"…I am pleased to submit to the Court for its consideration the attached draft rule which would become Supreme Court Rule 39, if adopted. In so doing, I would be remiss if I did not also transmit the extremely enthusiastic support for the rule which was expressed during the discussion at the Board of Governors' meeting. The Board thinks that the rule will do much to alleviate the shortage of pro bono legal services for Arizona's indigent elderly, and I concur in that assessment."

From a letter dated 31 July 1987 from Bruce Hamilton, Executive Director, State Bar of Arizona to the Honorable Frank X. Gordon, Jr., Chief Justice, Supreme Court of Arizona regarding adoption of an emeritus attorney pro bono rule. The reasoning behind the adoption of emeritus attorney pro bono rules was clear-to encourage retired attorneys "to represent and provide legal services for persons unable to pay for the same."1 The rules provide a limited license for retired and non-practicing lawyers-who otherwise may retire from the active practice of law-to practice on a volunteer basis for non-profit legal services providers serving vulnerable seniors and low and moderate-income individuals. Many lawyers who retire or otherwise leave the active practice of law convert their bar membership to inactive status to avoid the expense of mandatory bar dues and continuing legal education programs. Some lawyers, particularly retirees, may have moved to states in which they are not licensed to practice law. Therefore, these retired and otherwise inactive lawyers, face barriers to doing pro bono work because they are no longer active bar members or may live in a state in which they are not licensed to practice law. And, with changes in the rules, these lawyers could effectively serve low income persons, as more than 80 percent of the civil legal needs of this group are not being met.
In 1981, the Florida Bar Board of Governors voted to support the concept of an emeritus attorney program on a one-year experimental basis. The Florida Bar Board of Governors authorized the creation of the first Emeritus Attorney Pro Bono Participation Rule, which went into effect on October 24, 1985. Arizona, California, and Oregon adopted similar rules in 1987. Between 1985 and 1996, 12 states adopted emeritus attorney pro bono practice rules, and between 2001 and January 2008, 14 more states followed. These rules were originally aimed at retirees and were designed to allow them to continue to practice law under certain circumstances. In recent years, the target audience has broadened beyond retired lawyers to attract otherwise qualifi ed and experienced younger lawyers who are not in active practice but who are interested in public service. Emeritus attorney pro bono rules may also be a key element of efforts to help those lawyers who wish to continue actively practicing law but who wish to transition to positions providing greater community service, or who wish to continue to practice in a limited capacity to provide pro bono legal services. An emeritus attorney pro bono program is a great tool to encourage and assist lawyers who are considering transitioning to a second career in pro bono service.
Emeritus Volunteers Can Serve in a Variety of Capacities
The policy implications of emeritus attorney pro bono rules span local, state, and national levels. These rules offer the potential for expansion of legal services delivery and advocacy. In addition, emeritus pro bono attorneys can become effective volunteers as they become familiar with the aging network and opportunities to serve low-income individuals and vulnerable seniors.
Emeritus attorney pro bono rules have at least three implications for delivery of direct services. The first is that the rules offer additional resources and are one method of supplementing existing legal services in light of growing need and fi nite resources. The second is that emeritus attorneys are well-equipped to present community legal education programs, which have the potential to help seniors and low- and moderate-income individuals avoid legal crises. The third is that emeritus attorneys may be more readily used to reach out to provide legal services to homebound residents; residents of hospitals, long-term care facilities, and hospices; clients in rural and urban areas with limited transportation; and others who are unable to come to an offi ce or clinic. The volunteer attorney becomes a broker between a senior or a low income client and a complex social and legal system. At the same time, the volunteer attorney gains an awareness of the unique challenges facing their vulnerable clients. Emeritus attorneys can become a critical component of efforts to address the unmet civil legal needs of individuals in the greatest social and economic need.
Few endeavors are better suited to the unique skills and experience of retired and non-practicing attorneys as pro bono legal work for vulnerable seniors, low income persons, and non-profi t organizations. An emeritus attorney does not need to have a background in specific legal areas, such as government benefi ts, landlord/ tenant law, estate planning, family law, or consumer law, to make a signifi cant contribution as a volunteer. Emeritus attorneys can choose from a wide range of pro bono opportunities that accomodate their interests, skills, and schedules. They may choose to:
•
Provide advice and brief
services on a hotline or in
person
•
Develop and present
community legal education
programs
•
Conduct client intake
interviews and screenings
•
Mentor less experienced
attorneys
•
Staff senior center clinics
•
Draft advance directives,
simple wills, and other basic
estate planning documents
•
Engage in public speaking and consumer education
•
Provide transactional pro bono legal services to non-profi t organizations, community development projects, and individuals.
•
Conduct outreach activities
•
Conduct telephone hearings
•
Serve on the board of directors of social service agencies and non-profit legal service providers
•
Staff self-help or courthouse
resource centers
•
Provide mediation and dispute resolution services
•
Work for long-term care
ombudsman programs
•
Assist with fundraising for legal services or social services programs
•
Provide litigation support
•
Assist with outreach and
recruitment of volunteer
attorneys
•
Maintain a client caseload
•
Assist with document analysis
•
Conduct legislative research
and bill analysis
Creating and Implementing an Emeritus Rule
An effort to enact an emeritus attorney pro bono rule or implement an emeritus attorney pro bono program requires support from a broad-based, nonpartisan
coalition of legal services organizations, the aging network, the judiciary, the private bar, bar foundations, state access to justice commissions, and state and local bar associations. This coalition should be committed to expanding, coordinating, and promoting effective and economical civil legal services delivery for vulnerable seniors and low income individuals. This partnership can form the foundation of an effort to draft and submit to the state supreme court a rule proposing an emeritus pro bono status or develop an emeritus attorney pro bono program. During 2007, for example, emeritus attorney pro bono rules were proposed by a state bar pro bono services committee, a state bar executive director, a state access to justice commission, and a coalition of groups representing these organizations and others in the access to justice community.
