The State of New York recently announced that it is implementing a 50 hour pro bono requirement for admission to the NY State Bar. The news was heralded by some legal scholars as a step in the right direction, while others have derided the new requirement as another obstacle for an already beleaguered profession. The legal profession has a long, venerable tradition of being service-oriented, and many lawyers volunteer their time, talent, and legal services at no charge to support individuals and organizations in need. North Carolina has codified voluntary pro bono publico service into its Rules of Professional Conduct as an ethical responsibility of all lawyers. Should lawyers (and law students) in North Carolina be required to perform a specified amount of annual pro bono publico service?
Voluntary Pro Bono Publico Service
On January 28, 2010, the North Carolina State Bar adopted Rule 6.1, Voluntary Pro Bono Publico Service, as part of its Professional Rules of Conduct. Rule 6.1, which is nearly identical to Rule 6.1 of the American Bar Association Model Rules of Professional Conduct, provides, in pertinent part: “Every lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should aspire to render at least (50) hours of pro bono public legal services per year.”
Further, Rule 6.1 delineates the particular activities and individuals who would be counted as part of pro bono publico service. In particular, pro bono publico service is more than merely volunteerism or community service. It is the provision of “legal services without fee or expectation of fee to persons [and/or organizations] of limited means.” Rule 6.1 applies to all lawyers without regard to their “professional prominence or professional work load.” However, the comments note that some years a lawyer may render more or less than the specified amount of pro bono service hours but should, on average, complete the specified amount from year to year.
While Rule 6.1, at least in its current form, codifies a “responsibility . . . that is not intended to be enforced through disciplinary” action, the rule, nevertheless, seeks to balance and advance two very important interests: 1.) the importance to society of providing greatly needed legal services to individuals and organizations of limited means and 2.) the ethical obligation of lawyers to contribute to the benefit of society. As the comments to the ABA Rule note, “[b]ecause the provision of pro bono services is a professional responsibility, it is the individual ethical commitment of each lawyer.” In addition, “personal involvement in the problems of the disadvantaged can be one of the most rewarding experiences in the life of a lawyer.”
Society can be profoundly impacted and enriched when lawyers provide pro bono legal services to the most vulnerable populations, particularly the poor, the elderly, disabled veterans, and minority groups. Likewise, lawyers benefit professionally and personally when helping those in need. “The world is complex, and a lawyer is, at times, absolutely required to navigate the intricacies of the modern world and to advocate for one’s interests. Every lawyer should certainly aspire to provide pro bono services as often as they are able. And, every person should have adequate access to important legal services,” says Amanda Serina, a rising 3L at Campbell Law School.
Overall, Rule 6.1 seems to strike the right balance between meeting the needs of individuals who cannot afford legal services with the ethical obligations of lawyers, but some legal scholars and commentators believe that making pro bono service mandatory is the best way to restore integrity to the legal profession and meet the legal needs of individuals with limited means.
Pros and Cons of Mandatory Pro Bono
Mandatory pro bono service is not a new proposal. In fact, the debate between voluntary and mandatory policies has been part of the legal discourse community for several decades. Proponents of mandatory pro bono service seek not only to provide greater access to justice for disadvantaged individuals but also seek to restore the integrity of the legal professional as a service-oriented profession.
While these goals are certainly noble and admirable, proponents seek to accomplish these ends by making pro bono service an enforceable obligation for lawyers. “I think that making pro bono service mandatory is a good thing, but the required amount of hours should be significantly reduced and a tax deduction should be allowed for the hours of pro bono service rendered.” says Andrew W. Blair, a rising 3L at Campbell Law School. As a learned profession, lawyers hold an exalted position in society and are privileged with the right to practice law as members of the bar. For proponents of mandatory programs, it is this monopoly on the practice of law that justifies mandatory pro bono service.
Conversely, those who disfavor mandatory pro bono service programs have levied several criticisms. First, they question why the legal profession should be unduly singled out (among the learned professions) to be required to provide pro bono legal services. Learned professions like medicine are facing similar crises (i.e., healthcare crisis), but the medical field is not advocating for pro bono medical services. As well, mandatory pro bono programs have been criticized as compelling charity, which does little to restore integrity when such “service” is not entirely voluntary. In addition, opponents also place great emphasis on the logistical concerns involved in establishing and maintaining a record-keeping system as well as a disciplinary structure. “The slowed economic growth and high unemployment rates have retracted the legal market, and the imposition of pro bono service may not be practical,” notes Amanda Serina. And even if the logistical are overcome, the constitutionality of a state regulatory body compelling lawyers to work without just compensation has presented some potential constitutional issues.
Pro Bono Council at Campbell Law School
In Fall 2011, Campbell Law School founded the student-led Pro Bono Council (PBC). The PBC seeks “to engage and educate students on the nature and importance of serving the underserved” and “providing students with hands-on opportunities to develop legal skills.” PBC also instituted annual awards for the student, faculty member, and student organization to recognize outstanding contributions of pro bono service.
Although some law schools have adopted pro bono/public service requirements for graduation, Campbell Law School and PBC have adopted a voluntary referral program that provides and facilitates opportunities for students and student organizations to engage in pro bono activities. When asked about whether there should be an annual pro bono requirement for law students, Amanda Serina says, “Law students are a great resource to provide much needed legal services to the most vulnerable populations, and law students simultaneously can sharpen their legal knowledge and skills under the supervision of a licensed attorney; however, I am concerned about the impact that such a requirement would have on law students as well as on the law school itself.” In its first year, PBC has been tremendously successful in educating the student body about pro bono and helping to facilitate opportunities for students, which is more effective than establishing another checklist for law students to complete. Flexible programs allow students to follow their passions rather than fulfill a requirement.
While New York has challenged the status quo by becoming the first state in the nation to require pro bono service for admission to the bar, the prerequisite in the long-term is not a silver bullet and may not produce the civic-minded culture among lawyers that it aspires to cultivate. Indeed, society has a profound interest in ensuring greater access to legal services for persons with limited means, and lawyers have an ethical obligation to provide pro bono services. However, the imposition of a rigid, mandatory requirement of pro bono service will not solve the challenge of providing adequate and fair access to legal services. And, the mandatory requirement will not only present logistical problems for the state bar in terms of record-keeping and enforcement but also potentially for the individual lawyer. In contrast, Rule 6.1 provides the necessary flexibility and aspirational goals for lawyers to benefit society and meet their ethical responsibility. By pursuing their passion in law as opposed to fulfilling a mere requirement, lawyers will be good stewards of the legal profession, provide much needed legal services, and ultimately restore the integrity of the legal profession as a service-oriented profession.
Thomas Robbins is a second-year student and an Editor of the Campbell Law Observer. Thomas may be contacted at email@example.com.