Testimony On Proposed Rule 6.1 by Professor Judith L. Maute - Center for Professional Responsibility

TESTIMONY ON PROPOSED RULE 6.1
BEFORE THE ABA ETHICS 2000 COMMISSION
June 2, 2000

Submitted by Professor Judith L. Maute

The Commission has requested comments on possible revisions to Rule 6.1, concerning lawyer's pro bono publico service. As all seasoned observers are well aware, this raises many sensitive issues at the heart of debates on professionalism, regulation, and access to justice. For the reasons stated below, I suggest that the Commission retain in substance the current aspirational standard of 50 hours each year, with guidance on the types of legal services which satisfy the professional responsibility. The current language is the product of extensive negotiations and compromise in 1993; any revisions should build upon that consensus. I suggest three additional subsections: 1) a buy-out provision with a formula based on each lawyer's customary billing (or effective) hourly rate; 2) collective satisfaction; 3) annual reporting requirement. Proposed language is attached.

1. Mandatory vs. Aspirational

  1. The legal profession is a public calling, a vocation of service for the public good. Efforts to rekindle professionalism and to increase the level of pro bono participation can best be accomplished by invoking the profession's historical commitment to the public good. An attempt to mandate public service through the regulatory process is inconsistent with that fundamental concept of professionalism.
  2. Lawyers are more likely to provide high quality, competent legal services if the representations are voluntary, not compelled. Clients' interests in loyal, competent representation are at risk when served by lawyers who participate grudgingly.  
  3. A proposal to make service mandatory under Rule 6.1 is politically unfeasible and may backfire. Loud opposition from diverse segments of the bar can be predicted. Many lawyers have deep and principled resistance to a mandatory pro bono requirement. A key question is whether the debate will be productive, and advance the ultimate goal of improving access to legal services. Passage in the ABA House of Delegates is debatable. Most states are likely to reject any proposal to mandate pro bono services. The resulting backlash within the bar, and negative public relations may do far more harm than good. Instead of revisiting this divisive issue, the organized bar should focus its efforts upon raising lawyers' awareness of and willingness to satisfy this moral responsibility that comes with being in the profession.

2. Alternatives to Service Rather than compelling service, it is preferable to provide viable alternatives for lawyers to satisfy their moral and professional responsibility to improve access to legal services.

a. Buy-out Provision: Proposed Rule 6.1(b) Lawyers who are unwilling or unable to provide direct legal services should be strongly encouraged to provide financial support to qualified legal service organizations based on a formula keyed to their effective hourly rates. The proposed standard provides for financial contributions equivalent to 50% of the lawyer's effective hourly rate made in full or partial satisfaction of the 50 hour service expectation.

While some critics oppose any buy-out of the individual professional duty as ethically repugnant, I suggest this option reinforces the duty by neutralizing the objections of those lawyers who decline to provide direct service. All lawyers, regardless of their expertise or profitability, are expected to participate in whatever ways they are willing and able. Those lawyers who believe their time is better spent working for paying clients can continue to do so, and make financial contributions that will enable others to provide the direct services. Financial contributions to qualified legal service programs are, of course, tax deductible.

The formula is designed to distribute equitably the burden between lawyers who provide service and those who contribute money. Lawyers who are willing to provide direct services forego earnings. Direct services often involve administrative overhead costs. The contribution of labor is not tax-deductible. It is fair to expect that lawyers whose hourly earnings are high to fulfill the responsibility in a manner commensurate with their earnings, and that respects the lost opportunity costs incurred by those who serve. A fixed buy-out sum is regressive in that the expected amount costs disproportionately more to lower-paid lawyers and less to higher-paid lawyers. A fixed sum tends to be arbitrary. If the expected dollar contribution is set low, it may be criticized as being nominal and a disincentive to providing direct services. If the expected dollar contribution is fixed at a higher amount, it can be criticized as unfairly regressive. Significant economic variations exist within each state that make it difficult fairly to fix a set dollar amount or hourly rate (e.g., current Commission proposal of $25 per hour).