It should be noted, however, that passage of emeritus attorney pro bono rules alone has not been effective in engaging retired attorneys to volunteer to provide pro bono legal services to vulnerable seniors and low-income individuals. More important than the creation of a rule is establishing an emeritus attorney pro bono program to implement the rule. In 2008 the ABA Commission on Law and Aging surveyed the 26 jurisdictions in the United States that have a version of an emeritus attorney pro bono practice rule. The survey results were similar to a 2006 survey conducted by the Commission, both of which found that without a program responsible to implement the rule, very few attorneys volunteer as emeritus attorneys to provide pro bono legal services. The survey also found that states that operate emeritus attorney pro bono programs produce the intended results. The State Bar of California, the Oregon State Bar, and the Washington State Bar Association have long operated emeritus attorney pro bono programs. Staff associated with Washington and Oregon's Emeritus Attorney programs recently reported having 122 emeritus attorneys each and California's program developer reported 84 emeritus attorneys, for a total of 328 emeritus pro bono attorneys.2 Program staff are responsible for implementing their emeritus attorney pro bono rules by providing information to bar members about the limited license status, handling emeritus applications, assisting with recruitment of attorneys, or facilitating the placement of attorneys with legal services providers. Emeritus attorney pro bono programs can educate retiring and non-practicing attorneys about the option of changing one's bar status and the opportunities emeritus pro bono status provides, encourage attorneys to volunteer, provide support to legal services providers and other non-profi t organizations in recruiting and maintaining volunteers, and participate in a state's overall efforts to expand access to justice.
One example of efforts to effectively implement an emeritus pro bono program can be found in Washington, where the Washington State Bar Association Pro Bono and Legal Aid Committee recently conducted two surveys regarding emeritus attorneys. These surveys were undertaken in an effort to improve and expand the WSBA Emeritus Program and enhance the pro bono experience for WSBA Emeritus members. One questionnaire was sent to emeritus attorneys; a second questionnaire was sent to qualified legal services providers. The results will be available in late March 2008. In addition, WSBA is planning to send a questionnaire to 1200 attorneys in active status who are close to retirement age to raise awareness of the WSBA Emeritus Program and encourage their participation.
Another example of proactive implementation is provided by the Oregon State Bar, which in March 2008 hosted a three hour roundtable discussion for active pro bono and active emeritus attorneys. The participants expressed incredible enthusiasm about the pro bono work they do, encouraged OSB staff to create an emeritus panel to refer attorneys who have questions about the status, and provided valuable information on ways to improve and expand the program and enhance the pro bono experience.3
Alaska's Emeritus Attorney rule went into effect on October 15, 2007. Through an outreach campaign that involved an article in the Alaska Bar Rag, a letter from the Chief Justice of the Alaska Supreme Court, and a personal follow up to potential volunteers, more than a dozen attorneys have submitted volunteer forms and five attorneys have formally registered with the bar association as emeritus attorneys under Rule
43.2.4
Conclusion
The Florida Bar Board of Governors was visionary when it adopted the first emeritus attorney pro bono rules in 1985 to permit retired attorneys who were members of the Florida State Bar or another state bar to continue to practice in a limited capacity as a way of increasing access to legal services for those who were unable to afford it. But experience has demonstrated that an emeritus attorney pro bono rule is only as valuable as the number of attorneys who volunteer, and ultimately, the number of vulnerable seniors and low and moderate-income clients they serve.
David Ackerly, Director of Private Attorney Involvement at the Legal Aid Foundation of Los Angeles and Chair of the State Bar Standing Committee on the Delivery of Legal Services, wrote:
"For many years, California has had a hundred emeritus attorney program participants. Oregon, which has 10 percent as many attorneys as California, also has a hundred attorneys in its pro bono emeritus program. If California could match Oregon's success by recruiting 900 more lawyers, each donating 100 hours, we would have an additional 90,000 hours per year, opening the doors of equity wider."5
An attendee at the most recent WSBA Emeritus Attorney Training and Orientation program commented, "I wasn't aware of the program until I got the letter (describing WSBA's emeritus attorney program). It's a wonderful program."
Who's sending the invitation in your state to open wider the doors of equity?
Holly Robinson is associate staff director of the ABA Commission on Law and Aging, specializing in housing, economic security, and legal services delivery issues. She is the project director for the Older American's Act-funded National Legal Assistance Support Project and administers the Partnerships in Law and Aging Program mini-grant project.
Endnotes
1 Petition to Amend the Florida Bar Integration Rule by the Addition of Article XXII- Emeritus Attorneys Pro Bono Participation Program, Filed January 31, 1985.
2 Emails from Sharleen Steele, Access to Justice Programs Liaison, Washington State Bar Association, March 11, 2008, Cathy Petrecca, Pro Bono and LRAP Coordinator, Oregon State Bar, March 10, 2008, and Rodney Low, Program Developer, The State Bar of California, March 7, 2008.
3 Email from Cathy Petrecca, Pro Bono and LRAP Coordinator, Oregon State Bar, March 10, 2008.
4 Email from Krista Scully, Pro Bono Coordinator, Alaska State Bar, March 12, 2008.
5 David Ackerly, Justice for All, Legal Aid Foundation of Los Angeles, http://www.lafl a.org/news/view.asp, June 7, 2007.