1998 Proposal to Award CLE Credit for Pro Bono Representation of Low-Income Clients and Mentoring of Pro Bono Attorneys

NOTE: This proposal was adopted, with modifications, by the WSBA Board of Governors on February 13, 1998, and by the Supreme Court in April 2000. See the regulations.

MEMORANDUM

TO: Board of Governors

FR: WSBA Pro Bono and Legal Aid Committee

RE: Revised Proposal to Award CLE Credit for Pro Bono Representation of Low-Income Clients and Mentoring of Pro Bono Attorneys

DA: January 30, 1998

On January 9, 1998, the Pro Bono and Legal Aid Committee (PBLAC) asked the WSBA Board of Governors to consider its Proposal to Award CLE credit for Pro Bono Activity. After considerable discussion at that meeting, a decision on the proposal was tabled until the February 13-14, 1998 BOG meeting. As a result of those discussions, the PBLAC has revised its proposal and requests the Board of Governors reconsideration. The PBLAC has attached several letters supporting this proposal.

The Washington State Bar Association has made a strong commitment to institutionalize its support for efforts to improve the delivery of pro bono legal services to low-income people in Washington State. In that spirit, the Pro Bono and Legal Aid Committee (PBLAC) respectfully requests that the Board of Governors take the following action:

• Eliminate the conflict between the PBLAC's proposal (attached) and the MCLE Task Force Report by deleting pro bono activities from the Report's definition of meritorious work for which credit will not be given (page 28, subsection 3).
• Adopt the PBLAC's proposal to award CLE credit for certain types of pro bono and mentoring activities.

In 1994 the Board of Governors adopted the Volunteer Attorney Legal Services Action Plan (VALS Plan), which set forth recommendations to be implemented by WSBA, the Courts, the Law Schools and Legal Services and Pro Bono Legal Services Providers. These recommendations were to develop strategies and incorporate incentives to encourage attorneys to volunteer to provide legal services to low-income people. The Board of Governors charged the Washington State Bar Associations Pro Bono and Legal Aid Committee with implementing the task assigned to the WSBA, which was to remove barriers which make it difficult for attorneys to provide volunteer legal services and to encourage attorneys to provide these services.

In an effort to deal with the enormous difficulty of recruiting volunteer attorneys to handle contested family law cases, the PBLAC began in early 1995 to develop a proposal to encourage volunteerism by awarding CLE credit for pro bono representation in certain types of family law cases. In November 1995, the PBLAC made a presentation to the MCLE Board requesting approval for such a project. While the Board did not approve the proposal, in May 1996 it did solicit the PBLAC's views regarding the definitions of professionalism and professional responsibility. In response, the PBLAC resubmitted its original proposal, which in fact had discussed in detail the relationship between pro bono service and the new Ethics/Professionalism component of APR 11.2(c).

The PBLAC also learned that the newly formed MCLE Task Force was proposing to prohibit the awarding of MCLE credit for meritorious activity, which included pro bono service. The PBLAC made an oral presentation to the MCLE Task Force on June 21, 1996 regarding its proposal to award CLE credit for pro bono activity. Several Task Force members expressed interest in the concept, but not the actual proposal. MCLE Task Force member John Sherwood volunteered to assist the PBLAC in revising the proposal to address some MCLE Task Force concerns. The PBLAC changed its proposal to its present format and presented it to the MCLE Task Force in September 1997. By letter dated October 21, 1997, the MCLE Task Force notified the PBLAC that it would not recommend CLE credit for pro bono work.

The proposal now comes to the Board of Governors, further strengthened by two recent developments. First, the PBLAC's Law Firm Subcommittee completed a statewide survey of law firms. Responses indicated that attorneys would be more inclined to provide pro bono representation if CLE credit were available for their efforts. Second, the Vermont Supreme Court recently spearheaded an effort to establish a pilot project to award CLE credits to attorneys who accept, or mentor, pro bono cases in the areas of family law, bankruptcy/consumer, housing and wills/estates. Attorneys may earn up to six hours of credit (out of a two-year total of 20) in this manner. While Vermont does not yet have measurable outcomes, the legal services director reports that it is easier to make referrals and find new volunteers, and has noted an increased interest in pro bono representation among attorneys.

It should be noted that the Washington State Bar Association's Continuing Legal Education Department does not at present have a system of providing free or low cost CLEs or mentoring in relevant legal areas for pro bono attorneys in exchange for their volunteer representation of low-income clients or in exchange for the mentoring of pro bono attorneys. Since most of Washington State's 23 independent pro bono programs lack the staff, resources and expertise to develop relevant CLE courses, there are few (if any) training opportunities for those attorneys who wish to volunteer but who need the training. This dilemma is particularly acute in rural areas of the state.

The purpose of this proposal is threefold. First, it will help legal services providers recruit attorneys to provide direct representation to low-income clients, where the need is most pressing. Second, it will provide education and incentives for attorneys willing to provide pro bono representation by recognizing the educational value of both the training and direct representation. Third, it will provide a method to create mentor training through legal services providers and thereby offer better education and supervision to participating pro bono lawyers.

The WSBA Pro Bono and Legal Aid Committee proposes that the MCLE Board approve the granting of six (6) hours of CLE credit annually to those lawyers who certify they have fulfilled the following requirements under the auspices of a qualified legal services provider:

(1) Each attorney seeking CLE credit will have received at least two (2) hours of education, under the auspices of a qualified legal services provider, which may consist of:

a. not less than two (2) hours of training with live presentation(s) (MCLE Board Regulation 101(k)); or

b. not less than two (2) hours viewing or listening individually to video or audio tapes approved by the Board, (MCLE Board Regulation 101 (d)); or

c. any combination of the foregoing training, or;

d. serving as a mentor to a participating attorney who has completed the foregoing training; and

(2) Each attorney seeking CLE credit also will have subsequently completed not less than four (4) hours of pro bono work in providing direct representation to a low-income client(s) through a qualified legal services provider or in serving as a mentor to other participating attorney(s) who are providing such direct representation.

