Testimony of the Standing Committee on Pro Bono and Public Service, February 2000 - Center for Professional Responsibility

1. Code of Professional Responsibility was adopted by ABA in 1969.

1. Included Ethical Considerations which are "aspirational in nature and represent the objectives toward which every member of the profession should strive."
2. Contained Ethical Consideration 2-25: first time ABA squarely addressed the responsibility of the lawyer to engage in pro bono work in civil cases.

1. 1977 Commission on Evaluation of Professional Standards, chaired by Robert Kutak.

1. Evaluated Code of Professional Responsibility.
2. January 1980, first Discussion Draft of Kutak Commission, contained mandatory pro bono rule which met with intense protest.
3. Subsequent draft dropped the imperative "shall" and substituted "should."

1. Proposed final draft of Model Rules of Professional Conduct included Model Rule 6.1 as an "aspirational" rule. Submitted for consideration by ABA House of Delegates in 1981. Enacted by House at 1983 Annual Meeting after extensive comment and debate.

1. Drafted and sponsored by Standing Committee on Pro Bono and Public Service (then SCLPSR) in March 1992.

1. Adopted by House of Delegates February 8, 1993.
2. Spirited debate preceded close vote (228 for, 215 against) approving revisions.

1. Reasons for Revision.

1. To incorporate two pro bono resolutions previously adopted by House of Delegates:

1. Montreal Resolution, 1975

• "Resolved that it is a basic professional responsibility of each lawyer engaged in the practice of law to provide public interest legal services [defined as…] without fee or at a substantially reduced fee in the following areas; poverty law, civil rights law, public rights law, charitable organizations representation and administration of justice…."
• Policy was incorporated into the Model Rules of Professional Conduct, adopted in 1983, Model Rule 6.1:

"A lawyer should render public interest legal service. A lawyer may discharge this responsibility by providing professional services at no fee or a reduced fee to persons of limited means or to public service or charitable groups or organizations…."

• Definition of "public interest legal service" is more explicit in resolution than in 1983 Model Rule 6.1.

1. Toronto Resolution, 1988

• "Recognize and support the professional obligation of all attorneys to devote a reasonable amount of time, but in no event less than 50 hours per year, to pro bono and other public service activities…."
• Started a trend of rules quantifying amount of annual pro bono service expected of lawyers. States were adopting amendments to ethical codes so as to incorporate the substance of this resolution.
• ABA ultimately took leadership role by incorporating 50-hour standard of this resolution into revised, current version of 6.1:

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

1. To address the unmet legal needs of the poor

1. 80-90% of the legal needs of the poor were reportedly unmet.
2. Those needs were in critical areas: e.g. public benefits, utilities, shelter, medical benefits and family matters.
3. The federal government exacerbated the problem by decreasing funds for LSC.
   

1. To provide leadership to the states, several of which had amended or were considering amending their pro bono ethical rules.
2. To provide guidance to individual lawyers and law students who turn to the Model Rules to determine the standard of conduct expected of them.

"A lawyer [should/shall] aspire to render at least (50) hours of pro bono publico legal services per year…"

1. Stated rationale: "voluntary pro bono is not meeting the needs for legal services to persons of limited means"
2. Proposed modification undermines stated rationale because it would degrade legal service to the poor rather than promote it.

1. Imposing a mandatory obligation would stir opposition and resentment among members of the bar.
2. It would de-emphasize the crisis in meeting the legal needs of the poor and divert attention to the controversial issue whether pro bono service should be mandated.
3. It would ignore past unsuccessful experiences with efforts to mandate pro bono work. No state has adopted a mandatory service policy, although several have considered it.
4. The proposal is likely to fail in the House of Delegates, generating negative publicity, promoting opposition to pro bono and calling into question the commitment of the profession to helping the poor.
5. The proposed modification could undercut the quality of legal services to the poor, as it forces reluctant lawyers to provide assistance, and to provide it in areas of the law with which they are unfamiliar.
6. Forced involvement of reluctant attorneys would create practical difficulties for bars, legal services providers and pro bono programs.
7. Bars might dilute the definition of pro bono in order to ameliorate enforcement difficulties, or they might otherwise avoid difficult enforcement decisions, undercutting the rationale of the requirement.
8. Rather than providing leadership, the ABA instead would, through this proposal, foment confusion and disaffection.