March 1999

Classifieds Letters Display Ads Archives Article Index Mar '99 Issue Latest Issue MSBA Home Page	A Better Idea: Reporting Pro Bono Services By Thomas C. Mielenhausen and Charles A. Krekelberg Experience of other states suggests that a pro bono reporting program can increase lawyers' pro bono service while producing data to support requests to the Legislature and private charities for funds to support legal aid.
Suggested links: American Bar Association -- Directory of Minnesota Pro Bono Programs T. D'Alemberte, "Tributaries of Justice: The Search for Full Access," 25 Fla. St. U. L. Rev. 631 (Spring 1998) Pro Bono Institute	The need of the disadvantaged for legal services in critical areas such as family and housing law is greater than ever. Minnesota lawyers have done a lot to address this problem, but we need to challenge ourselves, the Legislature, and private charities to do more. For this and other good reasons, Minnesota needs an effective program for gathering accurate information on the pro bono legal services donated by the state’s lawyers. Other states have found that a pro bono reporting program increases the amount of volunteer legal services donated to persons in need. An annual reporting form raises lawyers’ consciousness, reminding them of their special responsibility to provide pro bono service. A pro bono reporting program encourages additional lawyers to learn more about pro bono opportunities. It also fosters recognition and commendation of individual lawyers and communities for outstanding pro bono efforts, thereby inspiring others to do more. If designed effectively, a pro bono program can persuasively document the commitment of Minnesota lawyers to improving access to justice -- evidence that can then be used to develop broader support for addressing the unmet legal needs of low-income Minnesotans. Minnesota’s civil legal aid providers, including volunteer lawyer programs, can use this evidence when they seek funds from the Legislature and private charities. Those funding sources increasingly want to know: "What are the lawyers doing to help address the problem of unmet legal needs"? They want to see matching contributions -- a partnership with the lawyers of Minnesota. Many Minnesota lawyers generously contribute both time and money in an effort to address the problem of unmet legal needs. Yet, the best legal aid providers can do to demonstrate widespread lawyer involvement is to offer imprecise data and ultimately unpersuasive anecdotes. With reliable statistical information, interested parties can accurately assess the nature and extent of unmet legal needs, as well as the extent and effectiveness of lawyers’ pro bono efforts in addressing those needs. Resources can then be directed more efficiently. The end results of an effective pro bono reporting program would be increased and better-allocated funding for legal aid, increased pro bono legal services donated by a greater number of lawyers, more recognition of lawyers’ individual and collective efforts, and increased public respect for the bar. Thousands of persons, whose critical legal needs would not otherwise be met, would gain equal access to our justice system.	Thomas C. Mielenhausen practices at Smith Parker, PLLP, a seven-lawyer firm in Minneapolis. He is a principal author of the MSBA’s Model Pro Bono Policies and Procedures for Private Law Firms and is a member of the Volunteer Lawyers Network. Charles A. Krekelberg practices at Krekelberg, Skonseng and Lindberg Law Firm, a three-lawyer firm with offices in Fergus Falls and Pelican Rapids. He served on the Joint Legal Services Access and Funding Committee of the Minnesota Supreme Court and in 1992 received the Minnesota Legal Services Coalition Pro Bono Publico Award.