Upon completion of the pro bono case, the legal services provider will send the attorney a letter which confirms the number of hours earned for the representation. The attorney will self-report those hours on his or her WSBA CLE reporting form as Pro Bono Representation or Pro Bono Mentor and will attach a copy of the confirmation letter. The two hours earned for the training portion will be reported as one would report any other seminar, video or self study.

The PBLAC believes strongly that pro bono representation and mentoring are the types of activities contemplated by the October 10, 1997 MCLE Task Force Report, the WSBA's 1989 Professionalism Task Force Report, the Ethics/Professionalism component of APR 11.2(c), the BOG's Pro Bono Resolutions, and the Volunteer Attorney Legal Services Action Plan (VALS Plan).

In developing its October 10, 1997 Recommendations to the Board of Governors, the MCLE Task Force relies on the 1989 Professionalism Task Force Report, which defines profession as [P]ursuit of the learned art in the spirit of public service . The MCLE Task Force supports the conclusion that the profession must learn to make accommodations and to change and adapt to changing needs to address of the problem of the decline of professionalism:

The law and its institutions change as social conditions change. They must change if they are to preserve, much less advance, the political and social values from which they derive their purposes and their life. This is true of the most important of legal institutions, the profession of law. The profession, too, must change when conditions change in order to preserve and advance the social values that are the reason for its being.

One of the values underlying our society and our profession is providing meaningful access to the justice system. Given the recent dramatic cuts in funding support for legal services and pro bono programs and a parallel increase in the need for these services, it becomes necessary to reexamine how the organized bar can support more effectively efforts to improve access to the justice system. By institutionalizing creative incentives to volunteer in a time of a dramatic increase in need for legal services to low-income people, WSBA is indeed advancing the social values that are the reason for its being.

The MCLE Task Force also concludes that continuing legal education can be a significant part of the solution to this decline in professionalism. Citing the Wisconsin Commission Report, the Task Force notes, significantly, that the goal of legal education . . . should not be only to teach substantive law, but also to foster the acquisition of a relevant and universal set of skills and values and that this education must be ongoing. (emphasis theirs) The Task Force further concludes that learning can take different forms, e.g., "some learning is best-suited to the law school environment while some develops through a lawyer's years of practice . . . significant learning also takes place informally through a lawyer's observations of interactions with others in the legal community.

The MCLE Task Force's own definition of learning supports the PBLAC's proposal to award CLE credit. Volunteer attorneys will learn a new area of law by working on an actual case under the one-on-one supervision of an experienced attorney. This method of learning not only teaches substantive law and fosters the acquisition of a relevant and universal set of skills and values, but also meets the expectations of the WSBA's Task Force on Professionalism, which is to pursue a learned art in the spirit of public service.

Similarly, the Board of Governors and the Supreme Court recognized the important relationship between professionalism and continuing legal education by adopting the Ethics/Professionalism component of APR 11.2(c) in 1995. The stated purpose of this rule was to improve the public confidence in the profession and assist lawyers in their practices of law. Significantly, the Supreme Court concurrently adopted an amendment to GR 12(a) Purposes of the Washington State Bar Association: To promote access to the legal system. The purpose of that amendment conforms with the importance of access to justice for the public.

The Board of Governors also has defined the relationship between professionalism and pro bono activity by attorneys. The WSBA's 1989 Task Force on Professionalism identified key factors contributing to perceptions that professionalism in the law is declining. Its Report included numerous recommendations designed to improve this image, including the continuation by the WSBA of promoting pro bono programs and activities by its members. Indeed, in November 1989, the WSBA Board of Governors adopted an aspirational goal for each lawyer to provide a minimum of 30 hours per year of public interest legal services. The BOG concluded that, Because the extent of unmet civil legal needs of low-income people is so great, the Board of Governors especially encourages members to provide professional services at no fee to such persons, particularly in cases that involve family law problems.

In August 1990, the WSBA published an Update With Suggestions and Recommendations to the Report of the Task Force on Professionalism. Identifying pro bono legal service as [A]nother facet of professionalism, the author lauded the efforts by the WSBA and local bar associations to expand existing pro bono programs and to start new ones.

In May 1992, the BOG by Resolution reaffirmed its recommendation that WSBA members provide pro bono services to low-income persons. The BOG took two additional steps: It urged the WSBA and others to remove barriers which make it difficult for lawyers to provide public interest legal service, particularly individual representation of low-income. It also asked the WSBA Legal Aid Committee to develop and propose to the BOG an action plan for implementing its resolution. The resulting VALS Plan (discussed previously), was adopted by the BOG in 1994. This proposal emanates from that Plan.

Despite all the pro bono activity over the last decade, only 18% of the WSBA members currently participate in organized pro bono programs. The low-income population continues to increase, but state and federal support for these programs has been on the decline. Legal services programs in Washington state turn away four of five eligible low-income clients.

The WSBA Board of Governors has a long and impressive history of support for pro bono activity by its members. This proposal provides the BOG with an opportunity to remove a barrier which makes it difficult for attorneys to provide these services, especially to low-income clients. If adopted, it will institutionalize the WSBA's support for pro bono through its MCLE component. This proposal will create an incentive for attorneys to volunteer while providing those attorneys with a valuable learning experience that also serves the public good. The PBLAC believes that the WSBA, its members and the public all stand to benefit from the implementation of this proposal. The PBLAC urges its adoption.