September 2002

Access to Justice

by Gail Smith 
Chair, WSBA Pro Bono and Legal Aid Committee1 

The Board of Governors (BOG) is seeking input from all WSBA members on a proposed revision to RPC 6.1 (Pro Bono Publico Service). The WSBA Pro Bono and Legal Aid Committee (PBLAC) has recommended the adoption of a rule that mirrors the ABA rule, reaffirming every lawyer's professional responsibility to provide pro bono legal services, and identifying an objective of at least 30 hours of pro bono activity by every attorney. The proposal also calls for the voluntary reporting of pro bono hours. The proposed rule change will be considered by the BOG at its October 2002 meeting.

The WSBA has a long, impressive history of demonstrated commitment to improving access to the justice system for low- and moderate-income people, and vulnerable populations. Central to this commitment has been the WSBA's strong leadership in encouraging its members to provide pro bono public service to those of limited means. In 1994, the BOG adopted the Volunteer Attorney Legal Services Action Plan (VALS Action Plan),2 which proposed strategies for removing barriers that make it difficult for attorneys to provide volunteer legal services, and encouraged attorneys to provide these services. The BOG delegated the implementation of this plan to its Pro Bono and Legal Aid Committee, which has, for the past eight years, focused almost exclusively on key initiatives that advance the goals of the plan.

One of these initiatives has been the development of proposed amendments to RPC 6.1, the ethical rule that addresses a lawyer's professional responsibility to provide pro bono public service to those of limited means.3 Given the ongoing legal-services funding crisis in our state and the attendant loss of capacity of the civil equal-justice delivery system to provide legal services, PBLAC has determined that direction and a clear message from the WSBA and the Washington State Supreme Court regarding the responsibility of attorneys to provide pro bono services is critical.

Indicative of the problem is that participation on formal pro bono panels in our state is stagnant — and has been for a number of years — despite an annual increase in the number of new lawyers. The Legal Foundation of Washington (LFW) tracks the level of pro bono participation by private attorneys through the LFW-funded pro bono programs in the state. In 2000 and 2001, the state's pro bono programs reported a total of 1,865 and 1,934 attorney volunteers, respectively. This represents just under nine percent of all active members for both years. While there is anecdotal information that many attorneys provide pro bono legal services to low-income clients outside these formal structures, there is no mechanism to track those contributions.4 

The proposed amendments to RPC 6.1 address these concerns as follows:

(1) Formalizes the current suggested 30-hour pro bono contribution. On November 18, 1989, the BOG adopted a resolution recommending that each attorney spend "at least 30 hours each year providing public interest legal services." On May 8, 1992, the BOG adopted a similar resolution, again recommending 30 hours. On September 15, 1996, the BOG passed a resolution encouraging attorneys to provide "voluntary pro bono publico legal services," without specifying the number of hours.

These resolutions are not made available as a matter of course to WSBA members. Even if they were, the apparent conflict between the resolutions in specifying/failing to specify an aspirational number of hours would not send a clear message to attorneys regarding the BOG's expectations. Formalizing the 30-hour suggested contribution by including it in the Rules of Professional Conduct is a powerful vehicle for ensuring that attorneys have a clear benchmark for fulfilling their professional responsibilities, as well as for teaching professional responsibility in law schools.

(2) Defines pro bono legal service. The proposed amendments are nearly identical to Revised ABA Model Rule 6.1, adopted by the ABA in 1993, excluding the voluntary reporting provision. Significantly, the ABA House of Delegates recently added the following introductory language to Model Rule 6.1: "Every lawyer has a professional responsibility to provide legal services to those unable to pay." PBLAC also recommends adoption of that language. To date, 14 states have adopted similar versions of the ABA revisions.5 

The proposed amendments recognize the critical need for legal services that exists among persons of limited means by providing that a substantial majority of the entire 30 hours be discharged through the provision of legal services to low-income people and groups that serve low-income people. The remainder of the 30 hours should be devoted to free or low-cost services for those of limited means; the organizations that serve them; and participation in activities for improving the law, the legal system, or the legal profession. Since attorneys are the only professionals licensed to provide legal services, it stands to reason that their professional obligations should be discharged by providing services to those who otherwise would go unrepresented.

(3) Provides a vehicle for the voluntary collection of information on pro bono legal services. A voluntary pro bono reporting system makes attorneys aware of, and encourages them to fulfill, their professional responsibility to provide legal services and to make financial contributions to the poor. It focuses attention on RPC 6.1 and adds incentive for compliance with the objective of at least 30 hours of pro bono service. The data collected through pro bono reporting can reveal the number of attorneys performing pro bono service during a given time period, the number of hours served, and details about financial contributions made to pro bono and legal-services programs.

The information can also facilitate recognition of contributing attorneys, enhance the public image of the legal profession, and improve the coordination of statewide pro bono delivery efforts. Experience in other states with voluntary reporting suggests that such reporting has increased the level of pro bono participation. To date, 17 states have adopted, or are considering adopting, a voluntary reporting policy.6 The proposed reporting of pro bono work would be completely voluntary, free from penalty for failure to comply.

