Requests for Assistance from the Legal Profession (Not Directed at LSC Board)
a. Requests of Bar leaders and the Judiciary:
1. To the Extent Permitted, Recruit Pro Bono Lawyers. Support and Applaud Their Pro Bono Efforts.
The judiciary, consistent with applicable judicial conduct rules, should use its influence to recruit new pro bono lawyers, especially in rural areas and among solo practitioners, to draw attention to the crisis in legal services, and to advocate for additional funding at the state and federal level.
Courts have a unique ability to recruit and inspire lawyers to give back through pro bono. In New York, for example, Chief Judge Jonathan Lippman’s announcement about a pro bono service requirement for new lawyers illustrates the impact that creative and forward-thinking judicial leadership can make.
New York State’s new prerequisite will require prospective lawyers to show they have performed at least 50 hours of pro bono service before being licensed to practice law in the state. Chief Judge Lippman announced the new pro bono service requirement on Law Day, May 1, 2012, noting that it is intended to instill and foster a culture of service among members of the bar and reinforce the ethical and social responsibility of lawyers to volunteer time and resources to provide legal services for those in need. The requirement will address the state’s urgent access to justice gap, while helping prospective attorneys build valuable skills and imbuing in them the ideal of working toward the greater good.
An Advisory Committee on New York State Pro Bono Bar Admission Requirements is working on implementation of the new prerequisite, seeking input from all of the affected constituencies in New York State, including the legal services providers that will be called upon to support these law student and new lawyer volunteers, and will provide its recommendations to the Chief Judge and the Presiding Justices of the four Appellate Departments, whose respective Committees on Character and Fitness oversee and approve all admissions to the bar.
New York’s experience will provide a template for other states considering a similar requirement for bar admission, and an opportunity for legal services offices to engage students in their work. We look forward to the release of the new rules and the potential impact it will have on other states.
With assistance from the National Center for State Courts (NCSC),61 the Conference of Chief Justices (CCJ), the Conference of State Court Administrators (COSCA),62 State Bar leaders, the ABA Judicial Section, and other similar resources, judges can play a number of other roles in addressing this crucial issue. The judiciary can ensure adoption of rules that facilitate access to justice. They can, where appropriate, actively recruit pro bono volunteers, publicly recognize volunteer contributions,63 write and speak about the importance of pro bono, act in an advisory capacity to pro bono programs, issue resolutions encouraging pro bono, consider asking state legislatures to increase funding for civil legal services organizations (which was successful in Texas), consider special procedural or scheduling accommodations for pro bono lawyers, and reorganize their own operations to better accommodate programs and help pro se litigants. They can emulate efforts by courts around the country to create innovative court-based programs, like self-help desks for pro se litigants, that create limited opportunities for pro bono participation in their jurisdictions. For examples of such initiatives, click here.
Even simple actions by courts can make an enormous difference. For example, when the Illinois Supreme Court sent a letter to all lawyers in the state encouraging them to take a pro bono case, Land of Lincoln Legal Aid saw a 10% increase in its volunteer rate.
The local judiciary can be particularly important in encouraging, promoting, and rewarding pro bono work in rural communities. LSC, its grantees, and others wishing to engage judges and bar leaders in rural areas and elsewhere can:
- Meet in person with members of the judiciary to actively enlist their support – emphasizing the importance of pro bono not only to the client population but to the efficient functioning of the judiciary – and also ask them to enlist other judges;
- Ask judges to serve on AJCs or local pro bono committees;
- Invite judges to speak about pro bono;
- Enable judges to personally recognize those involved in pro bono. This can be as simple as thanking pro bono attorneys from the bench, or as formal as the 7th Circuit Bar Association’s Annual Pro Bono Awards, given at a formal dinner every year; and
- Encourage the judiciary to adopt rules and procedures that support pro bono lawyers and help pro se litigants.
2. Use Bar Associations to Encourage, Support, and Celebrate Pro Bono.
Bar associations are a critical resource for pro bono programs, and many contribute considerable energy to support and celebrate pro bono involvement by their members. Bar associations can be important sources of training for pro bono lawyers. They can offer funding for legal services, as is done by the Chicago Bar Foundation. They can develop and maintain new pro bono programs, such as in New York City, where the City Bar Justice Center runs a dozen programs to enlist and engage pro bono lawyers. They can provide a platform to educate others about legal services and the importance of pro bono work, as is done by the ABA through its National Celebration of Pro Bono,64 and can recognize pro bono contributions of their members through awards. And they can provide collaborative environments where their various constituents can come together in support of pro bono. We applaud these contributions, and encourage bar associations to continue their creative and energetic support for pro bono programs going forward.
