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:
"A lawyer should be mindful of deficiencies in the administration
of justice and of the fact that the poor, and sometimes persons who are
not poor, cannot afford adequate legal assistance, and should therefore
devote professional time and civic influence in their behalf."
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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