Pro Bono Cases in The United States of America

You have a pretty good case, Mr. Pitkin. How much justice can you afford?[1]

Lawyer to Potential Client in New Yorker cartoon

Pro bono publico is a Latin term shortened as pro bono meaning ‘for the public good’. Pro bono is professional legal work undertaken willingly and not including any form of payment. Pro Bono legal services are available to people who cannot generally afford any legal aid/services. Lawyers in the United States are recommended under American Bar Association (ABA) ethical rules to contribute at least 50 hours of pro bono service per year.[2] These rules differ from state to state. Rule 6.1 of the New York Rules of Professional Conduct strongly encourages lawyers to aspire to provide at least 50 hours of pro bono service each year and quantifies the minimal financial contributions that lawyers should aspire to make to organizations providing legal services to the poor and underserved.[3] In contrast, other states, such as Illinois, do not have recommended hours, yet require annual disclosure of voluntary pro bono hours and contributions made to pro bono organizations.[4]

The Chief Judge of New York has also instituted a requirement that applicants who plan to be admitted in 2015 and onward must complete 50 hours of pro bono service in order to qualify.[5] All attorneys who register must report their voluntary pro bono hours or voluntary contributions.[6] The ABA has conducted four national surveys of pro bono service: one released in August 2005,[7] the second in February 2009,[8] he third in March 2013[9] and the fourth in April 2018.[10] The ABA Standing Committee on Pro Bono and Public Service and its project, the Center for Pro Bono, are a national source of information, resources and assistance to support, facilitate, and expand the delivery of pro bono legal help.[11] The ABA Standing Committee also sponsors Pro Bono Week during the week of 23–29 October.[12] The ABA Standing Committee on Legal Assistance for Military Personnel and Section of Litigation jointly sponsor the ABA Military Pro Bono Project, which delivers pro bono legal assistance to enlisted, active-duty military personnel.[13]

In an October 2007 press conference reported in The Wall Street Journal and The New York Times, the law student group Building a Better Legal Profession released its first annual ranking of top law firms by average billable hours, pro bono participation, and demographic diversity.[14] [15] The report found that most large firms fall short of their pro bono targets.[16] The group has sent the information to top law schools around the country, encouraging students to take this data into account when choosing where to work after graduation.[17] The American Lawyer compiles, from among its 200 top-rated law firms, those that contributed the most pro bono hours of service during the previous calendar year, publishing the list annually.[18] In the United States, the Patent Pro Bono Program is a nationwide network of independently operated regional programs that matches volunteer patent professionals with financially under-resourced inventors and small businesses for the purpose of securing patent protection.[19]

What Are the Roots of Pro Bono Service?[20]

Pro bono work has a long tradition in this country. In 1770, British soldiers killed five Americans in what became known as the Boston Massacre. No lawyer was willing to defend the soldiers. Although sympathetic to the American cause, John Adams (later the second American president) agreed to represent them for free. He won the case. By the time America declared its independence in 1776, pro bono service was considered an accepted practice by the American legal profession.

What Type of Legal Issue Qualifies for Pro Bono Representation?[21]

Not every legal matter is considered appropriate for pro bono representation. Lawyers typically choose only those cases that serve the public good. That includes, among other areas of law:

• Family law
• Children’s issues
• Consumer fraud
• Housing
• Immigration
• Taxation
• Environmental law
• Criminal defense
• Elder law
• Death penalty appeals

Many lawyers will also take cases on behalf of members of underserved communities, religious groups, and nonprofit organizations.

“Following the 9/11 attacks in 2001, a group of certified financial planners (CFPs) from the FPA decided that they needed to help those in need. So, they started the FPA’s pro bono program. It helps underserved individuals and families who are striving to build assets and improve their lives but cannot afford to hire a planner. Through this program, the FPA offers numerous resources, including a free online search tool to help people find objective, ethical, client-focused financial planners.”[22]

FAST FACTS:[23]

1. Around the year 2018 most American lawyers provided free pro bono services according to survey released by American Bar Association in the same year.
2. According to a survey released by ABA in 2013 and in accordance with Rule 6.1 at least 20 per cent of lawyers have reached the goal of working 50 hours a year of pro bono work.
3. However, 40 per cent have done less to no pro bono work in the previous year with at least 19 per cent not ever having done any kind of pro bono work.
4. The survey of 47,000 lawyers in 24 states revealed that 52% provided pro bono services in the previous year, with the average lawyer working 37 hours. Some lawyers provide much more pro bono work. According to the survey, 9% provided 50 to 79 hours of pro bono work, and 11% provided more than 80 hours.
5. The average hours worked fluctuates year by year, with no apparent trend. It was 39 hours in 2005, 41 hours in 2009, 56 hours in 2013 and 37 hours in 2018. Older lawyers – age 70 to 74 – perform the most hours (58 per year). Solo practitioners and lawyers from large firms and very large firms provide the most pro bono hours (45 hours, 48 hours and 73 hours, respectively).

CASE LAWS:[24]

1. In any event, the Supreme Court’s decision in Mallard v. The United States District Court[25] for the Southern District of Iowa 2-holding that title 28, section 1915(d) of the United States Code does not give a federal court the authority to require attorneys to represent indigents in civil cases-has, at least for the present, foreclosed any argument that these can be described as mandatory programs.[26]
2. In Florida, where the Furman case[27] resulted in some of the earliest legal needs studies and, accordingly, a heightened sense of urgency about unmet legal needs, several mandatory pro bono proposals surfaced.[28] Despite the fact that the sponsors and supporters of these proposals included some of the most prominent lawyers in the state, including past presidents of the Florida Bar, the Bar itself consistently opposed proposals for mandatory pro bono. Petitions to establish a mandatory program did not prevail in the Florida Supreme Court.[29]

[1] Handelsman, The New Yorker, Dec 24, 1973, at 52 (cartoon caption).

