As a newer attorney, I have slowly begun to explore pro bono opportunities, from what organizations I am interested in working with and what particular areas of law interest me. Rule 6.1 of the Model Rules of Professional Conduct provides that “[e]very lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should aspire to render at least (50) hours of pro bono publico legal services per year.” Model Rules of Prof’l Conduct. R. 6.1. The rule then lists ways in which a lawyer should fulfill this responsibility and also states that lawyers should contribute financial support to legal services organizations. Id.
This rule has always intrigued me. During my last semester of law school, my Mentor Externship class at the University of St. Thomas discussed this rule and whether we agreed with it. Don’t get me wrong–everyone in the class was all about service. The question that we grappled with was, should lawyers be encouraged to provide legal service, or any sort of community service? Of course, this rule: (a) is not a requirement; and (b) is not enforced by the Board of Professional Responsibility. But doesn’t it still matter?
As reflected in the title of this post, I’m not sure I know how I feel about the issue–which in turn means that perhaps this post can be an even-handed analysis of the pro bono attorney’s quandary. So here we go with the debate with myself.
Arguments in Support of the Rule
1. Lawyers have a unique skill that should be used to serve the community.
Lawyers go through three years of law school and a bar exam to become licensed to practice law in the state of Minnesota. Such a course does not characterize a high percentage of the overall U.S. population. The ability to practice law, therefore, is a unique skill that is uniquely needed in civil practice. Many people, of course, cannot afford legal representation but nonetheless require a lawyer. If a person cannot afford legal services and cannot be helped by Legal Aid, they are left with two options: (1) do not file a suit; or (2) file pro se. Neither option is the greatest, and that’s where pro bono service comes in. Lawyers are able to serve a growing need in the community by contributing skills only they possess are allowed to utilize. We have legal knowledge that would greatly fill in pro se causes with understanding of case law, argument, and knowledge of the rules of evidence and civil procedure.
2. This rule is not unique to lawyers.
Other licensed professions have the same or similar requirement. For example, the American Medical Association Code of Medical Ethics states that “[e]ach physician has an obligation to share in providing care to the indigent.” AMA Code of Med. Ethics R. 9.065. Licensed dentists are similarly obliged “to use their skills, knowledge and experience for the improvement of the dental health of the public.” ADA Code of Prof’l Conduct R. 3.A. It is thus widely recognized that the needs of services of licensed professions add unique value, and should thus be encouraged above other services that do not require the unique skills of lawyers, doctors, and dentists, among others.
3. Legal services organizations and other causes need lawyers.
There is a constant need for lawyers. Legal Aid is always busy, as are the numerous public service oriented organizations that are subject-matter specific and will take on certain causes. And there is of course the question of whether indigent persons should be entitled to free legal representation to bring civil claims (aka the “Civil Gideon” rule). That being said, lawyers are needed, and we are the only ones that can meet those needs of the surrounding community and assist with additional cases of legal services organizations and other non-profit organizations, not to mention a worldwide need for lawyers. Either lawyers step up, or there is no one to step up at all.
Arguments in Opposition to the Rule
1. Lawyers should not be boxed in to provide legal service or give money specifically to legal services organizations. Lawyers are not lawyers all the time.
The spirit of the rule is great–lawyers are called to serve their respective communities. But the rule perhaps goes too far in telling lawyers how to go about serving their communities. But being a lawyer, in fact, is only a part of our identity. Not everyone may agree this, but I think this is a generally acceptable notion. We work 40+ hours per week (likely 50 most weeks), and for those of us in litigation, greater amounts of work will come in waves and make the practice of law thus more time-consuming. So in our non-billable time, do we want to be pigeon holed into continuing to be Mr. and Ms. Lawyer in other parts of our lives?
Many of us likely have obligations to other groups–churches, sports teams, and service organizations, among other things. Perhaps even as a lawyer, I can nourish my identity outside of my profession and do greater good by giving money to my church or volunteering with my church. Serving food at a homeless shelter. Coaching a little league team. In fact, maybe we would be better lawyers if we took a break from it once in a while.
2. That the rule is aspirational matters, but not enough.
One of the comments to Rule 6.1 says that “the provision of pro bono services is a professional responsibility.” Model Rules of Prof’l Conduct R. 6.1 cmt. Admittedly, as with the rule and as clarified by the comments, lawyers are not subject to disciplinary action for failure to provide pro bono legal services. But that’s not the point, is it? Many attorneys take even the aspirational rules to heart–which include, among them, provisions of Rules 1.6 (lawyers permitted to reveal certain information) and 2.1 (lawyers can counsel clients as to moral, economic, social and political factors in rendering advice). In fact, Rule 6.1 has more teeth than even the guidelines governing lawyers’ disclosure of confidential information, which note that “[a lawyer may reveal [confidential] information” to prevent death or substantial bodily harm, prevent the client from committing a crime or fraud, and preventing or rectifying injury to financial interests of another, among other things. Model Rules of Prof’l Conduct R. 1.6(b).
3. Leave the encouragement to law firms.
Especially because this rule is aspirational only, it should be removed from the Rules of Professional Conduct and instead be left to the law firms and organizations that employ lawyers. One of the comments to Rule 6.1 in fact says that “[l]aw firms should act reasonably to enable and encourage lawyers in the firm to provide the pro bono legal services called for by this Rule.” Model Rules of Prof’l Conduct R. 6.1 cmt. Absolutely. Law firms should encourage lawyers to provide pro bono services. In fact many–if not most–firms in the Twin Cities allow lawyers to put anywhere from 100 hours to an unlimited number of hours towards the provision of pro bono legal services. The question of course becomes whether lawyers are really providing services pro bono when they are getting paid to do so by their law firms. But that’s a discussion for another day. Law firms have the unique ability to encourage and incentivize pro bono services, compared to an aspirational rule without teeth.
There you have it. I still don’t know what is the right approach. So it looks like as long as this rule stays aspirational, I will continue to be torn. What about you?