A lawyer should provide annually at least 25 hours of pro bono publico legal services for the benefit of persons of limited means. In providing these professional services, the lawyer should:

(a) provide all or most of the 25 hours of pro bono publico legal services without compensation or expectation of compensation to persons of limited means, or to charitable, religious, civic, community, governmental, and educational organizations in matters that are designed primarily to address the needs of persons of limited means. The lawyer may provide any remaining hours by delivering legal services at substantially reduced compensation to persons of limited means or by participating in activities for improving the law, the legal system, or the legal profession that are primarily intended to benefit persons of limited means; or,

(b) contribute from $250 to 1% of the lawyer's annual taxable, professional income to one or more organizations that provide or support legal services to persons of limited means.

Adopted January 4, 1999, effective February 1, 1999.

Comment:

[1] Every lawyer, regardless of professional prominence or professional work load, should provide legal services to persons of limited means. This rule sets forth a standard which the court believes each member of the Bar of the Commonwealth can and should fulfill. Because the rule is aspirational, failure to provide the pro bono publico services stated in this rule will not subject a lawyer to discipline. The rule calls on all lawyers to provide a minimum of 25 hours of pro bono publico legal services annually. Twenty five hours is one half of the number of hours specified in the ABA Model Rule 6.1 because this Massachusetts rule focuses only on legal activity that benefits those unable to afford access to the system of justice. In some years a lawyer may render greater or fewer than 25 hours but during the course of his or her legal career, each lawyer should render annually, on average, 25 hours. Also, it may be more feasible to act collectively, for example, by a firm's providing through one or more lawyers an amount of pro bono publico legal services sufficient to satisfy the aggregate amount of hours expected from all lawyers in the firm. Services can be performed in civil matters or in criminal or quasi criminal matters for which there is no government obligation to provide funds for legal representation.

[2] The purpose of this rule is to make the system of justice more open to all by increasing the pro bono publico legal services available to persons of limited means. Because this rule calls for the provision of 25 hours of pro bono publico legal services annually, instead of the 50 hours per year specified in ABA Model Rule 6.1 , the provision of the ABA Model Rule regarding service to non profit organizations was omitted. This omission should not be read as denigrating the value of the voluntary service provided to non profit community and civil rights organizations by many lawyers. Such services are valuable to the community as a whole and should be continued. Service on the boards of non profit arts and civic organizations, on school committees, and in local public office are but a few examples of public service by lawyers. Such activities, to the extent they are not directed at meeting the legal needs of persons of limited means, are not within the scope of this rule. While the American Bar Association Model Rule 6.1 also does not credit general civic activities, it explicitly provides that some of a lawyer's pro bono publico obligation may be met by legal services provided to vindicate "civil rights, civil liberties and public rights." Such activities, when undertaken on behalf of persons of limited means, are within the scope of this rule.

[3] Paragraph (a) describes the nature of the pro bono publico legal services to be rendered annually under the rule. Such legal services consist of a full range of activities on behalf of persons of limited means, including individual and class representation, the provision of legal advice, legislative lobbying, administrative rule making, community legal education, and the provision of free training or mentoring to those who represent persons of limited means.

[4] Persons eligible for pro bono publico legal services under this rule are those who qualify for publicly funded legal service programs and those whose incomes and financial resources are above the guidelines used by such programs but who, nevertheless, cannot afford counsel. Legal services can be rendered to individuals or to organizations composed of low income people, to organizations that serve those of limited means such as homeless shelters, battered women's centers, and food pantries or to those organizations which pursue civil rights, civil liberties, and public rights on behalf of persons of limited means. Providing legal advice, counsel and assistance to an organization consisting of or serving persons of limited means while a member of its board of directors would be pro bono publico legal services under this rule.

[5] In order to be pro bono publico services under the first sentence of Rule 6.1(a), services must be provided without compensation or expectation of compensation. The intent of the lawyer to render free legal services is essential for the work performed to fall within the meaning of this paragraph. Accordingly, services rendered cannot be considered pro bono if an anticipated fee is uncollected. The award of statutory attorneys' fees in a case accepted as a pro bono case, however, would not disqualify such services from inclusion under this section.

[6] A lawyer should perform pro bono publico services exclusively or primarily through activities described in the first sentence of paragraph (a). Any remaining hours can be provided in the ways set forth in the second sentence of that paragraph including instances in which an attorney agrees to receive a modest fee for furnishing legal services to persons of limited means. Acceptance of court appointments and provision of services to individuals when the fee is substantially below a lawyer's usual rate are encouraged under this sentence.

[7] The variety of activities described in Comment [3] should facilitate participation by government and corporate attorneys, even when restrictions exist on their engaging in the outside practice of law. Lawyers who by the nature of their positions are prohibited from participating in the activities described in the first sentence of paragraph (a) may engage in the activities described in the second sentence of paragraph (a) or make a financial contribution pursuant to paragraph (b).

[8] The second sentence of paragraph (a) also recognizes the value of lawyers engaging in activities, on behalf of persons of limited means, that improve the law, the legal system, or the legal profession. Examples of the many activities that fall within this sentence, when primarily intended to benefit persons of limited means, include: serving on bar association committees, serving on boards of pro bono or legal services programs, taking part in Law Day activities, acting as a continuing legal education instructor, a mediator or an arbitrator, and engaging in legislative lobbying to improve the law, the legal system, or the profession.

[9] Lawyers who choose to make financial contributions pursuant to paragraph (b) should contribute from $250 to 1% of the lawyer's adjusted net Massachusetts income from legal professional activities. Each lawyer should take into account his or her own specific circumstances and obligations in determining his or her contribution.

Corresponding ABA Model Rule. Different from Model Rule 6.1 .

Corresponding Former Massachusetts Rule. None.