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.