PROPOSED RULE CHANGES THAT MAY AFFECT YOU
August 17, 2010 § 10 Comments
The Mississippi Supreme Court is considering two rule changes, one of which will definitely affect you, and the other might indirectly.
The first is a change to Rule 6.1 of the Rules of Professional Conduct that would make pro bono service mandatory and would increase the fee to be paid in lieu of doing pro bono work from $200 to $500.
The second is a change to the appellate rules to increase the pro hac vice admissions fees from $200 to $500.
Your comments are invited by the Supreme Court, and may be submitted via this link.
If you don’t care what I think about these measures, stop reading here.
My opinion is that it is a good thing to make some level of pro bono service a professional requirement. And no, I am not talking about the deadbeat clients who will not pay their fees and are losses on your books. I am talking about the deliberate decision to volunteer through the Mississippi Pro Bono Project or to give your services free to a needy litigant or non-profit who needs legal help and legitimately can not pay. The numbers of pro se litigants are growing every day; if you don’t believe me, ask any Chancery Clerk or judge. Every time I ask a pro se litigant why they did not get an attorney, the answer is the same: “I can’t afford a lawyer.” Mandatory pro bono attacks the problem at its source by providing access to a lawyer, which in turn means access to court, to people who otherwise would not have it. And I am not talking about taking on an anti-trust suit or the like. You can do a couple of simple no-fault divorces and do a lot of good, both for the client and for the court. (Side note … I have a blog post coming about the dimensions of the pro se problem and one approach to solving it).
As for the $500, I think the practical effect will be that a lot of solo and small-firm practitioners and small-town lawyers will end up doing pro bono work, and a lot of high-powered and big-city lawyers will buy their way out of their duty. On one level, I find it repulsive that it would work that way because it’s not fair to lawyers of modest means, and it’s repugnant to think that one can meet a professional and what I consider a moral obligation with filthy lucre. On another, more practical level, you have to admit that even if there were no “buyout” provison, and every lawyer were required to do pro bono, there would be lawyers of means who would shuffle their duty off on a subordinate. In that case, we might as well reap their money and do something worthwhile with it. And before you ask me, I do not know what the Supreme Court is doing with that money.
As for the fee for pro hac vice lawyers, I would not mind seeing it doubled, tripled or increased by ten or more. If there is litigation in Mississippi, out-of-state attorneys should have an incentive to turn it over to Mississippi lawyers. Too often the out-of-state lawyer pays the Mississippi attorney a pittance to be a figurehead, reaps the gold and scoots. I would like to see that pattern reversed.
The Better Chancery Practice Blog 
[…] PROPOSED RULE CHANGES THAT MAY AFFECT YOU […]
[…] down the board, you will find an earlier post and some insightful comments from lawyers in other parts of the state on the subject, the latest from John Gillis in Water […]
No jurisdiction has a mandatory pro bono service requirement. Seven states have mandatory pro bono reporting (Florida, Hawaii, Illinois, Maryland, Mississippi, Nevada, and New Mexico). Eight states have rejected mandatory pro bono reporting (Colorado, Indiana, Massachusetts, Minnesota, New York, Pennsylvania, Tennessee, and Utah). For example, the Colorado supreme court rejected mandatory reporting stating it was the first step toward mandatory pro bono — a destination the court did not want to arrive at, hence it would not take the first step. Diane Hartman, CBA, Courts, Say No to Mandatory Pro Bono, The Colorado Lawyer, August 1999, p. 25. From my perspective, our mandatory reporting requirement put us on the slippery slope leading towards mandatory pro bono work. Twelve states have voluntary pro bono reporting (Arizona, Georgia, Kentucky, Louisiana, Michigan, Montana, Ohio, Oregon, Tennessee, Texas, Virginia, and Washington). Two states are considering voluntary pro bono reporting (Michigan and Vermont). (Source: ABA Standing Committee of Pro Bono & Public Service, http://www.abanet.org/legalservices/probono/reporting/pbreporting.html.)
