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CALegalAdvocates.org

Op Ed: Justice For All

Thursday, June 07, 2007

  • Organization: Daily Journal

By David Ackerly

Daily Journal/Focus Column

June 7, 2007

I really believe in pro bono - not just as a means to retain good associates or to develop skills or to build stronger relationships between firms and legal services providers. Many people cite these and other reasons for encouraging pro bono, then add the coda: "Of course, pro bono will never be an efficient way to deliver legal services."

I disagree.

Every day, attorneys in California bring their energy, imagination and compassion to providing pro bono representation. Providers are used to handling an enormous number of clients. Some aren't convinced that the energy spent recruiting and training pro bono attorneys will result in a real expansion of the number of people we can help. Our challenge is to continue to find more ways to ensure that pro bono makes a significant contribution to providing access to justice.

In 2005, Dave Jones, chair of the Assembly Judiciary Committee, requested that the California Commission on Access to Justice prepare a report suggesting steps to meet the increasing demand of those excluded from our system of justice. The final report, Action Plan for Justice, was released in April and is available on the State Bar Web site at calbar.ca.gov/calbar/pdfs/reports/2007_Action-Plan-Justice.pdf

The report notes that the past two decades have seen greater pressure on law firms to demonstrate their corporate responsibility by incorporating pro bono into their regular practice. Today, having a few attorneys provide most of the charitable hours for an entire firm is inadequate. Providers across the nation have seen a tremendous growth in the number of partners seeking pro bono cases. We must do everything we can to continue this upward trend.

Action Plan for Justice recommends increased statewide support for pro bono, especially through the use of Web-based resources for recruiting and training. The report urges increased judicial support for the practice. Judges, of course, benefit when litigants who otherwise would have to fend for themselves in the complex world of Judicial Council forms or civil procedure have pro bono representation. In practice areas such as family law or landlord/tenant affairs, in which one party is unrepresented in 80 percent of the cases, the court system understandably suffers in pro bono's absence.

The third pro bono recommendation encourages the State Bar and all local bar associations to embrace the targets of ABA Model Rule 6.1, with a goal for every attorney to perform 50 hours of pro bono per year. Attorneys also are encouraged to make financial contributions to local legal services providers, especially those attorneys who are unable to complete the minimum number of hours. The Action Plan firmly rejects any attempt at mandatory pro bono and, after a broad survey of practitioners, rejects reporting of pro bono hours by attorneys. Although 16 other states have implemented either mandatory or voluntary reporting, the task force does not believe that the cost of implementation or the validity of the data gathered would justify the creation of a reporting system in California.

The fourth recommendation is that California adopt ABA Model Rule 6.5 on imputed conflicts when providing brief service or counsel and advice at a clinic. California's ethics rules prohibit providing simple advice when an imputed, nonwaived conflict exists. This prevents large numbers of attorneys from participating in basic legal clinics, because they would have to clear all firm conflicts before seeing a client. The new model rule prohibits participation only when the attorney has personal knowledge of an actual conflict. The representation is limited to the single clinical consultation; any expansion would require clearing firmwide conflicts.

Adoption of Model Rule 6.5 in California would allow many more attorneys to commit to a regular schedule of clinics and to understand the time commitment involved. Each year, thousands more Californians could receive basic advice on their rights and possible remedies under the law. This is a tremendously efficient strategy for aiding those who otherwise are shut out from justice.

Recently, the State Bar Standing Committee on the Delivery of Legal Services recommended significant changes to the emeritus attorney program, including adoption of a new name, Pro Bono Practice Rules. California is one of 19 states (plus the District of Columbia) that provide free or reduced bar membership to attorneys who are retiring from active practice and want to continue their careers exclusively pro bono. The proposed changes also encourage attorneys on hiatus from full-time practice (presuming they have five to 10 years of experience) to provide pro bono legal services in exchange for a waiver of bar dues.

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.

Some of these steps will succeed only if legal services providers invest in the infrastructure necessary to use these new pro bono contributions effectively. The clients are there; legal services programs turn people away every day for lack of resources. The private bar increasingly wants to help meet this need.

In the San Francisco Bay Area, providers use the pro bono net Web platform to circulate cases to potential pro bonos. In Southern California, pro bono managers from legal services providers and firms are working on best practices to help standardize what is essentially an ad hoc process, a step that should increase the number of cases available and promote quality representation and outcome measurements.

We must continue to build a pro bono community of private attorneys, legal services providers and the judiciary. Pro bono is an essential component of achieving access to justice, and I hope it will be an increasingly significant aspect of every California attorney's career.

David Ackerly is the 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.

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