Mandatory Pro Bono Service

In 2018, legislation was introduced that would have required lawyers to annually complete a minimum of 25 hours of pro bono service or contribute $500 to support legal services.  Although CLA strongly supports both pro bono legal services and increased funding to support the provision of legal services to indigent persons, CLA expressed several concerns with the legislation as introduced, as well as its views on alternative ways in which the overarching goals of the legislation could be met.  Ultimately, the legislation did not advance.

Assembly Bill 3204 (Gray)

April 23, 2018

Hon. Adam Gray
Member of the Assembly
State Capitol
P.O. Box 942849
Sacramento, CA 94249

Dear Assembly Member Gray:

The California Lawyers Association (“CLA”) submits these comments regarding Assembly Bill 3204, which would require active California attorneys to annually complete a minimum of 25 hours of pro bono legal service or contribute $500 per year to support legal services to indigent persons.

CLA strongly supports both pro bono legal services and increased funding to support the provision of legal services to indigent persons. However, CLA has concerns with this bill in its current form and believes there are alternative ways in which the overarching goals of this legislation could be met. CLA is available as an ongoing resource and would be pleased to work with the Legislature and other interested stakeholders to develop and advocate in favor of these alternatives.

General background

CLA launched on January 1, 2018 as a nonprofit, voluntary organization, and the new home of what were the Sections of the State Bar of California and the California Young Lawyers Association. The mission of CLA is promoting excellence, diversity and inclusion in the legal profession and fairness in the administration of justice and the rule of law. CLA represents the vast diversity of California’s legal community and the various areas of law practiced throughout the state.

CLA recognizes that there is an unmet need for legal services for people who are indigent or of modest means, and that legal aid is woefully underfunded. AB 3204 proposes to address this situation through mandatory pro bono service or a mandatory financial contribution. Although this bill is well-intentioned, we have concerns as discussed below. We follow that with a discussion of several alternative approaches that would achieve the goals of this bill and address those concerns.

This bill may not be the most effective means of achieving the desired results.

For many years, much has been written about the concept of mandatory pro bono legal services. ^[1] In reviewing this bill, CLA’s Board of Representatives carefully considered the arguments made on all sides of this issue and consulted with members of the CLA Sections, many of whom are deeply involved with pro bono activities, in one form or another.

We appreciate that Business and Professions Code section 6073 currently provides that every lawyer is expected to make a contribution, which may consist of pro bono services, financial support to organizations providing free legal services to persons of limited means, or other voluntary public service activities. Similarly, ABA Model Rule 6.1 adopted in several states, sometimes with modifications, contains an aspirational goal regarding pro bono legal services.

The shift from expectations and aspirational goals to a mandatory requirement, as contained in this bill, is significant. In preparing these comments, we heard from strong proponents of pro bono legal services (including pro bono partners in large law firms, who speak from many years of expereince), who believe that imposing a pro bono requirements on lawyers who are not independently interested in doing such work can create many problems and cause more harm than good to those people who are vulnerable and need legal assistance the most. We are not suggesting that lawyers will shirk their ethical obligations and intentionally do a “bad job.” However, there is a legitimate concern that lawyers who are “forced” to do pro bono work may not do their best work, to the detriment of their clients, and may even come to resent the obligation.

There may also be unintended and adverse consequences arising from the proposed pro bono service requirement. We have heard examples of well-intentioned lawyers providing pro bono services that ultimately resulted in the expenditure of additional resources to fix a problem that was created by a lawyer’s unfamiliarity with the are of law related to those services. ^[2] Mandatory pro bono service (particularly without adequate training and oversight) will only exacerbate this problem. We received feedback from specialized practitioners (in the area of intellectual property law, for example) who believe it would be very difficult to locate clients in their practice area who qualify as potential pro bono clients under this bill. Clients who are indigent or of modest means deserve the same level of representation as other clients. This bill will potentially force attorneys to provide service in specialized areas with great needs (for example, landlord-tenant, family law, immigration) without the requisite knowledge or experience.

On balance, we believe a voluntary pro bono system—with expanded opportunities, training, oversight, encouragement, and rewards—is the most effective way to advance the administration of justice and serve those who cannot afford but are in need of legal services.

This bill also raises the following specific concerns:

• Many lawyers are not allowed to provide pro bono legal services

Public lawyers and in-house counsel are often prohibited from providing legal services to any party beyond the scope of their employment. Other lawyers may have that same prohibition imposed by their employer. For these attorneys, the only option under AB 3204 would be payment of a mandatory contribution of $500 per year to the State Bar, which would distribute the money for the provision of legal services to indigent persons. This effectively amounts to a $500 tax or fine on this entire class of lawyers. Although the bill could be amended to entirely exempt lawyers who are prohibited from providing pro bono legal services, that would appear to be an unfair and inequitable result with respect to those lawyers who are otherwise equally situated, except for that prohibition.