[2] "ABA Model Rule 6.1 Voluntary Pro Bono Service." Pro Bono and Public Service.

[3] "Rules of Professional Conduct (22 NYCRR Part 1200)" (PDF).

[4] See Illinois Supreme Court Rule 756(f).

[5] "Pro Bono Bar Admission Requirements - NYCOURTS.GOV". www.nycourts.gov.

[6] "Reporting Requirements - Attorney Registration - NYCOURTS.GOV". www.nycourts.gov.

[7] "Supporting Justice: A Report on the Pro Bono Work of America's Lawyers" (PDF). americanbar.org. Chicago, IL, USA: American Bar Association. 23 July 2008 [9 August 2005]. Archived from the original (PDF) on 8 September 2018. 

[8] "Supporting Justice II: A Report on the Pro Bono Work of America's Lawyers" (PDF). americanbar.org. Chicago, IL, USA: American Bar Association. 6 February 2009. Archived from the original (PDF) on 8 September 2018.

[9] "Supporting Justice III: A Report on the Pro Bono Work of America's Lawyers" (PDF). americanbar.org. Chicago, IL, USA: American Bar Association. 22 March 2013. Archived from the original (PDF) on 8 July 2019. 

[10] "Supporting Justice: A Report on the Pro Bono Work of America's Lawyers (April 2018)" (PDF).

[11] "Standing Committee / Pro Bono and Public Service". americanbar.org. Chicago, IL, USA: American Bar Association.

[12] "ABA Recognizes Pro Bono Work by Lawyers in First National Celebration - News Release". Apps.americanbar.org. 8 July 2009. Archived from the original on 15 October 2012. 

[13] "Military Pro Bono Project". Militaryprobono.org.

[14] Efrati, Amir (10 October 2007), "You Say You Want a Big-Law Revolution, Take II", Wall Street Journal, New York, NY, USA: Dow Jones & Company (owned by News Corporation), archived from the original on 17 June 2015.

[15] Liptak, Adam (29 October 2007), "In Students' Eyes, Look-Alike Lawyers Don't Make the Grade", New York Times

[16] Adcock, Thomas; Elinson, Zusha (19 October 2007), "Student Group Grades Firms on Diversity, Pro Bono Work", New York Law Journal

[17] Weinstein, Henry (11 October 2007), "Lack of diversity marks L.A. law - A survey finds an 'opportunity gap' for minorities and women at large firms in the area", Los Angeles Times, archived from the original on 22 April 2009.

[18] "The Biglaw Firms Where Lawyers Did The Most Pro Bono Work (2020)" by Staci Zaretsky, Above The Law, August 19, 2021.

[19] "Patent Pro Bono Program for independent inventors and small businesses". www.uspto.gov.

[20] How Pro Bono Cases Work - FindLaw

[21] Id 19.

[22] What Does Pro Bono Really Mean? (investopedia.com)

[23] Pro Bono | American Bar Association Profile of the Legal Profession (abalegalprofile.com)

[24] Esther F. Lardent, Mandatory Pro Bono in Civil Cases: the Wrong Answer to the Right Question: Against, 49 Md. L. Rev. 78 (1990) Available at: http://digitalcommons.law.umaryland.edu/mlr/vol49/iss1/6.

[25] 109 S. Ct. 1814 (1989).

[26] In Mallard, the District Court selected Mallard to represent indigent inmates. When Mallard tried and was not allowed to withdraw from this court-imposed service, he appealed to the District Court, which denied him relief. When the Court of Appeals denied his petition for a writ of mandamus, Mallard appealed to the Supreme Court which held that 28 U.S.C. § 1915(d)-which provides that federal courts may "request an attorney to represent any person claiming informa pauperis status"-does not give a federal court the authority to require attorneys to represent indigents in civil cases. Id. at 1816. Although this decision sets the immediate question to rest, it is worth noting that the Court ruled only on the validity of 28 U.S.C. § 1915(d). Although respondent and its amici urge us to affirm the Court of Appeals'judgement on the ground that the federal courts do have such authority, the District Court did not invoke its inherent power in its opinion below, and the Court of Appeals did not offer this ground for denying Mallard's application for a writ of mandamus. We therefore leave that issue for another day.

[27] Florida Bar v. Furman, 376 So. 2d 378 (Fla. 1979). The referee in the case suggested that the court require the Bar to conduct a study to determine the most effective means of providing legal services to the poor. In response, the court stated "[w]ithout question, it is our responsibility to promote the full availability of legal services. By [addressing this issue in a separate proceeding] under our supervisory power, we insure a thorough consideration of the overall problem without delaying the present adjudication." Id. at 382.

[28] See THE LEGAL NEEDS OF THE POOR OF FLORIDA, supra note 17; THE FLORIDA BAR, REPORT OF THE SPECIAL COMMISSION ON ACCESS TO THE LEGAL SYSTEM (June 1985).

[29] See In re Emergency Delivery of Legal Services to the Poor, 432 So. 2d 39 (Fla. 1983).

• We believe that a person's voluntary service to others has to come from within the soul of that person. Our canons in this area are designed to be directory, to enlighten one's conscience, to focus attention on what is right for lawyers to do, but, historically, have not been meant to force an involuntary act. Id. at 41 (footnote omitted). In the footnote accompanying the text the court stated: "Furthermore, the assurance that effective legal services are available to all is not the sole responsibility of lawyers but is one to be shared by the government and society." Id. at 41 n.l; see supra text accompanying note 28; see also Maher, supra note 28, at 980 n.38.