Addressing the Justice Gap: Should Pro Bono Service be Mandatory for Attorneys?

Photo by Alejandro Escamilla on Unsplash

Margo McGehee, Associate Member, University of Cincinnati Law Review

I. Introduction

The United States legal system is among the most costly and inaccessible in the world.[1] More than 80 percent of people who live below the poverty line and a majority of middle-income Americans are unable to find adequate representation or assistance for everyday legal issues.[2] Even in the face of these statistics, civil legal aid funders, such as the Legal Services Corporation, have suffered significant Congressional funding cuts, requiring them to turn away nearly one million people every year due to insufficient resources.[3] This divide between the number of people who need but cannot afford legal assistance and the resources available to meet those needs is commonly referred to as “the justice gap.”[4]

Several prominent members of the legal community, including Justice Sonia Sotomayor,  have expressed concern about this growing justice gap and voiced their support for the implementation of a mandatory pro bono system for attorneys.[5] This article will explain the drawbacks of a mandatory pro bono requirement and offer alternative solutions to address the justice gap.

II. Background

When the American Bar Association (“ABA”) amended the Model Rules of Professional Conduct in 1993, it considered implementing a mandatory pro bono requirement, which would have required attorneys to complete at least 50 pro bono hours per year, but ultimately opted for a voluntary system.[6] ABA Model Rule 6.1 states that “[e]very lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should aspire to render at least (50) hours of pro bono publico legal services per year.”[7] A majority of American lawyers indicate that they perform voluntary pro bono services for people who otherwise cannot afford an attorney, but the number of lawyers performing these services, as well as the number of hours worked, has dropped significantly within the last decade.[8]

The inadequacy of a voluntary pro bono system and the growing need for legal services among low-income individuals naturally leads to considerations of a mandatory pro bono system. In 2015, New York became the first state to require applicants to complete at least 50 hours of pro bono service before admission to the state bar.[9] So far, no state has followed New York’s lead in implementing a similar requirement or has expanded the mandatory requirement to all practicing attorneys.[10]

III. Arguments for a Mandatory Pro Bono Requirement

Some members of the legal community argue that the ABA should implement a mandatory pro bono requirement for attorneys in the Model Rules of Professional Conduct to replace the current permissive requirement.[11] Supporters of a mandatory pro bono requirement recognize that it is not a complete solution to the unmet legal need in the country, but it would nevertheless provide more individuals with access to legal assistance.[12] Proponents argue that practicing law is a privilege,[13] and providing free advice to those who cannot otherwise afford it is part of a lawyer’s professional duty.[14] Further, proponents argue that the quality of representation will not be diminished under a mandatory system because lawyers are bound by ethics rules requiring competent representation,[15] and attorneys will be motivated to protect their own bar licenses and reputations through effective representation of their pro bono clients.[16]

IV. Arguments Against a Mandatory Pro Bono Requirement

Although proponents of a mandatory pro bono requirement for attorneys offer the suggestion in good faith, the requirement is not the best solution to the country’s growing justice gap. First, mandating attorneys to work for no pay raises significant constitutional issues. Some legal scholars argue that mandatory pro bono would constitute “forced labor” in violation of the Thirteenth Amendment.[17] Mandatory pro bono may also violate the First Amendment’s freedom of association clause and the Fifth Amendment’s prohibition on uncompensated undertakings.[18]

Potential constitutional issues aside, a mandated pro bono requirement also raises concerns about the quality of representation. Even though attorneys would be held to the ethics rules regarding competent representation, some attorneys might work less diligently on unpaid matters or be less attentive to pro bono clients. “Mandatory pro bono” is oxymoronic—it goes against the essence of volunteer work and may dilute the enthusiasm and passion attorneys would otherwise have brought to the representation.