(4) Provides recognition for those attorneys who provide at least 50 hours of pro bono legal services per year. Although most legal services and pro bono programs have their own awards and recognition events, the WSBA can send a powerful message about the importance of pro bono legal services if it institutionally recognizes and applauds these contributions. This recognition can take the form of certificates of appreciation, Bar News recognition, and other low-cost yet compelling and highly visible means. Currently the WSBA annually recognizes only one of its members for outstanding pro bono legal services.

(5) Provides that a lawyer should voluntarily contribute financial support to organizations that provide legal services to persons of limited means. Because the provision of pro bono services is a professional responsibility, it is the individual ethical commitment of each lawyer. Nevertheless, there may be times when it is not feasible for a lawyer to engage in pro bono services. At such times, a lawyer may discharge the pro bono responsibility by providing financial support to organizations providing free legal services to persons of limited means. Such financial support should be reasonably equivalent to the value of the hours of service that would have otherwise been provided.

In addition, at times it may be more feasible to satisfy the pro bono responsibility collectively, as by a firm's aggregate pro bono activities. Because the efforts of individual lawyers are not enough to meet the need for free legal services that exists among persons of limited means, the government and the profession have instituted additional programs to provide those services. Every lawyer should financially support such programs, in addition to either providing direct pro bono services or making financial contributions when pro bono service is not feasible.7 

The BOG would appreciate comments from WSBA members on the proposed amendments to RPC 6.1 for consideration at its October 18-19, 2002 meeting in Silverdale. If approved, the proposed amendments will be sent to the Washington State Supreme Court for consideration and adoption. Please send your comments by October 1, 2002 to Jan Michels, Executive Director, WSBA, 2101 Fourth Ave., Ste. 400, Seattle, WA 98121-2330; or janm@wsba.org.

RPC 6.1: Pro Bono Publico Service

A lawyer should render public interest legal service. A lawyer may discharge this responsibility by providing professional services at no fee or a reduced fee to persons of limited means or to public service or charitable groups or organizations, by service in activities for improving the law, the legal system or the legal profession, and by financial support for organizations that provide legal services to persons of limited means.

Every lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should render at least thirty (30) hours of pro bono publico legal services per year. In fulfilling this responsibility, each lawyer should:

A. provide a substantial majority of the thirty (30) hours of legal services without fee or expectation of fee to:

(1) persons of limited means; or

(2) charitable, religious, civil, community, governmental and educational organizations in matters which are designed primarily to address the needs of persons of limited means; and

B. provide the remainder of the thirty (30) hours of pro bono publico legal services through:

(1) delivery of 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; or charitable, religious, civil, community, governmental and educational organizations in matters in furtherance of their organizational purposes, where the payment of standard legal fees would significantly deplete the organization's economic resources or would be otherwise inappropriate;

(2) delivery of legal services at a substantially reduced fee to per sons of limited means; or

(3) participation in activities for improving the law, the legal system or the legal profession.

In addition, a lawyer should voluntarily contribute financial support to organizations that provide legal services to persons of limited means.

Pro bono services may be reported on the annual fee statement furnished to the WSBA. Lawyers rendering a minimum of fifty (50) hours of pro bono service shall receive a recognition award for such service from the WSBA.

1. The WSBA's Pro Bono and Legal Aid Committee deals with issues with respect to (1) supporting activities that assist volunteer attorney legal services programs and organizations, and encouraging pro bono participation; (2) addressing the administration of justice as it affects indigent persons throughout the state; and (3) cooperating with other agencies, both public and private, interested in these objectives.

2. The VALS Action Plan is available at http://www.waaccesstojustice.org/generalassets/
pro%20bono%20pubs/1994plan.

3. RPC 6.1: A lawyer should render public interest legal service. A lawyer may discharge this responsibility by providing professional services at no fee or a reduced fee to persons of limited means or to public service or charitable groups or organizations, by service in activities for improving the law, the legal system or the legal profession, and by financial support for organizations that provide legal services to persons of limited means.

4. Of note is that the state Supreme Court's Task Force on Civil Equal Justice Funding, established in November 2001, is interested in assessing the nature and extent of pro bono legal services contributions by attorneys. This information, in conjunction with the data being collected through the task force's Civil Legal Needs Study, will help inform planning for the optimal distribution of resources statewide to address identified client needs.

5. Arizona, Colorado, Florida, Georgia, Hawaii, Kentucky, Massachusetts, Minnesota, Mississippi, Montana, Nevada, New Mexico, Utah and Virginia.

6. States with voluntary reporting are Arizona, Georgia, Hawaii, Illinois, Kentucky, Louisiana, Maryland, Mississippi, Missouri, Montana, New Mexico, Texas and Utah. States considering voluntary reporting are Michigan, New Hampshire, New Jersey and Vermont.

7. ABA Comment to Revised Model Rule 6.1.