<<According to the Tribune, Sacks “has long had a reputation for delivering strongly worded rebukes from the bench.” He was reassigned for four months to domestic relations court in 2004 for what the Tribune describes as his “profanity-punctuated lecture” during a sentencing hearing.>>
This NY Times Magazine article is about much more than
What's going on in Virginia's pro-bono-reporting controversy was illuminated for me by a recent interview with law professor Richard Epstein, known for many things but first for his monumental works on Strict Liability and Eminent Domain.
"... We're now entering into a compliance culture, where if you do something wrong, the sanctions are always draconian. So you (A) have to have somebody to fix it so you don't get punished. And (B) you have to have all your ducks in order so that if something goes wrong you have all sorts of defenses ... So the compliance culture essentially requires industry concentration ... If you double the size of a firm, you don't double the size of your compliance costs. And so one of the things that Obamacare has done is that it has led to a wave of hospital and industry mergers in an effort to minimize compliance costs thereby creating higher levels of market concentration, which leads to monopoly power."
Maybe that's why Virginia Lawyers Weekly reports that of the public comments the state bar received on mandatory pro bono reporting, the favorable majority overwhelmingly came from lawyers at big firms and legal aid agencies. I don't mean that this is big-firm lawyers' motive, but it's why the load of compliance isn't an issue for them, and is a big issue for small-firm and solo lawyers. Also, the rule lets firms concentrate their pro bono time in a few lawyers, so they can undertake big, time-consuming cases for the poor. That's a very worthy adaptation to the rule, IF there should even be a rule in the first place. And I suspect many bigger firms already keep track of all their lawyers' pro bono and extracurricular time, so they can put the results in press releases.
The proposed change only requires lawyers to fill in a number in a "How many hours" blank once a year when renewing their membership and paying their dues to the mandatory Virginia State Bar, which licenses and regulates lawyers. There's a lot more that advocates for the poor's legal needs might want to know to make the information more useful -- what kinds of law do you practice? Which of the many kinds of work listed in the Definitions section do you do? Do you do the pro bono through other institutions or just through your law firm? What needs do you think are out there? Any other ways you could work to meet them? What gets in the way of doing that?
So the Bar only asks lawyers this one short, innocent question, about your free-will offering of humanitarian good works, where the only wrong answer is no answer. (Or an answer that's not a number of hours.) But it makes lawyers awfully apprehensive when it shows up asking that little question but loaded for bear, bristling with hooks, nets, expulsion devices, license-grabbers, long lists and cross-references. Not in a survey like the ones the Supreme Court and Bar already send out, but as part of membership renewal, in a list of questions that gravely affect one's permission to practice law: have you been conflicted of a felony, been disciplined by another state's bar, do you have liability insurance ... ? If lawyers wonder exactly what hours they should include in the number, they need to look up the lists of definitions and alternative means of compliance (which the proposed change will lengthen) in Professional Responsibility Rule 6.1 and, especially in its Commentary. To find out the rules and penalties for not reporting or late reporting, they must look at Bar Organization Rule "19. Procedure for the Administrative Suspension of a Member." And it does it, not in a survey like the ones the Supreme Court already sends out, but as part of membership renewal and in a list of questions that gravely affect one's permission to practice law: have you been conflicted of a felony, been disciplined by another state's bar, do you have liability insurance ... ?
Just another cumulative annoyance in the process of what Virginia's great writer Florence King called being "nibbled to death by a bureaucratic duck".
Quotation is from Page 2 of
Defending marriage vs. unwanted dissolution, turning weakness into strength: Tim Kaine's first cases
"Diane married James against [her] guardian’s wishes and [the guardian] wanted to get the marriage annulled. Kaine represented Diane in a lawsuit to preserve her marriage. He fought the guardian and won, learning that the guardian wanted Diane’s disability checks.
“'What started off as a marriage case in Richmond Juvenile and Domestic Relations Court ended up as a criminal trial against the guardian in federal court,' he said.
"Kaine said, 'I learned a lot from Diane.' including the responsibility of law practice and that what a lawyer does really matters.
“'And I also learned a critical lesson that served me well throughout my career— whatever the issue seems to be at first, look deeper. The marriage lawsuit, ostensibly filed to protect a mentally disabled person, was really the guardian’s effort to continue the subjugation of Diane and the theft of her disability payments,' he said.
