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To the Bars: Don’t Make Me Part of Your PR Scam With Mandatory Pro Bono Reporting

by Carolyn Elefant on June 21, 2006 · 19 comments

in Legal Profession Trends, Pro Bono

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Evan Schaeffer posts here that the Illinois Bar is the latest bar to implement a mandatory pro bono reporting requirement whereby lawyers must report pro bono activity annually to the bar.  According to Schaeffer, “the Illinois Supreme Court hopes that the new reporting requirement will
serve as a reminder that pro-bono work is important. In addition, it
will allow information to be gathered about lawyers’ efforts overall.”

On the surface, mandatory pro bono reporting seems innocuous enough.  Lawyers aren’t forced to perform pro bono and it’s not really all that time consuming to fill out a form once a year and send it in to the bar.  In fact, over at Legal Ethics Forum, Don Burnett analyzes mandatory pro bono reporting requiremens, concluding that those who oppose them are “really disputing the core message of ABA Model Rule 6.1.” (providing that lawyers should aspire to 50 hours of pro bono annually).

Even though I agree that lawyers have a professional obligation to perform pro bono because the requirements would disproportionately penalize solos.  Most pro bono requirements do not recognize that the work that many solos perform day to day is pro bono.  But at the same time, biglaw firms would be free to characterize as pro bono work at the rate of $400 an hour, marketing efforts and even a loss on attorneys fees representing high profile defendants. (under this last definition, given the firm’s potential loss in connection with representing Jeff Skilling, O’Melveny, Meyers would win a pro bono award!).

And that’s what I despise about mandatory pro bono reporting.  Lawyers send in hours for any kind of pro bono work, whether it’s really pro bono or not.  The bars collectsthese numbers and then uses them to give themselves a huge public pat on the back (hey, look at how much pro bono are lawyers are doing) – similar to what the ABA did last summer.   Yet as I described in my ABA post, for all the millions of hours of pro bono that lawyers allegedly perform, we’ve still not made a dent in providing lower and middle income people in this country with meaningful and affordable access to law.
Mandatory pro bono reporting forces me to participate in this massive PR sham, it takes the pro bono hours that  I report and uses them to make the bar look good, when frankly, when it comes to providing the poor with access to law, we still have a long, long way to go.

  • http://www.jeremyrichey.com/2006/06/21/il-pro-bono-reporting/ Jeremy Richey’s Blawg

    IL Pro-Bono Reporting

    Evan Schaeffer today blogs about a new Illinois Supreme Court rule which requires lawyers to annually report their pro-bono activities, including hours worked and any money contributed to pro-bono efforts. Carolyn Elefant, one of my favor…

  • http://www.jeremyrichey.com/2006/06/21/il-pro-bono-reporting/ Jeremy Richey’s Blawg

    IL Pro-Bono Reporting

    Evan Schaeffer today blogs about a new Illinois Supreme Court rule which requires lawyers to annually report their pro-bono activities, including hours worked and any money contributed to pro-bono efforts. Carolyn Elefant, one of my favor…

  • Susan Cartier-Liebel

    Carolyn,
    I agree this is bad for the solo but not necessarily for the the reasons you state (after reading the full text of the requirements.) The issue I have with this is it is just a hop skip and a jump from mandating pro bono work. Once the framework is laid, “voluntary” can easily become “required.” Notice, failure to report can be a basis for not renewing license to practice in the state. How far before failure to do pro bono work is a basis for not renewing a license. In addition, the greatest burden, the one’s who will look the most ungenerous with their time, will be the solos because of the greater responsibilities they have to support and run their business, the greater financial suffering they have when client’s fail to pay and so on. So, who will be hit hardest when voluntary becomes mandatory? It is a very dangerous precedent even though on it’s face it seems innocuous.

