What Is Pro Bono Service and How Should the WSBA Monitor It?

Many lawyers lack familiarity with RPC 6.1 and may not realize that their work qualifies as pro bono under this rule.

BY GABRIEL HINMAN

“Every lawyer has a professional responsibility” to perform pro bono service. Rule of Professional Conduct (RPC) 6.1. Some time ago, the WSBA Pro Bono and Public Service Committee (PBPSC) began reviewing RPC 6.1—the “pro bono rule”—to see if any revisions or updates might aid the WSBA both in encouraging pro bono work and in gathering data about the pro bono work being performed in Washington. The rule currently allows each lawyer the option to report their pro bono hours worked and offers commendation to lawyers who render at least 50 hours each year. In its review of RPC 6.1, the PBPSC considered whether the rule should be amended to be consistent with that of 10 other states that require all lawyers to report the number of pro bono hours they work each year when renewing their license.

Before the PBPSC decides whether to recommend a rule change requiring annual reporting of pro bono hours, it wishes to address the following questions, and then present the potential advantages and disadvantages of such a change.

What work meets the definition of “pro bono publico service” under RPC 6.1? Is that a good definition?
What does the data say about how much pro bono work is being performed by Washington lawyers?

DEFINITION OF PRO BONO SERVICE IN RPC 6.1

Before a lawyer can report pro bono service hours to the WSBA, they must know what pro bono service means. RPC 6.1 states:

Every lawyer has a professional responsibility to assist in the provision of legal services to those unable to pay. A lawyer should aspire to render at least thirty (30) hours of pro bono publico service per year. In fulfilling this responsibility, the lawyer should:

(a) provide legal services without fee or expectation of fee to:
- (1) persons of limited means or
- (2) charitable, religious, civic, community, governmental and educational organizations in matters which are designed primarily to address the needs of persons of limited means; and
(b) provide pro bono publico service through:
- (1) delivery of legal services at no fee or substantially reduced fee to individuals, groups or organizations seeking to secure or protect civil rights, or charitable, religious, civil, community, governmental and educational organizations in matters in furtherance of their organizational purposes, where the payment of standard legal fees would significantly deplete the organization’s economic resources or would be otherwise inappropriate;
- (2) delivery of legal services at a substantially reduced fee to persons of limited means; or
- (3) participation in activities for improving the law, the legal system or the legal profession.

Pro bono publico service may be reported annually on a form provided by the WSBA. A lawyer rendering a minimum of fifty (50) hours of pro bono publico service shall receive commendation for such service from the WSBA.

Many lawyers lack familiarity with this rule and may not realize that their work qualifies as pro bono under RPC 6.1. A recent ABA study of nationwide pro bono work noted “disagreement among the surveyed attorneys regarding which services qualify as pro bono and which do not, as well as who qualifies as a person of limited means.”¹ The rule’s flexibility (and comments) help to address these disagreements.

Rule 6.1(a) clearly includes the typical, intuitive definition of pro bono service: “provision of legal services to those unable to pay.” Working for indigent clients free of charge is what many lawyers think of immediately as “pro bono service.” This integral component of pro bono work “recognize[s] the critical need for legal services that exists among persons of limited means” and includes “a full range of activities.” RPC 6.1 cmt. 2. In addition to providing “legal advice” or representing a client in legal proceedings, pro bono work also can include “legislative lobbying,” “administrative rule making,” and “free training or mentoring to those who represent persons of limited means or organizations primarily representing such persons.” Id. The broad language of the rule is intended to encompass a wide variety of “legal services” directed toward assisting those unable to afford a lawyer.

But that expansive list of activities constitutes only those covered in RPC 6.1(a). RPC 6.1(b) brings additional categories of legal work into the broad definition of pro bono service.² For one, RPC 6.1(b) counts legal services provided at a “substantially reduced fee,” as well as no fee, for organizations promoting a series of public policy-oriented missions. The rule does not define “substantially reduced fee,” leaving those details to the professional judgment of practitioners. This rule is intended, among other things, to promote representation of underfunded nongovernmental organizations pursuing, for example, “First Amendment claims, Title VII claims and environmental protection claims.” RPC 6.1 cmt. 6.

One final type of pro bono service even falls outside the typical category of representing clients at all. RPC 6.1(b)(3) “recognizes the value of lawyers engaging in activities that improve the law, the legal system or the legal profession” and includes a series of non-practice activities, such as volunteering on bar association committees or teaching CLE courses. RPC 6.1 cmt. 8.

Even writing this article in my capacity as a WSBA PBPSC volunteer appears to meet the RPC 6.1(b)(3) definition of pro bono service; i.e., my efforts to “improve” awareness of RPC 6.1 and its details could be viewed as “activities for improving the law, the legal system or the legal profession.” I like to think an article like this helps to support pro bono service in Washington and increases provision of actual “legal service to those unable to pay.” But should writing the article itself qualify as actual pro bono service? Should the rule recognize a distinction between actual “provision of legal services to those unable to pay” and lawyers’ other valuable and commendable contributions to the practice of law?³ The purpose of this article is not to answer these questions—but they are certainly worth exploring, especially when it comes time to make a recommendation as to whether pro bono service reporting should be made mandatory in Washington.

WHAT DOES THE DATA SAY ABOUT PRO BONO SERVICE IN WASHINGTON?

To assess the projected benefits of a rule change, the PBPSC wanted to know: How much pro bono work is being performed in Washington? How many hours are worked and how many lawyers volunteer at least some of their time? Under the current rule, with pro bono reporting entirely optional, different data sets paint very different pictures.