The article, about Kaine's talk at William & Mary's law school graduation, also includes some vital advice for lawyers and pretty much everyone else:
At one point Kaine said he sat at his computer with a mental block. Then he recalled a line from Second Corinthians, “in my weakness is my strength.” He said he understood then that “you can’t flee from your weaknesses but have to embrace and own them as a natural part of being human. I was afraid. But somehow, just admitting that to myself helped me jump back into the work and crank out all the pleadings and advocate at all the hearings right up to the last day.”
Kaine said, “This is a lesson that I come back to again and again in my life. Fleeing from your weaknesses or pretending that you don’t have them makes you weak. But acknowledging your weaknesses, which can be very hard to do, in one of life’s great mysteries, can make you strong.”
He closed his remarks with a promise to the new grads: “My clients taught me lessons that I still reflect on today, long after I gave up law practice because of the demands of full time public service. They changed me as a lawyer and they changed me as a person. And they will change you too,” he said.
Law schools' focus on case-law makes the law & lawyers elitist, undemocratic, bad at their most important job
Larry Gaughan, an elder statesman of family law and mediation in Northern Virginia, recently reflected on the legal profession's excessive focus on case-law, and the attitude that law isn't real until it has been applied in a published appeals court case. Besides the way it poisons lawyers' ability to help their clients, which he so eloquently illustrates, I think there's even more:
- It makes young lawyers ridiculously elitist and contentious -- they model themselves on bow-tied Supreme Court Justices hurling pompous insults at each other and at the people involved in their cases, and not on real lawyers working in the trial courts, lawyers who work to resolve disputes before they become trials, and lawyers who try to draft contracts and statutes so well that people won't even have legal disputes about them, and won't have to go to lawyers to know what they mean.
- It's anti-democratic: As Larry points out, major new legislation in our field -- even something as basic as letting divorce courts divide property -- is often not understood, and not really recognized, until there is case law saying what it means. And Virginia's appeals courts sometimes take the attitude that revising the details of divorce-related law is only their business, and when the legislature tries to meddle in it or to undo the effects of an appeals court decision, they seem to do their best to frustrate the legislature's aims or use the new statutes to reach absurd and unintended results, as if to say, 'see what a mess you make when you meddle in the affairs of divorce courts!' In Constitutional law, the Third Amendment and, until recent decades, the Second Amendment, are often described as a dead letter because there were no court case opinions 'making them real.'
"In 1890 American law schools began to switch to the study of appellate cases as the primary means of legal education. ... Given that so few law graduates now wind up as litigators, that approach makes less sense with every passing year. Almost by its very nature, the case system teaches us to look backwards and to think of law as litigation. ...
"The case system made more sense when most law graduates wound up as lawyers whose practices included litigation. Even [for them], law schools were not great in teaching statutory interpretation. I remember vividly the problems many Virginia lawyers had in figuring out how to interpret the new equitable distribution statute as first enacted in 1982. To many lawyers, the new statute really only started to have meaning after the appellate cases started to come into play. ...
"We must recognize that most legal disputes are not resolved by courts, that statutes have meaning even before courts interpret them, and that more law school graduates will pursue careers that require some knowledge of the legal framework, but also the ability to quickly learn and assimilate other kinds of expertise."
Like most lawyers, I have good and bad recollections of my own legal education. I remember the popular law professor who taught commercial law courses, and the skepticism about another professor who taught criminal procedure. The former taught us “the law” from uniform statues that were already in the process of major revisions. The latter was a theorist whose courses accurately predicted every one of the major reforms of the Warren court.
-- Mediator and lawyer Larry Gaughan in "An Improper Focus for Legal Education", The Divorce Agreement Newsletter, No. 53 – July 6, 2016
The ABA reports that mandatory pro bono reporting policies, in states that had recently enacted them, were followed by sharp decreases in four states, and a slight increase in one state, from 2009 to 2013. In the states that had already had the policies for several years, one state saw a slight increase and the other showed no change. Here's a summary. Much more info on policies and statistics is at the ABA's page, Pro Bono Reporting: State Reporting Policies.
|State||Year imposed||2009 Participation||2013 Participation|
* Mississippi stopped reporting percentages in 2012, but I computed the number by looking at the numbers on hours worked and hours per lawyer, and comparing with those numbers from the last year a percentage was reported.
