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Commonwealth of Massachusetts


December 1999

 

AN OUNCE OF INSPIRATION

by Bruce T. Eisenhut, Assistant Bar Counsel

 

At this season of the year, it is appropriate to pause and reflect upon what it means to be a member of a profession with a long and proud history of volunteer service to the poor, defenseless and oppressed.

At a recent meeting of the National Organization of Bar Counsel, a panel explored the values underlying Rule 6.1 of the ABA Model Rules of Professional Conduct, and the various state equivalents, as expressed in oaths of office, bar association mission statements – see, for example, Missions and Goals of the American Bar Association (1998), seeking, among other concerns, "to promote meaningful access to legal representation and the American system of justice for all persons regardless of their economic or social condition"—and preambles to the disciplinary rules in various states. These last certainly include this statement from the preamble to the Massachusetts Rules of Professional Conduct:

It has now been over a year since debate raged within the Massachusetts bar on how best to encourage and support pro bono service so that all citizens with significant legal problems may have their "day in court," and at the same time, how to address the unfortunate public misperception that lawyers are primarily motivated by the bottom line. On January 4, 1999, the Supreme Judicial Court resolved the competing issues and, based on recommendations of the eighteen-member Supreme Judicial Court Committee on Pro Bono Legal Services, adopted Mass. R. Prof. C. 6.1, with an effective date of February 1, 1999.

The rule, new to Massachusetts but similar to aspirational rules in thirty-six other jurisdictions, states that a lawyer should provide annually at least 25 hours of pro bono legal services for the benefit of persons of limited means. If a lawyer is unable to provide these services, he or she is encouraged to contribute from $250.00 to one percent of the lawyer’s annual taxable professional income to organization(s) that support legal services. The comments clarify that the services should be ULected to persons of limited means and that public service, to the extent that it is ULected at the community at large, does not count toward the 25 hours.

The rule is aspirational. Failure to comply with the rule will not subject a lawyer to discipline. Further, there is no reporting requirement to any disciplinary authority such as the Board of Bar Overseers, with all of the logistical, resource and enforcement difficulties that such a requirement would entail. The rule is also less stringent in its stated goals than ABA Model Rule 6.1. In February 1993 the ABA House of Delegates amended its prior general plea to render public interest legal service to the more specific ULective of 50 hours of pro bono publico legal services per year (although the A.B.A. description of countable services is broader).

At this time of year and almost a year after Rule 6.1 was adopted, it is important for each of us as attorneys to reflect on whether the aspirational rule has, in fact, inspired. Although it may be premature to say, it appears that adoption of the rule is having significant positive impact. Various bar associations and individual attorneys have taken up the SJC’s challenge. For example, the Massachusetts Conveyancers Association viewed the adoption of the rule as a wake-up call to the fact that most people do not experience the legal system or the system of justice the same way that most attorneys do. The MCA undertook the substantial task of compiling a compendium of pro bono opportunities for the real estate professional, with emphasis on opportunities for transactional or non-litigating attorneys.

In a similar vein, members of the Pro Bono Committee of the Real Estate Section of the Boston Bar Association found motivation and encouragement in the adoption of the pro bono rule. Dedicated committee members, after a long process and the cooperation of the Boston Housing Court, recently established an operational "lawyer for the day" program to assist landlords and tenants in the Housing Court on summary process days (Thursday). In the past, plans for such a program had faltered due to the difficult logistics and required staffing commitments. Presently, however, a number of the major law firms in the Boston area have enthusiastically worked to insure that the program will be fully staffed by qualified attorneys, with Mass. R. Prof. C. 6.1 often cited as a motivating factor in that commitment. The organizers hope that the program can be expanded in the future to the "return day" (Monday). This highly visible program, and others like it, go a long way in enhancing the reputation of the Bar.

In a moving story reported in Lawyers Journal, four law school friends launched a free clinic to benefit residents of the Salvation Army’s Harborlight Center in Boston. (Vol. 6, No. 11, July/August 1999, at p.1). Although it is obvious that personal values, and not Mass. R. Prof. C. 6.1, provided the primary impetus for this extraordinary undertaking, the adoption of the rule was cited as an encouragement to otherwise busy lawyers and as a positive step in improving the public image of lawyers.

Opportunities for professional pro bono services are also now being more fully publicized. Citing Mass. R. Prof. C. 6.1, the Massachusetts Bar Association published a guide, "1999 Statewide Pro Bono Opportunities Guide" printed in the July/August edition of the Lawyers Journal. The same list is also available on the internet at www.massbar.org.. In ULect response to the adoption of Mass. R. Prof. C. 6.1, the MBA also publicized the creation of the Civil Justice Fund which will provide an endowment at the Massachusetts Bar Foundation to support civil legal services for people living in poverty in Massachusetts.

The trend in Massachusetts is also representative of the trend throughout the nation. In response to a speech that President Clinton made on July 20, 1999, calling for stepped up efforts to provide pro bono legal work, the American Bar Association said it would boost programs that offered free legal services, the American Corporate Counsel Association said it would promote pro bono service through training and education programs, the American Society of Law Schools pledged to strengthen programs to give law students opportunity to volunteer legal services in communities in which they live and a number of local bar associations made similar commitments.

These are only a few of the examples of the efforts that have come to Bar Counsel’s attention. Undoubtedly, other equally ambitious projects have also blossomed in the wake of Mass. R. Prof. C. 6.1.

Prospective volunteers may also wish to consider more mundane benefits attributable to volunteer work. In many programs, attorney volunteers not only can take pride in their generosity, but also receive supervision and training. For example, volunteers for the Housing Court lawyer-for-the-day program described above receive training and written materials regarding landlord tenant law. The Woman’s Bar Association provides training for volunteers in domestic abuse prevention matters.

The progress to date is just the start of what is needed. The bar in Massachusetts should not be complacent. The SJC has established a standing committee to report annually on the progress of the Bar’s participation in pro bono programs. The experience of the aspirational rule will be relevant in future debates over the need for mandatory service, mandatory reporting or increased commitment, particularly if other jurisdictions adopt more stringent requirements. Florida, for example, has adopted and recently implemented mandatory reporting and the A.B.A. Standing Committee on Pro Bono and Public Service recently published a guide describing the benefits of volunteer and mandatory reporting systems. (@ www.abanet.org/legalservices/probono.html ). The best support for the current aspirational rule, with its emphasis on volunteerism, is by action and example fulfilling the aspiration.



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