In this year's series of student blog posts for Legal Problem Solving, students are digging into the American Bar Association's 2016 Report on the Future of Legal Services to explore how far we've come in 2019 and what remains to do in the innovation of legal services delivery.
In its 2016 Report on the Future of Legal Services, the ABA confronts current issues in access to justice for the poor. One key element in addressing this issue is the legal profession’s commitment to pro bono representation. While the ABA applauds attorneys who participate in pro bono, it also recognizes that the gaps in access to justice cannot be addressed by pro bono hours alone. This issue is made even more stark in its 2019 Profile of the Legal Profession. In Chapter 5, the report shows how the amount of lawyers performing pro bono hours and the amount of hours worked have both dropped in the last decade. Even though the ABA recognizes “the legal profession’s longstanding and ongoing commitment to pro bono legal services as a core value,” the reality is that the profession is slowly leaving this commitment behind.
In order to remedy this gap, the 2016 report introduces one possibility: annual mandatory pro bono hours. This suggestion is nothing new. Over the last few decades, many lawyers and legal scholars have addressed this issue from different angles. (e.g., Lisa Schwartz Tudzin, Pro Bono Work: Should It Be Mandatory or Voluntary?, 12 J. LEGAL PROF. 103 (1987), Erwin Chemerinsky, A Pro Bono Requirement for Faculty Members, 37 LOY. L.A. L. REV. 1235, 1236 (2004), Roger C. Cramton, Mandatory Pro Bono, 19 HOFSTRA L. REV. 1113, 1125 (1991), Rima Sirota, Making CLE Voluntary and Pro Bono Mandatory: A Law Faculty Test Case, 78 LA. L. REV. (2018))
Even the ABA considered this in drafting Model Rule 6.1, but opted to make the 50 hours aspirational instead. More recently, Justice Sotomayor reinvigorated the conversation by advocating for mandatory pro bono during her talk at the American Law Institute. Some have critiqued her proposal, including Ronald Rotunda and Ilya Somin. Their critiques focus primarily on the “forced labor” element: requiring lawyers to represent clients infringes upon a lawyer’s autonomy and does not result in effective advocacy. Others, such as Joseph Sullivan, have defended Justice Sotomayor’s proposal by arguing that fifty hours is not that onerous since practicing law is a privilege.
In response to the fear over “forced labor,” one work-around would be to only mandate pro bono hours for those seeking entrance into state bars from here on out. Following Sullivan, choosing to enter the profession is a privilege and the state bar is free to attach any responsibilities they deem fit. The deeper issue is whether lawyers will put effort into cases that they are forced to take on. Justice Sotomayor preemptively responded to this concern by noting that the ethics rules require attorneys to provide competent representation.
Nevertheless, that argument does not reckon with the efficiency issues that arise. Some lawyers will have to spend more hours to provide competent representation to a pro bono client than someone experienced in the field. Even the best of attorneys in the private bar have different specialties and their time might not be well spent providing direct services.
In order to address these efficiency concerns, the pro bono system could be replaced by requiring salaried attorneys to contribute fifty hours of their pay to local legal aid providers. That way, legal aid offices will have more funds to hire attorneys that are dedicated to providing direct services to indigent clients. While this proposal is more efficient, it loses touch with the aspirational goals set forth by the ABA.
For some attorneys, pro bono is an opportunity to work with and hear from clients they otherwise would not work for. Exposing attorneys in the private bar to the issues faced by indigent people can also lead them to organize for changes in policy and law. By simply moving funds away, it takes away this opportunity for attorneys to connect with new clients and attorneys who work in different areas.
Instead of choosing between these two, states should adopt a hybrid system. In this system, the state bars would require attorneys who make more than $120,000 a year to either perform fifty hours of mandatory pro bono service or contribute fifty hours of their pay to a local legal aid organization. By setting the salary floor at $120,000, this requirement excludes those who are already in public service or solo practitioners who do not make much and may already provide pro bono work. In this model, high-salaried private attorneys can stay involved in pro bono.
At the same time, it would not force attorneys to perform work they do not want to do. Instead of risking less than zealous representation, the contribution requirement operates as a tax on those who do not want to perform pro bono work. The income redistribution of this second prong could have a serious effect on the provision of legal services. For a first-year BigLaw associate making $190,000 for 2,000 billable hours, this translates to roughly $100 per hour before taxes. An attorney in this position who does not perform their hours would instead be responsible for a $5,000 contribution. For every ten attorneys who make this salary and opt to contribute, they would fund a new legal aid staff attorney position for the year at $50,000. The weight of this contribution would only scale up for those who make more on an hourly basis.
Pro bono hours are declining amongst lawyers, and states will have to innovate if they want to retain the profession’s commitment to access to justice. By giving attorneys the choice to perform the hours or contribute some of their pay, state bars can invigorate pro bono activity while carving out a new funding sources for vastly under-resourced legal aid organizations. This hybrid model strikes a balance between protecting individual autonomy while ensuring that legal needs are being met.