"With data from an effective reporting program, the bar can persuasively document that the monetary value of lawyers' efforts to address the problem of unmet legal needs far exceeds the amount of funding from the federal and state government."	The Need for a Program The need for accurate information on lawyers’ pro bono work cannot be overstated. Several years ago the Minnesota Supreme Court and Legislature, in response to sharp reductions in federal funding for legal aid, established the bipartisan Joint Legal Services Access and Funding Committee to examine the civil legal needs of low-income Minnesotans. The committee membership represented the Legislature, the federal and state judiciary, lawyers in private and public practice, legal services program staff, and the public. After extensive study, the committee found a serious and growing unmet need for legal assistance to low-income Minnesotans, particularly in cases involving domestic violence, housing, and other matters relating to basic subsistence.1 The committee estimated that, at best, legal aid programs could meet only 30 percent of this need. In 1994 alone, legal aid programs had to turn away more than 20,000 eligible people who came to them for help with critical legal needs. These problems were exacerbated in 1996, when Congress cut federal funding for legal aid programs by over 30 percent and restricted what federally-funded programs could do for their clients. The Joint Legal Services and Access Committee found that the severe reductions in federal funding for legal aid have created a significant and increasing price tag for Minnesota. The committee recognized that legal aid programs play a vital role in our communities by, among other things: getting battered spouses and children out of abusive situations; preventing homelessness and school instability; protecting access to food, clothing and medical care; keeping people in safe and sanitary housing; obtaining child-support orders and Social Security disability payments that reduce taxpayer-funded public assistance; and helping people work themselves out of poverty and down the road to self-sufficiency.2 The committee also found that legal aid programs help to prevent legal problems that would otherwise further clog and increase the costs of the court system. The committee observed: Legal problems don’t disappear when legal services programs shrink. While some people simply abandon legitimate claims, many others pursue their cases without representation. They are forced to navigate the court system without a guide. They negotiate with landlords or other parties who have lawyers to help them. They file their own briefs and other papers. These cases clog the court system, increasing its costs. Legal services offices reach tens of thousands of persons each year through community legal education workshops, self-help materials, newspaper columns, and radio and TV shows. Legal services staff also train public and private social service agency staffs in relevant areas of the law. This enables many clients to avoid legal problems or resolve them without having to use the legal system.3 The 1996 cutback in federal funding for legal aid programs, as well as subsequent federal legislation, substantially shifted the responsibility for the problem of unmet legal needs of low-income persons. Now more than ever, the problem is one of state and local concern. As a result, the need to expand the well-respected partnership between the Minnesota Legislature, private charities, and lawyers has become critical. Understandably, in determining the increasing levels of their funding, the Legislature and private charities want to know more clearly what lawyers are doing to address the problem. Minnesota courts also have an increasing stake in obtaining accurate information on lawyers’ efforts to address the problem of unmet legal needs and pro se litigants.
	Reporting Proposals -- Then and Now The idea of pro bono reporting in Minnesota has been broached before. At their 1990 convention, the membership of the Minnesota State Bar Association ("MSBA") voted by a wide margin to adopt a reporting proposal. Subsequently, however, the Minnesota Supreme Court declined to adopt the MSBA's petition for a program. In a brief order, the Court stated that it "unreservedly reaffirms the obligation of members of the legal profession to support and participate in pro bono activities," but that a majority of the Court "is not persuaded that mandatory pro bono reporting would appreciably advance or assist in the discharge of that obligation."4 Since 1990, several developments have warranted a new look at the idea of pro bono reporting. First, as noted above, the significant unmet need for civil legal aid services and the benefit of those services to the broader community have been clearly documented. The severe cutbacks in federal funding for legal aid, changes in welfare laws, and other emerging factors have exacerbated the unmet legal needs of low-income Minnesotans, placing a substantial funding burden on the Minnesota Legislature and private charities. Those funding sources, in determining their levels of contribution, have increasingly insisted on reliable data demonstrating the pro bono efforts of Minnesota lawyers. Second, in 1995 the Supreme Court, in response to an MSBA petition, revised Rule 6.1 of the Minnesota Rules of Professional Conduct ("Rule 6.1") to incorporate an aspirational, voluntary standard of 50 hours of pro bono legal service per year for each lawyer licensed to practice law in Minnesota. The aspirational standard calls for the substantial majority of those services to be performed for persons of limited means. Additionally, the standard encourages lawyers to contribute money to organizations that provide legal services to persons of limited means. The need for an aspirational standard that specifically emphasizes the importance of legal services to persons of limited means, and recommends a minimum number of hours to be donated, arose in large part from the cutbacks in federal funding for legal aid. The specificity added to the aspirational standard in Rule 6.1 was viewed as one means of directly encouraging all Minnesota lawyers to address the growing problems associated with the unmet legal needs of low-income Minnesotans. During the November 1995 hearing on the revised Rule 6.1, the Supreme Court asked several questions about how the success of the aspirational standard might be measured, and whether the MSBA had again considered a pro bono reporting program. Similar concerns were raised by the Joint Legal Services Access and Funding Committee. The committee encountered substantial difficulty in obtaining any reliable data regarding the nature and extent of pro bono legal work actually being performed by Minnesota lawyers. The committee concluded that such data was important to the efforts of the courts, the Legislature, and the bar in addressing unmet legal needs of low-income Minnesotans.5 A third development warranting a fresh look at pro bono reporting is that various reporting programs have been adopted in a number of other states over the past several years.6 The Minnesota Supreme Court and bar now have the benefit of the experience of those states in determining whether to adopt a pro bono reporting program in Minnesota and, if so, the best way to structure the program. The experience in Florida, which has now had a reporting program in place for five years, is particularly helpful.	"Other states have found that a pro bono reporting program increases the amount of volunteer legal services donated to persons in need."
