6.04. The Florida Case Study

States want to take steps to encourage lawyers to engage in pro bono representation without making the representation mandatory.  In the early 1990’s Florida amended its Rules of Professional Conduct to provide that Florida lawyers should (strive) to perform 20 hours of pro bono legal service or, in the alternative, to satisfy the obligation by contributing $350 to a legal aid organization.  In addition, the amendment required lawyers to report whether and how much pro bono each lawyer performed on their annual license renewal statement.  While no lawyer could be sanctioned for not satisfying their pro bono obligations, they could be sanctioned for failing to report whether they satisfied the requirement.

            In adopting the new rules, the Florida Supreme Court noted that setting out the pro bono hour obligation was to motivate lawyers to engage in pro bono representation.  The reporting requirement, the court argued, was “essential for evaluating [the pro bono] program and for determining what services are being provided under the program.  This, in turn, will allow us to determine the areas in which the legal needs of the poor are or are not being met.  Because we find that reporting is essential, failure to report will constitute an offense subject to discipline.”[1]  The court also limited the scope of authorized pro bono hours to those that assist the poor and organizations assisting the poor. 

            To give a sense of the debates that existed around the amendments, two justices specially concurred and one justice dissented in part to the adoption of the pro bono rules.  Justice Barkett concurred arguing that the purpose of pro bono is to enable “lawyers to understand the problems besetting the vast majority of our citizens in a way that simply reading about them does not. . . It is only when the more influential members of our society truly understand the legal problems of most Floridians that meaningful solutions will be sought and found to assure access to the courts, without which there will never be equal justice.”  Justice Barkett then goes on to criticize the $350 “buyout” which she argues provides an incentive for lawyers to avoid their pro bono obligations by paying the low amount.  She also argues that this will ultimately allow large firms to buy off their obligation –inequitably requiring firms that cannot afford the buy out to perform pro bono work.  Justice Barkett also raised the concern that the pro bono rule could give a false sense that the problem is “solved” and allow the state legislature to avoid any further action to ensure access to the courts.

            Justice McDonald, notes that he opposes any pro bono requirement at all because “unreasonably and unnecessarily [trespasses] upon both the independence and individual consciences of the members of the Florida Bar.”  However, because he lost the argument, he said that the “paltry” $350 buy out was not sufficient and that it should be at least $1,000 to closer reflect 20 hours of legal work. 

            Justice Kogan went even further – to challenge the very idea that they buyout should exist:  “I find it ethically repugnant to suggest that an obligation inhering in each attorney personally can be discharged merely by a contribution of money.”

After the new rules were adopted, an attorney challenged them, arguing that they violated his substantive due process rights.[2]  The court noted that, because the regulation did not implicate a fundamental right, it would be reviewed under a “rational basis” standard, meaning that it only had be “rationally related to a legitimate government purpose.”  The court noted that the state’s interest was in encouraging licensed attorneys to perform pro bono services – which is a unique obligation of the court system (“at a time when the need for legal services is growing and public funding for such services has not kept pace, lawyers’ ethical obligation to volunteer their time and skills pro bono public is manifest”) was legitimate.  And the reporting requirement was a legitimate way to determine how many hours of pro bono were being offered and to determine the areas in which the legal needs are not being met.  In short, both the aspirational pro bono hour rule and the mandatory reporting rules are rationally related to the state’s interest in encouraging pro bono and monitoring where pro bono representation is being provided.

The challenger also argued that the reporting requirement coerced lawyers into performing pro bono because lawyer’s in order to preserve their “professional honor and ability to climb the professional ladder” will feel pressure to perform the representation.  The court rejected the argument – holding that the lawyer had no evidence that the coercion was occurring and even if it did persuade some lawyers to perform pro bono representation, the reporting requirement still would not be problematic.

Understanding how this approach to pro bono operates is important because it is the same approach that Mississippi takes in Mississippi Rule of Profession Conduct 6.1.  A lawyer can be subject to discipline for not reporting whether or not they have performed pro bono work, but not for not performing pro bono work. 

[1] Amendments to the Rules Regulating the Florida Bar – 1-3.1(A) and Rules of Judicial Administration – 2.065 (Legal Aid), 630 So. 2d 501 (Fla. 1993).

[2] Schwartz v. Kogan, 132 F.3d 1387 (11^th Cir. 1998).