FAQs: Court proposes "aspirational" pro bono changes:
By Vance Sanders & Andy Harrington
The Alaska Supreme Court, at the recommendation of the Board of Governors, has promulgated an updated version of Rule of Professional Conduct 6.1, on pro bono service.
The new rule tracks the version proposed by the ABA in 1993, and Alaska joins 14 other states which have enacted that updated version of the rule (or a substantially similar version).
Q. Is the rule requiring pro bono work a radical change in the Code?
A. Not really. Both the former Code of Professional Responsibility and the prior version of Rule 6.1 in the Rules of Professional Conduct contained pro bono language.
The original Code of Professional Responsibility adopted by the ABA in 1969 included an "Ethical Consideration" 2-25 stating in pertinent part: "Every lawyer, regardless of professional prominence or professional workload, should find time to participate in serving the disadvantaged."
In 1983, the ABA promulgated Model Rule (of Professional Conduct) 6.1 which stated that a lawyer "should render public interest legal service," a responsibility which could be discharged "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." Alaska subsequently adopted this version of the Rule when it promulgated the Rules of Professional Conduct in 1993.
In 1993, the ABA revised Model Rule 6.1, and that is the version that Alaska has now adopted.
Q. What is different about the new rule?
A. Several things, which I'll summarize here and expound on below if you'll keep on asking such helpful questions. The new Rule quantifies the amount of pro bono work a lawyer should ordinarily plan to put in annually. It creates and prioritizes two categories of pro bono work. It clarifies the relationship between performing pro bono work and making financial contributions to organizations that serve the under-represented.
Q. What is the amount of pro bono work specified under the new Rule?
A. Fifty hours per year.
Q. Isn't that a lot?
A. No. The majority of states that have enacted a particular quantity have used 50 hours. Some set less. Oregon uses 80 hours; D.C. uses 50 hours plus one court appointment.
Q. What are the two categories of pro bono work?
A: The highest priority, to which a "substantial majority" of the 50 hours should be devoted, requires that the work be done "without fee or expectation of fee" and be provided either directly to persons of limited means or to charitable, religious, civic, community, governmental or educational organizations in matters which are designed primarily to address the needs of persons of limited means.
Q. What is the second priority?
A. Well, I was just going to tell you. The second priority is broader, and includes three types of activities: (1) delivering services either free or at a 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; (2) participation in activities for improving the law, the legal system, or the legal profession; or (3) delivery of legal services at a substantially reduced fee to persons of limited means.
Q. What types of cases are contemplated by that first category?
A. The ABA Commentary notes that this first category of the second priority is not limited to persons of "limited means," and allows a "substantially reduced" fee. Examples of the types of issues that may be addressed under this paragraph include First Amendment claims, Title VII claims and environmental protection claims. Additionally, a wide range of organizations may be represented, including social service, medical research, cultural and religious groups.
Q. What types of activities are contemplated by "improving the law"?
A. Serving on bar association committees, serving on boards of pro bono or legal services programs, taking part in Law Day activities, acting as a continuing legal education instructor, a mediator or an arbitrator and engaging in legislative lobbying to improve the law, the legal system or the profession are a few examples of the many activities that fall within this paragraph.
Q. What types of activities are contemplated by the "substantially reduced fee" component?
A. Participation in judicare programs and acceptance of court appointments in which the fee is substantially below a lawyer's usual rate are encouraged under this subhead of the second priority.
Q. When does this second priority come into play?
A. The Commentary notes that, for most lawyers, it should be possible to fulfill the commitment from activities that fall into the first priority; however, to the extent that such activities leave the 50-hour commitment unfulfilled, the remaining commitment can be fulfilled using activities from the second priority. Also, statutory, constitutional or regulatory restrictions may prohibit or impede government or public sector lawyers or judges from performing pro bono work in the higher priority, and thus where such restrictions apply, the entire pro bono component may need to fall in the second category.
Q. What is the significance of the term "without fee or expectation of fee" in the first priority?
A. The Commentary notes that the intent of the lawyer to render free legal services is essential to that first priority; being unable to collect an anticipated fee from the client does not suffice.
Q. Does a court-ordered attorney fee take a case out of the first priority?
A. No. The Commentary makes it clear that an award of attorney fees under a fee-shifting statute or rule would not disqualify the case from inclusion under this highest priority; lawyers who receive such fees are encouraged to donate an appropriate portion of such fees to organizations that benefit persons of limited means.
Q. What about attorney fees in the second priority?
A. Since the second priority includes cases with "significantly reduced fees," the "without fee or expectation of fee" requirement does not apply to the second priority.
Q. Does the Rule cover pro bono work in civil and criminal cases?
A. Services can be performed in civil matters or in criminal or quasi-criminal matters for which there is no government obligation to provide funds for legal representation, such as post-conviction death penalty appeal cases.
