The Colorado Lawyer
Vol. 28, No. 9 [Page 19]
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Proposed Change to Colo. RPC 6.1 Concerning Aspirational Goals for Pro Bono Public Service
The Colorado Supreme Court ("Court") is considering amending Colo. RPC 6.1, Pro Bono Public Service, to replace it with Rule 6.1 of the American Bar Association's Model Rules of Professional Conduct. The Supreme Court also is considering the adoption of the Comment to ABA Model Rule 6.1, with one minor alteration.
In response to a request by the Colorado Bar Association in September 1996, the Legal Services/Pro Bono Committee of the Court's Judicial Advisory Council ("JAC") has been meeting since January 1997 to consider the need for increased funding for Colorado's civil legal services programs and the need to increase pro bono service by Colorado's lawyers. The Committee's initial recommendations included adoption of a mandatory pro bono rule, adoption of a mandatory pro bono reporting rule, or, in the alternative, adoption of ABA Model Rule 6.1. Generally, this Model Rule includes an aspirational provision that lawyers provide fifty hours per year of pro bono service, a substantial majority of which shall be for service to low-income people or organizations acting on their behalf.
Following extensive debate and discussion within the legal community during the fall of 1998, the Colorado Bar Association's Board of Governors in January 1999 overwhelmingly rejected recommendations for mandatory pro bono and mandatory pro bono reporting. Subsequently, the JAC decided not to recommend the adoption of a mandatory pro bono rule to the Court, but did recommend the adoption of a mandatory pro bono reporting rule.1 In May 1999, the Court rejected the recommendation for a mandatory pro bono reporting rule,2 but indicated an interest in an aspirational pro bono rule. Accordingly, in June 1999, the JAC unanimously recommended that the Court adopt ABA Model Rule 6.1, together with the Comment.
ABA Model Rule 6.1 and Comment
ABA Model Rule 6.1 defines pro bono work more specifically and comprehensively than does current Colorado Rule of Professional Conduct ("Colo. RPC") 6.1. Significantly, the ABA Model Rule divides pro bono work into two main categories. One category deals with the provision of pro bono service without fee or expectation of fee to persons of limited means or organizations assisting such persons. The other category encompasses free or reduced fee service to charitable organizations, civil rights work, and activities for improving the law, the legal system, or the legal profession. The ABA Model Rule establishes an aspirational rule of fifty hours of pro bono service per year, directing that the "majority" of the fifty hours should go to serving the poor or near poor. Indeed, the rule was adopted by the ABA in 1993 in part "to respond to the crisis that exists in the delivery of legal service to the poor" and to provide guidance to individual lawyers and law students.
The Comment to the ABA Rule notes that Model Rule 6.1(a) is based on the critical need for legal services for persons of limited means. It explains that persons of limited means are those who qualify for participation in programs funded by the Legal Services Corporation (125 percent of the federal poverty level and below) and those whose income and financial resources are slightly higher but who nevertheless cannot afford counsel. The Comment further notes that legal services can be rendered to organizations such as homeless shelters, battered women centers, and food pantries.
According to the Comment, legal services under Model Rule 6.1(a) include individual and class representation, the provision of legal advice, legislative lobbying, administrative rule-making, and the provision of free training and mentoring to those who represent persons of limited means. The Comment stresses that this variety of activities should facilitate participation by government lawyers, even when there are restrictions on their engaging in the outside practice of law. However, the Comment also recognizes that, because constitutional, statutory, or regulatory restrictions may prohibit or impede government or public sector lawyers and judges from performing pro bono services as described in Model Rule 6.1(a), when such restrictions apply, government and public sector lawyers and judges may fulfill their pro bono responsibility by providing services pursuant to Model Rule 6.1(b).
Model Rule 6.1(b)(1) includes representation of non-profit organizations, such as medical research, cultural, and religious groups. Model Rule 6.1(b)(2) covers reduced fee legal services to persons of limited means, including court appointments in which the fee is substantially below a lawyer's usual rate. Finally, Model Rule 6.1(b)(3) provides that activities for improving the law, the legal system, or the legal profession should include service on bar association committees, service on the boards of pro bono or legal services programs, serving as a mediator or arbitrator, and acting as a continuing legal education instructor.
Additionally, the Comment to the ABA Model Rule encourages lawyers to make financial contributions, especially for lawyers who are unable to provide pro bono service directly. However, neither the ABA Model Rule nor its Comment specifies the amount of any suggested, aspirational, financial contribution.
Significantly, the Comment provides that the aspirational goal of providing fifty hours per year of pro bono service is not intended to be enforced through any disciplinary process.
Modification to the Model Rule
The Court is considering one proposed modification to the Comment to ABA Model Rule 6.1, as recommended by the JAC. That modification would permit collective satisfaction of the goal, in limited circumstances. The ABA Comment states: "Because the provision of pro bono service is a professional responsibility, it is the individual ethical commitment of each lawyer." Although the ABA Comment indicates that "at times, it may be more feasible to satisfy the pro bono responsibility collectively, as by a firm's aggregate pro bono activity," the Court's recommendation would limit the scope of this exception. Thus, the ABA Comment provision allowing collective law firm satisfaction of the pro bono responsibility would be replaced by a limiting provision that "in special circumstances such as death penalty cases and class action cases, it is appropriate to allow collective satisfaction by a law firm of the pro bono responsibility."
Model Rule Consistent with Longstanding Policy
Since its adoption by the ABA in 1993, nine states have adopted ABA Model Rule 6.1 or a similar rule. Including those nine states, eighteen states plus the District of Columbia have pro bono rules that include an aspirational goal. Ten states have pro bono rules that include an aspirational goal of fifty hours per year of pro bono service. Some states have adopted an aspirational goal with a lower number, such as forty hours of pro bono service. Florida and Massachusetts have aspirational rules setting forth aspirational goals of twenty and twenty-five hours per year, respectively, but those states narrowly define pro bono service to include only pro bono service for low-income people.
The JAC report recommending the adoption of the ABA Model Rule 6.1 noted that the ABA Model Rule is consistent with the longstanding policy of the Colorado Bar Association which, since 1986, has maintained as an aspirational goal that "each member . . . be urged in the strongest of terms to maintain at all times at least one active pro bono case." The JAC report further noted that the ABA Model Rule is consistent with the resolution adopted by the CBA's Board of Governors in January 1999 that, in lieu of a mandatory pro bono rule, "there be substituted a program conceived and undertaken which emphasizes the need for each and every attorney to contribute pro bono services on a voluntary basis to the poor in the area of his or her practice where he or she can best serve."
The text of the proposed Rule and Comment appear in the "Court Business" section of this issue of The Colorado Lawyer at page 127. The Court welcomes comments to this proposed change. Written comments (an original and eight copies) should be submitted on or before Thursday, October 21, 1999, to Mac Danford, Clerk of the Supreme Court, 2 East Fourteenth Ave., Denver, Colorado 80203. In addition, the Court will hold a public hearing regarding this proposed rule change on Thursday, October 28, 1999, at 3:00 p.m. in the Supreme Court Courtroom on the fifth floor of the State Judicial Building, 2 East Fourteenth Ave., Denver, Colorado.
1. See Hartman, "Colorado Bar Association Board of Governors Debates Mandatory Pro Bono" 28 The Colorado Lawyer 25 (Feb. 1999); Kahn and Lederman, "Mandatory Reporting of Pro Bono Services," 28 The Colorado Lawyer 43 (May 1999).
2. See Hartman, "CBA, Courts, Say No to Mandatory Pro Bono" 28 The Colorado Lawyer 25 (Aug. 1999).
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