• Pro bono legal services may not be covered by malpractice insurance

Public lawyers and in-house counsel (assuming they are permitted to provide pro bono legal services to third parties) are unlikely to have any malpractice insurance at all. For those lawyers who do not have malpractice insurance, the insurance policies often contain an exclusion for pro bono legal services. Clients who are indigent or of modest means should not be steered toward uninsured lawyers, and lawyers should not be required to perform legal services for which they are not insured.

• The alternative payment of $500 annually raises several issues

As an alternative to the pro bono legal service required under this bill, a lawyer can make a contribution of $500 per year for legal services to indigent persons. Although Business and Professions Code section 6073 contains a similar option in connection with a lawyer’s expected contribution, the analysis differs when it becomes mandatory to make either a service or a financial contribution. For lawyers who could easily afford the payment, this may simply become a “buy-out” of the service requirement. We question how many lawyers among those with the greatest experience will actually undertake 25 hours of service when many could make $500 in about one hour—or even less—of billable time. We also note that under Business and Professions Code section 6073, when a lawyer is deciding to provide financial support instead of legal services, the “lawyer should, at minimum, approximate the value of the hours of pro bono legal service that he or she would otherwise have provided.” Although we are not advocating in favor of a requirement for a greater financial contribution, there does seem to be a mismatch between 25 hours of service and $500, at least for some lawyers. At the same time, $500 is a lot of money for many lawyers, who may not be unnable to meet the 25-hour service requirement for any number of reasons, and would have no choice but to pay the $500.

• The scope of permissible pro bono service is too limited

Under this bill, “pro bono legal service” is defined as “work without compensation from the client who receives the legal service that is designed to benefit the public interest or persons who are indigent or of modest means” for one of the specified purposes. We recognize this is modeled on existing definitions, for example Business and Professions Code second 6072(d). But Section 6072 deals with contracts with the state for legal services in excess of $50,000, and certification by the contracting law firm that the firm agrees to make “a good faith effort” to provide a minimum number of hours of “pro bono legal services” or an equivalent amount of financial contributions. In contrast, we are dealing with a mandatory service requirement in this case, and AB 3204 does not encompass much of very worth pro bono work (services performed free of charge or at reduced fees) already performed voluntarily by many lawyers.

There are countless examples of legal services currently performed on a pro bono basis that are unlikely to meet the new statutory definition. As two examples only, we received input from lawyers who serve voluntarily as minor’s counsel in child custody cases, and lawyers who volunteer under the IRS-AARP tax aide program to help senior citizens or low income people have their tax returns prepared, a program with a definition of “low income” that is higher than the definition of “modest means” in this bill. Unless a client is “indigent or of modest means” these and similar direct legal services provided to individual clients do not appear to be covered by the proposed statutory definition.

The definition in this bill is also too narrow because it is limited to legal services performed for a client. Unlike the proposed legislation, Business and Professions Code section 6073 recognizes that “[l]awyers also make invaluable contributions through their other voluntary public service activities that increase access to justice or improve the law and the legal system.” (Bus. & Prof. Code, § 6073, italics added.) Similary, ABA Model Rule 6.1, with its 50-hour aspirational pro bono service goal, recognizes that these services may be provided through “participation in activities for improving the law, the legal system or the legal profession.” (ABA Model Rule 6.1, ¶ (b)(3).) Comment [8] to Model Rule 6.1 states:

Paragraph (b)(3) recognizes the value of lawyers engaging in activities that improve the law, the legal system or the legal profession. Serving on bar association committees, serving o boards of pro bono or legal services programs, taking part in Law Day activities, acting as a continuing legal education instructor, a mediator or an 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.

In considering this bill, we were provided with numerous examples of valuable public service currently performed voluntarily that would not be covered by this bill. Examples include sitting as a Temporary Judge in superior court so that all courtrooms can be open; mediating cases to help lighten court dockets; drafting consumer pamphlets for pro se litigants; participating for many years as speakers on the radio program Your Legal Rights; and ongoing work with the Educating Seniors Project, sponsored by CLA’s Trusts and Estates Section.

Because this bill is limited in scope to the defined legal services, it is likely to siphon away much of the good work that is currently done by lawyers on a pro bono basis, creating a new gap.

• The exemptions based on gross income raise several issues

Proposed subdivision (c)(3) provides an exemption for a lawyer who “earned less than fifty thousand dollars ($50,000) in gross income in the previous year from work as a lawyer in California.” This exemption appears to be premised on the idea that the pro bono requirements would place an unfair burden on those lawyers who earn less than a certain amount. Although income does have a direct correlation with the ability to make a financial contribution, that is not necessarily the case with respect to the ability to make a service contribution, with the associated time commitment. In addition, using gross income does not account for debt, and using income from work as a lawyer may not account for income from other sources.

