Pro Bono Publico

Bertrand Russell once marveled at “the peculiar sway that numbers have over reality.” Numbers can be like lampposts, of course—sometimes used for light, other times for support. Here are some numbers that should concern us all. Put simply, we have a problem. 

We have 295 state court trial judges. They handle an average of over 1,250,000 case filings each year. Our courts face a tsunami of self-represented litigants. They either cannot afford a lawyer or don’t think they need one. Coupled with this is a vast disparity in representation—one side represented by counsel, the other not—especially in housing, family, and debt-related matters. 

Our 260 civil legal aid staff lawyers handle 30,000 cases per year—closing over 46,000 total cases with the help of private pro bono lawyers. Our civil legal aid lawyers are the lowest paid of all public service lawyers. At the same time, some private firm lawyers and inside counsel are taking home record-setting compensation—no doubt coupled with record-setting individual and institutional generosity—and billing at record-setting hourly rates. This dynamic cannot be far from the minds of those of us who are trying to deal with these challenges, and who oversee our currently-self-regulated profession.

Despite noble and creative pilots and programs, our system of providing legal services isn’t working. The numbers don’t lie, and we can’t let them just lie there. 

So here is another number: “6.1.” As in Rule 6.1. As in Pro Bono Publico. The Rule says: “Every lawyer has a professional responsibility to provide legal services to those unable to pay.” “[A]t least 50 hours” per year. “In addition,” the Rule says that we should “voluntarily contribute financial support to organizations that provide legal services to persons of limited means.”

How much? Well, the 2005 Comments explain: “A lawyer may discharge the pro bono responsibility by providing financial support to organizations providing free legal services to persons of limited means… reasonably equivalent to the value of the hours of service that would have otherwise been provided.” 

Notably, the Comments point out that participation in pro bono service “can be one of the most rewarding experiences in the life of a lawyer.” A welcome rung on the ladder to wellness.

Saying it doesn’t make it so. So here are a few glimpses of what might be around the corner.

Mandatory Pro Bono Reporting?

Since the 1990s, the MSBA has supported some form of “mandatory reporting” of our pro bono hours and financial contributions. Our view has been rebuffed twice by the Minnesota Supreme Court. My view? The time has come. Remember, if you don’t provide information to people, they’ll make it up—and it won’t be flattering. Think of it as yet another leadership opportunity for Minnesota. We were the first state to require mandatory CLE (and, by the way, its accompanying reporting of CLE credits). We wouldn’t be the first to require mandatory reporting of pro bono, but this modest step would still put us in the vanguard. Reporting might even motivate us to produce better numbers to report, helping our public image.

If we resist reporting, we should be prepared to weather the storm of suspicion about whether we actually satisfy our duty as “public citizens,” as called for by the Preamble to our rules.This goes to the question of whether we should do this, not how. On that front, there seems to be little disagreement—confidential (no need to “sound a trumpet”); easy; maybe like CLE, once every three years; with even a reported “zero” being a sufficient report. We should be able to figure out the how of reporting once we agree (or are told) about the should. 

Context and Innovation

Heads up: There is a not-so-subtle discussion percolating about regulation—the idea being that self-regulation of the “practice” of lawyering might best be left to the lawyers, but that regulation of the “industry” that delivers legal services should involve others. We ignore this discussion at our peril.

Even corporate America is re-thinking itself these days. The recent statement from the Business Roundtable (made up of many of our current or wished-for clients) on the “Purpose of a Corporation” sets something of a new table—confirming a corporation’s essential commitment to our communities at large. It wouldn’t surprise me to see corporate executives and General Counsel issuing a new form of the “Call to Action,” similar to the one that took hold in our Diversity and Inclusion discussions—meaning, a new call for lawyers to engage in pro bono legal services in order to be considered for new or continuing work. 

Or consider this. What if firm leadership said to its significant billers: “You’ve had a great run and a great year with Company ABC. Go tell them this: Our firm would like to give 10% of this past year’s collected billings to the civil legal aid organization of the company’s choice in the company’s community.” Lawyerly tithing. It’s being done by some.

None of which will solve everything, of course; but let’s not make the perfect the enemy of the good. We can and should do more.