6.1 Voluntary Pro Bono Publico Service

Every lawyer has a professional responsibility to provide legal services to those unable to pay.

Aspirational Goals In fulfilling this responsibility, the lawyer should provide 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 that are designed primarily to address the needs of persons of limited means; and

(3) individuals, groups or organizations seeking to secure or protect 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; or

(4) activities for improving the law, the legal system or the legal profession.

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


COMMENT

[1] Every lawyer, regardless of professional prominence or professional work load, should provide legal services to those unable to pay. While the ABA model rule specifies an annual number of hours each lawyer should provide, Maine lawyers, have created a tradition of delivering a nationally recognized high quantity of pro bono services. Because of this professional ethic, Maine attorneys understand any set standard is insufficient to meet the critical need to provide legal services to those individuals and institutions unable to afford them.

[2] Paragraphs (1) and (2) of these Aspirational Goals prioritize the critical need for legal services that exists among persons of limited means by providing legal services be rendered directly to the disadvantaged or to organizations serving the disadvantaged without fee or expectation of fee. Legal services under these paragraphs consist of a full range of activities, including individual and class representation, the provision of legal advice, legislative lobbying, administrative rule making and the provision of free training or mentoring to those who represent persons of limited means. The variety of these activities should facilitate participation by government lawyers, even when restrictions exist on their engaging in the outside practice of law.

[3] Persons eligible for legal services under paragraphs (1) and (2) are those who qualify for participation in programs funded by the Legal Services Corporation and those whose incomes and financial resources are slightly above the guidelines utilized by such programs but nevertheless, cannot afford counsel. Legal services can be rendered to individuals or to organizations such as homeless shelters, battered women’s centers and food pantries that serve those of limited means. The term “governmental organizations” includes, but is not limited to, public protection programs and sections of governmental or public sector agencies.

[4] Services rendered cannot be considered pro bono if an anticipated fee is uncollected, but the award of statutory attorneys’ fees in a case originally accepted as pro bono would not disqualify such services from inclusion under this section. Lawyers who do receive fees in such cases are encouraged to contribute an appropriate portion of such fees to organizations or projects that benefit persons of limited means.

[5] To the extent possible, a lawyer should fulfill the responsibility to perform pro bono services directly to the financially needy through activities described in paragraphs (1) and (2) of the Aspirational Goals. Paragraphs (3) and (4) describe other means to perform pro bono services, although those have a less specific impact on individuals needing legal representation. Constitutional, statutory or regulatory restrictions may prohibit or impede government and public sector lawyers from performing the pro bono services outlined in paragraphs (1) and (2). Accordingly, where those restrictions apply, government and public sector lawyers may fulfill their pro bono responsibility by performing services outlined in paragraphs (3) and (4).

[6] Paragraph (3) includes the provision of certain types of legal services to those whose incomes and financial resources place them above limited means. It also permits the pro bono lawyer to accept a substantially reduced fee for services. Examples of the types of issues that may be addressed under this paragraph are First Amendment claims, Title VII claims and environmental protection claims. Additionally, a wide range of organizations may be represented, including social service, medical research, cultural and religious groups.

[7] Paragraph (3) covers instances in which lawyers agree to and receive a modest fee for furnishing legal services to persons of limited means such as participation in judicare programs and acceptance of court appointments in which the fee is substantially below a lawyer’s usual rate.

[8] Paragraph (4) recognizes the value of lawyers engaging in activities improving the law, the legal system or the legal profession, in addition to providing pro bono representation to individuals serving on bar association committees, serving on boards of pro bono or legal services programs, taking part in Law Day activities, acting as a continuing legal education instructor, mediator or arbitrator and engaging in legislative lobbying to improve the law, the legal system or the profession are a few examples of the many activities that fall within this paragraph.

[9] There may be times when it is not feasible for a lawyer to engage in pro bono services to individuals. At such times a lawyer may discharge the pro bono responsibility by providing financial support to organizations providing free legal services to persons of limited means. Such financial support is equivalent to the value of the hours of service that would have otherwise been provided. In addition, at times it may be more feasible to satisfy the pro bono responsibility collectively, as by a firm’s aggregate pro bono activities.

[10] The efforts of individual lawyers are not enough to meet the need for legal services existing among persons of limited means. Consequently, the government and the profession instituted additional programs to provide those services. Every lawyer should support such programs financially, as well as providing direct pro bono services.

[11] Although this rule does not express a minimum of pro bono legal hours, law firm management and practitioners must not abandon the voluntary commitment to pro bono public service Maine lawyers historically have demonstrated. Being in the national forefront bears with it both honor and continuing duty. Thus, law firms should enable and encourage all lawyers in the firm to provide the pro bono legal services called for by this Rule, and practitioners should exhort each other to satisfy unmet legal needs in direct and creative ways.

[12] The responsibility set forth in this Rule is aspirational and not to be enforced through disciplinary process.


REPORTER’S NOTES:

Model Rule 6.1 (2002) is substantively in accord with M. Bar R. 2-A, Aspirational Goals for Lawyer Professionalism. The Task Force recognized that Maine lawyers are nationally known for their outstanding commitment to providing pro bono legal services. As such, the Task Force recommended adoption of Model Rule 6.1, with some noted modifications.

The ABA Model Rule specifies fifty (50) hours per year as the amount each lawyer should provide. Because of the high standard for pro bono service Maine lawyers have established, the Task Force thought that any enumeration of hours is unnecessary, and perhaps send the wrong message that there is a specific number of hours of pro bono service that would sufficiently meet the critical legal services need of those individuals and institutions unable to afford them. Accordingly, the Task Force decided not to suggest a specific number of hours.

Model Rule 6.1 (2002) sets forth a staged order of preference for the types of pro bono services to be rendered by lawyers: it prioritizes direct pro bono representation of persons of limited means or pro bono representation to organizations that are designed primarily to address the needs of persons of limited means. The Task Force recognized the compelling need of people of limited means for legal services, but also acknowledged the importance of lawyers’ probono service in furtherance of the creation of a framework to support charitable, religious, civic, community, governmental and educational organizations. The Task Force further credited the importance of lawyers’ participation in law reform activities. The Task Force believed the prioritized listing of types of pro bono service was important in efforts to address the critical need for legal services for persons with limited means. Thus it recommended adoption of the Model Rule, as modified.