(2009's total hours divided by hours per lawyer =8745=44%, so total lawyers = 19875
2012-13 total hours divided by hours per lawyer =8031, which is 40.4% of 19875.)
A vote for mandatory reporting of pro bono is a vote for mandatory pro bono, sooner, likelier, inevitable-er
Recently the Virginia State Bar's governing Council learned of a proposal for mandatory pro bono reporting, and I posted the text and practical details of the proposal on this blog. (UPDATE: The Bar will decide on Oct. 7, and has asked for comments by August 31, 2016. They should be sent to email@example.com. If you can't make that deadline send them anyway.)
Yesterday I took a break from the proposal's technical intricacies to write about what state pro bono rules and other pro bono efforts mean in the big picture, in "Throw the poor a bono? The real problem is that pro bono is no solution."
Now, back to the proposal at hand, but this time, the human side of it, not the technicalities.
The Virginia proponents argue that the change would not in any way lead to mandatory pro bono, and that there is no reason to be concerned about a “slippery slope”. They point out that the handful of states that have mandatory reporting have not later moved to mandatory pro bono.
They even point out that mandatory reporting may prevent a future imposition of mandatory pro bono, by (1) encouraging more voluntary pro bono work, and (2) putting together and publicizing the amount of pro bono work that is being done.
Well, that's like saying you can be 400 pounds and be as healthy as a horse. And you can choose not to get married and be more stable, committed, lifelong partners and parents than people who do. Possible? Certainly. Likely? Never. Unless you are a horse.
Most of us know how these things usually go, in Virginia and in the rest of the developed world. We know all about how to boil a frog, and when'n'how to gradually lubricate a slippery slope. For example, we all know respected, mainstream people who routinely will say that there’s no reason anyone in modern society should have any kind of gun, or how we’re the only democracy that doesn’t provide universal free health care, free two-month vacations, etc. But then when a policy that would move in that direction goes to the legislature, all that talk goes quiet, and all you hear is about how limited this particular measure is, and how dare anyone suggest that it would ever lead to more radical changes later on, of course we would never do that. In Virginia, we punctuate each step in this process by chuckling, “Virginia’s so conservative … they’d never try to slippery that slope here ….”. Then just a few years after it passes, all you hear is that that reform hasn’t made enough of a difference, and is somehow failing to achieve its real goal of making us perfectly healthy and gun-free, so we need to go back and strengthen it.
Would this happen with Mandatory Pro Bono? If you only looked at what’s being enacted right now, it doesn’t look extremely likely, but then again they have it in at least one huge state now compared to no states six years ago. The only bars requiring it are New York State, where it was imposed by the Chief Judge over the objections of the state bar association, and several federal district courts. California’s state bar trustees approved a similar rule in 2014, subject to approval by the Supreme Court and the legislature. New York and California did this through the vehicle of bar admissions, as part of on-the-job training. The federal courts, from what I’ve seen, seem to do it through panels of lawyers who already try civil cases there frequently.
But the CONCEPT of mandatory pro bono – the widespread if not majority belief that it’s one of the main possible solutions – has been well-known for decades and is not going away. For a lot of people, mandating or prohibiting something is the first and easiest thing to think of when they are first told about a problem. Just a few weeks ago, Justice Sotomayor called for mandatory pro bono, and it might not be a coincidence that she did so in a speech to the American Law Institute, which is always looking for new projects, in response to a question from the Institute’s Director.
Even if the idea is only for the State Bar to measure and report how much pro bono work is being done, that begs -- i.e., it decides without actually asking and considering -- the question of whether it's the job of the mandatory, regulatory state bar to monitor, measure, and publicize the amount of pro bono work being done. If that's part of its job, what reason would there be for that, other than its also being responsible for making sure pro bono work gets done and everyone's legal needs and wants are met?
Also, bear in mind what happened in New York: The Virginia State Bar’s elected leaders may not want mandatory pro bono, but all too often they are not the deciders – the Virginia Supreme Court is. If and when the Supreme Court is thinking about mandating pro bono, these proposed reporting and enforcement rules will make it easy for them.
