During a January lunchtime meeting of the Elkhart City Bar Association, attorneys served a plateful of questions about the state’s new mandatory pro bono reporting rule and ladled on some skepticism.
Indiana Tax Judge Martha Wentworth, the luncheon’s guest speaker, responded with answers, clarifications and assurances. As chair of the Indiana Pro Bono Commission and leader of the task force that drafted the new rule, she has faced similar resistance from other attorneys around the state.
The purpose of the new Rule of Professional Conduct 6.7, she said, is to quantify the amount of free legal services Indiana attorneys provide to indigent clients. The effort to increase pro bono work cannot start until there is an accurate accounting of what is currently being done, she said.
Indiana attorneys will be required to report their pro bono activities in 2015 as part of their annual registration in 2016.
“I certainly don’t see this is going to be a problem,” said Douglas Mulvaney, past president of the Elkhart City Bar Association. He added that many lawyers do pro bono work because they feel it is part of their professional obligation, and the new rule is just requiring the reporting of those hours.
But after Wentworth finished her presentation to the bar association, she spent quite a bit of time answering questions about the new rule and explaining what volunteer services are reportable.
Other attorneys around the state have questions as well. Some of that confusion is causing the task force to go back and tweak some sections.
The final rule excluded some things that were part of the proposal the task force submitted to the Indiana Supreme Court, Wentworth said. In particular, left out was the Frequently Asked Questions section which provides answers to specific situations. The process is underway, she said, to adjust parts of Rule 6.7 to make it clearer.
Donald Lundberg, former executive secretary of the Indiana Supreme Court Disciplinary Commission and current president of the Indiana Bar Foundation, highlighted two areas of the rule that are being amended.
According to Lundberg’s detailed analysis published in the October issue of Res Gestae, the problem areas of the new reporting rule involve reduced fees and in-kind contributions.
Lundberg pointed out the rule does not allow attorneys to count legal work offered at a discount. If an attorney represents a client with the expectation of being compensated then is not paid, that is not considered pro bono. But, under the new rule, work performed at a lower rate is also not reportable.
The rule is being amended, Wentworth said, to make service at a reduced fee reportable provided the fee is cut by at least 50 percent of the attorney’s normal hourly rate.
Also, she pointed out, the rule is flexible in determining who would be an eligible client for pro bono services. The language states the client must have an income no higher than 200 percent of the federal poverty guidelines or must be “reasonably perceived” to be indigent. Therefore, someone who has an income higher than the limit but has mounds of medical bills could be perceived as being financially eligible.
Lundberg also questioned what constitutes an in-kind contribution under the new rule. The rule provides no guidance on how to value this type of donation.
Wentworth explained the task force had intended for in-kind contribution to cover tangible property like donations of office furniture or computers to a legal aid office. The rule addressed volunteer work and monetary donations, so in-kind contribution was meant to cover physical items. The wording in the rule probably will be changed to “tangible property,” she said.
Another area that Lundberg said has attorneys scratching their heads is the difference between Rule 6.7, Pro Bono Reporting Requirement, and Rule 6.1, Pro Bono Publico Service. The two rules are not aligned on what activities count as pro bono work.
For example, sitting on a board of a nonprofit is defined as pro bono service under Rule 6.1 but does not qualify under Rule 6.7.
Mulvaney, as well, said attorneys have been grousing about what is considered reportable. They do not understand why the time they donate to helping a charity cannot be counted.
Wentworth reiterated the intent of the rule is to measure how many attorneys provide legal services directly to the indigent and the number of pro bono hours. She also pointed out the broader intent is to ensure equal access to the courts.
In litigation where one side is not represented, if that side loses, he or she may conclude there is not justice for the poor, she explained. However, that side might have a different attitude, regardless of whether the case is won or lost, if an attorney is providing services.
At the Elkhart luncheon, Mulvaney said attorneys had concerns about how to keep track of their pro bono hours.
The rule, Wentworth explained, is not a punitive measure and has no penalty. Attorneys will report their hours, even if that number is zero, without fear of being audited. Also, the pro bono hours will be publicized only in aggregate form and not by individual lawyer.
“Nobody wants to be hit with a stick to do something,” Wentworth said. “What we tried to do is provide a carrot.”
Lundberg agrees lawyers are not at a significant risk for disciplinary action under this rule.
“I think any lawyer who reads the rule and makes a good faith judgment would be fine,” he said.
The Elkhart City Bar Association invited Wentworth to explain the rule because some lawyers are not aware the new reporting rule is in place. Other lawyers, Mulvaney noted, are concerned the next step will be mandating all attorneys provide pro bono services.
He believes the new rule will have a positive impact.
“I think it will accomplish its purpose because they really don’t have any metrics on what is being done at this point,” he said. “It’ll probably encourage attorneys to be a little more thoughtful about doing pro bono work and reporting it.”•