Sure to get your attention is news that the Mississippi Supreme Court’s RULES COMMITTEE ON THE LEGAL PROFESSION is seeking public comment on a proposed change to Ethical Rule 6.1, which has to do with pro bono or uncompensated legal services to the indigent.
The new rule will require 20 hours of annual pro bono work to the poor or $500 to the Mississippi Bar. See the proposed rule change, VOLUNTARY MANDATORY PRO BONO PUBLIC SERVICE, at RPC6.1.pdf.
The key provisions of the proposed rule 6.1 (b) are:
“The professional responsibility to provide pro bono legal services to the poor may be discharged by:
”(1) annually providing at least 20 hours of pro bono legal services to the poor, or
”(2) annually providing at least 20 hours of pro bono legal services to charitable, religious, civic, community, governmental or educational organizations for the purpose of providing legal counsel and representation to the poor, or
”(3) making an annual contribution of at least $200 $500 to the Mississippi Bar, which will be used by the Bar to provide legal services to the poor through legal aid organizations.”
“The provisions of Rule 6.1(b) are aspirational goals and an affirmation of professional responsibility, but are not mandatory and do not constitute a basis for discipline under the Rules of Discipline for the Mississippi Bar.
“The reporting requirements of Rule 6.1(e) are mandatory and the failure to report this information shall be treated in the same manner as failure to pay dues or comply with mandatory Continuing Legal Education.”
In practical terms, there’s little difference between the contemplated rule and the current requirement that lawyers certify the number of pro bono hours on an annual affidavit. The difference is that the proposed rule now makes it an either-or obligation: 20 hours or $500. And needless to say, not all lawyers are doing hand stands and somersaults over the idea, especially as many fight their way to survive an economic downturn. Consequently, Lawyers debate free legal service.
By comparison, like other jurisdictions, Nevada’s ER 6.1 is aspirational, requiring only the filing of an annual affidavit to report any pro bono legal services. Specifically, Nevada’s rule states:
“(1) All members shall complete an Annual Pro Bono Reporting Form, indicating services performed under this Rule, to be submitted to the state bar annually on a form to be provided by the state bar with the members’ fee statements. If a member fails to file the report required by this Rule, the state bar shall notify the member that a fine of $100 will be imposed unless the member files the report within a specified period of time not less than 30 days after the notice.
“(2) The professional responsibility to provide pro bono services as established under this Rule is aspirational rather than mandatory in nature. Accordingly, the failure to render pro bono services will not subject a member to discipline.”
It makes little difference that most lawyers already do a healthy share of pro bono work. But in the same way jurisdictions backed into mandated reporting of pro bono hours and mandated reporting of lawyer malpractice insurance, this is just another instance of the mindset that ‘the practice of law is a privilege-not-a-right,’ which means that any and all constraints on a lawyer’s constitutional liberties are fair game.
So once one jurisdiction adopts the change, don’t be surprised when they all do. Imitation still remains the sincerest form of flattery among state bars, especially when potential new revenue streams present themselves.
Indeed, one retired Mississippi justice already opines that the move will pass constitutional muster. That said, I suspect the proverbial die is cast while lip-service is merely being paid that Mississippi considers mandatory pro bono.