Moreover, any fixed sum will lose value over time due to inflation and market fluctuations. To maintain a constant value of the monetary contributions, states would either need to adopt a formula for automatic adjustment of the expected dollar contribution, or to overcome inertia and periodically revise the rule. Either option is cumbersome. By setting the expected financial contribution at each lawyer's earning level, the proposed formula is durable, self-executing and provides guidance for the individual lawyer.

Financial contributions can be made to qualified legal service organizations, or to an entity designated by the state lawyer regulatory agency which would then make allocations to fund delivery systems. In some jurisdictions, lawyers report that they are willing to represent indigent persons but the lack of an adequate referral system to match prospective clients with pro bono attorneys. The revenue generated could be used to create effective, state-wide referral systems and programs designed to deliver pro bono legal services, and to provide direct funding to other qualified legal service organizations. It could also fund malpractice insurance coverage for all lawyers who provide direct services through qualified legal service organizations.

b. Collective satisfaction: Proposed Rule 6.1(b) Current comment language acknowledges that sometimes direct service is not feasible for an individual lawyer, and that one's responsibility may be discharged either through financial support of legal service organizations or through collective efforts within a law firm. Florida Rule 4-6.1(c) expressly permits collective satisfaction.

I recommend that the rule text expressly recognize that lawyers may pool their resources in order to satisfy their individual responsibility to make legal services available to low income persons, and other public interest legal services. While there are reasons to prefer that every lawyer provide pro bono legal services, the larger goal of encouraging all lawyers to improve access to representation is served by endorsing alternative ways to fulfill the responsibility. The proposed language recognizes that pooling for collective satisfaction is permissible whether or not the lawyers practice in private law firms.

3. Required Reporting: Proposed Rule 6.1(e) The challenge in formulating any rule on this issue is finding the correct balance between aspirational guidance and regulatory compulsion. The word and concept of anything "mandatory" predictably triggers resistance within the bar and state courts with final authority over rule changes. As stated above, I believe that the expectation that lawyers provide pro bono legal services must remain aspirational and voluntary. There are, however, several reasons to require that lawyers annually report their contributions of legal services and money to legal service organizations. To be explicit, the proposal to require reporting is not a step towards mandatory service requirements.

  1. The state has a substantial and legitimate interest in obtaining reliable and accurate information about the extent of legal services and financial contributions by lawyers to enhance access to legal services for the poor, and other pro bono publico legal services. Accurate reporting is essential for evaluating existing legal service programs, for determining what services are being provided, and for determining the areas in which the legal needs of the poor are not being met. Amendments to Rule 4-6.1 of the Rules Regulating The Florida Bar, 696 So.2d 734, 735 (1997). Florida amended its rule in 1993 to require that lawyers annually report whether they had satisfied the aspirational standard of twenty (20) hours of pro bono legal services to the poor or contributed $350 to a qualified legal service program. The amended rule has withstood challenge in both state and federal court. Schwarz v. Kogan, 132 F.3d 1387 (11 th Cir. 1998). Most resistance to the rule has subsided. Approximately 90% of Florida lawyers responded as required in 1998. By contrast, the response rate in states with voluntary reporting systems ranges from 3-5% (Illinois) to 33% (Hawaii, New Mexico). The low response rates from voluntary systems yield little reliable information, and hence has limited practical utility.
  2. By compiling information on the extent of pro bono legal services in distinct practice areas and geographic regions within a state, the state can identify and create referral systems and legal service programs to satisfy pressing needs of the low income population.
  3. A reporting requirement would raise lawyers' awareness of their professional responsibility to help in making legal services available to all. The annual report form would serve as a tangible reminder of their oath taken upon admission to the bar, that "I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed." In Florida the reporting requirement has dramatically increased the extent of lawyers' participation in pro bono representation of the poor. Seventy per cent (70%) of Florida lawyers in 1998 reported donating legal services or money to qualified legal service organizations. They provided almost one million hours of legal services (valued at $1.5 million) and $1.85 million in support to qualified programs. Since 1994, this has resulted in a 12% increase in the number of lawyers donating legal services (76% increase in number of hours reported), and a 48% increase in the number of lawyers who made financial contributions (112% increase in dollars contributed).
  4. Data collection through annual bar dues, or other routine, required and existing communications with licensed lawyers is administratively efficient. Several jurisdictions have designed reporting forms which can be completed quickly, with a minimum amount of prior record keeping. The forms can be computer scannable, enabling the state lawyer regulatory authorities to have the information compiled quickly and at low cost. The Florida reporting system costs approximately $10,000 per year to collect and compile data from the state's 66,000 licensed attorneys. This cost seems quite minimal relative to the number of lawyers and tremendous increase in hours and money contributed to legal service programs.
  5. The information gathered can be used by the state bar leadership in public information programs designed to improve the lay public's perceptions of the legal profession.
  6. State bar leaders can use the information to honor lawyers for their contributions, through "Pro Bono Honor Rolls," and distinguished service awards for important individual contributions. Further, the bar leadership could use the information to encourage non-participating lawyers to accept pro bono work in their areas of expertise, or in other appropriate ways.
  7. Cautionary points. The annual report form should be narrowly tailored to seek information that substantially furthers legitimate interests of the state in regulating the legal profession. It should not risk invasion of client privacy by seeking the identity of clients and nature of representation provided. Lawyers should only be asked to report the amount of time spent providing legal services, identify categories of legal service provided and amount of money donated to qualified legal service organizations. To facilitate creation of referral systems, it should include a voluntary check-off for lawyers to indicate their willingness to provide legal services in designated practice areas.

