Mandatory Pro Bono Coming to Mississippi?
The Mississippi Supreme Court Rules Committee on the Legal Profession is proposing a major change to the Rules of Professional Conduct: lawyers will be required to perform 20 hours of pro bono legal services to the poor per year. Those who don't must pay $500.00 to the Bar.
Here is the link to the proposed new rule. The deadline for comments is October 1, 2010.
As can be seen in the linked proposed rule, the current rule is that lawyers should (but don't have to) render 20 hours of legal services per year to the poor. In the alternative, lawyers may make a voluntary contribution of $200 to the Mississippi Bar.
A reader forwarded me a comment letter from Water Valley lawyer John Gillis, who makes some convincing arguments against the proposed rule. Among Gillis' points:
- no other jurisdiction has a mandatory pro bono requirement
- only seven states have mandatory pro bono reporting (including Mississippi)
- eight states have rejected even mandatory pro bono reporting
- a mandatory requirement would spoil the altruism one gets from performing pro bono work
- there will likely be problems in the quality of pro bono work
- lawyers may have problems in finding indigent clients
- the proposed rule provides no organizational or management structures for the new rule
- pro bono is by nature a voluntary act.
Gillis proposes other incentives for voluntary pro bono service, including awarding six hours of CLE credit for lawyers who meet the 20 hour threshold. Incidentally, allowing a few hours of CLE credit for pro bono work was proposed a few years ago by the Bar's Delivery of Legal Services Committee (I chaired the committee). The Commission on Continuing Legal Education rejected the proposal despite support from the Access to Justice Commission.
My Take:
I am a big believer in pro bono service. I try to always maintain at least two active pro bono cases and have relished the sincere appreciation that pro bono clients often communicate. But my initial reaction to the proposed rule is not positive.
I agree that pro bono should be voluntary. I am afraid that if lawyers have to provide pro bono services, then many will resent it and their pro bono clients.
In addition, some lawyers may have practices that are not suited to regularly providing pro bono legal services. Typical pro bono work is in chancery court handling domestic matters such as divorces, guardianships and child custody disputes. Should a transactions lawyer who never enters the courtroom handle these types of cases? Probably not. So what will these lawyers do to fulfill their pro bono requirement?
There are also provisions in the proposed rule that I do not like the sound of. Can some lawyers at firms meet the requirement through the work of others lawyers under the collective discharge provision? If so, this will become known as the “Senior Partners” rule and will lead to senior lawyers at firms making the junior lawyers perform enough pro bono services to satisfy the requirement of the senior lawyers and the junior lawyer. You could have junior associates performing a hundred hours or more of pro bono work to satisfy the requirement for the firms' senior partners.
I also don't like the exemptions. First, cynics will note that it's pretty easy for the Supreme Court to adopt a pro bono requirement that does not apply to its justices.
Second, why do all government lawyers get a pass?
Third, what does “those lawyers who are restricted from practicing law outside their specific employment” mean? In-house counsel? If so, why do they get a pass? Some in-house counsel litigate cases in Mississippi courts. Can any employer enact a rule restricting the practice of law outside their specific employer? If so, I can pretty much guarantee that my employer (Philip W. Thomas, P.A.) is going to pass such a rule so I don't have to worry about this new rule. Expect other law firms to do the same.
Fourth, are the chancery judges going to appreciate it when lawyers who have no business in their courtroom show up representing clients in order to meet their requirement? And will that be good for the client if the opposing party is represented by an attorney experienced in the area of practice?
In conclusion, the proposed rule is paved with good intentions. But I don't like it. The Court and Bar should look for ways to encourage pro bono legal services. They should not mandate it.
Obviously, the Court is trying to get the $500 per lawyer, not the donated services. Which makes it all the more egregious that the justices themselves, and judges, gov't lawyers, etc., are not on the hook.
If the obligation's assignable as you suggest, then large firms can solve the problem by hiring a "pro bono lawyer" who will do nothing else; positions like that are attractive to some idealistic folks.
I'm at a firm that will pay my $500 (I think!), but the real victims are the solo practitioners who are just getting by.
But the biggest objection of all is that there's no reason why pro bono services should have to be funded on the backs of lawyers alone, any more than doctors should be charged a fee to pay for Medicaid. The Legislature should be the one funding this. Presumably because it won't, the Court is stepping in; but I do not much like the MSSC becoming a taxing entity.
(I don't even know if that's legal ... I'm sure someone will challenge this in court if it's enacted, and ultimately a special tribunal will have to hear it, since the MSSC will be conflicted out -- much as happened in the judiciary's pension case years ago.)
BS rule to further ride us solo guys into the ground. I do my share of Po Bono but this is over the top. No other profession on earth is required to do this. If we have to why not contractors , well drillers, dentists, convenience stores, etc. Everyone should pay taxes plus give a week of income on top of what we already do. This rule is from people who do not have kids or a family to feed and probably have not ever done community or church service in their life. Let the rule state that exempt Judges etc. must certify they donate the same amount of time to a community reading program.
what does “those lawyers who are restricted from practicing law outside their specific employment” mean?
Now that I think about it, my firm presumably has a rule that I not practice law on my own.
So "firm" lawyers may be exempt! (The rule doesn't define "restricted.") Only solo practitioners are on the hook! Good luck, guys!
I do so much pro bono work a year I could spread to 30 other lawyers and let everyone of them meet the 20 hr limit
Who came up with this? Who is pushing it? Is it one of the justices or a group of them? Or is it some group of people at the bar?
