Vol. 28, No. 5
Legal Services News
Mandatory Reporting of Pro Bono Services
by Ed Kahn, Ed Lederman
The following are two opposing viewpoints regarding the Colorado Supreme Court Judicial Advisory Council's March 12, 1999, recommendation to the Colorado Supreme Court that it adopt a rule requiring attorneys in Colorado to report on the quantity of pro bono legal services they provide. Since the Judiciary Advisory Council has rejected recommending a rule requiring attorneys to provide pro bono services (mandatory pro bono), the authors focus instead on the still viable mandatory pro bono reporting proposal.
Also see the CBA President's letter on page 15.
The Case for Mandatory Reporting of Lawyers' Pro Bono Legal Services
by Ed Kahn
On March 12, 1999, the Colorado Supreme Court Judicial Advisory Council ("JAC") unanimously recommended to the Colorado Supreme Court that it adopt a Rule requiring annual reporting of lawyers' pro bono legal services, notwithstanding the overwhelming opposition expressed by the Colorado Bar Association Board of Governors at its January 1999 meeting. The proposal was one of five principal proposals to deal with the unmet legal needs of the poor made by the JAC's Legal Services/Pro Bono Committee. The other four proposals were as follows:
1. The Colorado Supreme Court should support state funding and efforts to secure other sources of additional funding for Colorado's Legal Services Programs. This recommendation was adopted by the JAC in June 1998.
2. The Colorado Supreme Court should create statewide and judicial district pro bono committees, composed of judges, lawyers, and laypersons to work to increase the amount and quality of pro bono services lawyers provide and to assist lawyers in meeting their ethical obligations under Rule of Professional Conduct 6.1. This recommendation was adopted by the JAC in June 1998.
3. The Colorado Supreme Court should revise Rule of Professional Conduct 6.1 to require the provision of 25 hours (or 3 percent of a lawyer's total hours of work) of pro bono legal services annually by every Colorado lawyer under age 65. This recommendation was rejected by the JAC in March 1999.
4. The Colorado Supreme Court should revise Rule of Professional Conduct 6.1 to state the number of hours (25 or 50) Colorado lawyers should aspire to render each year. This change to the aspirational rule is now under consideration by the JAC.
There are several benefits that will result from the adoption of a mandatory reporting rule requiring the annual reporting of pro bono services by every lawyer in Colorado. First, it is likely, based on the Florida experience, that such a rule will result in the increase of pro bono services provided by lawyers, and increase cash donations to legal services programs as well. In the 1995-96 bar year, 23,549 Florida lawyers reported providing almost 805,000 hours of pro bono legal assistance to the poor. Valued at $150 per hour (as the Florida Bar reported), the value of those services exceeded $120 million. In the 1996-97 bar year, 24,072 Florida lawyers reported providing over 842,000 hours of pro bono legal assistance to the poor. Valued at $150 per hour, the value of those services exceeded $126 million. Also, the number of lawyers contributing to legal services programs increased more than 15 percent year-to-year, and the amount of the total contributions increased by a similar amount.
Since the Judicial Advisory Council decided not to recommend a mandatory pro bono service rule, mandatory reporting seems to offer an alternative means to increase pro bono service.
Second, both the public and the Bar will learn how much pro bono legal work is being done, the percentage of lawyers performing that work, and the location of the work being done. That information will help the Supreme Court and the Bar in their efforts to increase the level and quality of pro bono legal services being provided. The information provided also will explain the apparent gap between the large number of lawyers who report they are performing significant amounts of pro bono work, and the decline in participation (despite increasing numbers of lawyers) reported by Bar and other pro bono programs such as the Denver area Metro Volunteer Lawyers ("MVL"). For example, only one of more than twenty medium and large firms met its commitment to MVL in 1998 to take one pro bono case for every two lawyers in the firm, and, overall, less than one case for every ten lawyers was taken in most of the committed firms.
Third, the mandatory reporting rule will require a common understanding of what is and what is not being reported as pro bono, so that the information developed will be increasingly reliable. Now, there is a wide variation in what is considered and reported as pro bono service.
Fourth, the required information will help the Bar inform the public of the significant amount of pro bono legal work being performed, and its value, and may help to change the current unfavorable public perception of lawyers.
Fifth, an annual reporting requirement is likely to result in lawyers thinking more often about the professional obligation to render pro bono legal services. As noted above, Florida, the only other state to have adopted mandatory pro bono reporting, has found that reporting alone resulted in increased legal services (and increased donations to legal services programs).
Reporting would not be burdensome for lawyers. Mandatory reporting could be handled much like compliance with COLTAF trust accounts, or CLE reporting, or certification of compliance with child support orders by lawyers—that is, a short form defining the pro bono categories, and asking for three or four numbers will do the job: (1) the number of pro bono hours of legal service for low-income people; (2) the number of other pro bono hours; (3) the sum of those two figures; and (4) the dollar amount donated to legal services programs. If lawyers do not already keep track of their pro bono time, the rule could be made effective for time incurred only after the rule is adopted, rather than for the year in which the rule is adopted. The economic costs of handling the reporting are minimal—one estimate is that it would cost $6,800 for each year's compilation by the State Judicial Department.
The arguments against mandatory reporting are unpersuasive—there is not a great administrative burden, there is a clear social benefit to be gained, and the alternative to reporting is to allow the current lack of information to prevail.
