely on the deep experience of our committee and the Standing Committee on Pro Bono and Public Service, and do not propose a mandatory pro bono service rule that will impair, not empower, efforts to expand pro bono services and better serve the legal needs of the poor.

Pro Bono Reporting

Our experience has also demonstrated that a mandatory model for pro bono reporting is not a panacea. Only one state Florida has experimented with mandatory reporting of pro bono, and that state has seen repeated controversy within the bar over the rule as well as two rounds of litigation. (The statement in the Commission's memorandum that Several states with voluntary pro bono rules have incorporated a reporting requirement, which in a few cases is mandatory, is not accurate). It is apparent even from the experience of this one state that a mandatory reporting requirement will not, by itself, generate increased service and contributions. The Florida rule was implemented as part of a complete overhaul of the state's approach to pro bono. Another part of the new system places great authority in circuit courts for development and implementation of circuit-specific pro bono plans. Some observers believe that the persuasive authority brought to bear by the local judiciary in each circuit toward increased pro bono service is the more significant incentive for lawyers.

Further, the manner in which each state chooses to provide incentives for pro bono service should be left to those states, not dictated by a national model. Legal and bar association cultures are simply too divergent across the states for the ABA to try to promulgate a model rule on something like reporting of pro bono service. The Florida experience indicates that a reporting rule, standing alone, will accomplish little. In that state, the involvement of the judiciary was critical to improvement in pro bono statistics. In other states, there may be other adjustments that will produce similar improvement, either by themselves or in conjunction with a reporting rule. We do not believe that the Commission should assume that "one size fits all".

Lastly, the inclusion in the Model Rules of a requirement of this nature would trivialize the rules as a whole and would be inconsistent with the purpose of the rules i.e. to provide direction to individual attorneys. This is a matter in the nature of the mechanics of an individual state's implementation of its aspirational pro bono requirement. It is something that should be left to each state to address, if necessary, through court rules or other directives, not within the ethical rules.

At this point in time, experience indicates that mandatory reporting is neither an appropriate nor a desirable strategy to increase provision of pro bono service.

We welcome the Commission's interest in improving legal services to the poor, but we strongly urge that the Commission retain the current formulation of Model Rule 6.1. It is the product of thoughtful discussion and debate in 1993, and extensive negotiations with various interested groups. It is in its present form our best tool for improving the delivery of legal services to the poor.

Sincerely,

Doreen D. Dodson

cc: Members, Standing Committee on Legal Aid and Indigent Defendants
Joanne Garvey, Board of Governors Liaison
Robert Weiner
Terry Brooks

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