October 2003
Ethics Rule Change Encourages Pro Bono Work on Behalf of Indigents
by Gail Smith and Andrew A. Guy
Introduction
The Washington Supreme Court's recent amendment of RPC 6.1, Pro Bono Publico Service, became effective on September 1, 2003. The changes to the rule are designed:
- to encourage lawyers to perform pro bono legal services on behalf of persons of limited means;
- to describe more fully what constitutes pro bono services;
- to establish an aspirational goal in terms of hours of service; and
- to provide recognition for those who do substantially more than the minimum goal.
This is the first of two articles regarding pro bono service in Washington following the amendment. This one explains changes from the prior rule and describes some types of activities that are within the scope and meaning of pro bono services as meant by the rule. The second article will identify sources of pro bono case referrals and various programs designed to assist lawyers meet their pro bono responsibilities as set forth in the amended rule.
Changes Effected by the Amendment
The amended rule emphasizes the provision of legal services to persons of limited means. It replaces the prior rule's somewhat vague first sentence ("A lawyer should render public interest legal service") with a statement emphasizing the importance of providing access to the justice system for the poor. The new first sentence states affirmatively: "Every lawyer has a professional responsibility to assist in the provision of legal services to those unable to pay."
The amended rule next sets an aspirational goal for lawyers to perform at least 30 hours of pro bono service annually. It provides for voluntary reporting of pro bono hours to the WSBA on the WSBA's annual fee statement, thus minimizing paperwork and avoiding multiple mailings.
The new RPC 6.1 is modeled after the ABA model rule. The comments to the model rule recognize that in some years a lawyer may render greater or fewer hours than the annual aspirational goal, but during the course of his or her legal career, each lawyer should render on average, per year, the number of hours set forth in the rule. Attorneys may also meet their pro bono obligation through a higher or lower number of hours of annual pro bono service based upon the percentage of the lawyer's actual time dedicated to the practice of law (a concept that may be particularly important to lawyers practicing law part-time).
The amended rule also provides for lawyers reporting 50 or more pro bono service hours in any given year to receive a recognition award from the WSBA. The award is designed both to motivate lawyers to perform a substantial amount of pro bono work and to reward those who do.
The amended rule lists ways of fulfilling the pro bono responsibility. It combines some of the prior rule's language with updated language that incorporates the now commonly used ABA definition of pro bono service. The various categories of pro bono service listed by the rule include:
1. Providing free legal services to persons of limited means or specified types of organizations in matters designed primarily to address the needs of persons of limited means. The types of organizations listed in the amended rule are charitable, religious, civil, community, governmental, and educational. Services performed for clients who simply do not pay for work that was supposed to be billable does not qualify. Neither does performance of normal job functions while in the employment of any of these types of organizations qualify. (The rule specifies that the legal services are to be provided "without fee or expectation of fee.")
This part of the rule covers the direct representation of indigent clients in court or in out-of-court legal matters (contracts, wills, negotiations with creditors, etc.). It also includes legal services that directly benefit the poor, but are performed free for organizations, such as reviewing a lease for a new homeless shelter being established by a local church or community organization.
2. Providing legal services at no fee or substantially reduced fee to individuals, groups, or organizations seeking to secure or protect civil rights, civil liberties, or public rights. The amended rule's first sentence recognizes the critical need for legal services that exists among persons of limited means. However, representation of individuals of limited means is not the only activity that qualifies under the rule. The legal services contemplated by the amendment consist of a full range of activities, including individual and class representation, providing legal advice, legislative lobbying, administrative rulemaking, and providing free training or mentoring to those who represent persons of limited means. The variety of possible activities should facilitate participation by all segments of the Bar, including government attorneys, even when restrictions may exist on their engaging in the practice of law outside of their employment.
Although this part of the amendment would include such matters as habeas corpus petitions on behalf of convicted criminals, the scope of public benefits encompassed here is quite broad, and could easily include legal work for organizations on both sides of many social issues. However, sitting on a board or performing other services that do not include legal services would not qualify as pro bono work under the amended rule.
The amended rule also requires the services to be provided at no fee or a "substantially" reduced fee. The insertion of the word "substantially" is a change from the prior rule, suggesting that a nominal discount is not sufficient to meet the standard contemplated by the amendment.
