Don Burnett on "Mandatory Reporting of Pro Bono: Premises beneath the Controversy"

[[Don Burnett, Dean and Foundation Professor of Law at the University of Idaho College of Law, evaluates the competing thoughts about why lawyers should (must?) do pro bono work.]]

As noted elsewhere in this Forum, Illinois has joined Florida, Maryland, Mississippi, and Nevada in requiring that lawyers file reports on the extent of their pro bono service. The rule adopted by the Illinois Supreme Court on June 14, 2006, can be found here.

According to the ABA Standing Committee on Pro Bono and Public Service, eight states have considered but (thus far) rejected mandatory reporting systems, while eleven other states have adopted voluntary reporting systems. A running scorecard appears here.

Differing views about mandatory reporting appear to reflect three competing major premises in the debate over pro bono service itself:

Premise A is that pro bono service is a professional obligation. Those who subscribe to the "obligation" premise find it entirely appropriate for the profession to obtain information (while protecting confidentiality) on the extent to which pro bono service actually is being rendered. Although the exponents of Premise A probably would deem it preferable to obtain this information through a mandatory reporting system, I think they would acknowledge that even a voluntary reporting system can provide useful information. (Incidentally, with pro bono service as with other ethical issues, the lack of a mandatory self-reporting system, or even the lack of any reporting system, does not necessarily imply the absence of an underlying obligation.)

Premise B is that pro bono service is an act of charity, undertaken solely as a matter of private, individual choice. For those who subscribe to the "charity" premise, the profession's efforts to obtain information on pro bono service may appear to demean the voluntary nature of the service or to put collective pressure on individual philanthropy. From this point of view, mandatory reporting systems are considered both inapposite and inappropriate; indeed, even voluntary reporting systems could be suspect (depending on how the information is used).

Premise C -- a "positive" variation on these "normative" premises -- is that regardless of whether pro bono service ought to be a professional obligation, it is in fact merely an aspiration because the profession has not (yet) clearly undertaken to impose it as a requirement. Those who subscribe to this "aspiration" premise would seem to have a less obvious conceptual basis for objecting to the collection of data on pro bono service. After all, why can't the profession gather information on fulfillment of a stated "aspiration"? The objections seem instead to be an array of concerns about waste of time, hollow public relations, annoying peer pressure, etc.

In my view, Premise A best reflects the full scope of the American lawyer's responsibilities identified in the Model Rules of Professional Conduct: representative of clients, officer of the legal system, and public citizen having special responsibility for the quality of justice. Moreover, in many states, including mine (Idaho), newly admitted lawyers take "the attorney's oath" before the state supreme court, vowing, among other things, "never to reject, for any consideration personal to myself, the cause of the defenseless or the oppressed." (When I speak to lawyers and law students, I occasionally ask, "If that isn't a pro bono obligation, what is it?" If someone responds, in effect, "Oh, come on, it's a tradition, it's what you have to say in order to get your license," I reply, "Yes, exactly.")

Exponents of Premise B, and especially of Premise C, are swimming upstream against the trilogy of lawyer responsibilities and the covenant contained in "the attorney's oath." Perhaps for this reason, the literature against a pro bono obligation commonly turns to Model Rule 6.1 and its perceived ambiguity. By using the phrase “perceived ambiguity” I may be swimming upstream myself, in this instance against the conventional wisdom that Rule 6.1 is full of contradictions. Concededly, Rule 6.1 addresses an evolving, complex subject, and is the product of what must have been a formidable drafting challenge. But these circumstances do not equate to ambiguity. In fact, the black-letter language of the Rule is very straightforward. It declares that "[e]very lawyer has a professional responsibility to provide legal services to those unable to pay" (and Comment 1 underscores this declaration). The familiar phrase "should aspire" appears in the next sentence relating to a specific quantity of pro bono time (50 hours per year), and the word "should" later appears again in connection with allocations of time and categories of service in "fulfilling this responsibility." The black-letter language delivers a core message that is clear. The message is that although lawyers are not mandated to provide pro bono service in the same amount or in the same way, every lawyer is obliged to do something.

If there is a mixing of messages in Rule 6.1, it seems to come, not from the black-letter language, but primarily from the title and two of the comments. The title uses the term “voluntary” but this term does not appear in the black letter language, except in the last sentence where the word "voluntarily" is used regarding financial contributions to legal services organizations "in addition" to the lawyer's pro bono service. Comment 9, while reiterating that pro bono service is "the ethical commitment of each lawyer," acknowledges that "there may be times when it is not feasible for a lawyer to engage in pro bono services" and it suggests that the lawyer contribute to legal services organizations "[a]t such times ...." Comment 12 states that "[t]he responsibility set forth in this Rule is not intended to be enforced through disciplinary process."

These comments, especially Comment 12, have been widely regarded as a signal that pro bono service is not (yet) truly a fixture in our system of ethical obligations. But is it not possible to view these comments as practical measures that allow some "play in the joints" of a mandatory system reaching across a wide variety of practices and circumstances? Comment 9 provides flexibility at those times when it is needed. Comment 12 avoids the use of the disciplinary process -- with its attendant rigidities, burdens and frictions -- as the method by which the states seek to assure that each lawyer is finding a way to fulfill his or her “responsibility”.

There are methods other than discipline that state bars can use to obtain fulfillment of the pro bono obligation. Nothing in Rule 6.1 or any of its comments would seem inconsistent with efforts by state bars to gather information about pro bono service and to use that information for recognizing lawyers who fulfill their responsibility as well as for stimulating similar behavior by others. Such efforts may well include mandatory reporting of pro bono service. Those who quarrel with these efforts are, I think, really disputing the core message of Rule 6.1 and the other foundations of Premise A.

Comments

[John Steele]

Don,

Thanks for posting. I read 6.1 differently than you do. I see the rule as being thoroughly self-contradictory and ambiguous.

Language like "voluntary," "urges," "should," and "should aspire" denote aspirational rather than mandatory duties. For example, the 50 hours referenced in 6.1(a) are expressly tied to the "should aspire" langauge. And we know that the rules know how to say "must" or "shall" when that's what the rules really mean. Of course, the final sentence of the comments says that the rule isn't intended to be disciplinary at all. (Then why is the rule in any discipline rules in the first place?)

True enough, there are other sentences, ones that you cite, which apparently presume that the duty is more concrete. But, as I understand it, the rule and comments resulted from a delicate balancing of competing factions within the rule writing process -- factions that disagreed on whether the duty should be mandatory or aspirational. So, it's an incoherent rule.

None of what I'm saying is meant to gainsay the importance of pro bono work.

As for the mandatory reporting, it's a shaming device. In general, shaming devices can be good or bad. It's hard to provide a simple formula on when they work well and when they are just another form of name-calling.

[Carolyn Elefant]

I agree with your interpretation of Rule 6.1 But I completely oppose mandatory reporting as I describe here: http://www.myshingle.com/my_shingle/2006/06/to_the_bars_don.html
I think that it's a sham; the bar gathers these numbers for its own PR on pro bono to make itself look better.