3. Judges and Bar Leaders Should Amend Attorney Practice, Judicial Ethics, and CLE Rules to Support Pro Bono.
i. Provide CLE Credit for Pro Bono Work
One way of encouraging pro bono work is to provide CLE credit for that work. A number of states have adopted rules that do just that, and the Task Force recommends that these rules be expanded and adopted in other states.65 Specifically, based on the state programs surveyed, we recommend drafting a proposed model rule that would:
- Minimize the number of administrative hurdles for lawyers seeking CLE credit for pro bono;66
- Provide a manageable ratio of pro bono hours to CLE credit awarded. Otherwise, lawyers will find it much easier to simply watch a webinar or attend a short course;
- Provide ethics or professionalism credit; and
- To address concerns that it will hurt MCLE providers financially or replace traditional CLE, limit the number of CLE credits that can be obtained by performing pro bono.
ii. Revise Judicial Codes of Conduct
Some judges abstain from encouraging pro bono efforts out of concern that doing so violates ethical norms. By revising codes of judicial conduct, state high courts can offer judicial leaders more leeway to encourage lawyers to take on pro bono matters. Rule 3.7 of the ABA’s Model Code of Judicial Conduct expressly allows judges to encourage lawyers to provide pro bono legal services, and comments to that rule state that, in addition to appointing lawyers to serve as counsel, a judge may promote broader access to justice by encouraging lawyers to participate in pro bono, if in doing so the judge does not employ coercion or abuse the prestige of judicial office. According to the comment, the encouragement may include providing lists of available programs, training lawyers to perform pro bono legal work, and participating in events that recognize lawyers for pro bono service. Many states have adopted or proposed identical or similar rules, allowing their judges to encourage pro bono service.67 Those courts that do permit more extensive judicial involvement in the promotion of pro bono demonstrate not only that a robust judicial role is ethical conduct, but also that leadership by the judiciary greatly advances the goal of increased access to justice for indigent citizens.
iii. Other State Rule Changes
There are other changes that can be made to state practice rules that would encourage additional pro bono work by the private bar. For example, allowing lawyers, especially in-house, government, and military lawyers, to provide pro bono services in jurisdictions where they are not admitted to practice, in limited circumstances (such as after a major disaster), could erase huge barriers to pro bono.68 Other rule changes could permit lawyers who are retired or inactive to provide pro bono services without having to pay bar dues or fulfill CLE requirements.69 Many states’ rules allow for unbundling of legal services or limited scope representations.70 Under these rules, lawyers can perform some, but not all, of the tasks commonly included in full-service representation. This allows lawyers to provide valuable services without having to commit to long-term representation of the client. Other states relax conflicts rules for lawyers participating in legal service hotlines or other short-term representation programs.71 Finally, State Bars can play a role in promoting pro bono services by requiring or encouraging lawyers to report their pro bono hours or communicating expectations that lawyers should provide pro bono services.72 At the very least, these rules help to put pro bono in front of lawyers on a regular basis and, ideally, will cause some to act.
4. Create or Strengthen State Access to Justice Commissions
Many states’ high courts have created AJCs or similar statewide entities to address legal services for indigent clients on a statewide level.73 They usually are composed of bar representatives, judges (including retired judges), legal aid providers, professors and law students, and other stakeholders. These commissions may, among other things, conduct studies on legal needs, produce reports and recommendations, hold educational and media campaigns to raise awareness, engage local corporate law departments, create task forces, hold conferences, and provide training for legal aid staff and volunteers. Some also work to improve access to courts for pro se litigants.74 The ABA has compiled significant resources for states seeking to create their own AJCs.75
Successful AJCs have consistent participation from state supreme court justices, are accountable to multiple institutions, rather than just the judiciary or the bar, and have a full-time executive director or other staff. When carried out effectively, these AJCs can bring together stakeholders to coordinate and encourage innovation in legal services, including pro bono, and can create a broad-based pro bono culture within a state. As one of the largest funders of civil legal aid in many states, LSC and its grantees have a special obligation to participate in and support these state-level approaches. Additionally, states that do not have AJCs should consider creating them, and those that do should invest resources into making them strong and innovative centers for leadership in the justice community.
b. Requests of the Legal Profession: Recognize the Importance of Pro Bono.