  • Susan Cartier-Liebel

    Carolyn,
    I agree this is bad for the solo but not necessarily for the the reasons you state (after reading the full text of the requirements.) The issue I have with this is it is just a hop skip and a jump from mandating pro bono work. Once the framework is laid, “voluntary” can easily become “required.” Notice, failure to report can be a basis for not renewing license to practice in the state. How far before failure to do pro bono work is a basis for not renewing a license. In addition, the greatest burden, the one’s who will look the most ungenerous with their time, will be the solos because of the greater responsibilities they have to support and run their business, the greater financial suffering they have when client’s fail to pay and so on. So, who will be hit hardest when voluntary becomes mandatory? It is a very dangerous precedent even though on it’s face it seems innocuous.

  • http://www.marcusletter.com Bruce W. Marcus

    Some years ago, as a consultant to the Bar Association of New York, the question arose about the apparent lack of gratitude for the pro bono work. I suggested that the problem was that what people wanted more than free lawyers was more transparent law, which would obviate the need for lawyers. Pro bono work, like most charity, brings too much baggage beyond personal satisfaction. Pro bono reporting does exactly that, turning it into a commodity — an ad for the profession.

  • http://www.marcusletter.com Bruce W. Marcus

    Some years ago, as a consultant to the Bar Association of New York, the question arose about the apparent lack of gratitude for the pro bono work. I suggested that the problem was that what people wanted more than free lawyers was more transparent law, which would obviate the need for lawyers. Pro bono work, like most charity, brings too much baggage beyond personal satisfaction. Pro bono reporting does exactly that, turning it into a commodity — an ad for the profession.

  • George M. Zuganelis

    After reading about mandatory pro bono reporting in Illinois (I practice in Chicago, Illinois)I see a problem not yet mentioned. In the past, I’ve had potential clients DEMAND that I take their case pro bono. I politely turn them down by telling them I’ve met my pro bono hours for the year. As this is made public, more people will DEMAND the service. I’ve learned that people who make such demands become major problems for lawyers. They are never satisfied, and take up more time than the case requires.
    Partners from big law firms have associates handle pro bono cases. The partner handles only paying clients. As a solo, I can’t do that. I have to handle every case. That takes away time I can give to my paying clients. That’s a major disadvantage. At least under the new Illinois rule, I can donate money to a legal aid firm instead of my time.

  • George M. Zuganelis

    After reading about mandatory pro bono reporting in Illinois (I practice in Chicago, Illinois)I see a problem not yet mentioned. In the past, I’ve had potential clients DEMAND that I take their case pro bono. I politely turn them down by telling them I’ve met my pro bono hours for the year. As this is made public, more people will DEMAND the service. I’ve learned that people who make such demands become major problems for lawyers. They are never satisfied, and take up more time than the case requires.
    Partners from big law firms have associates handle pro bono cases. The partner handles only paying clients. As a solo, I can’t do that. I have to handle every case. That takes away time I can give to my paying clients. That’s a major disadvantage. At least under the new Illinois rule, I can donate money to a legal aid firm instead of my time.

  • http://www.HowToMakeItRain.com RJON@HowToMakeItRain.com

    The issue of whether big firms are better equipped to provide or exploit the Pro Bono work they offer is a red herring.
    The REAL issue is that Mandatory reporting of Pro Bono services is so obviously the first step toward mandating the delivery of Pro Bono Services.
    I think that if we can avoid the “US vs. THEM” antics, we small firm attorneys might be able to educate our bretheren in larger firms that this is a bad thing for everyone.
    But as long as small firm lawyers continue to see everything the bar does as an attempt to give big firms the advantage, we’ll (all lawyers) never be able to speak convincingly for our rights as business owners to do what we please with our assets.

  • http://www.HowToMakeItRain.com RJON@HowToMakeItRain.com

    The issue of whether big firms are better equipped to provide or exploit the Pro Bono work they offer is a red herring.
    The REAL issue is that Mandatory reporting of Pro Bono services is so obviously the first step toward mandating the delivery of Pro Bono Services.
    I think that if we can avoid the “US vs. THEM” antics, we small firm attorneys might be able to educate our bretheren in larger firms that this is a bad thing for everyone.
    But as long as small firm lawyers continue to see everything the bar does as an attempt to give big firms the advantage, we’ll (all lawyers) never be able to speak convincingly for our rights as business owners to do what we please with our assets.