"Pro bono reporting programs have not resulted in mandatory pro bono in any state in which such programs have been adopted."	The Florida Experience In 1993 the Florida Supreme Court implemented a comprehensive plan to increase and improve the delivery of pro bono legal services by Florida lawyers.7 The Court amended its rules of professional conduct to require each lawyer annually to report the number of hours of pro bono legal services the lawyer provided to low-income persons and the amount of money the lawyer contributed to legal aid organizations during the preceding year. Although the donation of such time and money is purely voluntary under Florida’s rules of professional conduct, the reporting of whether and how much time and money was donated is required.8 The Standing Committee on Pro Bono Services of the Florida Supreme Court annually compiles the data from the pro bono reporting program. The committee’s reports illustrate the quality of information that can be gathered through a reporting program. The 1998 report, for example, sets forth precise and reliable data demonstrating the number of Florida lawyers who actually performed pro bono services for low-income persons (about 44%), and the amount of services actually performed (an average of about 15 hours per active lawyer statewide).9 The 1998 Florida report demonstrates that the Florida bar as a whole substantially increased its donations of both money and pro bono legal services since the inception of the state’s pro bono reporting program, and contributed far more resources than did other Florida citizens toward the problem of the unmet legal needs of low-income persons.10 Assuming an average hourly rate of $150, the Florida bar contributed the equivalent of nearly $130 million in services to low-income persons in 1998. In addition, 4,312 Florida lawyers reported a total of $1,427,263 in direct donations to legal aid organizations. The combined $131.4 million contribution from the Florida bar far exceeded the $24.7 million in direct funding for legal aid from the federal Legal Services Corporation and other sources.11 Through the reporting program, the Florida bar has thus been able to document its substantial and increasing commitment to addressing the unmet legal needs of low-income persons, and to challenge both itself and its partners -- the Legislature and other funding sources -- to do more. In 1997 one Florida Supreme Court justice, in an opinion observed: There can be no doubt that the reporting requirement has been effective. Accurate statistics are now available as to the number of pro bono legal hours being provided in Florida each year. These statistics can be used by this court to analyze the extent to which the constitutional mandate of court access is being met. Additional resources can then be directed intelligently to areas of need. Without the reporting requirement, such evaluations would be made with incomplete information. Further, a positive side effect of our pro bono rule is that both pro bono legal services and contributions to legal services have increased. While the rule was not developed to force attorneys to provide pro bono legal services, the fact that the rule has raised consciousness and thereby increased the performance of such services does not disturb me.12 The United States Court of Appeals for the 11th Circuit agreed with this assessment. In rejecting a legal challenge to the Florida program, the 11th Circuit said: It was rational for the Florida Supreme Court to conclude that requiring Bar members to report their compliance with the Rule's aspirational pro bono goals both encourages lawyers to honor these goals and provides the Court with a pool of information that might lend some insight into what, if any, additional measures are needed to help the poor obtain counsel and secure access to the courts.13
	What Program for Minnesota? Over the past year the MSBA’s Legal Assistance to the Disadvantaged ("LAD") Committee has conducted an extensive study of pro bono reporting programs in other states. The results of that study indicate several precepts underlying an effective reporting program. First, a pro bono reporting program yields reliable and useful data only when lawyers are required to respond. As illustrated in Table 1, states with voluntary reporting programs, in which lawyers are encouraged but not required to respond to a questionnaire, have experienced disappointingly low response rates. In fact, organizations conducting those voluntary programs have reported that lawyer response rates are so low that the resulting data is of limited value at best. The organizations have found that the data they receive cannot be considered reflective of the overall pro bono efforts in the state because, typically, only those lawyers who do pro bono return the voluntary reporting form. As a result, the number of pro bono hours per capita performed by all lawyers tends to be substantially lower than that performed by responding lawyers. Indeed, if extrapolated, the data can lead to starkly negative conclusions about lawyers’ pro bono efforts. If one assumes that lawyers who do not do pro bono do not return the reporting forms, the average number of pro bono hours per lawyer falls far short of the aspirational standards in those states. Florida, the only state with a required