A difficult issue is unresolved, and perhaps is best left for determination by state rule-making bodies. If the rule requires reporting, then failure to return the form would constitute a violation subjecting the lawyer to discipline. (Note, however, that a lawyer complies with the proposed rule by filing a report stating that no legal services or financial contributions were made.) States can best determine the appropriate sanction for failure to file the required report. In some jurisdictions, a lawyer who fails to file the required annual report for continuing legal education (MCLE) by the deadline is summarily suspended. Reinstatement is routine, but may involve a significant fee. (See Okla. MCLE Rule 6, as amended by Okla. S.Ct. Sept. 1999. Noncompliance and Sanctions; $100 for late filing; summary suspension and $500 reinstatement fee. 71 Okla. B.J. 239 (Jan. 29, 2000)).

Material added to the current Model Rule is underlined. Deletions from the current Model Rule are struck through.

Proposed Rule 6.1 Voluntary Pro Bono Publico Service

(a) A lawyer should aspire to render at least fifty (50) hours of pro bono publico legal services per year. In fulfilling this responsibility, the lawyer should:

(1) (a) provide a substantial majority of the fifty (50) hours of legal services without fee or expectation of fee to:

(i) (1) persons of limited means or

(ii) (2) charitable, religious, civic, community, governmental and educational organizations in matters which are designed primarily to address the needs of persons of limited means; and

(2) (b) provide any additional services through:

(i) (1) delivery of legal services at no fee or substantially reduced fee to individuals, groups or organizations seeking to secure or protect civil rights, civil liberties or public rights, or charitable, religious, civic, community, governmental and educational organizations in matters in furtherance of their organizational purposes, where the payment of standard legal fees would significantly deplete the organization's economic resources or would otherwise be inappropriate;

(ii) (2) delivery of legal services at a substantially reduced fee to persons of limited means; or

(iii) (3) participation in activities for improving the law, the legal system or the legal profession.

(b) in satisfaction of a lawyer's responsibilities under (a), a lawyer may contribute financial support in an amount equivalent to fifty per cent (50%) of the lawyer's normal hourly rate billed to non-pro bono clients, for every hour not served up to 50 hours. This amount should be paid to [specify] or to other recognized organizations that provide legal services to persons of limited means.

(c) A law firm may satisfy the responsibility of each of its lawyers by showing that collectively, the firm has provided direct services or financial contributions equivalent to fifty hours for each full-time lawyer in the firm. Lawyers not practicing in a law firm may satisfy their individual responsibilities through alternative pooling arrangements authorized by the state bar [or other applicable agency].

(d) As a general principle, all In addition, a lawyer s should voluntarily contribute financial support to organizations that provide legal services to persons of limited means.

(e) Reporting Requirement. Each member of the bar shall annually report whether the member has satisfied the member's professional responsibility to provide pro bono legal services.

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