This report would not be complete without a word about the dire need to fund legal services. A high quality pro bono system is dependent upon sufficient resources for legal services. Recent cuts in funding have cut resources – including those needed to develop an effective pro bono infrastructure – to the bone.
The legal profession as a whole should recognize the importance of providing every American with access to our justice system, the role that pro bono lawyers can play in offering that access, and the cost of developing and maintaining effective pro bono programs.
Every legal service provider has been affected by the economic downturn, as foundations have cut back their giving, IOLTA has plummeted as a result of falling interest rates (exacerbated by the dearth of real estate transactions with escrowed funds held in IOLTA accounts), and funding has been drastically cut both at the federal and state levels.76
In some states, LSC grantees and others have launched active campaigns to raise additional dollars from the private bar, including from their pro bono partners. State AJCs and other groups have successfully recommended adoption of new fees, such as pro hac vice fees, or voluntary contribution check-offs on bar dues forms, with all new revenues going to legal services organizations.
The stakeholders who participate in these efforts should be applauded. We encourage others to help to the extent they can. General counsels, firm leaders, and bar leaders should speak out about the need for funding, and contribute, where possible. LSC grantees also should consider launching fundraising campaigns and exploring new sources of funding.77 Everyone should recognize that while pro bono lawyers can help, they cannot do so without the support, expertise, and time of legal aid lawyers.
61 NCSC is a tremendous resource for data and information on efforts by state courts to increase pro bono participation.
62 CCJ and COSCA, comprised of the judicial and administrative leaders of state courts, are influential organizations that can impact widespread change and garner significant support for specific policies or programs. The CCJ has issued resolutions highlighting the importance of pro bono representation and urging state courts to take steps to increase pro bono service by their bar members. See CCJ, Resolution 7: Encouraging Pro Bono Service in Civil Matters, (Feb. 1997) http://apps.americanbar.org/ legalservices/probono/doc/resolutionvii.pdf; CCJ, Resolution 23: Leadership to Promote Equal Justice, (Jan. 2001) http://ccj.ncsc.dni.us/AccessToJusticeResolutions/resol23Leadership.html.; CCJ, The Importance of Funding for the Legal Services Corporation from the Perspective of the Conference of Chief Justices and the Conference of State Court Administrators (February 2012), http://ccj.ncsc.dni.us/pdfs/LSC_WHTPR. pdf ; ABA Standing Comm. on Pro Bono & Public Serv., Judicial Promotion of Pro Bono, http://apps.americanbar.org/legalservices/probono/judicial/resolutions.html.
63 For example, Colorado’s Supreme Court recognizes on its web site those law firms, solo practitioners and in-house counsel groups who make a voluntary commitment to devoting 50 hours of pro bono legal services per year. See Colorado Supreme Court, Pro Bono Legal Service Commitment and Recognition Program, http://www.courts.state.co.us/Courts/Supreme_Court/Pro_Bono.cfm. Similarly, the District of Columbia courts recognize those who have provided more than 50 pro bono hours per year on the Capital Pro Bono Honor Roll. See D.C. Courts, Pro Bono Honor Roll, http://www.dccourts.gov/internet/about/probonohonorroll/ main.jsf.
64 Celebrate Pro Bono: National Pro Bono Celebration Home, http://www.probono.net/celebrateprobono/
65 For a list of states which provide CLE credit for pro bono work, http://apps.americanbar.org/legalservices/probono/clerules.html.
66 Otherwise, such rules have not been effective. For example, Washington State adopted a CLE for pro bono rule that also required that lawyers undergo a certain amount of training before they could obtain CLE credit for their pro bono work. Lawyers did not take advantage of the rule because it was difficult, especially for lawyers in rural areas, to access that training.
67 ABA Standing Comm. on Pro Bono & Public Serv., Judicial Promotion of Pro Bono, http://apps.americanbar.org/legalservices/probono/judicial/statejudicialconduct.html#SI_KS.