Some proponents of mandatory pro bono point to New Jersey and claim that New Jersey has mandatory pro bono. The case addressing required pro bono in New Jersey is Madden v. Delran, 126 N.J. 591 (1992). But, Madden is limited to the constitutionality of lawyers being appointed to represent — without compensation — indigent criminal defendants in municipal court who have a constitutional right to appointed counsel. The question presented in Madden was: “[W]hether this Court should order government to pay attorneys who are assigned by the municipal court to represent defendants too poor to pay for counsel.” The answer was, “no.”
The New Jersey rule concerning court appointed lawyers representing, as pro bono counsel, indigent criminal defendants entitled to court provided counsel is different from proposed Rule 6.1. The comment to proposed Rule 6.1 reads:
“Most pro bono service should involve civil proceedings where there is no governmental obligation to provide counsel, given that government must provide indigent representation in most criminal matters for no compensation.”
The focus of Rule 6.1 is therefore on providing pro bono services in civil cases where there is no right to counsel.
The Madden rule requires appointment of lawyers on a rotating basis, rather than a requirement that every lawyer provide X hours of pro bono work. The statistics referenced in the Madden opinion suggested that a lawyer could expect a municipal court criminal appointment once every 4.5 years. That’s very much different than proposed Rule 6.1 which requires every lawyer in the jurisdiction to provide 20 hours of pro bono work to civil litigants not entitled to court appointed counsel every year to avoid attorney discipline.
Scholar-practitioners question the efficacy of mandatory pro bono. For example, Esther F. Lardent, the president of The Pro Bono Institute, authored a paper titled “Just say No … To Mandatory Pro Bono” (available at http://www.probonoinst.org/about. esther.php and http://www.probonoinst.org/ pdfs/justsayno.pdf. See also Loder, Tending the Generous Heart: Mandatory Pro Bono and Moral Development, Georgetown J. Legal Ethics, Winter 2001 (“[A] pro bono requirement will ‘spoil’ the experience of service and stifle the altruistic tendencies of lawyers who already serve, or who are so inclined.”), available at http://findarticles.com/p/articles/mi_qa3975/is_200101/ai_n8949920/. I find the arguments presented in these articles to be informative.
The proponents of proposed Rule 6.1 overlook known problems regarding the quality of services provided by lawyers participating in pro bono work. In a recent survey of leading public interest legal organizations, almost half reported extensive or moderate problems with quality in the pro bono work they obtained from outside firms. Deborah L. Rhode, Public Interest Law: The Movement at Midlife, 60 Stan. L. Rev. 2027, 2071 (2008). A related problem involves lawyers who want to do pro bono work in theory but in practice, don’t want to make the commitment. Id. at 2072. Under proposed Rule 6.1, many lawyers will not even want to do pro bono work, but must go through the motions of putting in 20 hours to avoid attorney discipline. What quality of services can be expected from those lawyers?
Consider these numbers. Assume 5,000 members of the bar are subject to the proposed rule. Consider 5,000 lawyers in the state descending on the legal services offices closest to their homes demanding a client to satisfy a condition of keeping their law licenses. Right now, legal services offices are understaffed and underfunded. The small network of underfunded, understaffed offices will not be able to manage and coordinate the effort of 5,000 active files (or more since some matters will not take 20 hours of work) per year assigned to outside counsel.
Consider also these numbers. Five thousand lawyers each providing 20 hours of free legal services equals 100,000 hours of legal services. The last Bar survey showed that the average hourly rate is about $160.00. Proposed Rule 6.1 would compel the profession to provide free legal services valued at $16,000,000.00 to yet to be identified persons. On what legal authority does the Supreme Court of Mississippi or Mississippi Bar rely to enter an order promulgating a rule which would require giving away services (to persons not having a right to counsel) having such substantial value?