reporting program, has a nearly 100 percent response rate. The annual reports that analyze data from the program illustrate the reliability, accuracy, and usefulness of the information that can be gathered through a required reporting form. When these data are compared to data from states with voluntary reporting programs, there is no question that requiring lawyers to report is essential to ensuring a high response rate and data that are reliable and useful. Moreover, it is evident that Florida’s required reporting program has moved the bar as a whole to substantially increased its donations of both money and pro bono legal services. Second, keep it simple. The most effective report form is one that asks only for the information necessary to achieve the objectives of the pro bono reporting program. For example, the form should ask lawyers to indicate the amount and nature of their pro bono legal services, as defined in Rule 6.1, and the amount of money contributed to organizations providing such services. These data can then be used to document the overall contribution of the bar in addressing the unmet needs of low-income Minnesotans. Additionally, the form should ask for certain limited demographic information (e.g., year admitted, nature and general location of practice, and size of firm), which will enable legal aid organizations, the Legislature, and private charities to direct their resources efficiently. The reporting program in Texas, for example, has generated useful demographic information about the responding lawyers who do pro bono work. Among other points, the Texas data show that solo practitioners, firms with five or fewer lawyers, and lawyers in rural areas donate more pro bono service than their counterparts in larger, urban firms. A pro bono reporting program need not be an administrative burden on lawyers. Most lawyers keep a daily record of their time, so recording time associated with pro bono cases should not add significantly to an already existing task. Moreover, lawyers would need to keep track of only the amount of time spent on pro bono matters. Unlike recording billable hours, they would not have to record a description of their activities. Thus, the task of recording the time spent on pro bono matters should involve only seconds of time during those days on which pro bono services were provided. At the end of the year, completing the reporting form should take only a few minutes, particularly for the many lawyers who now use computerized time-keeping programs. The experience of other states also shows that a reporting program need not be a burden on the organization that compiles the reported data. The program in Texas, for example, saves substantial administrative time and cost by using a computer-scannable form. The time involved in scanning, analyzing, and reporting on the data amounts to about 50 hours per year. Third, a reporting program can be designed to allow for anonymity. Florida requires its lawyers to identify themselves on their report forms. This may not be necessary in Minnesota. At least initially, a pro bono reporting program might be structured to allow for anonymity, while at the same time promoting the compliance that is necessary for accurate and useful data. Under such a program, the pro bono report form might be mailed to lawyers with the annual registration statement from the Supreme Court. A lawyer would be required to certify on the registration statement that he or she completed and returned the report form, but the form itself could be returned separately and anonymously. If this program does not result in the appropriate response rate, the report form could easily be modified to require lawyers to identify themselves. A reporting form should encourage lawyers to identify themselves, even if they are not required to do so. Recognition of lawyers who do pro bono is a good way to increase the overall amount of pro bono services delivered by the bar. Lawyers, especially new lawyers, learn from the example of their peers. A reporting form that allows for recognition (e.g., by including an optional signature line) enables the bar to proclaim both the individual and collective good works of Minnesota’s lawyers, and in the process challenge ourselves to do more.14 Fourth, a reporting program does not mean mandatory pro bono. Pro bono reporting programs have not resulted in mandatory pro bono in any state in which such programs have been adopted. In fact, the evidence indicates that reporting programs prevent efforts by state legislatures and the public to enact mandatory pro bono measures. One state’s reporting program, for example, grew in part from the state legislature’s consideration of a law requiring lawyers to provide pro bono legal services as a condition of licensure. With data from an effective reporting program, the bar can persuasively document that the monetary value of lawyers’ efforts to address the problem of unmet legal needs far exceeds the amount of funding from the federal and state government. Thus, rather than posing a threat of mandatory pro bono, a reporting program can provide the bar with the best defense against mandatory pro bono.	"states with voluntary reporting programs ... have experienced disap- pointingly low response rates ... so low that the resulting data is of limited value at best."
