May 1999

Ethics And The Law
Ethical Obligation to Provide Pro Bono Service

by Barrie Althoff, WSBA Chief Disciplinary Counsel

Opinions expressed herein are the author’s and are not official or unofficial WSBA positions.

Lawyers have long willingly provided legal services to those in need, without any expectation of compensation, acknowledgment or reward. Committed lawyers look at pro bono service less as an obligation than as an opportunity to serve the public and bring access to justice to those otherwise unable to afford it. This article looks at whether lawyers have any obligation to provide pro bono services, the possible sources or rationale for such an obligation, and the possible means by which any such obligation may be met.

Although generations of lawyers have given freely of their time and talents to provide pro bono legal services to those who cannot otherwise afford legal services, that history of committed public service does not of itself create an ethical obligation for other lawyers to do so, nor does it necessarily mean that it is possible for today’s lawyers to continue to provide such services.

Various rationales are advanced for a lawyer’s obligation to provide pro bono services. It may be argued that society has given lawyers a monopoly in the practice of law, especially in courtroom representation, through unauthorized-practice-of-law legislation or court rules. It may also be argued that lawyers have in effect added to and profited from the increasing legal complexity of our society, in that many transactions cannot easily or safely be accomplished without competent legal assistance. In exchange for this monopoly and role, it is argued, lawyers owe it to the public to provide legal services to those who cannot otherwise afford such services.

The monopoly/complexity rationale appears inadequate, however, to mandate pro bono services of lawyers, since there appears to be no societal belief that other professions and occupations also licensed by the state (other than, perhaps, the medical profession) have any obligation to provide free services. Nor has there been any vast outpouring of free services by plumbers, electricians, accountants, engineers or architects.

It has also been said that lawyers are obliged to render pro bono services because as officers of the court they have an obligation to ensure that our system of justice is fair, and that because of the complexity of the system it cannot be fair to those who cannot avail themselves of legal representation. The Preamble to the RPCs observes that lawyers as guardians of the law play a vital role in the preservation of society, and that the continued existence of a free and democratic society depends upon the recognition of the concept that justice is based upon the rule of law grounded in respect for the dignity of the individual. Lawyers providing pro bono services directly help maintain that respect for the dignity of the individual by assisting the individual person to seek or defend fundamental rights.

When lawyers are admitted to practice law, they each take an oath of admission to practice (Admission to Practice Rule 5(d)), wherein they solemnly declare, among other things, that they "will support the constitution of the State of Washington and the constitution of the United States"; "will abide by the Rules of Professional Conduct approved by the Supreme Court of the State of Washington"; and "will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed...."

Supporting the constitutions means more than merely making a one-time statement declaring support when admitted to the Bar. It also calls for actions consistent with the oath. If lawyers believe that clients have the right to counsel and that democracy and the public’s access to justice is endangered or limited by not having counsel, then lawyers must provide that counsel either directly themselves, or indirectly by securing resources to provide it.

There are also solid arguments why lawyers should not be compelled to perform pro bono services. The same federal and state constitutions which lawyers declare they will uphold for their clients also apply to and protect lawyers. The constitutions guarantee that lawyers will not be subject to involuntary servitude, or to unjust "taking" of their services. They assure that lawyers also are entitled to equal protection under the law and to due process of the law. To require lawyers to provide free legal services while not requiring free professional services of other licensed professionals, for example, raises an issue of a lack of constitutional equal protection. Further, the burden of any mandatory pro bono services would likely fall unequally on lawyers, particularly those practicing in family law, government benefits, housing, and criminal law, and likely on newly admitted lawyers.

The Rule. Rule 6.1 of Washington’s Rules of Professional Conduct, captioned "Pro Bono Publico Service," recognizes both the long tradition of pro bono services and the practical realities of the practice of law.

Washington’s RPC 6.1 is only two sentences long, with the first sentence stating the obligation to provide pro bono services, and the second describing how to do so. The first sentence states simply: "A lawyer should render public interest legal service." Generally, the RPCs both point the way to the aspiring and specify the minimal level of conduct below which no Washington lawyer can fall without being subject to disciplinary action. In some provisions of the RPCs, however, such as RPC 6.1, the RPCs point the way to the aspiring, but do not specify a minimal level of conduct leading to discipline. In the RPCs, the word "should" is an exhortation to a lawyer to engage in the specified conduct, while the word "shall" requires the lawyer to engage in the specified conduct or face discipline for failing to do so. In effect, RPC 6.1 urges lawyers to render public interest legal services, but if the lawyer chooses not to do so, the lawyer will not be disciplined.

The second sentence of RPC 6.1 describes several ways of rendering public interest legal service, including providing services at no fee or at reduced fees to individuals or groups, by participating in activities for improving the law, and by providing financial support. The sentence is as follows:

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.