There is case law that holds a trial court appointing counsel for a party does not implicate the Amendment XIII prohibition against involuntary servitude. In White v. United States Pipe & Foundry Co., 646 F.2d 203, 205, n. 3 (5th Cir.1981), the Fifth Circuit rejected the Amendment XIII argument that a court appointing a lawyer to represent involuntarily someone is an involuntary servitude violation. But, the White case involved a statutory scheme which may have allowed an award of attorney’s fees. See White v. United States Pipe & Foundry Co., 646 F.2d at ¶13 (“an appointment, if the circumstances called for one, might not be ‘involuntary’ at all in that the district court might simply have found a lawyer willing to take the case in light of Congress’ complementary incentives to private attorney general suits under Title VII, such as the possibility of attorney fees under § 706(k).”). Other cases concerning the appointment of counsel also involved a trial judge’s order appointing a lawyer for a party before the court. Compare that to the proposed rule. The proposed rule is not an order by a trial judge appointing a lawyer in the local area to represent a particular party before the court where the lawyer likely will be paid something. That is a significant distinction. There is a huge difference between appointment of counsel by a trial judge pursuant to statute (where, as noted in White, statutory attorney’s fees may be available) and a rule that compels all lawyers in the jurisdiction to provide 20 hours of legal services for unidentified pro bono clients. The bottom-line is there is no legal authority supporting the proposition that the government can compel all lawyers of the bar to provide free legal services to persons not having a right to counsel in civil matters.
The mandate to provide 20 hours of pro bono work creates an unreasonable burden for the lawyers in Mississippi who will be subject to the rule. To comply with the conditions of maintaining his or her law license, a lawyer will have to find one or more indigent clients. How will we do that? Are the thousands of lawyers who will be subject to the rule going to get their indigent clients from a legal services office? Is the network of legal services offices capable of servicing the thousands of lawyers demanding clients to satisfy the pro bono mandate? I think not. Since mandatory pro bono is not voluntary pro bono, how would the Mississippi Volunteer Lawyers Project (MVLP) be involved?
What about the right to control client selection? Client selection is one way lawyers manage risk. Who will indemnify a lawyer when he or she gets sued by a disgruntled pro bono client? Will there be an exception to the rule that prohibits a lawyer from attempting to limit his/her professional liability in an attorney-client contract? Will the legislature pass a statute which provides civil liability immunity for lawyers doing pro bono work where the claim arises out of a pro bono civil action?
Civil litigation is expensive. Even basic cases usually involve several hundred dollars of expenses. For example, the court reporter fee and transcript expense for a single, short deposition run from $250.00 to $400.00. Who is supposed to shoulder that expense? The lawyer providing pro bono services? Did the proponents of proposed Rule 6.1 even consider the litigation expense issue?
Here are some more reasons why mandatory pro bono is wrong:
● The true motive of proposed Rule 6.1 is to coerce lawyers into doing pro bono work.
● Proposed Rule 6.1 fails to provide guidelines to determine the eligibility of persons seeking pro bono services from members of the Bar.
● Proposed Rule 6.1 fails to provide an organizational structure for pro bono case management for the 6,000+ members of the Bar.
● Proposed Rule 6.1 fails to provide an oversight and audit element to regulate a mandatory pro bono program.
● Proposed Rule 6.1 fails to provide an orientation and training program for the members of the Bar regarding the delivery of pro bono services.
● Proposed Rule 6.1 fails to provide any measures of effectiveness or quality assurance standards.
● Proposed Rule 6.1 fails to provide for the procurement of professional liability insurance to cover lawyers participating on the mandatory pro bono programs.
● Proposed Rule 6.1 fails to provide for funding to cover out-of-pocket expenses associated with pro bono litigation.
● Pro bono is by its very nature a voluntary activity.
● It is not necessary that every lawyer do pro bono work in order to ensure citizens of lesser means to have access to the courts. While there may be some evidence suggesting indigents need counsel in certain matters, there is no study that shows increasing access to the courts requires every lawyer to do pro bono work.
● Lawyers must be motivated to deliver quality legal services. Either anticipation of remuneration or moral conviction for those not interested in being paid for their services provide the motivation.
● The administrative costs involved in collecting and processing information, as well as in taking disciplinary action or imposing sanctions, are unreasonable.
● Pro bono will become a negative rather than positive concept when members of the bar take exception to the mandatory requirement.