"a pro bono reporting program might be structured to allow for anonymity, while at the same time promoting the compliance that is necessary for accurate and useful data."	Conclusion It’s time for a pro bono reporting program in Minnesota. Thousands of Minnesotans with critical legal needs -- in most cases needs that affect their basic safety and subsistence -- would ultimately benefit from such a program. An effective reporting program would lead to increased efforts by Minnesota lawyers, the Legislature, and private charities to address those unmet needs. It would allow for better recognition of the outstanding work of lawyers who exceed the aspirational standard set forth in Rule 6.1, and thereby encourage others to do more. It would demonstrate the bar’s commitment to providing equal access to justice, and lead to increased public respect for lawyers. Our profession has nothing to fear from such a program, and so much to gain. Notes 1 Report of the Joint Legal Services Access and Funding Committee (Dec. 31, 1995), at 6-8. (Back to text) 2 Id. at 11-12. (Back) 3 Id. Minnesota legislators have estimated that steering just five people away from the risk factors of violent crime saves taxpayers $4 million in prison and corrections costs. See Sen. Ellen Anderson and Rep. Charles Weaver, "Put Money into Prevention Programs, Not More Prisons," Star Tribune, March 8, 1995, at 15A. (Back) 4 Order, In Re Petition to Amend the Rules for Registration of Attorneys, C9-81-1206 (Minn., May 22, 1991). (Back) 5 Report of the Joint Legal Services Access and Funding Committee (Dec. 31, 1995), at 34. (Back) 6 As of this writing, 12 states have adopted a pro bono reporting program, and another 7 states are considering adoption of a program. See also T. D'Alemberte, "Tributaries of Justice: The Search for Full Access," 25 Fla. St. U. L. Rev. 631 (Spring 1998), and Florida Bar Association -- Background Papers. (Back) 7 See Amendments to Rules Regulating the Florida Bar -- 1-3.1(a) and Rules of Judicial Administration -- 2.065 (Legal Aid), 630 So.2d 501 (Fla. 1993), as clarified on denial of rehearing, (Fla., February 3, 1994). (Back) 8 Legal challenges to Florida’s reporting requirement have been rejected by both the Florida Supreme Court and the United States Court of Appeals for the 11th Circuit. See Schwarz v. Kogan, 132 F.3d 1387 (11th Cir. 1998); Amendments to Rule 4-6.1 of the Rules Regulating the Florida Bar -- Pro Bono Public Service, 696 So.2d 734 (Fla. 1997), rehearing denied, (Fla. July 9, 1997). (Back) 9 See Florida Supreme Court Standing Committee on Pro Bono Services, Report to the Supreme Court of Florida, the Florida Bar and the Florida Bar Foundation (1998), at 1. (Back) 10 Id. at 3. (Back) 11 Id. at 1, 3. (Back) 12 Amendments to Rule 4-6.1 of the Rules Regulating the Florida Bar -- Pro Bono Public Service, 696 So.2d at 736 (Overton, J., concurring). (Back) 13 Schwarz v. Kogan, 132 F.3d at 1391. See State Bar of Texas -- Pro Bono College. (Back) 14 On one state’s form, for example, a lawyer may certify that he or she has met or exceeded the bar’s aspirational pro bono standard, and would like to be identified as a member of the "Pro Bono College" for that year. (Back)

A lawyer should aspire to render at least 50 hours of pro bono publico legal services per year. In fulfilling this responsibility, the lawyer should:

(a) provide a substantial majority of the 50 hours of legal services without fee or expectation of fee to:

1. persons of limited means or
2. charitable, religious, civic, community, governmental and educational organizations in matters which are designed primarily to address the needs of persons of limited means; and

(b) provide any additional services through:

1. delivery of legal services at no fee or substantially reduced fee to individuals, groups or organizations seeking to secure or protect the civil rights, civil liberties or public rights, or charitable, religious, civic, community, governmental and educational organizations in matters in furtherance of their organizational purposes, where the payment of standard legal fees would significantly deplete the organization’s economic resources or would be otherwise inappropriate;
2. delivery of legal services at a substantially reduced fee to persons of limited means; or
3. participation in activities for improving the law, the legal system or the legal profession.

In addition, a lawyer should voluntarily contribute financial support to organizations that provide legal services to persons of limited means. (Back to text)