  • Anonymous

    The new reporting requirement makes me nervous, too, as it suggests a mandatory requirement in the future. While I think lawyers should try to help out the indigent community by performing pro bono work, I don’t see why it is the legal profession’s responsibility to solve. If providing free representation to the indigent is important to society, why isn’t it society’s responsibility as a whole to provide that representation? It seems to me our legislatures should be increasing funding to legal aid organizations.

  • Anonymous

    The new reporting requirement makes me nervous, too, as it suggests a mandatory requirement in the future. While I think lawyers should try to help out the indigent community by performing pro bono work, I don’t see why it is the legal profession’s responsibility to solve. If providing free representation to the indigent is important to society, why isn’t it society’s responsibility as a whole to provide that representation? It seems to me our legislatures should be increasing funding to legal aid organizations.

  • Susan Cartier-Liebel

    I have one last thought. Since this exercise is in essence a “survey” can you be mandated to participate in a survey or risk losing your professional license? Any thoughts anyone?

  • Susan Cartier-Liebel

    I have one last thought. Since this exercise is in essence a “survey” can you be mandated to participate in a survey or risk losing your professional license? Any thoughts anyone?

  • http://www.kimbrolaw.com S.L.Kimbro

    “…we’ve still not made a dent in providing lower and middle income people in this country with meaningful and affordable access to law.” I actually just left my law firm to try something that I am hoping will be a new way of providing legal services for middle to lower income individuals. Without the overhead costs of a physical law office, I can provide “unbundled” or limited legal services to individuals at a cost that is much less than what a large firm attorney would charge by the hour. So far, I am discovering that there is a large market out there of individuals who just need basic legal guidance and can’t afford an attorney. At the same time, as much as I would love to help everyone who contacts me, I also need to make a living. So a completely virtual law practice is my solution – a balance between pro bono and high charge billable hours.

  • http://www.kimbrolaw.com S.L.Kimbro

    “…we’ve still not made a dent in providing lower and middle income people in this country with meaningful and affordable access to law.” I actually just left my law firm to try something that I am hoping will be a new way of providing legal services for middle to lower income individuals. Without the overhead costs of a physical law office, I can provide “unbundled” or limited legal services to individuals at a cost that is much less than what a large firm attorney would charge by the hour. So far, I am discovering that there is a large market out there of individuals who just need basic legal guidance and can’t afford an attorney. At the same time, as much as I would love to help everyone who contacts me, I also need to make a living. So a completely virtual law practice is my solution – a balance between pro bono and high charge billable hours.

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  • anonymous

    interesting series of posts – as an experienced and employed attorney for nearly two decades, i would have disagreed with the article and many of the comments, as pro bono work has been a large part of my practice, and what i believed was a valuable service to the community –

    unfortunately, after giving my services away for more than ten years to a “qualified” client, after i was told the client had recently received a substantial amount of money, i stated i could not provide more pro bono services – no problem, as i would now be paid for my services – after nearly 20 hours of work, the client failed to pay me, after swearing to me i would get paid –

    outraged, i believed this was a valid debt, and told the client i would start collections – client immediately filed a bar complaint, which stated i had done nothing but diservices for all the years of my free services – 1 year later, the bar is still investigating – remember, i’ve received $0, and the client came back year after year

    i know this is an extreme example, but i learned several things – (i) i will never again do pro bono work, due to the liability, and the potential to get scammed; and (ii) i will never pursue a client again for fees, because it is not worth a potential bar complaint

    the law is the only place where this absurd and hurtful series of events will be tolerated and even encouraged by the bar – all any client needs to know is to immediately start a bar complaint whenever they don’t want to pay – all they have to say is how confused they were made by the bully attorney, no matter how absurd that may be

    beware . . .

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