Mississippi considers mandatory pro bono or fee - should Indiana follow?

This blog was written by IL reporter Rebecca Berfanger.

Attorneys in Mississippi have until today to respond to a proposed rule change that would require them to either give 20 hours of pro bono service or pay a $500 fee. There would be some exceptions, such as government and judicial employees, those who already work for legal services, and “lawyers who are restricted from practicing law outside their specific employment.”

Currently, attorneys in that state, the poorest in the country according to a recent report from the Mississippi Access to Justice Commission, are strongly encouraged but not required to give at least 20 hours per year or pay a voluntary fee of $200.

Indiana’s Rule 6.1, which, like the Mississippi rule, is based on the American Bar Association’s Model Rule 6.1. The ABA suggests an aspirational goal of 50 hours of pro bono service per year, but doesn’t mention any fines, voluntary or otherwise. Mandatory pro bono and/or a fine is also not currently on the table in Indiana, unless that is how one views the Interest on Lawyer Trust Accounts Fund that grants money to the pro bono districts around the state.

On average, the Mississippi report found just over 4,000 attorneys – or a little less than half of that state’s bar - reported they had performed an average of 45 hours of pro bono service.

In addition, through the voluntary fine system, “the Bar received $155,107 in contributions in lieu of pro bono service from 1,013 attorneys. The average of $153 was below the $200 called for in the current rules,” according to the Aug. 23 notice seeking public comment.

The idea of mandatory pro bono is a sticky one. Having talked with plan administrators of various pro bono districts around Indiana, and those who work with them, the idea of mandatory pro bono always gets mixed reviews because of the idea attorneys feel forced to do pro bono.

Plan administrators want as many attorneys to do as much pro bono as possible and help as many people as possible, but they also don’t want attorneys who feel obligated to get the required hours to just phone it in and possibly offer below-par legal service to those who may need it most.

But maybe the idea of a voluntary fine or fee is one solution. For many attorneys, the current amount in Mississippi of $200 is at or less than what many attorneys charge for one billable hour. (And for all the attorneys who couldn’t afford $200 because they are unemployed or underemployed, they could get an exemption).

According to the ABA’s website that compares each state’s pro bono rules, this idea is pretty rare. The District of Columbia, Florida, Massachusetts, Nevada, New Mexico, Oregon, Utah, and Wyoming have suggested financial contributions quantified in their rules regarding goals for pro bono, which is not mandatory in any state. The amounts start at $200, and four of those states require $500. Virginia and Kentucky also encourage financial support, even though they don’t give a specific amount.

In fact, a few states have even rejected the idea of mandatory reporting, according to the ABA’s site.

Monica Fennell, executive director of the Indiana Pro Bono Commission, said she was unaware of any proposal in Indiana for mandatory pro bono service, and added that in states that require reporting, attorneys can still report zero hours without a penalty.

While it may seem like a crazy idea to some, my guess is the Indiana Pro Bono Commission and Indiana Bar Foundation would appreciate some extra funds to help offset the loss of funding for pro bono programming thanks to the ever shrinking interest rates and available IOLTA funds. At around $700,000 to be distributed later this year for districts to apply to their 2011 budgets – 55 percent less than the amount distributed in late 2009 for use in 2010 – every little bit helps.

Then again, I’m also guessing a number of attorneys already contribute to their local legal aid organizations, whether that’s a local legal aid society, legal aid clinic, and even their local pro bono districts without a suggested voluntary fine included in Rule 6.1.

Do you think Indiana could follow the example of Mississippi and the states that already suggest pro bono or a suggested, voluntary fee? Or do you think the way it is – where attorneys who want to perform pro bono or support organizations that provide legal aid to the poor with contributions – is the way to go?