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| Latonia Haney Keith |
So, the question becomes how to engage more effectively the private bar in pro bono to further bridge the justice gap. Most jurisdictions, with the exception of Illinois, have adopted into their rules of professional conduct some version or some form of Rule 6.1 of the American Bar Association's Model Rules of Professional Conduct. The current version of Model Rule 6.1, which was adopted by the ABA House of Delegates in 2002, provides that "[e]very lawyer has a professional responsibility to provide legal services to those unable to pay." The rule articulates the aspirational nature of this responsibility, but also quantifies the goal — encouraging lawyers to contribute at least 50 hours of pro bono legal services annually.
Though a vital step, adoption of an aspirational rule alone has been and will continue to be insufficient to increase dramatically the engagement in pro bono by the private bar. According to a recent study conducted by the ABA Standing Committee on Pro Bono and Public Service (the Supporting Justice Survey), attorneys provided in 2016 an average of 36.9 hours of pro bono legal services, well below the aspirational goal of at least 50 hours annually as set forth in Model Rule 6.1. In fact, according to the survey, only 20 percent of the responding attorneys provided 50 hours or more of pro bono service.
Through the Supporting Justice Survey, the Standing Committee not only aimed to quantify the amount of pro bono legal services contributed by attorneys in the United States, but also to identify factors that encourage and discourage pro bono service. Working directly through state entities to distribute the survey to all attorneys licensed within the 24 participating states, the Standing Committee garnered responses from over 47,000 attorneys (a 7.3 percent response rate). Through a series of questions examining motivations underlying pro bono engagement, attorneys overwhelming responded that their willingness to engage in pro bono stems from a desire to help people, reduce societal inequity, and fulfill the profession's ethical obligations. When asked how helpful or motivating certain initiatives are in promoting pro bono engagement, attorneys responded that they are most influenced by (i) a judge soliciting participation; (ii) opportunities for limited scope representation; and (iii) CLE credit for undertaking pro bono. Interestingly, attorneys reported being only moderately motivated to use pro bono as a professional development tool and least motivated by policies encouraging or requiring self-reporting of pro bono and by formal recognition of pro bono efforts.
After evaluating the results from the Supporting Justice Survey, it became clear that more analysis was required to understand how jurisdictions could build a solid infrastructure to be responsive to this feedback and encourage the private bar to engage in pro bono. So, in collaboration with the Standing Committee and in consultation with the National Center for Access to Justice at Fordham University School of Law (the creators of The Justice Index), I embarked on a journey to examine the best statewide practices to further expand pro bono resources throughout the country.
At the 2018 Equal Justice Conference, we held a focus group with approximately 40 leaders in the public interest community representing the interests of legal services and pro bono organizations, law firms, corporations, law schools, Access to Justice Commissions, and funders of civil legal aid. During the session, we discussed the laws, rules and policies adopted or implemented by certain states to improve pro bono culture and expand pro bono services within their jurisdiction. The consensus among the leaders was that the best practice is to implement policies that expand the population of attorneys to recruit from rather than policies that encourage a deeper commitment from the sub-set of attorneys already engaged in pro bono service.
Following this conversation, I decided to "take the pulse" of other leaders in the public interest community to gauge whether consensus exists among experts on the ground on best practices for promoting pro bono. The Taking the Pulse Survey, which was distributed to roughly 750 leaders in states across the country and garnered a 44 percent response rate, asked respondents to identify which statewide laws, rules, policies or initiatives are, in their opinion, "so valuable as to make its adoption worthwhile in every state." Such rules and policies include, among others: (1) the adoption of Model Rule 6.1, Model Rule 6.5 (relaxing obligations under conflict rules for nonprofit and court-annexed limited legal services programs), Model Rule 1.2(c) (formally permitting unbundling or limited scope representation), and Model Code of Judicial Conduct Rule 3.7(B) (permitting judges to encourage lawyers to provide pro bono services); (2) the waiver of license requirements for law professors, in-house counsel, retired and inactive attorneys, and for out-of-state attorneys assisting individuals and families in a state impacted by a disaster; (3) reporting requirements for pro bono to maintain one's license to practice; (4) permitting attorneys who take pro bono cases to earn credit toward mandatory CLE requirements; and (5) requiring pro bono service as a condition to becoming licensed for law practice.
