6.03.02. Voluntary Pro Bono [Rule 6.1]

The approach to pro bono obligations that the ABA rules take is not mandatory pro bono.  Instead, the rules take a voluntary approach.  Rule 6.1 does state that “[e]very lawyer has a professional responsibility to provide legal services to those unable to pay.”[1]  The Rule then goes on to say, however that the responsibility is aspirational and recommends that lawyers provide at least fifty hours of pro bono representation.  So, the bottom line:  a lawyer should feel compelled to provide pro bono representation but cannot be sanctioned for not doing so. 

One of the most controversial issues is what work counts for pro bono representation.  Because there is so much talk about poor individuals not having access to legal representation, you might think that to qualify for pro bono credit the client must be poor.  But that narrow definition excludes a number of non-poor interests that either further the interests of the poor or represent other interests that are worthwhile:  for example, a civil rights organization or an environmental group.  Professor Rhode’s article puts the conflict succinctly:

If the definition is broad, and encompasses any charitable work for a nonprofit organization or needy individual, then experience suggests that poor people will not be the major beneficiaries.  Most lawyers have targeted their pro bono efforts at friends, relatives, or matters designed to attract or accommodate paying clients.  A loosely defined requirement is likely to assist predominantly middle-class individuals and organizations such as hospitals, museums, and churches.  By contrast, limiting a pro bono requirement to low-income clients . . . would exclude many crucial public-interest contributions, such as work for environmental, women’s rights, or civil rights organizations.[2] 

Rule 6.1 handles this by breaking down the categories of qualifying pro bono representation into two categories:  the poor, and organizations that assist the poor, in the first category and then other worthwhile interests in the second category.

The rule gives preferred status to the poor and those that assist the poor.  It provides that a lawyer should provide “a substantial majority” of the fifty hours to: (1) persons of limited means or (2) organizations designed to assist those with limited means (e.g. homeless shelters and battered women’s centers).[3]  Those of “limited means” are those who qualify for legal assistance through the Legal Services Corporation (a federally funded organization that gives money to legal aid offices across the United States) or make slightly more than what qualifies.  In 2015 the qualifying amount was $14,713 for an individual and $30,313 for a family of 4.[4]   

The rule then sets out a second category of qualifying representation for additional hours: (1) groups seeking to protect “civil rights, civil liberties or public rights, or charitable, religious, civic, community, governmental and educational organizations in matters in furtherance of their organizational purposes” and where paying attorneys’ fees would deplete the group’s bank account; (2) representing those of limited means at a greatly reduced fee; and (3) engaging in activities “for improving the law, the legal system or the legal profession.”[5]

The type of “legal services” that a lawyer can provide to satisfy this requirement is broader than just representing individuals.  It also includes “class representation, the provision of legal advice, legislative lobbying, administrative rule making, and the provision of free training or mentoring to those who represent persons of limited means.”[6]  Interestingly, the rule contemplates that the original intent of the lawyer must have been to take the case pro bono for the representation to qualify.  If a lawyer accepts a case at first expecting a fee and later decides to forgive the fee (perhaps because it would not be collectible) that representation is not count toward the lawyer’s pro bono responsibility.[7]  While this prohibition makes sense in theory – it prevents a lawyer from satisfying their pro bono hours by just writing off uncollectible work – it also prevents a lawyer from subsequently forgiving the bill of a person of limited means and counting that toward their pro bono hours.  This seems to elevate form over substance.

[1] ABA Rule 6.1.

[2] Deborah L. Rhode, “Cultures of Commitment: Pro Bono for Lawyers and Law Students,” 67 Fordham L. Rev. 2415 (1999).

[3] ABA Rule 6.1(a)(1)-(2) and Comment [3].

[4] See ABA Rule 6.1, Comment [3] and  www.lsc.gov/what-legal-aid (last visited October 11, 2018).

[5] ABA Rule 6.1(b)(1)-(3).

[6] ABA Rule 6.1, Comment [2].

[7] ABA Rule 6.1, Comment [4].