Ethics 2000 Commission
Memorandum Inviting Public Comment
May 9, 2000
Model Rule 6.1
The Commission has discussed at length the issue of pro bono publico service, including whether a lawyer's ethical obligation to render such service should remain voluntary or be made mandatory. Prior to a final consideration of whether to propose any particular changes in Model Rule 6.1, the Commission wishes to invite comments on whether a lawyer's pro bono obligation should be voluntary or mandatory and whether, in the event the obligation is to remain voluntary,the rule should incorporate a reporting requirement. In addition, the Commission invites comments on how a mandatory rule might be implemented.
Mandatory Pro Bono
Proponents of mandatory pro bono service focus on the difficulty many citizens have in finding a way to pay for the legal services they need. They believe a lawyer's obligation to perform services for persons or groups of limited means derives not from altruism, but from moral and ethical responses to the immense need for such services. They argue that the privilege of practicing law includes the responsibility of ensuring that the civil and criminal justice systems operate efficiently and fairly. The predominant justification for mandatory service thus lies in the proper functioning of the legal system. When a person or group that would otherwise be entitled to participate in the legal system is precluded from doing so solely because of lack of money, then the legal system does not operate fairly. Mandatory pro bono service is seen as a means of correcting this inequity and facilitating the access of persons or groups of limited means to the criminal and civil justice systems. Some who favor mandatory pro bono service believe that Rule 6.1 in its current form is not properly part of the disciplinary rules at all since it is by its nature unenforceable.
Some provisions that may need to be considered if a mandatory rule is to be implemented include: dealing with situations involving hardship or reasonable excuse; carry forward of hours worked from one year to the next; financial payment in lieu of service; law firm satisfaction of the required service of its members; and the extent to which pro bono services should be provided to persons of limited means. In this latter regard, the current rule suggests that a substantial majority of services should be provided to persons of limited means or to organizations designed primarily to address the needs of such persons.
Voluntary Pro Bono
Those who favor keeping the pro bono service requirement voluntary are also concerned about the provision of legal services to persons of limited means, but they believe that lawyers can be trusted to perform voluntary service and that such efforts are demeaned by a mandatory rule. They note that in jurisdictions where a mandatory requirement has been discussed, the debate has raised the level of hostility toward pro bono service in any form. Another concern is the quality of representation low-income clients would receive from lawyers who are forced to take cases they do not want or that are beyond their areas of expertise. Finally, there are practical problems with enforcing a mandatory rule and concerns about the disproportionate burden on solo and small-firm lawyers.
An alternative to retaining a strictly voluntary rule would be to add a reporting requirement. Several states with voluntary pro bono rules have incorporated a reporting requirement, which in a few cases is mandatory. Some argue that a requirement to report time spent on pro bono activities will make lawyers more conscious of their obligations and more likely to fulfill them.