Of course, there is an “out” in the rule — paying a $500.00 “contribution.” This “contribution” would be a coerced payment in the minds of many lawyers. And, since when is $500.00 an insignificant amount of money?
I submit that incentives to provide voluntary pro bono services would be a better course of action. How about six hours of CLE credit for lawyers who do 20 hours of pro bono work? Or, a 50% discount on the bar membership dues? Surely these incentives are better than either the threat of losing one’s law license (i.e., the ability to earn a living) or forking over $500.00 to avoid attorney discipline.
Pro bono should remain a voluntary activity pursuant to the current rule. We already have the MVLP to promote pro bono activities. Interestingly, the MVLP website reports that it has 1,600 lawyers signed-up as volunteers to provide pro bono services. What data suggests we need to add another 4,000 lawyers to the mix?
The Supreme Court of Mississippi and the Mississippi Bar certainly have authority to regulate the legal profession and discipline lawyers. But, proposed Rule 6.1 has both entities getting way out of their respective lanes and moving into an area relating to the delivery of social services where the purported “haves” must give something of value to the undefined “have nots.” Bluntly, a mandatory pro bono rule implicates a policy concept very much akin to the Marxist philosophy of, “From each according to his [or her] ability, to each according to his needs.” Karl Marx, “Critique of the Gotha Program” (1875), available at http://www.marxists.org/archive/marx/works/ 1875/gotha/ch01.htm.
I posted in partial response to this comment today. You may wish to make a comment to that post.
The only other thing I would add is that I find your Marxism argument repugnant. It directly contradicts the lawyer’s professional duty to the administration of justice, and it makes you appear selfish and self-serving, qualities I am sure you do not possess or wish to promote about yourself.
Thanks for the thoughtful comments.
The more I think about a mandate to provide free work or pay a mandatory poor tax, the more I am opposed to it. Hunger is a problem in the state, yet we don’t look to restaurateurs or grocers to give away free food. Congress thinks we have a health-care crisis, but no one suggested that doctors be required to solve the problem by paying a mandatory occupation tax or be forced to provide services for free. If this is such a good idea, I don’t understand why those making the rules exempted themselves, all other judges, and lawyers employed by the state from their mandate. Their professional license is the same as every other lawyer’s, yet their obligation to the poor is somehow different. What I really think this stems from is a perception among some making the rules that private lawyers make more money than they deserve and have lots of free time – a premise that I reject.
My only quibble with your post is that judges are strictly forbidden from practicing law, so that is the reason they are exempt. Otherwise, I think you make some good points, especially the misperception that “private lawyers make more money than they deserve and have lots of free time …”
[…] already commented on the proposed rule here, and my views are contrary to Mr. Thomas’s. There is a comment to my post taking issue with […]
[…] TO PRO SE LITIGATION? A post about proposed changes to the pro bono rules for lawyers is here. There is a thoughtful comment to that post that highlights some dimensions of the […]
With so many lawyers out of work or hungry for cases, and law schools pouring out more out of work lawyers every year, it is difficult to imagine that the market will not provide legal services at an affordable level for almost everyone that needs help. A quick look on elance.com reveals lawyers willing to do work at very low rates. Two things that I have found about doing free work for people – they do not appreciate that it has any value, because it was free; and if it is free they can never get enough of it. The last pro bono client I had in my office, referred to me by a legal services charity, made over $40,000 per year and came in with a huge Prada purse, yet could not afford to pay for a conservatorship. Of the many pro bono csses that I have handled over the past several years, only one of the recipients was grateful enough to thank me. One nice function a fee serves is as a barrier to entry into the legal system for a lot of non-meritorious lawsuits (that often have to be defended by paying clients). If the Court really cares about providing a remedy to people who cannot afford a lawyer, perhaps they can also focus on providing the people of the state with a class action rule. My other comment is that the pro bono definition should be expanded to include other meritorious volunteer work such as serving on charitable boards.
You make some good points, but I still maintain that connecting people with lawyers whom they can afford is a better approach than some of the efforts I keep reading about that involve making it easier for people to represent themselves. I have a post coming later on this point. Thanks for the thoughtful comment.