Is pro bono an ethical duty?


Should California lawyers have an ethical obligation to donate 50 hours a year to pro bono activities or donate the cash equivalent of 50 times their usual hourly fee? These and other proposals are discussed in the State Bar's Access to Justice Working Group report.

Some legal aid advocates believe there should be an "aspirational" pro bono goal for every lawyer, similar to that contained in the ABA's Model Rule of Professional Conduct. One option would require lawyers to report their pro bono activities to the State Bar annually.

The report's controversial proposals are made more urgent by funding shortfalls for legal aid and the continuing unmet needs of California's poor. But many lawyers question the wisdom of conscripted service, arguing that ultimately it is the effectiveness rather than the number of hours contributed that is the most critical component for pro bono activities. And the experiences of other states show how divisive mandatory or coerced pro bono programs and legal aid "taxes" can be.

In 1993, the Florida Supreme Court set a goal of 20 hours of pro bono work annually. An attorney could pay $350 to legal aid agencies in lieu of performing services. Florida lawyers were required to report their pro bono activities or contributions to the bar.

The rules have deeply split the Florida bar. Some attorneys oppose it on philosophical grounds, arguing that pro bono work is a personal, private matter and that "compelled altruism is not much of a virtue."

Others claim that the rule unfairly fails to count services performed for charitable institutions. Many attorneys question how easily the skills of criminal lawyers or civil practitioners such as patent or corporate lawyers could be applied to the needs of the state's poor. In June, the Florida bar asked the supreme court to rescind the reporting requirement.

In late 1994, the State Bar of Nevada petitioned Nevada's supreme court to make 20 hours of pro bono work an annual requirement for licensure in the state. Attorneys were to be given the option of buying their way out of the requirement for a $500 annual payment. The resulting uproar from rank and file lawyers forced the Nevada bar to back down.

Efforts to impose mandatory pro bono requirements have also been unsuccessful in recent years in Oregon, Maryland, North Dakota and Washington. A suit brought in Texas state court asking the state bar to mandate pro bono was dismissed for lack of jurisdiction.

The proposed California rule, with its larger hour and cash requirements, is in addition to a suggested 3 percent gross receipts tax on all legal services "consumed" in the state. This proposed sales tax may disproportionately burden solo and small firm practitioners who are less able to pass additional costs on to their clients. Similarly, mandatory pro bono requirements may be more difficult for lawyers who lack the infrastructure support that larger firms can provide.

Such proposals require a full and fair debate about the hardships they will impose on California attorneys. The new burdens should be weighed against the social benefits that can be reasonably expected from them.

Well-meaning supporters fail to appreciate the hostility that mandatory pro bono proposals stir. Given the rejection of mandatory programs elsewhere, proponents will have their work cut out to convince lawyers that ethical mandates or additional pro bono requirements are a wise course.