The responses were elucidating, falling within clear buckets and reflecting no significant differences of opinion along constituency or geographic lines. Adoption of Model Rule 6.1 and unbundling rules are clear outliers as the top best practices for promotion of pro bono. The next bucket, which still indicates strong support, includes adoption of Model Rule 6.5 and Model Code of Judicial Conduct Rule 3.7(B), waiver of license requirements for out-of-state attorneys assisting in disaster relief, and granting CLE credit for pro bono representation. Next, while waiving licensing requirements for retired and inactive attorneys and creating Access to Justice Commissions received fairly strong support, voluntary pro bono reporting requirements and award and recognition programs garnered less support. Waiving the licensing requirements for in-house counsel and law professors, however, as well as launching a statewide pro bono initiative (such as ABA Free Legal Answers) received only lukewarm support. The clear outliers as the least favored practices all involve mandatory pro bono-related policies, such as requiring pro bono service as a condition to becoming a licensed attorney and requiring attorneys to report their pro bono efforts and/or contribute financially to legal services organizations to maintain one's license to practice.
Concerning the long-standing debate over mandatory pro bono, the more visceral reaction against such policies is currently winning the day. As a result, there appears to be no appetite for the broad institution of any rules, policies or initiatives making the engagement in pro bono mandatory — whether for newly admitted attorneys or for attorneys retaining their license to practice. Similarly, there is a lack of support for requiring financial contributions to legal aid or public interest organizations in lieu of pro bono. So, where does that leave us?
Despite the opposition toward mandatory pro bono, strong consensus exists to support the adoption of Model Rule 6.1 and Model Rule 6.5 coupled with unbundling rules and the adoption of the Model Code of Judicial Conduct Rule 3.7(B). This is also evidenced by the Supporting Justice Survey, which revealed limited scope representation and judicial solicitation and encouragement as primary motivators for undertaking pro bono. Though as noted previously, most jurisdictions have adopted some version or some form of Model Rule 6.1 into their rules of professional conduct, only six jurisdictions incorporate verbatim the current version of Model Rule 6.1. While another 13 jurisdictions mimic the current version, they include certain key revisions, such as decreasing the annual pro bono commitment to 30 hours and permitting attorneys to discharge their pro bono commitment by contributing typically $500 to a legal aid organization in lieu of providing legal services. With respect to Model 6.5, however, 35 jurisdictions have incorporated verbatim the current version of the model rule and another 12 mimic the current version with certain relatively minor revisions. Similarly, 29 jurisdictions have adopted Model Code of Judicial Conduct Rule 3.7(B) verbatim; whereas six jurisdictions have adopted the concept in some form with certain revisions or additions, usually emphasizing that such judicial action may not be coercive. Model Rule 1.2(c) though has been adopted either verbatim or with some modification (typically limiting unbundling only to noncriminal matters) in all 50 states and the District of Columbia.
So, as a starting point, all jurisdictions should adopt Model Rule 6.1 and Model Code of Judicial Conduct Rule 3.7(B) (and if already adopted, should revise to mirror the most recent language of those provisions) as the key laws or rules grounding and inculcating pro bono culture within the jurisdiction. Then, in line with the survey results, each jurisdiction should implement rules to remove institutional barriers to pro bono practice to effectively expand the pool of attorneys available to undertake pro bono within the jurisdiction in which they live and/or practice. Adopting Model Rule 6.5, Model Rule 1.2(c) and other rules permitting limited scope representation and unbundling is a great start. But it is also critical to institute rules waiving license requirements or permitting special admission to the bar for retired and inactive attorneys, in-house or corporate counsel, and law professors, and for out-of-state attorneys in times when the jurisdiction is facing a disaster. Multijurisdictional practice and unauthorized practice of law rules pose significant obstacles to increasing the supply of attorneys available to engage in pro bono legal services to address the justice gap in a particular jurisdiction. Lessening the licensing burden for attorneys who limit their practice to the provision of pro bono legal services does not run afoul of the underlying purpose of those rules. Nor does it remove the protections that already exist within the rules of professional conduct requiring all attorneys to be, among other things, competent and diligent.
In short, coupling a strong pro bono infrastructure with well-funded legal service providers is the necessary next best step for taking us one step closer to bridge the justice gap.
Latonia Haney Keith is the associate dean of academics at Concordia University School of Law. She is a member of the American Bar Association's Standing Committee on Pro Bono and Public Service and the former president of the Association of Pro Bono Counsel.
"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.
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