68 See, e.g., Rule XXII of the Rules Governing Admission to the Bar of Texas, http://www.supreme.courts.state.tx.us/miscdocket/10/10917100.pdf (allowing military lawyers allowed to represent service members and their families); D.C. App. Rule 49, http://www.dccourts.gov/internet/documents/rule49.pdf (dealing with federal government lawyers); ABA Standing Comm. on Client Protection, State Implementation of ABA Model Court Rule on Provision of Legal Services Following Determination of Major Disaster, http://www.americanbar.org/content/dam/aba/migrated/2011_build/probono_public_service/katrina_chart_2011.authcheckdam.pdf (allowing for temporary admission for out-of-state lawyers rendering pro bono after a major disaster); Corporate Pro Bono, Multijurisdictional Practice: In-House Counsel Pro Bono, http://www.cpbo.org/wp-content/uploads/2012/05/MJP-Article-May-2012.pdf (discussing in-house counsel); ABA House of Delegates Resolution 108, http://www.abanow.org/2012/01/2012mm108/ (encouraging state and local bars to allow military spouses to practice in other jurisdictions).
69 ABA Commission on Law & Aging. State Emeritus Pro Bono Practice Rules (April 4, 2011), http://www.americanbar.org/content/dam/aba/migrated/legalservices/probono/emeritus.authcheckdam.pdf
70 See ABA Model Rule 1.2; see also ABA chart on variations of Rule 1.2 among states, http://www.americanbar.org/content/dam/aba/migrated/cpr/pic/1_2.authcheckdam.pdf.
71 See ABA Model Rule 6.5; see also ABA chart of variation of Rule 6.5 among states: http://www.americanbar.org/content/dam/aba/migrated/cpr/pic/6_5.authcheckdam.pdf.
72 ABA Model Rule of Professional Conduct 6.1 states that every lawyer has a professional responsibility to provide legal services to those unable to pay for them and should aspire to provide at least 50 hours of pro bono service each year. A majority of states have adopted Rule 6.1 in whole or in part and many states specify an annual pro bono hours target within their rule. See ABA Standing Comm. on Pro Bono & Public Service, State-By-State Pro Bono Service Rules, http://apps.americanbar.org/legalservices/probono/stateethicsrules.html; ABA Standing Comm. on Pro Bono & Public Service, Overview of State Pro Bono Reporting Policies, http://www.americanbar.org/groups/probono_public_service/policy/reporting_of_pro_bono_service.html.
73 Robert Echols, Examples of State Access to Justice Commissions: Creation, Structure and Accomplishments, http://www.law.stanford.edu/sites/default/files/event/266627/media/slspublic/Examples%20 of%20ATJ%20MIE%202008_1.pdf. See also ABA Standing Comm. on Legal Aid & Indigent Defendants, State Access to Justice Commissions: Lists and Links, http://www.americanbar.org/groups/legal_aid_indigent_defendants/initiatives/resource_center_for_access_to_justice/state_atj_commissions.html. There are statewide Access to Justice Commissions in 25 states and the District of Columbia (AL, AR, CA, CO, CT, HI, KY, ME, MD, MA, MN, MS, NV, NH, NM, NY, NC, SC, TN, TX, VT, WA, WV, WI, WY).
74 See ABA Resource Center for Access to Justice Initiatives, http://www.americanbar.org/groups/legal_aid_indigent_defendants/initiatives/resource_center_for_access_to_justice/state_atj_commissions_resources.html.
75 See ABA Standing Comm. on Legal Aid & Indigent Defendants. State Access to Justice Commissions: Resources on Structure, Development and Leadership, http://www.americanbar.org/groups/legal_aid_indigent_defendants/initiatives/resource_center_for_access_to_justice/state_atj_commissions_resources.html.
76 Singsen, Gerry, PAI – A Time for Reflection, Management Information Exchange Journal, 29, 26-31 (Spring 2005).
77 Some training, such as the Management Information Exchange annual fundraising conference is available, but even more tools and support are needed to grow this effort. The ABA Resource Center on Access to Justice Initiatives is one valuable source of technical support in this fundraising area. ABA Standing Comm. on Legal Aid & Indigent Defendants, Resource Center for Access to Justice Initiatives, http://www.americanbar.org/groups/legal_aid_indigent_defendants/initiatives/resource_center_for_access_to_justice.html.
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