The PBEye

Pro Bono As We See It
June 20, 2019

Pro Bono Rules! How Policies Can Expand Or Impede Pro Bono

Ethical rules and pro bono policies in each state can either ease the way for attorneys seeking to provide pro bono legal services or erect road blocks in their path. With studies showing that approximately 80% of the civil legal needs of low-income Americans are unaddressed, how do we structure our laws, rules, and policies to encourage and cultivate a broader commitment to pro bono?

Determining which statewide practices can best harness pro bono resources is a topic of important research. In a recent article, Professor Latonia Haney Keith discussed the consensus among pro bono leaders that implementing policies that expand the pool of potential pro bono attorneys rather than those that encourage a deeper commitment from attorneys who already engage in pro bono service is a best practice. Among the rules Haney Keith identified as top practices for engaging new pro bono volunteers are ABA Model Rule 6.1, which encourages lawyers to contribute at least 50 hours of pro bono legal services annually, and ABA Model Rule 1.2(c), which formally permits unbundling of legal services or limited scope representation.

To facilitate access and understanding of the many rules that impact pro bono participation, Corporate Pro Bono (CPBO) recently developed an ethics resource, the “Guide to Select Rules for Pro Bono Practice,” that  provides an overview of select rules of professional responsibility and other policies that apply to pro bono legal services by attorneys in the United States. CPBO consulted with the National Center for Access to Justice (NCAJ) and the American Bar Association’s Center for Pro Bono in developing this resource. The resource also includes a comprehensive chart providing an overview of requirements in all fifty U.S. states and the District of Columbia, with links to underlying CPBO and ABA resources for more detailed information. (Attorneys should always consult the rules in their jurisdictions for more information.)

The rules covered in CPBO’s Guide include:

  • Pro bono practice rules for non-locally licensed in-house counsel;
  • Pro bono practice rules for out-of-state attorneys;
  • Pro bono practice rules for retired, inactive, or other “emeritus” attorneys;
  • Rules permitting pro bono legal services by non-locally licensed attorneys following the determination of a major disaster;
  • Rules counting pro bono service hours toward mandatory continuing legal education (CLE) requirements;
  • Rules requiring reporting of pro bono hours;
  • Rules setting forth an aspirational goal for pro bono hours;
  • Rules easing the restrictions on conflict checks for clinics and similar pro bono opportunities; and
  • Rules permitting short-term, limited scope legal services.

CPBO’s Guide discusses each of the above categories of rules and how they can facilitate or restrict provision of pro bono service.

Two recent conferences provided an opportunity to learn about pro bono policies with the experts. In March, PBI’s 2019 Annual Conference featured a session on “Ethics: Top Ten Pro Bono Policies for Access to Justice,” facilitated by Professor Haney Keith, Cheryl Zalenski, Director of the ABA’s Center for Pro Bono, and Alyssa Saunders, Assistant Director of Corporate Pro Bono. In May, Zalenski, Saunders, and Jamie Gamble, Senior Counsel and Director of NCAJ’s Justice Index Project, facilitated a session on “Top Ten Best State Laws & Policies for Pro Bono” at the 2019 Equal Justice Conference, hosted by the ABA and National Legal Aid & Defender Association (NLADA).

To learn more about CPBO’s initiative on the Ethics of In-House Pro Bono, please visit our website or contact cpbo@probonoinst.org.