A mandatory pro bono requirement by the ABA also raises fears that state bar associations and attorneys will reject the mandate outright. The legal community has shown no signs of support or willingness to accept a mandatory pro bono requirement.[19] If the ABA amends the Model Rules to mandate pro bono hours for attorneys, state bar associations may decline to incorporate the change into their rules of professional conduct. Additionally, bar association membership is voluntary in many states; if pro bono work is mandated through the bar association, attorneys may choose to disaffiliate and avoid the obligation altogether.[20] Without resounding participation among attorneys, the legal needs of low-income individuals will remain unmet.

Further, a mandatory pro bono requirement would place an unequal burden on new lawyers. Most recent law school graduates are burdened with substantial student loan debt and are not in a position to work significant hours for free.[21] Additionally, many young lawyers face added pressures to meet hour and billing requirements imposed by their firms in order to be eligible for partnership down the road, leaving them with limited time for pro bono service.[22]

Similarly, small law firms and solo practitioners would also bear a disproportionate burden in a mandatory pro bono system. Unlike large firms, which would potentially be able to delegate most or all of their pro bono work to younger associates who are paid a yearly salary rather than an hourly wage, thereby largely avoiding lost income to the firm, smaller firms and solo practitioners would be forced to take time off from current, paying clients in order to assist pro bono clients.[23] Many small firms and solo practitioners already actively participate in pro bono service, but a mandate would take away their autonomy in the matter.[24]

Finally, requiring each practicing attorney to contribute 50 or more pro bono hours per year would still not come close to effectively narrowing the justice gap. On average, lawyers contribute about 30 hours of pro bono work per year, which accounts for only two percent of the total legal need throughout the country.[25] Increasing the number of pro bono hours worked will help meet legal needs, but will ultimately fail to fully address the justice gap.

V. Alternative Solutions

The justice gap is a multifaceted issue that will require a combination of solutions to adequately address. One solution may be to allow non-lawyers to take on more substantial roles in the legal community. Just as healthcare providers other than doctors deliver a wide range of services to help minimize costs and maximize efficiency, non-lawyer legal-service providers may be able to help meet the legal needs of low-income individuals by offering services at lower costs. For example, non-lawyers who are trained and certified in specific areas of the law, such as landlord-tenant law, child custody, or divorce, could competently assist individuals with their specific needs at a lower rate than a licensed attorney might charge. An increasing number of courts are embracing this idea by allowing non-attorneys to fill the roles of document preparers, courthouse navigators, and limited license legal technicians.[26]

Another possible long-term solution is to teach law students and current attorneys how to practice law more efficiently. Traditionally, law schools teach forms of lawyering that are costly and time consuming, such as litigation strategy and extensive legal research.[27] Although these skills are important in context, law schools should also teach and emphasize practical and cost-efficient skills, such as mediation, negotiation, and efficient research, which will help students meet the needs of their future clients at lower costs.[28] Leaning in to efficient law practice would free up time and resources for attorneys to help low-income individuals with their legal issues.

Finally, the legal community must embrace advances in technology and new models for delivering legal services in order to better address the justice gap. Many of the legal issues that people face are relatively routine and can be adequately resolved in cost-efficient online formats. For example, a New York-based online tool called “Just Fix” helps individuals put together habitability claims against their landlord without hiring an attorney.[29] Additionally, “Hello Divorce,” a California-based company, provides individuals with self-help documents to file for divorce, and it also offers access to attorneys online or by phone at reduced costs.[30] Lawyers, of course, may be necessary for more complex matters, but affordable and accessible online options for everyday legal issues could significantly narrow the justice gap.

VI. Conclusion

Even if every attorney performed 100 more hours of pro bono service per year, each household in America would only receive 30 minutes of legal assistance.[31] The reality of the justice gap is that mandating attorneys to complete pro bono service may help address the issue, but will not be enough to meet the resounding legal need of the community, especially among low-income individuals. Many of the legal issues low-income individuals face may be adequately resolved by non-lawyers or resolved in an online format developed by lawyers. A problem as large and as complex as the justice gap requires a multifaceted, creative solution and will require the legal community to fully embrace technology, innovation, and change.

