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Should Pro Bono Work Be Mandatory for Lawyers?
By Samantha Dorn
Rule 6.1 of the American Bar Association’s (ABA) Model Rules of Professional Conduct says 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 public legal services per year.”[1] To fulfill this duty, attorneys can provide legal services directly to those who are indigent and otherwise could not afford an attorney, or through organizations that assist this population.[2]
No state currently requires pro bono work as a requirement to keep an active law license, but several states do require attorneys to report any pro bono hours they may complete.[3] In 1993, Florida became the first state to requiring lawyers to report their pro bono hours completed to the state bar with their membership dues.[4] Today, eight other states, including Maryland and New York, now have this requirement.[5] In addition, 13 states have voluntary pro bono reporting systems.[6] As of this date, New York is the only state that requires law students to perform at least 50 hours of pro bono service as a condition for receiving a law license.[7] California, Connecticut, and New Jersey attempted to implement their own pro bono policies for law students, but these have not been acted on in some time.[8] Montana has implemented a policy permitting law students to voluntarily submit pro bono activity to the State Bar with their application.[9]
Some may suggest that lawyers should be required to perform pro bono work for those who cannot afford legal services, as it is likely that not everyone who needs legal representation can afford it, and there can be a high demand for important legal services. Although there are organizations such as the Legal Services Corporation (LSC), which provide legal services to those in need, the organization itself has reported that 50 percent of those who request help are turned away because the programs lack the necessary funds to represent all of prospective clients.[10] Some have argued that there is a constitutional foundation for mandatory pro bono work. The Sixth Amendment provides for the right to counsel in criminal cases because a person is at risk of losing their liberty—or possibly, their life.[11] Proponents argue that the outcomes of civil cases can have “vast financial and personal effects on the people involved;” thus, these clients are also fundamentally entitled to counsel.[12]
Others have strongly opposed the idea of mandatory pro bono. In his article, Verdict, Ronald D. Rotunda expressed that “mandatory pro bono, like mandatory charitable giving, is an oxymoron.”[13] Lawyers could be “more reluctant” to represent these clients as zealously because they feel they are being forced to represent them, not because they are voluntarily doing so as a “good deed”.[14] Opponents may also have a constitutional argument; mandatory pro bono may violate the First Amendment’s right to freedom of association.[15]
Still, the good news is that many lawyers do give their time to help their community by providing pro bono services. In a study of over 47,000 lawyers conducted by the American Bar Association, 81 percent responded that they have provided pro bono services at some point in their lives.[16] They provide an average of 36.9 hours of pro bono services per lawyer.[17] The top reasons for providing pro bono work were: (1) helping people in need, (2) ethical obligations, and (3) duty as a member of the legal profession.[18] The main reasons attorneys felt discouraged from doing pro bono work were: (1) lack of time, (2) family commitments or other personal obligations, and (3) lack of skills or experience.[19] Regardless of whether pro bono work should remain voluntary or become mandatory, it’s important to recognize the lawyers that give their time and resources to help those who in need of their services.
[1]https://www.americanbar.org/groups/professional_responsibility/publications/model_rules_of_professional_conduct/rule_6_1_voluntary_pro_bono_publico_service/
[2] Id.
[3] See generally https://www.americanbar.org/groups/probono_public_service/policy/arguments/
[4] Id.
[5] Id.
[6] Id.
[7] https://www.americanbar.org/groups/probono_public_service/policy/bar_pre_admission_pro_bono/
[8] Id.
[9] Id.
[10] Tricia DeFilipps, Article, Attorneys’ Ethical Responsibility to Provide Pro Bono Legal Services to Those in Need, 33 Buff. Pub. Int. L.J 1, 8 (2015).
[11] https://www.law.cornell.edu/constitution/sixth_amendment
[12] DeFilipps, 33 Buff. Pub. Int. L.J at 11.
[13] https://verdict.justia.com/2016/07/18/forcing-lawyers-perform-pro-bono-services
[14] DeFilipps, 33 Buff. Pub. Int. L.J at 18.
[15] Id. at 20.
[16]https://www.americanbar.org/content/dam/aba/administrative/probono_public_service/ls_pb_supporting_justice_iv_final.authcheckdam.pdf
[17] Id.
[18] Id.
[19] Id.