Finally, we’re at a point where our nation’s politics, Virginia’s politics, and the beliefs of the generations and cohorts that enter and lead our professions, have moved left for several years now, but the law and the makeup of the bench have lagged behind that. For decades we’ve had a U.S. Supreme Court that took individual rights seriously even when they seemed to be in conflict with other progressive goals. So liberal and professional groups have recognized that there are certain things that constitutional law might not let you do, and that they should focus their efforts elsewhere for the time being. But now we’re hanging fire between the judicial regime that died with Justice Scalia, and the one that will take shape when he is replaced.
So let’s not be comforted by saying mandatory will never happen, or only happens in outlying states like New York and California. I believe that if you oppose mandatory pro bono, or if you oppose lightly deciding to add to the burdens, deadlines and penalties that we place on our members, who vary greatly in earnings, time commitments, clerical support, expertise, and opportunity to do pro bono, then you should not support mandatory reporting of voluntary work.
(UPDATE: The Bar will decide on Oct. 7, and has asked for comments by August 31, 2016. They should be sent to firstname.lastname@example.org. If you can't make that deadline send them anyway.)
As the proposal for mandatory pro bono reporting slouches toward the Virginia State Bar Council to be approved this Fall, others can complain about the burden on lawyers, especially sole practitioners and various unconventional lawyers. And they’ve done so at our latest Arlington bar meeting, the last state bar meeting, on my facebook, and on my last blog post’s comments section. But I think the biggest problem with any pro bono requirement is that it will always do far too little to have any effect on the problems it aims at. And this failure will eternally spark calls for redoubling our efforts, and mandates, and penalties, instead of other changes that might actually help.
Pro bono cannot even begin to mend the gap – the chasm – between what people can afford and what the legal system requires them to pay – whether they are coming to court seeking justice, or being dragged into court. We have huge structural problems that can never be fixed by more of the same work being done, whether forced or volunteer.
In some areas of the law, innovations have fixed this gap. For example, allowing contingent fees and class-action suits, to make lawsuits affordable for most people and get them lawyers who are as good and well-equipped as the big business lawyers for the other side.
But family law, my field, is an example of the kinds of law where that’s much harder. A couple generations ago we decided to allow unilateral divorce, so anyone might end up in a divorce or child custody case, but we didn’t do anything to make it affordable, and in fact many trends have combined to make it less affordable. Americans have the right to litigate everything until the cows come home, legal ethics and malpractice standards rightly demand legal advice and hyperactivity that pushes people farther apart and foments litigation, and custody cases can always go back into litigation about what’s best for a child, so costs mount up to numbers that even upper middle class people cannot afford. If hardly anyone can afford it as an individual, and it happens to perhaps almost half the population, then we can’t make it any more affordable by making taxpayers pay for it or by asking lawyers to do the work for free. And that’s without even looking at non-paying clients’ lack of rational incentives to weigh the cost of legal work when deciding how much of it, and what particular kind, to demand.
Lately there are a host of private-sector and nonprofit and governmental solutions popping up to address this need. Some have been around for a few years and become institutions. Some are court-led reforms that sacrifice traditional formalities that we used to think protected the public, so that there are other choices between self-representation and full-service, unlimited-cost, law firm representation. For example, the Virginia State Bar is launching a hotline for volunteer lawyers to answer legal questions from low-income people.
Many of the proposed solutions are scary. Some need to be embraced anyway. Some are vital but need to be molded to be compatible with the legal system and its obscure dangers and obstacles. Some really are irresponsible, leave consumers worse off than they would be without them, and should be heavily regulated or squelched. Some are downright gross.
But these kinds of changes are the only sustainable and scalable solutions to make legal help affordable for most people. Even more effective would be changes to the adjudication system so that less lawyering is needed in the courts, and even more fundamentally, so that fewer cases end up in litigation. Small claims courts are a great example of this that have been around for generations now. Even tradition-bound Virginia Circuit Courts are changing their terminology and procedures so that non-lawyers can do more to help themselves. Mediation and collaborative law, both for family law cases and other civil cases, including probate and elder law disputes, are helping but a lot more can be done. But even the substantive laws themselves too often are designed by lawyers who think that ending up in court, with a judge handcrafting a custom-made decision, is a routine part of life and is an easy all-purpose answer to questions about laws being vague, ambiguous, or leaving too much to a judge's discretion instead of being predictable. An outstanding example of changing this paradigm, and keeping millions of people out of court, is child support guidelines. But we should look at family law and other civil laws for more opportunities to streamline the interactions between law and everyday life.
