Chapter Pro Bono Service

• Jurisdiction: Washington

I. RPC 6.1: pro bono serviCe

"Every lawyer has a professional responsibility to assist in the provision of legal services to those unable to pay [and a] lawyer should aspire to render at least thirty (30) hours of pro bono publico service per year."¹ RPC 6.1 is essentially in the form adopted in Washington in 2003, although comments modeled on the Model Rules of Professional Conduct (MRPC) of the American Bar Association (ABA) have now been added. Washington's version of RPC 6.1 differs significantly from the ABA model rule. There was no disciplinary rule comparable to this in the Code of Professional Responsibility (CPR), but Ethical Consideration (EC) 2-25 did address the same subject matter in language that has been carried over almost verbatim into the comments to RPC 6.1. There is no comparable provision in the Restatement of the Law Governing Lawyers².

The recent history of RPC 6.1 is important. In 1993, the ABA House of Delegates voted by a narrow margin to amend MRPC 6.1 to set a target of "at least (50) hours of pro bono publico legal services per year," including the instruction that a "substantial majority" of this time be devoted to persons of limited means.³ But the model rule remained merely "aspirational." The ABA Ethics 2000 Commission considered recommending a mandatory rule but bowed to "unanimous criticism" of the idea, and the only amendment made to the rule was to add a first sentence stating, "Every lawyer has a professional responsibility to provide legal services to those unable to pay."⁴ Effective September 2003, Washington adopted a version of RPC 6.1 based on the ABA model rule but with three significant differences. First, the Washington rule reduces the aspirational target from 50 hours annually to 30 hours. Second, Washington's version eliminates that ABA preference that a "substantial majority" of pro bono hours be delivered "without fee or expectation of fee to persons of limited means" or on matters designed to meet the needs of such persons.⁵ Third, the Washington rule sets up a voluntary pro bono reporting system and mandates recognition by the Washington State Bar Association (WSBA) of lawyers rendering a minimum of 50 hours of pro bono service.

The rule imposes no enforceable obligation on lawyers, because the key language states only that lawyers "should aspire to render at least thirty (30) hours of pro bono service per year," and the comment to the rule make clear that it is "not intended to be enforced through disciplinary process."⁶ At most, it imposes an unenforceable "professional responsibility."⁷ It should be no surprise, therefore, that there have been no disciplinary decisions involving this rule.

Author's Commentary It is well understood that there is a huge problem concerning unmet legal needs in this country. Various sources of public and private third-party funding provide legal services or help underwrite payment of legal fees for those unable to afford them. This is particularly true in the area of criminal defense, largely as a result of the Supreme Court's decision in Gideon v. Wainright that the indigent have a constitutional right to have counsel provided at public expense.⁸ But even in the area of criminal defense, "few experts believe that the right is anywhere close to being realized in practice."⁹ Moreover, no comparable constitutional right to have counsel provided has been recognized in the civil arena. As a consequence, much less has been done to provide civil legal services to the poor. Studies at both the state and national level document that a substantial segment of the population fails to have its legal needs met.¹⁰ "An estimated four-fifths of the civil legal needs of the poor, and the needs of an estimated two- to three-fifths of middle-income individuals, remain unmet."¹¹ What support there is consists of a combination of (a) limited federal dollars following to legal aid via the Legal Services Corporation, with significant strings attached;¹² (b) state revenues derived largely from Interest on Lawyer Trust Accounts (IOLTA) programs;¹³ (c) prepaid legal services insurance programs, typically...