Providing pro bono services is most directly accomplished by providing professional services at no fee or at a reduced fee for individual persons otherwise unable to afford them. Pro bono services are those rendered by the lawyer with the intent of their being free or fee-reduced; they are not services for which a client has subsequently refused to pay or proven unable to pay.

For lawyers with expertise in serving needs related to families, housing, government benefits, immigration, public and civil rights, and criminal law, there is a wealth of opportunities to provide such services, either directly or through legal aid offices or legal clinics. Although many lawyers contribute their time and talents to such services, the total quantity of services actually rendered is woefully inadequate to meet the huge need for such services.

As society becomes increasingly complex and legalized, and as law practices become increasingly competitive and financially insecure, it is questionable whether the economics of private practice will allow private practitioners, even with the best of will, to meet the unfilled need for such services.

Lawyers performing pro bono services know that their ethical obligations to their clients are not reduced merely because services are rendered pro bono. A lawyer must still be competent, be diligent, communicate with clients, and so on, regardless of whether the client is being charged or pays any legal fees.

A lawyer may also provide pro bono services by providing free or reduced-rate professional services more broadly to the public by providing instead legal services to public-service or charitable groups or organizations. Providing services to such groups allows lawyers whose expertise may be of limited use to low-income persons (such as lawyers concentrating in corporate, securities, antitrust or tax cases) to donate their professional skills and contribute toward the public good.

The rule also recognizes that lawyers may provide pro bono services by using their talents and skills to improve the law, the legal system and the legal profession. This could include, for example, participation in legislative assemblies, state and local bar association activities, public legal education activities such as school mock-court competitions and career-day presentations, and more generally in public speaking about the legal system.

Washington’s rule also recognizes that the contribution of financial support for organizations providing legal services to persons of limited means is a legitimate and important way for lawyers to render public-interest legal services. This in effect recognizes that the provision of such services is itself, in an increasingly specialized society, a legal specialty and that otherwise highly competent lawyers may simply lack the expertise to handle many of the legal problems facing the poor. While public-service agencies welcome volunteers, they also expend very substantial amounts of their resources and staff time training volunteers, so the net effect may be close to a wash. Thus, agencies often find that financial assistance may be equally or more valuable to them than volunteer services, since financial assistance in effect allows them to fund additional staff positions for persons already trained in the specific work that they do. Organizations in Washington dedicated to providing or funding such services include Columbia Legal Services, LAW Fund, the King County Bar Foundation, the Pierce County Bar Foundation, the Legal Foundation of Washington, and numerous county and local volunteer legal services programs.

The recognition of financial support as a legitimate means of rendering pro bono services also reflects the reality of law practice, in that many lawyers cannot, or will not, provide services in kind. The reasons for this vary, but include: lack of time; lack of emotional or temperamental compatibility with low-income clients; lack of expertise in appropriate areas of law; fear of malpractice claims; prohibitions by employers on legal work other than for the current employer; and feelings by some governmental and public interest lawyers that they are already in effect providing pro bono services by working in their regular jobs for very modest compensation. Other reasons include a desire by some lawyers to use non-work time to meet family obligations, or to work on other equally pressing societal needs, such as working with the homeless, in domestic-violence shelters, or in providing other community services. And, of course, some lawyers simply do not believe they have any obligation to render any pro bono services or to do anything for anyone unless they are paid for it.

Washington’s RPC 6.1 is identical to Rule 6.1 of the Model Rules of Professional Conduct as originally adopted by the American Bar Association in 1983. Washington has not adopted the substantial changes to the model rule adopted by the ABA in 1993. Those changes suggested that each lawyer should voluntarily contribute at least 50 hours of pro bono services per year. The revised model rule also established a hierarchy of the kinds of service that would be counted towards fulfillment of that service, with direct legal services to persons of limited means being most highly ranked. And, instead of recognizing that financial support is one alternative form of meeting the obligation for rendering pro bono services, the revised model rules provide that lawyers should, in addition to rendering such services, also contribute financial support.

Lawyers have long rendered pro bono services without regard to whether there was any obligation to do so or any discipline for failure to do so. It has simply been an integral part of the profession which benefits the public, the profession and the lawyer.

Two thousand four hundred years ago, Thycidides quoted Pericles as criticizing states which left it to someone else to worry about the common good and thus, in effect, to allow the common good to go downhill. Lawyers have a long tradition of not allowing justice to go downhill. They know that the responsibility for the future of justice is too important to be left to chance, but instead must rest on each of us, and that each lawyer, as a guardian of the law, has a responsibility to work for and promote justice. Lawyers can assure that justice is not going downhill, by joyfully providing pro bono legal services and helping finance those services.