I like pro bono, and I do pro bono. To help individual people and to make my own work more varied, balanced, connected, and socially just. But I do not do it to change society or make the legal system work to serve everyone’s needs. That’s impossible and would only make me crazy and permanently disappointed. When I want to work wholesale on fixing the misery the legal system imposes on families, I prefer to "go upstream" and work on collaborative dispute resolution and, further upstream, to learn how to help people improve and save their marriages; and further upstream, to avoid unhealthy relationships and establish healthy ones before marriage and babies are on the horizon.
So I'm sure I can comply with any pro bono standard the bar throws at me, but my pro bono work for clients is only pro the bono of myself, my interns, and a few clients whom I hope I can help, and their families. What I do pro the bono of the publico doesn't look like lawyering at all.
The Virginia State Bar doesn't require lawyers to do pro bono work, but its governing Council votes Oct. 7 on changing the membership rules to mandate annual reporting of pro bono hours, subject to the same enforcement system -- fines for reporting late, eventual automatic suspension for not reporting -- that we impose for failing to pay dues or certify that we have malpractice insurance.
The bar has asked for comments by August 31, 2016. They should be sent to email@example.com. If you can't send them by the deadline, send them anyway. Most Council members who spoke about it at the last meeting, and everyone who spoke up at our last Arlington bar meeting, were against it -- but experience shows that that doesn't translate into actual votes when the leadership cares deeply about a new expansion of the Bar's mission.
The existing rules say lawyers "should" spend 2% of their time on pro bono work, and they make clear that that does not mean they must; it's "aspirational". Like about 40 other states, Virginia does not require tracking or reporting of pro bono work.
The proposed rules have extensive definitions of what work, for what clients or causes, is and is not pro bono – with the same level of detail as they would have if they were part of a mandatory pro bono rule. They even require the license renewal form to have a check-box for “I am exempt from providing pro bono legal services” as a judge, government lawyer, or officially non-practicing bar member.
Since the pro bono reporting, insurance reporting, etc. are part of annual membership renewal, which is not sent in until it's all finished, the small penalties for doing the various parts of it late add up, basically doubling your dues (which are generally $250). The VSB budget shows that lawyers currently pay $470,000 in late fees and penalties and $9, 943,625 in current dues. Rough math translates this to 1,880 lawyers paying the penalties, out of the bar's 49,801 members (of whom almost all pay dues; 31,464 are fully active members). It's actually more than 1,880 lawyers, since some who have lower dues, for various reasons, must be among those paying late and thus contributing to the $470,000. With the new rule, the lawyers paying the new penalty would be the lawyers who are already paying late penalties, surely the solo or barely-practicing lawyers with the least resources. The rule change looks like it would add another $50, as existing Para. 19 on penalties requires “a delinquency fee of $50, for each Rule violated.” It will slightly increase late renewals by adding one more step in the form, and one more reason for delay, mostly by people who’ll think they might have reconstruct their exact number of hours.
The entire proposal is below, and I think it's the only place with each functional part of the proposal including the existing rules it meshes with. But you may also want to look at:
- The State Bar's web page of materials supporting the proposal
- A vote for mandatory reporting of pro bono is a vote for mandatory pro bono, sooner, likelier, inevitable-er
- Throw the poor a bono? The real problem is that pro bono is no solution.
- Candidate statements of current Bar Council candidates: David Oblon, who opposes the proposal, and his opponent, Nathan Olson.
Below are the four parts of the proposal:
- the new proposed reporting requirement,
- the existing wording on penalties and suspension which would now apply to failures to report pro bono
- proposed additions to definition of pro bono
- existing aspirational rule and its existing definition of pro bono
NEW BAR MEMBERSHIP RULE:
Proposed Changes to Paragraph 18 of Part 6, Section IV of the Rules of the Supreme Court of Virginia:
After the existing language about malpractice insurance coverage, the rest of the rule would consist of this, all new, language:
... b) Pro Bono Publico Legal Service Reporting Requirement.
In order to make available information about lawyers' pro bono publico legal service, each active member of the Virginia State Bar shall provide the following annual certification:
- Pro Bono Hours. I have personally provided approximately ____ hours of pro bono publico legal services during the previous 12 months beginning July 1 of the preceding year and ending June 30 of the current year.
