Sixty years ago, Dean Roscoe Pound wrote: “Historically, there are three ideas involved in a profession, organization, learning and a spirit of public service. These are essential. The remaining idea, that of gaining a livelihood, is incidental.” Roscoe Pound, What is a Profession? 19 Notre Dame L.R. 203, 204 (1944). While most of us would respond that making payroll and paying the bills are more than incidental, it is also true that most of us became lawyers because we wanted to help people. This is the feeling that gives rise to pro bono service.
The Rhode Island Rules of Professional Conduct have included the following provision respecting pro bono service:
Rule 6.1. Pro Bono Public Service. 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, by service in activities for improving the law, the legal system or the legal profession, and by financial support for organizations that provide legal services to persons of limited means.
Rhode Island attorneys have an extensive history of pro bono work whether in court, in the conference room or in the board room of public service organizations.
Recently, Chief Justice Williams appointed a Committee to Review the Rule of Professional Conduct for Attorneys chaired by former Chief Justice Weisberger to consider the new Model Rules of Professional Conduct recommended by the American Bar Association. The Committee has recommended to the Supreme Court the adoption or modification of the ABA’s model Rules of Professional Conduct.
Those recommendations include a new Rule 6.1. The proposed rule is substantially more detailed and specific about what constitutes pro bono and how attorneys can fulfill this goal:
Rule 6.1 Voluntary Pro Bono Publico Service
Every 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. In fulfilling this responsibility, the lawyer should:
(a) provide a substantial majority of the (50) hours of legal services without fee or expectation of fee to:
- persons of limited means or
- charitable, religious, civic, community, governmental and educational organizations in matters that are designed primarily to address the needs of persons of limited means; and
(b) provide any additional services through:
- delivery of legal services at no fee or substantially reduced fee to individuals, groups or organizations seeking to secure or protect civil rights, civil liberties or public rights, or charitable, religious, civic, community, governmental and educational organizations in matters in furtherance of their organizational purposes, where the payment of standard legal fees would significantly deplete the organization’s economic resources or would be otherwise inappropriate;
- delivery of legal services at a substantially reduced fee to persons of limited means; or
- participation in activities for improving the law, the legal system or the legal profession.
In addition, a lawyer should voluntarily contribute financial support to organizations that provide legal services to persons of limited means.
The Committee also adopted the ABA’s Comments to the proposed Rule with a notable addition. The ABA’s Comment 12 states: “The responsibility set forth in this Rule is not intended to be enforced through disciplinary process.” To this the Committee added: “This Rule sets forth an aspirational goal and not a mandatory obligation for attorneys.”
There are several other significant points in the Comments. They clarify that the bulk of the 50 hours are to be fulfilled in service for persons of limited means or the charitable organizations that serve those persons. Attorneys can fulfill the remainder of the hours through service for other organizations.
The Comments also recognize that some attorneys cannot provide these hours either because of the natures of their practice or other demands. They can fulfill their obligation through making a financial contribution of the value of their obligation to organizations that do serve the legal needs of the poor.
There have been suggestions made that pro bono work be mandatory, or at least, that attorneys who do not provide pro bono services pay an additional fee to cover the cost of others providing those services. I think this would be a mistake.
In Rhode Island, it appears that the largest unmet need for pro bono services is for representation in Family Court. Far and away, the largest number of requests to the Bar Association’s Volunteer Lawyer Program is for matters involving family issues: divorce, custody, child support, adoption, etc. For example, in mid-September, there were 36 unmatched VLP requests of which one was for a will. All the others were family law issues. While there are experienced family law attorneys who take many VLP assignments, there are not enough to meet the need. Understandably, attorneys who are not experienced in these matters are reluctant to undertake these potentially complicated and time-consuming projects. This appears to be an area where most of us should make a direct or indirect contribution to pay for others to provide these services.
The Rhode Island Bar Foundation receives substantial amounts of money from attorneys’ IOLTA accounts and contributions. It provides nearly one million dollars a year to Rhode Island Legal Services to serve a variety of needs. Some of this grant is presently used for Family Court representation. The Bar Foundation is undertaking a review of all its grants to determine whether it can reallocate its awards to help met the family law needs. It is forming a committee to consider whether there are longer-term solutions to the problem. The Bar Association is forming its own committee to consider pro bono issues and to coordinate with the Bar Foundation’s committee in addressing these issues.
The proposed Rules of Professional Conduct include another provision that should help those who can undertake pro bono matters. Rule 1.2(c) provides: “A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.” The Comments add: “…the terms upon which representation is undertaken may exclude specific means that might otherwise be used to accomplish the client’s objectives. Such limitations may exclude actions that the client thinks are too costly or that the lawyer regards as repugnant or imprudent.” Limited representation may allow attorneys to assist needy clients in one aspect of their problems without being drawn into representation with respect to all their problems.
The Bar Association is also conducting an email survey of its members respecting their pro bono activities. This will help us know what we do collectively and make decisions on how the bar can address unmet needs. We plan to prepare a report for the Supreme Court on what bar has done and what it plans to do to meet pro bono needs. We anticipate that through these efforts we can better identify the unmet needs, develop ways to meet those needs and fulfill our spirit of public service.