Proposed subdivision (d) provides an exemption “during the first five years after the member is admitted to the State Bar or until the member eans at least one hundred thousand dollars ($100,000) in gross income in a single year for work as a lawyer in California, whichever occurs first.” New lawyers often have significant student loan debt. At the same time, other lawyers, particularly solo and small firm practitioners, upon whom this bill would have a disproportionate impact, may also be struggling to earn a living and run a business, and may not have the resource or ability to comply with the service or payment requirements under this bill. We also find this exemption somewhat ironic because, in our experience, newer lawyers are often the most enthusiastic about volunteer pro bono service, as it provides new opportunities to be recognized, develop professional skills, explore different areas of practice, and facilitate wider access to justice by utilizing a new law license to give back to the community.

Using gross income from practice of law raises the same issues with respect to the $100,00 exemption that are discussed above, by not accounting for debt or other sources of income. It is also not clear why the exemption under subdivision (c)(3) is set at $50,000 and this exemption is set at $100,000.

Although we are not advocating in favor of eliminating all the exemptions in the bill, we believe that additional thought should be given to any such exemptions, before setting them based solely on gross income from work as a lawyer.

• The bill is likely to result in an undue burden on legal aid organizations

We are concerned that this bill will place an undue burden on legal aid organizations. Those organizations are likely to see an influx of requests to provide pro bono legal services, without the means to absorb the new volunteers, adequately assess and oversee the lawyers asking to provide the legal services, and ensure that legal aid clients continue to receive the high quality legal services that they deserve.

• The bill contains some drafting ambiguities and omits at least one important provision

Proposed subdivision (k) provides that an attorney shall not satisfy any part of the pro bono legal service required “by participating in any partisan political activities.” This phrase is vague and ambiguous. It is not clear whether it would only prohibit participation in a political campaign on behalf of or in opposition to a candidate for public office, or something broader than that. If a broader prohibition is envisioned, the exact boundaries are likely to be subject to ongoing debate. Ultimately, we believe the bill should simply define “pro bono legal service” with no need to state any particular type of activity that would not qualify.

The bill also fails to specify an enforcement mechanism or any consequences that may result from a lawyer’s failure to comply with the new statutory requirements. In contrast, Senator Wieckowski Senate Bill 316 (currently pending legislation that would impose a new pro bono reporting requirement) provides: “Failures of a member of the State Bar to comply with any of the provisions of this section is not grounds for disciplinary or administrative recourse.” Assuming this bill moves forward, would this or something similar be the case with the new pro bono requirements? Lawyers should be put on notice of potential consequences arising out of a failure to comply with any of the newly imposed statutory requirements.

CLA believes there are alternative approaches that would achieve the overarching goals of this bill, without raising the concerns discussed above

Access to justice is one of the CLA’s top priorities. Although we have been in existence for less than five months, we are already in the process of developing projects that would greatly assist in delivering pro bono services to those with the greatest need.

As the statewide association of California lawyers, we believe we are ideally situated to create a statewide clearinghouse for pro bono opportunities. We intend to identify geographical areas with the greatest need of volunteers, develop an infrastructure for volunteers to access pro bono opportunities, and assist with supervision of these programs. We recognize that we cannot administer a statewide program to coordinate pro bono legal services on our own, and plan to establish partnerships with local legal service programs to facilitate these efforts. Our goal is to partner with the Legislature and other interested stakeholders to develop and implement the most effective pro bono program possible.

We are also exploring ways to tie our statutory mandate to provide low- and no-cost mandatory continuing legal education (“MCLE”) directly to pro bono service opportunities, using other existing models. There are programs (in the juvenile court system, as one example only) that offer free MCLE training for lawyers who are willing to accept at least one pro bono matter referred by the program. This could be expanded so that a supervising or mentoring lawyer is available to provide consultation and support to the pro bono attorney throughout the life of the case. We are currently exploring ways to implement this idea.

Beyond the creation of opportunities, we believe it is important to encourage lawyers to contribute time or money legal services to the needy, and plan to do so. Among other possibilities, CLA is considering various ways in which it could publicly recognize lawyers, based on their pro bono service.

Finally, CLA strongly supports icnreased funding for legal aid programs and will be engaged in efforts, in collaboration with other interested parties, aimed at making that happen.

We appreciate your consideration of our comments. If you have any questions, please feel free to contact me at (619)239-8131 or HRosing@Klinedinstlaw.com.

Sincerely,

Heather Linn Rosing, President
California Lawyers Association