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

October 1, 2010
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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?
 

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  • mandatory pro bono
    The Indiana Constitution rightfully prohibits taking goods or services without compensation. It is no more the responsibility of the bar to provide free legal representation than it is of groceries to provide free food, or car dealers to provide free transportation. My experience representing pro bono clients is that they are demanding, uncooperative and ungrateful. I don't do it anymore.
  • the Indiana Constitution prohibits it
    I'd argue that Article I, section 21 of the state constitution prohibits mandatory pro bono work: No person's particular services shall be demanded, without just compensation.

    I have no problem with encouraging pro bono work and even attempting to shame attorneys into performing it, but requiring it is simply inimical to our constitution.
  • Pro Bono
    Not only do I echo the comments of the previous posters, but I find the whole idea insulting, insofar as it implies that lawyers are getting rich practicing law, so they need to "give back" to society. As a sole practitioner who is still paying on law school loans 20 years after graduation, competing against unemployed new law school graduates who are willing to work for food, and spending most of the money I make to pay ever increasing expenses, I not only am not getting rich, I am barely making a decent living at the practice of law, and certainly don't have extra time and/or money to give out to people for free.

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  1. "Am I bugging you? I don't mean to bug ya." If what I wrote below is too much social philosophy for Indiana attorneys, just take ten this vacay to watch The Lego Movie with kiddies and sing along where appropriate: https://www.youtube.com/watch?v=etzMjoH0rJw

  2. I've got some free speech to share here about who is at work via the cat's paw of the ACLU stamping out Christian observances.... 2 Thessalonians chap 2: "And we also thank God continually because, when you received the word of God, which you heard from us, you accepted it not as a human word, but as it actually is, the word of God, which is indeed at work in you who believe. For you, brothers and sisters, became imitators of God’s churches in Judea, which are in Christ Jesus: You suffered from your own people the same things those churches suffered from the Jews who killed the Lord Jesus and the prophets and also drove us out. They displease God and are hostile to everyone in their effort to keep us from speaking to the Gentiles so that they may be saved. In this way they always heap up their sins to the limit. The wrath of God has come upon them at last."

  3. Did someone not tell people who have access to the Chevy Volts that it has a gas engine and will run just like a normal car? The batteries give the Volt approximately a 40 mile range, but after that the gas engine will propel the vehicle either directly through the transmission like any other car, or gas engine recharges the batteries depending on the conditions.

  4. Catholic, Lutheran, even the Baptists nuzzling the wolf! http://www.judicialwatch.org/press-room/press-releases/judicial-watch-documents-reveal-obama-hhs-paid-baptist-children-family-services-182129786-four-months-housing-illegal-alien-children/ YET where is the Progressivist outcry? Silent. I wonder why?

  5. Thank you, Honorable Ladies, and thank you, TIL, for this interesting interview. The most interesting question was the last one, which drew the least response. Could it be that NFP stamps are a threat to the very foundation of our common law American legal tradition, a throwback to the continental system that facilitated differing standards of justice? A throwback to Star Chamber’s protection of the landed gentry? If TIL ever again interviews this same panel, I would recommend inviting one known for voicing socio-legal dissent for the masses, maybe Welch, maybe Ogden, maybe our own John Smith? As demographics shift and our social cohesion precipitously drops, a consistent judicial core will become more and more important so that Justice and Equal Protection and Due Process are yet guiding stars. If those stars fall from our collective social horizon (and can they be seen even now through the haze of NFP opinions?) then what glue other than more NFP decisions and TRO’s and executive orders -- all backed by more and more lethally armed praetorians – will prop up our government institutions? And if and when we do arrive at such an end … will any then dare call that tyranny? Or will the cost of such dissent be too high to justify?

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