Mandatory Pro Bono: Changing the Culture of Law

 

In Mandatory Pro Bono: Pros and Cons, I addressed the Mississippi Supreme Court's implementation of mandatory pro bono, and the anger that resulted among members of the state bar. Lawyers made constitutional, moral, and practical arguments in opposition to the move.

            Despite these arguments, the problem of the justice gap remains.  The fundamental problem at stake is how to change the culture of the bar from its current, largely profit-driven mentality to one in which pro bono is again considered an integral part.[1]  Unfortunately, calls for movement toward a professional ideal (Breyer's "lawyer as a generalist, as a problem solver, as a 'statesman,' as a productive participant in public life"[2]) are overwhelmed by the stridently negative response of individual attorneys to "forced" mandatory pro bono. 

The problem, I would argue, is that mandatory pro bono requirements place the impetus (and the disciplinary ramifications) on the individual attorney rather than on larger entities.  Deborah Rhode has suggested that a mandatory pro bono requirement on individuals would thus require large law firms to alter their pro bono policies to accommodate the change.[3]  But many would respond that this chain of events is backwards; even if it ultimately holds true, the individual bears the burden until a firm-wide change is implemented.  And if it does not hold true, then individual attorneys will find their obligations stretched even thinner.

The solution is two-fold.  First, as Elena Romerdahl has recently suggested, the debate must be reframed.  She advocates change in terms of "Required Pro Bono Credits," akin to CLE credits, rather than mandatory pro bono.[4]  Even this semantic change, she argues, would alleviate the "visceral" negative reaction to required pro bono.[5]  Incorporating pro bono credits into a revised CLE system, moreover, places no additional burdens on individual lawyers.[6]  Romerdahl suggests that switching the CLE baseline from courses to pro bono hours would result in more attorneys choosing pro bono.[7]  Anecdotally, the attorneys commenting on mandatory pro bono in Mississippi felt likewise, though such a proposal was rejected by, unsurprisingly, that state's Commission on Continuing Legal Education.[8]

Second, this must be accompanied by - not followed by - institutional change.   Incentives for institutional change have been shown to be quite effective.  In 2002, the American Lawyer began to calculate its "A-List" of large law firms based in part on pro bono performance, including both hours worked and number of participating attorneys.  As a result, pro bono participation soared, and many firms changed their pro bono policies to encourage, or even mandate, pro bono participation.[9]  By this metric (measured by revenue per lawyer, commitment to pro bono, diversity among lawyers, and associate training and satisfaction), the relatively small firm Munger, Tolles & Olson has topped the list for three years running, while it only ranks 27 in the Vault rankings (based on perceived prestige).  Considering pro bono work in other rankings would presumably further encourage firms to institute stronger pro bono policies. Building a Better Legal Profession has also started to rank firms based on pro bono, among other factors, though its impact remains to be seen.[10]

Aside from incentives for law firms from the national bar and press, incentives in state rules of procedure could also be changed.  While the fate of Mississippi's Mandatory Pro Bono Rule remains unseen, the state Supreme Court recently adopted other changes to the Rules of Professional conduct that take a different tack.  Instead of requiring pro bono to meet the justice gap, the Mississippi Supreme Court passed a series of amendments that relaxed conflicts of interest rules and strengthened an attorney's power to limit the scope of representation.[11]  As one newspaper article commented,

Lawyers historically have treated limited scope representation with great caution, fearing the possibility that undertaking part of the work without providing complete representation would be a violation of their professional obligations. But people of limited resources sometimes can't afford to pay a lawyer to represent them through the entire process of a matter in litigation.

The Supreme Court's rule amendments regarding limited scope representation address what has become known as "unbundling" of legal services, allowing a lawyer to undertake specific tasks for a client, without the obligation to represent the client at each step of a legal process.[12]

Changes like this, which make it easier to take on pro bono requirements, would likely be effective in assisting lawyers to take on pro bono. 

            Proponents of mandatory pro bono will likely argue that such incremental remedies do little to address the immediate needs of the nation's poor.  But given the near-universal animosity of individual lawyers to mandatory requirements, incremental changes - reframing the debate, incentivizing large law firms, and making small adjustments - may be the only changes available in the near future. 



 

Building a Better Legal Profession (BBLP) is an organization based at Stanford Law School.   BBLP is a national grassroots movement that seeks market-based workplace reforms in large private law firms. For more information, visit BBLP's Web site at www.betterlegalprofession.org.

[1] See Stephen Breyer, The Legal Profession and Public Service, 57 N.Y.U. ANN. SURV. AM. L. 403, 404 (2000).   

[2] Id.     

[3] Deborah Rhode, in-class comment, "Legal Ethics," Feb. 17, 2011.

[4] Elena Romerdahl, The Shame of the Legal Profession: Why Eighty Percent of Those in Need of Civil Legal Assistance do not Receive it and What We Should Do About It, 22 Geo. J. Legal Ethics 1115 (2009).

[5] Id. at 1117.

[6] Id. at 1125.

[7] Id.

[8] "Mandatory Pro Bono," supra note 9, and comments by Max Kennerly, Sept. 1, 2010 8:07 AM, and Anderson, Sept. 1, 2010 10:02 AM.

[9] Levin, supra note 16, at 708-709.

[10] Building a Better Legal Profession, http://www.betterlegalprofession.org/.

[11] Corrected Order, In re Rules of Professional Conduct, No. 89-R-99018-SCT, Supreme Court of Mississippi (Jan. 28, 2011), http://www.mssc.state.ms.us/Images/Opinions/167564.pdf.

[12] Wally Northway, Supreme Court changes rules for legal pro bono work, Mississippi Business Journal, Feb. 2, 2011, available at http://msbusiness.com/blog/2011/02/supreme-court-changes-rules-for-legal-pro-bono-work/.