At the direction of Indiana Chief Justice Brent Dickson, the Indiana Pro Bono Commission has made a series of recommendations to the Supreme Court designed to increase pro bono activity in the legal community.
The key proposal is to implement annual mandatory reporting of pro bono hours by every attorney licensed in Indiana.
This is part of Dickson’s long-term goal of creating a culture shift that will lead to more attorneys performing pro bono work. While officials concede mandatory reporting alone will not cause a dramatic change in attitudes, it has proven to be a strong motivator in other states.
Neither the mandatory reporting nor the other recommendations made by the commission have been acted upon yet. But Dickson is clear about his desire that every individual stepping into a courtroom should be represented by a lawyer.
More and more pro se litigants are appearing before judges while federal funding for legal services has fallen to an all-time low. To help push back the rising tide of indigent Hoosiers who cannot afford an attorney, Dickson believes more lawyers need to volunteer their time.
“I’ve become convinced that the best way to meet this need is to animate and encourage Indiana’s lawyers to step forward and do more pro bono work,” he said.
When Indiana Tax Court Judge Martha Wentworth was appointed chair of the Pro Bono Commission, the chief justice charged her with finding ways to increase pro bono activity. The commission subsequently pulled together a task force which examined legal volunteerism among Indiana lawyers and looked at possible ways to enlist more attorneys to help low-income Hoosiers with their legal needs.
In a report of its findings recently submitted to the Supreme Court, the task force made three recommendations. Along with mandatory reporting of pro bono hours worked, the group proposed the Indiana State Bar Association establish a pro bono committee in every section.
Lastly, the committee suggested that judges be more engaged in pro bono activity, although how that would be done remains a question.
Wentworth said the committee did review the idea of requiring every attorney to do pro bono work. By itself, mandatory pro bono would bring a marked shift in the culture.
However, that direction was rejected because in other states where such a policy has been instituted, bitter opposition has erupted. In addition, questions have been raised about the constitutionality of mandating that attorneys provide free legal services.
“While our committee did not recommend any quick kick in the pants to instantly change the legal culture,” Wentworth said, “we did recommend what we saw as a powerful combination – the Supreme Court instituting mandatory reporting and exploring new leadership roles for judges together with the ISBA coordinating pro bono training for lawyers, providing pro bono opportunities in all areas, and recognizing success.”
Dickson sees the mandatory reporting of pro bono as a way to raise attorneys’ consciousness about their professional responsibility to help those less fortunate. He does not advocate forcing lawyers to do pro bono but, instead, he wants to enable, encourage and facilitate it.
Getting input from attorneys
The House of Delegates of the Indiana State Bar Association is scheduled to discuss and debate the possibility of mandatory reporting during the association’s annual meeting in October.
Even though the state Supreme Court has the power to implement any change to pro bono work, Dickson said he wants input from the state bar before making a decision. The ISBA has been helpful in the past in improving suggestions, and Dickson hopes having the bar association work on the mandatory reporting idea, and possibly suggesting changes, will create a feeling of ownership and enthusiasm among the lawyers.
Dan Vinovich, ISBA president, declined to predict what the House of Delegates would do but said he is looking forward to getting the opinions of lawyers throughout the state.
Personally, Vinovich views mandatory reporting as a way to increase legal services to the poor and as a way to collect data to evaluate pro bono services and procedures.
As for the second recommendation of putting a pro bono committee in every section of the bar association, Vinovich is less sure. He is uncertain if the board of directors could direct the sections to do that since the separate divisions all have their own bylaws and governing structure.
The task force envisions that these sections’ pro bono committees would encourage donation of services and create opportunities for lawyers to participate.
Defining pro bono
At present, the suggestion is for lawyers to indicate the number of pro bono hours they performed when they renew their law licenses every year. They could also be asked to complete a brief survey detailing what type of pro bono activity they did.
Attorneys who do not provide any free legal assistance would write in zero hours with no fear of penalty, Dickson said. Yet, he noted, the number will be part of the public record and a zero could dissuade potential paying clients.
Both Dickson and Vinovich offered the possibility that, in conjunction with mandatory reporting, the professional rules of conduct may have to be tweaked. Possible modifications include expanding the definition of pro bono so the hours that attorneys donate to helping community nonprofits with their legal needs could be counted. The hours attorneys end up writing off for their services when clients, unexpectedly, cannot pay their bill might also qualify.
Shifting the culture
The economic downturn has depleted the funding for pro bono support while the number of residents needing help has risen.
In Indiana, funding for the pro bono districts has come primarily from Interest on Lawyers Trust Accounts, but as interest rates have dropped, money flowing to pro bono has dropped 90 percent during the past four years from the high of $3 million to the current $300,000, according to Indiana Bar Foundation Executive Director Chuck Dunlap.
The Indiana Bar Foundation, which oversees the funding for pro bono districts, has been pulling money from its reserves to bolster the IOLTA funds, and a $1 increase in filing fees is being added to the pot as well. Through these efforts, the money available to the districts has been sustained at $750,000 per year.
In this atmosphere of rising need and declining resources, Dickson said judges feel torn. They want to be helpful to the pro se litigants coming into their courtrooms but at the same time, they want to remain neutral.
To bring about a cultural shift that would reduce, if not eliminate, a need to litigate pro se, the chief justice thinks the solution would be to “prime the pump.”
Attorneys freshly admitted to the bar are the best equipped to deal with the range of legal issues these litigants may have, Dickson said. They are familiar with several areas of the law because they have just graduated from school and taken the bar exam. Many also have the time to donate and need the experience.
If new attorneys can be encouraged to buy into pro bono service, then they will likely continue to offer their services as their careers advance, he said.
Dickson said there is not a deadline for acting on the task force’s recommendations but, he pointed out, he is anxious to make a difference as his mandatory retirement at age 75 is looming.
His goal, he said, is to have no more pro se litigants.
“My vision is that everybody who comes into court ought to have a lawyer,” he said. “My vision is that people who are financially strapped should not be stopped from having a lawyer helping them.”•