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The challenge of pro bono legal service
It is an honor and a privilege to serve as Chair of the Bench and Bar Section Council of the Illinois State Bar Association for the 2017-2018 bar year. The mission of our Council is to forge a spirit of cooperation, collegiality and exchange among state and federal judges and the practicing bar, and to enhance the court system, the administration of justice for the public, and the relationship between judges and lawyers. My predecessor, Illinois Appellate Justice Michael Hyman, included a discussion topic pertinent to judges and lawyers at every meeting, which Council members found refreshing and informative. As the current Chair, I will continue to include similar discussions in the Council’s Agenda, as our meetings present a unique opportunity to hear the perspectives of both judges and lawyers on relevant topics to the legal profession and the judiciary. I plan to report on these discussions in this Chair’s Column.
During the Council’s first meeting in June 2017, we discussed the many challenges of pro bono service. Illinois Supreme Court Rule 756(f)(1), which became effective in June 2006, requires lawyers to report the approximate amount of his or her pro bono legal service annually, which it defines as:
(1) Pro bono legal service includes the delivery of legal services or the provision of training without charge or expectation of a fee, as defined in the following subparagraphs:
(a) legal services rendered to a person of limited means;
(b) legal services to charitable, religious, civic, community, governmental or educational organizations in matters designed to address the needs of persons of limited means;
(c) legal services to charitable, religious, civil or community organizations in matters in furtherance of their organizational purposes; and
(d) training intended to benefit legal service organizations or lawyers who provide pro bono services.
The Supreme Court specifically states in Rule 756(f)(1) that “[l]egal services for which payment was expected, but is uncollectible, do not qualify as pro bono legal service.” According to the Committee Comment to Rule 756(f), the Special Supreme Court Committee on Pro Bono Publico Legal Service “recognized the vast unmet and burgeoning legal needs of persons of limited means in Illinois, and the unique role that lawyers play in providing greater access to these critical legal services.” Thus, Rule 756(f) was “established to serve as an annual reminder to the lawyers of Illinois that pro bono legal service is an integral part of a lawyer’s professionalism.” According to the Special Committee, the primary goal of Rule 756(f) is to increase the delivery of legal services directly to persons of limited means, as defined in Rule 756(f)(1)(a).
Despite the laudable goal of Rule 756(f), the Attorney Registration and Discipline Commission reports that only approximately one-third of Illinois lawyers actually perform pro bono legal service. While our Council members recognized that performing pro bono service is a responsibility of the legal profession to the public, they discussed a number of possible reasons for this disappointingly low number. Many Council members agreed that one of the biggest obstacles to performing pro bono work is the expense of doing so, at the cost of billable work. Many bottom-line driven law firms have minimum billable hour requirements which make doing non-billable, pro bono work a challenge. And many solo practitioners, whose income has decreased approximately 30% over the last 20 years, simply cannot afford to do pro bono work. This is especially a problem in rural Illinois, where there are very few legal aid clinics.
In addition, some Council members observed that an impediment to doing pro bono work is that many lawyers feel they do not have the expertise in the subject areas in which pro bono work is often needed, such as immigration and domestic relations. Cognizant that Rule 1.1 of the Illinois Rules of Professional Conduct requires lawyers to “provide competent representation to a client,” which “requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation,” many lawyers are concerned about violating this Rule by rendering pro bono legal services outside of their practice areas. While training in specific practice areas may be offered by bar associations or legal aid organizations, many lawyers cannot spare the time to adequately learn new subject areas in order to provide competent pro bono representation.
Finally, Council members expressed the view that many lawyers are not informed of pro bono opportunities. While a number of large law firms hire pro bono coordinators who present pro bono opportunities to the partners and associates of the firm, most mid-size and small firms do not have such a resource. Lawyers who do not know where to go or whom to contact in order to do pro bono work are not likely to seek out such opportunities.
After discussing the many challenges to pro bono service, the Council members suggested a number of possible solutions to these obstacles. The results of the Council’s discussions as to how to resolve these challenges will be reported in the next Chair’s column, so stay tuned!
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