3. Providing legal services at no fee or substantially reduced fee to specified types of organizations in furtherance of their organizational purposes, where payment would significantly deplete the organization's economic resources or would otherwise be inappropriate. An attorney also has the opportunity to perform pro bono services through activities that do not necessarily focus upon providing legal services to persons of limited means. The types of organizations listed are, as before, charitable, religious, civil, community, governmental, and educational. Although the focus of this provision may not be on serving persons of limited means, many of the organizations benefit the poor, either directly or indirectly. And, once again, the rendering of legal services is a threshold criterion for pro bono services as meant by the amended rule. Thus, serving as a member of a board of directors of a charitable organization, as a city council member, or as a church official does not qualify, nor does regular employment with any of the listed organizations.
The types of legal work that should qualify under this part of the amended rule are quite broad. For example, the amended rule would include such services as helping a charitable organization become incorporated as a nonprofit entity; negotiating an employment agreement with its executive director; and reviewing its office lease, assuming that payment for the services would "significantly deplete" the entity's resources or, if charging standard fees, otherwise would be "inappropriate." (Note that the review of a lease for the site of a homeless shelter would be covered under the portion of the amended rule described in section 1 above.)
The reference to situations where it is "inappropriate" to bill the entity for legal services is presumably intended to provide for flexibility. One example might be where sums spent on legal fees would divert funds that otherwise would be spent on the organization's mission, even if the organization's resources would not be "substantially depleted" by paying legal fees. Also, as noted above, to be considered pro bono services under the amended rule, if fees are to be charged at all, they should be at a "substantially" reduced fee, rather than merely a nominally reduced fee.
4. Providing legal services at a substantially reduced fee to persons of limited means. This portion of the amended rule makes clear that pro bono work for poor individuals doesn't have to be completely free. (The provision of "no fee or expectation of fee" to individuals is included earlier in the amendment, as referenced in section 1 above.) However, the fee apparently should be relatively low, because, as noted above with respect to organizations, the adverb "substantially" is new.
As a practical matter, for services rendered to individuals who are living on incomes below or just above federal poverty guidelines, if any fees are charged at all, they presumably will have to be merely token in nature if the fee agreement is to be realistic. In any case, underpayment by a client in a billable matter should not be characterized or reported as "reduced fee" pro bono services. This section also encourages acceptance of court appointments in which the fee is substantially below a lawyer's usual rate.
5. Participation in activities for improving the law, the legal system, or the legal profession. This is a continuation of language in the prior rule. It is the one component of pro bono services under the amended rule that does not require legal work to be performed. It also does not focus on rendering of services to or for the benefit of the poor.
This category includes volunteer work on a variety of legal topics. Certainly, work on committees seeking to update court rules or promote adoption of uniform laws should be covered. The language also is broad enough to include almost all volunteer work on state or local bar committees, unpaid legislative lobbying activities, and even editorial writing on legal issues. Such a broad provision may seem out of place with the other parts of the amendment, but provides an alternative means of providing pro bono service that is in keeping with the traditional scope of the rule.
The amendment also removes prior wording that may have been read to allow lawyers to fulfill their pro bono responsibilities entirely or in part by contributing money to organizations that provide legal services to persons of limited means. That portion of the prior rule has simply been deleted. The deletion should not discourage or deter attorneys from making financial contributions to worthy legal-services programs. Instead, the deletion underscores that the amendment's real focus is personal participation by lawyers in performing pro bono legal services.
The efforts of individual lawyers will not be enough to meet the need for free legal services that exists among persons of limited means. The government, the WSBA, local bar associations, and other local organizations have instituted additional programs to provide these services. Lawyers' pro bono services supplement these efforts, and are not intended to replace existing legal-services programs.
Conclusion
The amendment to RPC 6.1 should have the salutary effect of providing additional professional incentives to perform pro bono work on a regular basis. Next month's article will address approaches to fulfilling the amendment's aspirational goal by identifying sources of pro bono work that provides meaningful help to pro bono clients, is fulfilling to the lawyer, and is within the lawyer's areas of expertise. It will also discuss means of overcoming perceived obstacles to performing pro bono work in various practice contexts, including private firms, in-house corporate law departments, and government agencies, and in various practice areas, including business lawyers who do not feel comfortable taking on matters involving court hearings.
Gail Smith practices with Jones & Smith in Mount Vernon, and chaired the WSBA's Pro Bono and Legal Aid Committee (PBLAC) in 2002-03. Andrew Guy practices with Stoel Rives in Seattle and chairs the PBLAC for 2003-04.
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