Q. What about attorneys who just cannot fulfill the commitment?
A. Because the provision of pro bono services is a professional responsibility, it is the individual ethical commitment of each lawyer. Nevertheless, there may be times when it is not feasible for a lawyer to engage in pro bono services. At such times a lawyer may discharge the pro bono responsibility by providing financial support to organizations providing free legal services to persons of limited means. Such financial support should be reasonably equivalent to the value of the hours of service that would have otherwise been provided. In addition, at times it may be more feasible to satisfy the pro bono responsibility collectively, as by a firm's aggregate pro bono activities.
Q. So financial support is an alternative to pro bono work?
A. Not exactly. The Rule specifies that, in addition to performing pro bono work, a lawyer should voluntarily contribute financial support to organizations that provide legal services to persons of limited means. Such regular contributions need not equate to 50 hours; the Robert Hickerson Partners in Justice Campaign encourages each attorney to donate the equivalent of two billable hours. The thought underlying the option of substituting a financial contribution for pro bono work is that, in a year in which an attorney is unable to discharge the pro bono responsibility due to the press of other business, the press of other business might be lucrative enough to warrant an extraordinary contribution. But still, the personal rewards inherent in performing direct services for an indigent client make the direct pro bono effort preferable.
Q. OK, but if I just don't do it, will Steve Van Goor come after me?
A. No. The Commentary is quite clear that this is an aspirational rule, not intended to be enforced through the disciplinary process.
Q. Couldn't you have told me that a little earlier?
A. Well, then you might not have read this far.
Q. Doesn't that take all the teeth out of the rule?
A. This Rule speaks to what is best about our profession. It is designed, not to assure compliance through fear of discipline, but to set a standard to which we should all aspire to attain, for the good of our profession, for the good of the legal system overall, and for the good of our communities and society.
Q. Is there a reporting requirement?
A. No. Those of us who volunteer through one of the organized pro bono programs will report back to that program on the case(s) we take on, but there is no requirement to report hours to the Bar Association.
Q. What are the organized low-income pro bono programs in Alaska?
A. There are four in Alaska currently: the Alaska Legal Services pro bono "Volunteer Attorney Support" program; the Alaska Pro Bono Program Inc.; the Pro Bono Asylum Project of the Immigration & Refugee Services Project (IRSP); and the Pro Bono Mentoring Project of the Alaska Network on Domestic Violence and Sexual Assault (ANDSVA).
Q. Why all these different programs?
A. To try to meet as much of the client demand in as many subject matter areas as possible, and give Alaskan attorneys a choice among those subject matter areas.
Q. What types of cases does ALSC's pro bono program handle?
A. ALSC handles general civil cases for low-income clients. ALSC was founded in 1966, and established its pro bono program as a joint project with the Alaska Bar Association in 1983. For years, it was run by Seth Eames, prior to his departure from ALSC in 1999. Currently, ALSC's pro bono coordinator is Erick Cordero.
Q. What types of cases are handled by the Pro Bono Asylum Project of the IRSP?
A. Representation of immigrants eligible for legal residency under the provisions of the Nicaraguan Adjustment and Central American Relief Act (NACARA), representation of immigrants eligible to apply for political asylum, and presentation of immigration legal clinics. Attorneys work in conjunction with pro bono psychologists and translators. The IRSP has existed since 1987; the Pro Bono Asylum Project started in 1999. IRSP Coordinator Robin Bronen of Anchorage heads the program.
Q. What types of cases are handled by the Pro Bono Mentoring Project of ANDSVA?
A. Representation of domestic violence victims in civil cases, primarily domestic relations cases. The Mentoring Project was started in 1999 through funding under the Violence Against Women Act. Currently, the project coordinator is Christine McLeod-Pate of Sitka.
Q. What types of cases are handled by APBP Inc.?
A. Those cases which ALSC's in-house pro bono program cannot accept due to restrictions placed on ALSC as a recipient of funding from the Legal Services Corporation (LSC). These include: representation of prisoners; representation of various categories of immigrants; and representation in class actions. Currently the executive director of APBP Inc. is Loni Levy of Anchorage, although she has announced her resignation as of January 31, 2003.
Q. Wouldn't it be better if there were just one pro bono program?
A. Maybe. However, Congress, while requiring ALSC to devote a certain amount to "private attorney involvement" activities, also prohibits ALSC from utilizing its in-house pro bono program for certain types of cases. The Pro Bono Asylum Project and APBP Inc. were created to make sure that attorneys willing to volunteer in those areas ALSC is prohibited from handling could be matched up with needy clients. The ANDSVA Pro Bono Mentoring Project was established because of the overwhelming demand for attorneys in domestic relations areas outstripped ALSC's ability to meet that demand.
Q. So do the programs compete with each other?
A. The programs cooperate with each other. They send out joint solicitations, work together on attorney recruitment, and coordinate case placements to the extent that they can. Christine McLeod-Pate and Robin Bronen are both ex-ALSC staff attorneys, and the ALSC and APBP share an overlapping Board. All four programs actively participate in the Bar Association's pro bono service committee.