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June 11, 2007

Lawyer's Services Should Be Theirs To Give Away...Not the ABA's

Connecticut Law Tribune - June 8, 2007

(This column comes on the heels of the recent Second Circuit Decision regarding pro bono fees, as a I promised.)

It's been a year since I read an Illinois Supreme Court ruling regarding mandatory pro bono reporting and I'm still feeling claustrophobic as the legal universe we are permitted to function in gets smaller and smaller.

That state's new rule, celebrating it's one year anniversary this month, requires lawyers to "annually report their pro-bono activities, including hours worked and any money contributed to pro-bono efforts." The rationale behind the rule is that, by having to report what they do (or don't do) by way of pro bono work or financial gifts to recognized legal aid organizations, lawyers will somehow be shamed into actually doing some, or do more than they're already doing.

It doesn't take a genius to see where this is really going. Although structured as simply a confidential reporting program for the purpose of accruing an aggregate total of pro bono hours, lawyers who fail to report their numbers to Illinois authorities face possible suspension of their law licenses. With this framework in place, if actual pro bono hours do not increase in a voluntary fashion, is it really a stretch to see pro bono work being mandated in order to continue practicing in the state of Illinois? (Note: Illinois is home to the American Bar Association.)

Who will have the hardest time meeting these requirements? Not large law firms that use their pro bono efforts as a tool for self-promotion. How much does it really cost them, anyway? At most large firms, it's low-level associates who do the majority of the firm's pro bono work. The firms write it off as a loss. At their worst, they take on high-profile cases in an effort to gain incalculable publicity. Mandatory pro bono wouldn't hurt large law firms. Rather, they will profit on many levels.

Solos, however, will be the ones injured. They will look ungenerous and self-serving, as they single-handedly face the everyday struggles to stay in business.

As the pro bono numbers generated by solos, the largest body of lawyers out there, fail to increase appreciably, what will be the next logical step? Forcing them to take on a minimum number of pro bono hours or face suspension? It is certainly plausible.

And as word is spread to the general public regarding an attorney's obligation to do pro bono work, is it unreasonable to believe that lower-income clients will demand lawyers represent them for free or at sharply reduced rates?

Yes, mandatory pro bono would be a great image enhancement for the legal profession, particularly large firms. But for solos, it would be a daily migraine.

Shouldn't Illinois officials be looking to catalog aggregate results rather than aggregate hours if the stated goal of this self-aggrandizing exercise is to actually help indigent clients? If painters took two days instead of two weeks to paint your house, wouldn't you applaud their speed and efficiency? We should be measuring effectiveness through results, not inefficiency through racked up hours.

And, of course, we can't let Illinois get all the glory for being so benevolent when giving away our services. All the states will want to jump on board for fear of looking mercenary and uncaring. They, too, will want to crack the whip and give away our time and money.

As a lawyer, I believe the role of the judiciary and national and state bar associations should be to provide a de minimus framework of what we can't do in order to avoid risking our law licenses. Outside of that, they should be a source of professional support and information.

It is not their job to legislate or mandate how I should aspire to be a better person or lawyer. Nor should they tell me that I must give away my services.

But that is where they are heading. Please don't order me to tithe to the Church of the American Bar Association. I still believe in freedom of professionalism. •

Susan Cartier-Liebel is solo practitioner, adjunct professor at Quinnipiac University School of Law and a business consultant for solo and small firms. Her blog, Build A Solo Practice, is at susancartierliebel.typepad.com. She can be reached at SCartier_Liebel@comcast.net. Copyright © Susan Cartier-Liebel (2007) All Rights Reserved. No portion of this material may be copied, transmitted, posted, duplicated or otherwise used without the express written approval of Susan Cartier-Liebel.

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Comments

Will

I agree completely. Pro bono work is very important, but mandates will never succeed in creating lawyers motivated to provide such services. Large firms can eaily afford to allow a young associate or 2 to spend a year toiling on heartwarming pro bono matters, and then reap accolades for their generosity. Don't get me wrong, I applaud them for using their financial ability to create such programs. Small firms and solos do not enjoy such latitude, and must carefully select pro bono efforts. In my case, the local bar (mandatory) does offer a lot of projects of varied time committment, but I'd hate to have another "requirement" to meet. Indeed, wouldn't that just make pro bono another checklist like CLE hours to meet? And I actually provide alot of pro bono in ways not seen as glamorous, mainly meeting with people to discuss their cases (or usually lack thereof) free of charge, sometimes providing some ideas for them to handle matter without needing to hire an expensive lawyer. I feel good doing such things, but probably would not if some bar official kept sending me interim report forms to show I was being a good little lawyer.

Steven M. Warshawsky

I completely agree. As I ponder my move from government practice into solo private practice, I am astounded at how many rules and regulations are imposed on lawyers. I haven't even "hung my shingle" yet, and I've already wondered whether I would have been better off pursuing an entirely different career path.

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