Ed Kahn, Denver, is a member Kelly/Haglund/Garnsey & Kahn LLC. He can be reached at (303) 296-9412.
Mandatory Pro Bono (OOPS! Mandatory Reporting)
by Ed Lederman
Late last year, the Judicial Advisory Council suggested to the Colorado Supreme Court that each and every practicing attorney in the state of Colorado should be required to perform 25 hours of "pro bono" (free) legal services a year; or, in lieu thereof, fork over, say, $1,000 to help fund legal aid. The Colorado Bar Association submitted the proposition to its Board of Governors representatives and received, approximately, a 90 percent thumbs down on the idea. The Bar Association conveyed the negative assessment to the state supreme court. Recently, the Judicial Advisory Council has changed its approach in the face of the very strong winds of opposition to the idea. Rather than requiring performance of pro bono hours (or payment in lieu thereof), it now recommends, simply, that lawyers be required to report their pro bono activity to the Colorado Supreme Court.
Meanwhile, back at the legislature, Representative Shawn Mitchell has introduced H.B. 1301, which, in generic terms (our hallowed profession is not named specifically) would prohibit any ". . . regulatory agency or other department, division, agency, branch, instrumentality, or political subdivision of state government . . . " from imposing anything like mandatory pro bono. The bill sailed through the Business Affairs Committee on a 12 to 1 vote, cleared the House, and was passed by the Senate Judicial Committee 5 to 3. If and when the Governor signs it, H.B. 1301 will become law.
So much for an update. What follows is a Philippic against mandatory pro bono. While mandatory reporting of service to the poor raises some nuanced issues of its own, the distinctions, in this writer's opinion, are not worth the candle. If mandatory pro bono is legitimate, then requiring the reporting of hours given to the poor is legitimate. If, as the following will argue, the supreme court should not attempt such a power play, then any debate about the reporting requirement, intriguing as it may be in its own right, likewise is rendered superfluous.
Now for the argument in chief: mandatory pro bono is a very bad idea that disturbs this particular attorney for reasons other than its obvious fallacies, which are as follows: How would such a rule be enforced? What about de facto pro bono when clients don't pay, and the attorney continues his or her representation? Would that count? Doesn't the fact of compulsion obliterate the whole concept of pro bono? No, what profoundly disturbs is not the bad idea itself, but rather the first premises behind the proposition.
Standing alone, the institution of pro bono legal work is not only plausible, but noble. Sometimes fairness and justice require that those without the money to access the system be allowed in, and the only way to let them in is for somebody to give something. It could be money, but pro bono stands for the proposition that the legal profession itself will provide the solution: free representation, for the sake of fairness and justice.
When one reads the Advisory Council's report, three things become evident: it is concerned with cutbacks in federal and state funding for legal aid; it looks to an increase in pro bono activity (possibly mandatory pro bono) to fill the gap; and it profoundly confuses the idea of fairness and justice with process. Perhaps such a confusion is only natural in an industry that at one and the same time has prospered and become demoralized by the metastatic growth of legal process in our culture.
The report refers to a particularly intriguing concept of "legal need" and scrupulously cites the definition of that phrase as developed by the American Bar Association: " . . . a circumstance in which information, advice, and assistance by an attorney would enable a person to effectively perform his or her civil legal responsibilities or appropriately perfect his or her legal rights." Reasonable enough, except when one considers the context in which the definition is discussed. Legal aid does not "assist" a client in performing his or her "civil legal responsibilities." Quite the opposite. What legal aid does, whether it is defending an eviction, fighting a deportation, suing for welfare benefits, or defending collection efforts, is help clients avoid responsibilities. Therefore, use of the first part the definition of "legal need" in a discussion bemoaning the cutback of legal aid funding is inappropriate.
This leads us to the second part: " . . . appropriately perfect(ing) his or her legal rights." Now we're onto something. Once you accept that definition of a "legal need," then the possibilities are endless. Note the absence of any moral judgment. What is "appropriate" is simply what you can do without being grieved. There is no discussion of right and wrong. If process can be invoked, there is a legal need and, therefore, the justification for legal aid, and by extension, pro bono.
A person who has not declared bankruptcy in the last six years may have a "right" to bail out of his debts. Perhaps it needs perfecting. Whether or not he should get a lawyer is primarily an economic and, yes, moral decision. The critical issue is whether one invokes the process, not whether or not the process exists.
Domestic law has been a very active area for legal aid. In every instance, my experience with an opposing party represented by counsel on a pro bono basis has been negative. While other issues have factored in, by far the most dominant dynamic was the fact that representation was cost-free to one party. When that happens, all responsibility for the temperate and good faith use of the system goes out the window. In many cases, irresponsible resort to the legal process compounds rather than alleviates problems.
Legal aid is highly problematic. Mandatory pro bono is a positively bad idea. And the notion of using the Colorado Supreme Court's regulatory authority to subsidize legal aid is ill-advised. By extension, mandatory pro bono reporting simply makes no sense.
Ed Lederman, Denver, is a solo practitioner. He can be reached at (303) 832-7797 or e-mailed at ed.lederman@CWIXmail.com.
Legal Services News is published bimonthly to apprise members of the bar of legal services projects, issues, and pro bono opportunities. Readers are encouraged to submit articles and topic ideas for this department to Department Editor Eric B. Liebman, with the firm of Brega & Winters, 1700 Lincoln St., #2222, Denver, CO 80203, (303) 866-9400.
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