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December 12, 2015 Dialogue

Pro Bono Policy News

Several notable rule changes will impact how attorneys, law grads, and law students perform pro bono work:

Attorney Practice Rules

A practice rule change in Arizona will permit attorneys to accrue some CLE credit for performing pro bono work.v (Short version: one hour of CLE per 5 hours of pro bono service.)

Indiana has adopted a required pro bono reporting policy for Hoosier State lawyers to complete as part of their annual registration.  Lawyers will report the number of pro bono hours they worked, as well as their financial contributions that supported legal aid providers.  Here's the Indiana Supreme Court Order making the change to Rule of Professional Conduct 6.7.

While we're talking required pro bono reporting, Maryland, which has had a requirement in place since 2002, released a "Longitudinal Analysis of Pro Bono Reporting: 2002-12."vThe news was mixed.  On one hand, the size of the bar grew faster than the aggregate number of pro bono hours (22% to 17%, respectively).  On the other, "[t]he percent of full-time lawyers meeting the 50–hour aspirational goal [found in Maryland Rule of Professional Conduct 6.1] increased by a relative 25.42% since reporting began. In 2002 17.7% of full–time lawyers met that goal. By 2012 that had risen to 22.2%."  

  • As an aside, Maryland law professor Michael Milleman issued this ambitious call to require pro bono serviceof lawyers:  "The time has come — indeed, it is way overdue — to require all lawyers to provide some legal help to people who cannot afford lawyers. A 50–hour–a–year mandatory pro bono requirement — just one hour a week — would more than double the current contributed hours.v Lawyers benefit economically from the law practice monopoly. Restrictions on non–lawyers increase both the costs of legal services and our incomes. If we want to maintain the monopoly, we must do all we can to provide legal services to those within it.v The arguments against mandatory pro bono are unpersuasive…." (Baltimore Sun op–ed)

And a final "required reporting" item: the New York State Bar Association (NYSBA) strongly opposed an effort by the courts to institute required pro bono reporting.  Here's the latest: "The Administrative Board of New York's courts…approved modifications of mandatory pro bono reporting rules to address objections raised by the New York State Bar Association and other bar groups.  Unified Court System…[s]pokesman David Bookstaver said the new rules would not be issued until [the end of December], at the earliest.  The state bar said the rules were modified to make the reporting of individuals' pro bono contributions of time and money anonymous; to limit disclosure of the contributions to aggregate data; to broaden the definitions of pro bono and public service and to require that individuals' information gathered since last year be confidential." (New York Law Journal)

In New Jersey, "The Supreme Court of New Jersey…said attorneys who offer pro bono representation to indigent debtors in bankruptcy proceedings do not create a conflict of interest if their firm represents an impacted creditor in unrelated matters, bolstering a state legal aid program." (Password-protected article from Law360)

Finally, not a practice rule in itself, but at the ABA's 2014 Annual Meeting, policy was adopted to promote in-house counsel pro bono: "Appellate courts in each jurisdiction should adopt a rule permitting in-house counsel to provide pro bono services in the jurisdiction in which they work, a new ABA policy urges.v The ABA House of Delegates on Monday approved Resolution 104B, calling on appellate courts to adopt a rule permitting and encouraging in-house counsel already authorized to practice law, while employed by an organization in a jurisdiction in which they are not licensed, to provide pro bono services." (ABA Journal)

Admission Rules

New York State broke new ground by instituting a pre-admission pro bono requirement as part of its bar license application process.   That policy, rolled out in 2012 and effective as of 1/1/15, spurred other states to consider similar rules of their own:

  • On Nov. 7, 2014 the State Bar of California Board of Trustees approved a report of the Task Force on Admissions Regulation Reform (known affectionately as TFARR).  The report includes a plan for proposed amendments to relevant codes and rules that would add new "Competency Skills Training Requirements" to the process of getting and maintaining a law license.  One of these requirements calls for "50 hours of pro bono or reduced-fee legal services...  The plan requires rule changes that must be approved by the California Supreme Court and the California Legislature in order to take effect. If those are adopted, the plan would be gradually phased in."
  • In Montana, the Supreme Court approved, on 12/14/14, a state Access to Justice Commission  recommendation to institute a voluntary pro bono reporting mechanism for those applying for bar admission:  "The data shows that most attorneys, particularly those newly in practice, provide services only when they are made aware of available opportunities and have been provided appropriate training. Extending a voluntary reporting tool to aspiring Montana lawyers will facilitate the exchange of information regarding the interests and needs of new lawyers and will assist the Court and the Bar in evaluating pro bono activities generally, in planning and implementing better training and educational efforts for law students and lawyers alike, and in reaching out to successful bar applicants with opportunities to assist in closing the justice gap in Montana."
    • A March, 2014 report on pro bono service from the Mountain State's attorneys in 2013 vindicated that voluntarily reported pro bono hours went up 10.4% over 2012.

The Standing Committee on Pro Bono & Public Service is tracking bar admission pro bono requirement developments here.

ABA Law School Accreditation Standards

The arm of the ABA that regulates law school accreditation standards has approved changes that will impact law school pro bono.v The old Standard 302-b-2 requires that schools provide "substantial opportunities" for "student participation in pro bono activities."v The new language, which appears in a new Standard, 303-b-2, also includes an accompanying interpretation – Interpretation 303-3 – which encourages schools to align their pro bono offerings with the type of work contemplated in Model Rule of Professional Conduct 6.1.v Interpretation 303-3 also encourages schools to provide opportunities for students to perform at least 50 hours of pro bono over their law school careers.v It's difficult to summarize this, so here is the redlined version of the Accreditation Standards.v See p. 22 et seq.v (See also National Law Journal coverage of the change.)