Pro Bono Mandate Problematic for Lawyers

Published on: 
05/31/2012
The chief judge of the New York Appeals Court recently announced a pro bono requirement to gain admission to the state bar. Under this requirement, every new lawyer will have to prove their performance of 50 hours of pro bono practice before being admitted.

The chief judge explained this decision as follows: "If pro bono is a core value of our profession, and it is — and if we aspire for all practicing attorneys to devote a meaningful portion of their time to public service, and they should — these ideals ought to be instilled from the start, when one first aspires to be a member of the profession."

I believe this reasoning is based on two faulty premises, beginning with the assertion that pro bono is a "core value" of the legal profession. While many lawyers "give" many hours freely of their time and expertise, that does not define the essence or "core" of the profession's values.

Those values are embodied in the Rules of Professional Conduct, and Rule 6.1 calls pro bono service a "professional responsibility" that lawyers should "aspire" to. This has been substantiated many times over when bar associations call on their members to provide free services for low- and moderate-income people. Many do step up to the plate, but not all. Thus, it is distinct from true core values, such as maintaining client confidentiality.

More than 15 years ago, the ABA and the Pro Bono Institute launched the "Law Firm Pro Bono Challenge" for larger firms with more than 50 lawyers to make an institutional, rather than an individual lawyer, commitment. It sets a target (not a requirement) of either 3 or 5 percent of each firm's total billable hours, in addition to the hours-per-attorney standard commonly used in articulating pro bono goals. Firms have the option to select an alternative goal of 100 or 60 hours per attorney, but most signatory firms have elected to use the preferred percentage goals.

By promoting a percentage goal, the challenge ties pro bono activity to firm productivity and profitability. This is an important consideration. The simple fact is that no lawyer or law firm can be expected to fulfill a broader social purpose of serving the public unless there is a business foundation for fulfilling it. Individual lawyers and firms alike cannot ignore the financial and operational dimensions of what pro bono activities require.

And that is the second faulty premise in the New York requirement: It does not apply to all lawyers in the state because, according to the reasoning given, existing lawyers' practices are very diverse and some lawyers already are having difficulty earning enough money to remain solvent, and thus should be excused from the mandate. The reality is that profitability ultimately is the key to successful pro bono performance for any firm or lawyer. If the client billings are not sufficient to support non-billable time, the commitment to pro bono service will be tenuous or non-existent.

Of course, one also suspects that, finances aside, a mandatory pro bono requirement for all lawyers could create a large-scale rebellion against a Big Brother bar association ruling — but that's an issue for another column.

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