- Financial Contribution. I have personally contributed $_______ to support programs that provide the direct delivery of legal services to meet the needs described in Rule 6.1 (a) of the Virginia Rules of Professional Conduct, as an alternative method for fulfilling my responsibility to render pro bono legal services.
- Exempt Persons. I am exempt from providing pro bono legal services because (i) I am currently serving as a member of the judiciary; or (ii) I am a government lawyer prohibited by statute, rule, regulation or agency policy from providing legal service outside of my employment; or (iii) I maintain retired, disabled or associate status with the Virginia State Bar. ____ (Check here.)
Pro bono legal services as described in Rule 6.1(a) of the Virginia Rules of Professional Conduct performed in other states by a member of the Virginia State Bar are reportable in Virginia as pro bono hours.
(c) Penalties for Failure to Comply. Failure to comply with this Rule shall subject the active member to the penalties set forth in Paragraph 19 herein.
"PARAGRAPH 19", REFERENCED ABOVE AS THE PENALTY FOR NON-COMPLIANCE, WOULD NOT BE CHANGED. IT READS:
19. Procedure for the Administrative Suspension of a Member—
Whenever it appears that a member of the Virginia State Bar has failed to comply with any of the Rules of Court relating to such person's membership in the bar, the Secretary-Treasurer shall mail a notice to the member advising of the member's noncompliance and demanding (1) compliance within sixty (60) days of the date of such notice and (2) payment of a delinquency fee of $50, for each Rule violated, provided, however, that the delinquency fee for an attorney who does not comply with the timely completion requirements of Paragraphs 13.2 and 17 (C) of these rules shall be $100, and the delinquency fee for an attorney who does not comply with the certification requirements of Paragraphs 13.2 and 17 (D) of these rules shall be $100, and shall increase by $100 on February 1 for noncompliance with the certification requirements. The notice shall be mailed to the member at his last address on file at the Virginia State Bar.
In the event the member fails to comply with the directive of the Secretary-Treasurer within the time allowed, the Secretary-Treasurer will then mail a notice to the member by certified mail to advise (1) that the attorney's membership in the bar has been suspended and (2) that the attorney may no longer practice law in the Commonwealth of Virginia or in any way hold himself or herself out as a member of the Virginia State Bar. Thereafter the attorney's membership in the Virginia State Bar may be reinstated only upon showing to the Secretary-Treasurer (1) that the attorney has complied with all the Court's rules relating to his or her membership in the bar and (2) upon payment of a reinstatement fee of $150 for each Rule violated, provided, however, that the reinstatement fee for an attorney who was suspended for noncompliance with Paragraphs 13.2 and 17 of these rules shall be $250, and shall increase by $50 for each subsequent such suspension, not to exceed a maximum of $500.
Whenever the Secretary-Treasurer notifies a member that his or her membership in the bar has been administratively suspended, the Secretary-Treasurer shall also (1) advise the Chief Judges of the circuit and district in which the attorney has his or her office, as well as the clerks of those courts and the Clerk of the Supreme Court, of such suspension and (2) publish notice of the suspension in the next issue of the Virginia Lawyer Register.
An administrative suspension shall not relieve the delinquent member of his or her annual responsibility to attend continuing legal education programs or to pay his or her dues to the Virginia State Bar.
ADDITIONS TO DEFINITION OF PRO BONO:
ADD TO COMMENTARY OF RULE 6.1 IN RULES OF PROFESSIONAL CONDUCT:
Pro bono publico legal services include but are not limited to the following:a)Legal representation of disadvantaged people;b)The provision of legal advice to an individual or non-profit organization that primarily addresses the human service needs of the disadvantaged;c)Administrative rule making for the disadvantaged;d)The provision of free training or mentoring to those who represent the disadvantaged;e)Serving on bar association committees assisting the disadvantaged;f)Serving on legal committees or boards that address the provision of pro bono legal services to the disadvantaged;g)Serving on the boards of legal services or similar pro bono organizations;h) Leading or coordinating Law Day activities;i) Serving as an instructor for a continuing legal education program on issues of substantive law oradvocacy for pro bono and legal services lawyers;j)Serving as a mediator or arbitrator in a matter involving a litigant who is unable to pay for such services;k) Engaging in legislative advocacy to improve the law, the legal system or the profession in its delivery of legal services for the indigent.