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[1] Andrew M. Perlman, The Public’s Unmet Need for Legal Services & What Law Schools Can Do about It, 148 Daedalus 75 (2019).

[2] Id.

[3] Rima Sirota, Making CLE Voluntary and Pro Bono Mandatory: A Law Faculty TestCase, 78 La. L. Rev. 548, 565-66 (2018).

[4] Id. at 564.

[5] Id. at 548.

[6] Ronald R. Rotunda, Forcing Lawyers to Perform Pro Bono Services, Justia (July 18, 2016), https://verdict.justia.com/2016/07/18/forcing-lawyers-perform-pro-bono-services#:~:text=The%20American%20Bar%20Association%2C%20when,publico%20legal%20services%20per%20year.%E2%80%9D&text=Mandatory%20pro%20bono%2C%20like%20mandatory%20charitable%20giving%2C%20is%20an%20oxymoron.

[7] Model Rules of Prof’l Conduct r. 6.1 (Am. Bar Ass’n 1983).

[8] ABA Profile of the Legal Professional, American Bar Association (2020), https://www.americanbar.org/news/reporter_resources/profile-of-profession/.

[9] Sirota, supra note 3, at 584.

[10] Id. at 585.

[11] Rotunda, supra note 6.

[12] Maria Victoria Garabato, Posed question: should practice rules and/or bar associations make pro bono legal services mandatory for lawyers?, International Bar Association (Sept. 18, 2019), https://www.ibanet.org/Article/NewDetail.aspx?ArticleUid=F2D4039C-446E-4509-8147-C8A8EDB882B4.

[13] Randy Hiroshige, Mandatory Pro Bono and Access to Justice, Vand. L. Sch. Blog (2019), http://www.legalproblemsolving.org/blog/mandatory-pro-bono-and-access-to-justice.

[14] Legal Aid Cuts: A Future of Mandatory Pro Bono Work?, EachOther (Nov. 23, 2017), https://eachother.org.uk/legal-aid-cuts-future-mandatory-pro-bono-work/.

[15] Model Rules of Prof’l Conduct r. 1.1 (Am. Bar Ass’n 1983).

[16] Sirota, supra note 3, at 576.

[17] U.S. Const. amend. XIII.

[18] Sirota, supra note 3, at 574; U.S. Const. amends. I and V.

[19] Sirota, supra note 3, at 595.

[20] Garabato, supra note 12.

[21] Sirota, supra note 3, at 585.

[22] State of the Legal Profession: Junior Associates, FindLaw (June 20, 2016), https://practice.findlaw.com/practice-guide/state-of-the-legal-profession-junior-associates.html.

[23] Rotunda, supra note 6.

[24] American Bar Association, supra note 8.

[25] 3 ways to meet the “staggering” amount of unmet legal needs, American Bar Association (July 2018), https://www.americanbar.org/news/abanews/publications/youraba/2018/july-2018/3-ways-to-meet-the-staggering-amount-of-unmet-legal-needs-/.

[26] Perlman, supra note 1, at 79. Courthouse navigators are non-lawyers trained to assist self-represented litigants with their civil legal problems. Similarly, limited license legal technicians are non-lawyers licensed by state courts to assist individuals with specific civil legal matters.

[27] Id. at 76.

[28] Id.

[29] Cristian Farias, Everyone Needs Legal Help. That Doesn’t Mean Everyone Needs a Lawyer., N.Y. Times (Feb. 13, 2019), https://www.nytimes.com/2019/02/13/opinion/legal-issues.html.

[30] Mark A. Cohen, Clients Need Legal Services But Not Necessarily Lawyers, Forbes (Feb. 19, 2019), https://www.forbes.com/sites/markcohen1/2019/02/19/clients-need-legal-services-but-not-necessarily-lawyers/?sh=396af79d702d.

[31] American Bar Association, supra note 25.