This is coming from a Supreme Court subcommittee headed by Justice Waller, who is likely viewing this as a big public relations opportunity to utilize when he runs for governor.
So we're in a profession that has one of the highest (if not the highest) alcoholism, depression and suicide rates. And now we're expected to devote even more of our time to it? I'm sorry for not feeling charitable, but I did not spend, and continue to pay, money for student loans and let my profession define my entire life. I volunteer in other areas so I can get AWAY from a stressful profession. While I enjoy helping others (away from my office), I went to law school so I CAN do these things, and every now and then, be able to afford something nice for myself and my wife--if you count paying bills and eating in this legal market!
Is there any organized opposition to this? If so, I'd like to join it.
You know, when charity becomes compulsory, it ceases to be charity and becomes, instead, a tax.
After 10,000 lawyers have to pay a $500 fine, or burn $6,000 worth of time, methinks some mass tort lawyer is going after that in a class action on the unconstitutional taking.
This is really a bad rule, even for folks that already do a ton of pro bono work. It's just wrong to force charity work on someone with the power of the law behind you.
I believe in doing pro bono work, and routinely accept cases from MVLP. I do this because I want to help those less fortunate and I think it's important to give back to the community.
That being said, I'll be damned if I am going to be forced into doing pro bono work. This is patently unconstitutional and will be expeditiously dispatched upon arrival in federal court. In short, I will comply with this rule as soon as the US Supreme Court says I have to.
The odds of this ridiculous rule surviving a 1983 challenge are about as good as Waller being elected governor.
Seems like I remember a SCOTUS case from law school where a mandatory pro bono arrangement was found to be constitutional against a taking and involuntary servitude challenge.
I'd rather see a pro bono requirement than a CLE requirement. The former actually accomplishes something of use; the latter is a racket for bar associations and CLE providers.
Makes sense, Max -- abolish the CLE requirement, require pro bono donations instead. Works out about the same, I suspect.
CLE is a joke. You can keep up with the law by reviewing the hand-downs every Tues. and Thurs. If they weren't required, there would be fewer of them, and the ones that were offered would reflect actual demand and be higher quality.
... The constitutionality issue seems to be a non-starter. See e.g. Dolan v. U.S., 351 F.2d 671 (5th Cir. 1965) (mandatory uncompensated service by lawyers); Sup. Ct. of N.H. v. Piper, 470 U.S. 274 (1985) (observing that "a nonresident bar member, like the resident member, could be required to represent indigents and perhaps to participate in formal legal-aid work").
Piper addressed the issue of New Hampshire's requirement that members of the bar be residents of NH. The issue of the constitutionality of mandatory pro bono was neither raised nor addressed by the Court. The Court simply responded to an argument made by the NH Supreme Court that nonresident lawyers would not do pro bono work.
As to Dolan, that case dealt with uncompensated representation of criminal defendants pursuant to a court order. The Fifth Circuit recognized that Courts had long had the authority to appoint unpaid counsel in such cases. This situation is different in that Dolan dealt with indigent criminal defendants, while the proposed rule requires pro bono service to the world at large. This is an important distinction, as the right to counsel in a criminal case is secured by the US Constitution. There is no constitutional right to have your ID divorce done for free.
I realize that Piper is oblique, but it would be odd if the SCOTUS casually suggested that NH impose an unconstitutional burden on its lawyers. And the SCOTUS footnotes the El Paso bar's requiring work on ID divorces, precisely your example.
And I don't find your distinction compelling; the fact of right to counsel is completely irrelevant to how that right is provided, and there's nothing in the right to counsel that makes "force attorneys to donate services" the correct answer.
I will follow any suit with interest, but it seems to be an uphill battle. Anyone got a cite where such a suit has been *won*?
Notwithstanding that I routinely perform pro bono work, I am adamantly opposed to mandatory service or , alternativley, paying $500 ( which smacks of extortion to me). If it is passed, you are going to have some very angry lawyers and many disappointed pro bono clients which will result in negative repercussions that will be far reaching. Many solo attorneys and small firms already feel alienated from the MBA as it stands e.g. the quality of the CLE programs has definitely deteriorated over the years since it became mandatory. Many programs are obviously about making money as their primary goal. Please don't allow this requirement to pass.
Here's another part of this rule that's just plain stupid:
"Most pro bono service should involve civil proceedings where there is no governmental obligation to provide counsel, given that government must provide indigent representation in most criminal matters." (comments).
My practice is concentrated in DUI and criminal defense, and this is my area of expertise. Based upon this comment to the rule, if I sign on to represent an indigent defendant for free, this would not count as pro bono work, because the government is required to provide counsel to indigent criminal defendants.
Absolutely asinine.
Just a reminder, everyone:
If you're opposed to this rule, DON'T just vent in a blog comment. WRITE IN.
Clerk of the Supreme Court
Gartin Justice Building
P.O. Box 249
Jackson, Mississippi 39205-0249
Deadline: October 1, 2010
Can you afford not to?
In addition to writing in, I'd like to also get behind any effort to un-elect the justice(s) promoting this. Waller has been named. Is he the main proponant on the court?
It is limited, but NJ does have a pro bono requirement. Transactional attorneys are required to try cases, which is just wrong.
http://www.njsba.com/probono/index.cfm?fuseaction=exemptions