Pro bono public legal services also do not include services rendered to improve the law, legal system or the legal profession unless they are primarily intended to assist disadvantaged persons, including not only persons whose incomes are below the federal poverty guidelines but also those person s frequently referred to as the “working poor.”
EXISTING VOLUNTARY PRO BONO RULE AND DEFINITIONS:
(Note: The overall definitions section for the Model Rules says that "should" means an aspiration, not a requirement.)
6.1 Voluntary Pro Bono Publico Service
- (a) A lawyer should render at least two percent per year of the lawyer’s professional time to pro bono publico legal services. Pro bono publico services include poverty law, civil rights law, public interest law, and volunteer activities designed to increase the availability of pro bono legal services.
- (b) A law firm or other group of lawyers may satisfy their responsibility collectively under this Rule.
- (c) Direct financial support of programs that provide direct delivery of legal services to meet the needs described in (a) above is an alternative method for fulfilling a lawyer’s responsibility under this Rule.
 Every lawyer, regardless of professional prominence or professional work load, has a personal responsibility to provide legal services to those unable to pay, and personal involvement in the problems of the disadvantaged can be one of the most rewarding experiences in the life of a lawyer. The Council for the Virginia State Bar urges all Virginia lawyers to contribute a minimum of two percent of their professional time annually to pro bono services. Pro bono legal services consist of any professional services for which the lawyer would ordinarily be compensated, including dispute resolution as a mediator or third party neutral.
 Pro bono services in poverty law consist of free or nominal fee professional services for people who do not have the financial resources to compensate a lawyer. Private attorneys participating in legal aid referral programs are typical examples of “poverty law.” Legal services for persons whose incomes exceed legal aid guidelines, but who nevertheless have insufficient resources to compensate counsel, would also qualify as “poverty law,” provided the free or nominal fee nature of any such legal work is established in advance.
 Pro bono publico legal services in civil rights law consists of free or nominal fee professional services to assert or protect rights of individuals in which society has an interest. Professional services for victims of discrimination based on race, sex, age or handicap would be typical examples of “civil rights law,” provided the free or nominal fee nature of any such legal work is established in advance.
 Free or nominal fee provision of legal services to religious, charitable or civic groups in efforts such as setting up a shelter for the homeless, operating a hotline for battered spouses or providing public service information would be examples of “public interest law.”
 Training and mentoring lawyers who have volunteered to take legal aid referrals or helping recruit lawyers for pro bono referral programs would be examples of “volunteer activities designed to increase the availability of pro bono legal services.”
 Service in any of the categories described is not pro bono publico if provided on a contingent fee basis. Because service must be provided without fee or expectation of fee, the intent of the lawyer to render free or nominal fee legal services is essential. Accordingly, services for which fees go uncollected would not qualify.
Collective Fulfillment of Pro Bono Publico Service
 Although every lawyer has an individual responsibility to provide pro bono publico services, some legal matters require the application of considerably greater effort and resources than a lawyer, acting alone, could reasonably provide on a pro bono basis. In fulfilling their obligation under this Rule, a group of two or more lawyers may pool their resources to ensure that individuals in need of such assistance, who would otherwise be unable to afford to compensate counsel, receive needed legal services. The designation of one or more lawyers to work on pro bono publico matters may be attributed to other lawyers within the firm or group who support the representation.
 ABA Model Rule Comment not adopted.
Financial Support in Lieu of Direct Pro Bono Publico Services
 The provision of free or nominally priced legal services to those unable to pay continues to be the obligation of each lawyer as well as the profession generally, but the efforts of individual lawyers are often not enough to meet the need Not only do these needs far exceed the capacity of the collective bar, the nature of legal practice for many lawyers places constraints on their ability to render pro bono publico legal services. For example, some lawyers (e.g., some government lawyers) are prohibited by the terms of their employment from engaging in any outside practice. Other lawyers lack the experience and access to resources necessary to provide competent legal assistance.
 To provide legal services beyond those available through the pro bono efforts of individual lawyers, the legal profession and government have established additional programs to provide such services. Lawyers who are unable to fulfill their pro bono publico obligation through direct, legal representation should support programs that provide legal services for the purposes described in (a) through financial contributions in proportion to their professional income.