According to the WSBA’s own data gathered from 2019 to 2022, only a small portion of Washington lawyers performed any pro bono service at all. For example, only 8 percent of Washington lawyers (3,047) in 2019 and 5 percent (2,086) in 2022 reported having performed “at least 1 hour of pro bono work” in the relevant year.⁴ The total hours of pro bono work reported by Washington lawyers ranged from 234,691 hours worked (or about 77 hours per lawyer reporting pro bono service) in 2019 to 147,554 hours worked (or about 71 hours per lawyer reporting pro bono service) in 2022. According to this source, pro bono self-reporting is decreasing every year.

These self-reported WSBA numbers appear inconsistent with separate data gathered by the American Bar Association for its 2018 Study: “Supporting Justice: A Report on the Pro Bono Work of America’s Lawyers.” According to that study, which surveyed 47,000 lawyers in 24 states including Washington, “[j]ust over 68% of the [Washington state] attorneys reported having done at least some pro bono in 2016” and Washington had “the lowest percent of attorneys who had never performed pro bono, with only 10% making this claim.” According to the ABA Study, 18.6 percent of Washington lawyers performed at least 80 hours of pro bono work in 2016.

No single source appears to provide a definitive picture and there are reasons to be distrustful of each data set. The WSBA and ABA numbers are entirely voluntary—in fact, the ABA study acknowledged that its survey response rate was only 7.3 percent. It seems reasonably likely that the 7.3 percent who responded to an ABA survey about pro bono service may also be the 7.3 percent most likely to perform pro bono service in Washington. And the WSBA’s data omit all lawyers who perform pro bono service yearly but, for whatever reason, do not report their service on the optional form when it comes time to renew their license.

SHOULD THE WSBA REQUIRE PRO BONO REPORTING?

The apparently inconsistent data sources help to queue up the question that led to the current PBPSC inquiry and this article: Should RPC 6.1 be amended to make pro bono reporting mandatory each year, rather than optional? According to the ABA, 10 states already require licensed lawyers to periodically report their pro bono hours to their respective state bar associations.⁵

A rule change would serve two primary goals. The first would be to make pro bono data collection a priority for the WSBA. With all the existing inconsistent data, how can the WSBA hope to reliably make decisions about pro bono service policy? What are the “real” numbers? Requiring every licensed Washington lawyer to report their hours yearly when they renew their license may present a better, more comprehensive source of reliable data to guide policymaking about pro bono service.

Data collection is not the only potential benefit of a rule change. The second benefit would perhaps be to encourage more Washington lawyers to do some (or more) pro bono work in the year to come, as they look back on the past year and the number of hours they are about to report when renewing their license. A Florida report about pro bono service noted that, when surveying lawyers in Florida (a mandatory reporting state), “almost all interviewees said they think it makes attorneys think once a year about whether they have provided pro bono legal services, and that makes it worth having.” Pro Bono: Looking Back, Moving Forward, Kelly Carmody & Assoc. (2008) at 85, App’x 8.⁶

However, a rule change would come with potential downsides as well. First, many lawyers who perform pro bono service do not keep meticulous records of their work performed. Some lawyers may appreciate that pro bono service does not require the detailed, hour-by-hour tracking of time necessary for billable work. What ethical obligations would a rule change impose on these lawyers? Would additional record-keeping requirements disincentivize performance of the work at all?

A comprehensive list of potential benefits and downsides to a rule change was compiled by the ABA. See sidebar. Some of the listed benefits include that it “encourages fulfillment of professional responsibility,” “provides data essential for design of successful programs,” and “may raise awareness of need for free or reduced fee legal services.” Id. Some downsides include the possibility of unnecessary “administrative costs” and “negative peer pressure,” the difficulty in determining “what type of discipline is appropriate for failure to report,” and the danger of making pro bono work “a negative rather than positive concept if bar members express opposition.” Id.

MORE ONLINE > If you have thoughts about this potential rule change, the PBPSC would love to hear from you! Please direct any questions, comments, or concerns to publicservice@wsba.org.

SIDEBAR

Reasons in Favor of Implementing Voluntary Pro Bono Reporting

Voluntary reporting is less of a burden on attorneys because it is optional.
It is not a threat to constitutional rights.
There is no need to focus energies on discipline.
It is easy to implement.
Voluntary reporting may enable the collection of data.
Data can send a message to non-legal community about their responsibility to fund legal services for [those who cannot afford them.]
It enables recognition of contributing lawyers.
It can be inexpensive.
It facilitates engendering confidence in the Bar.
It may make demographics collectible.
The data can be used to enhance the image of lawyers.
It may raise consciousness about the professional responsibility to provide pro bono legal services.
It may raise awareness of need for free or reduced fee legal services.
It may increase monetary contributions to providers of legal services.

Reasons In Favor of Implementing Mandatory Pro Bono Reporting

It is a simple mechanism for attempting to increase delivery of legal services to [those who cannot afford them] and level of service to community.
It is an effective mechanism for collecting reliable, accurate, consistent data to evaluate delivery of pro bono legal services.
It provides data essential for design of successful programs.
It may increase monetary contributions.
Reporting creates positive peer pressure.
It promotes increased access to justice/courts.
It promotes involvement in pro bono.
Requiring reporting promises high rates of reporting.
Data collected can send a message to non-legal community about their responsibility to fund legal services for [those who cannot afford them].
It enables recognition of contributing lawyers.
It may make demographics collectible.

— Source: ABA, “Pro Bono Reporting,” www.americanbar.org/groups/probono_public_service/policy/arguments/.

Save the Date!

The Second Annual Pro Bono CLE, hosted by the WSBA Pro Bono and Public Service Committee, will occur on Oct. 2, and is available to attorneys, legal professionals, students, and those currently involved with or looking to learn more about what it takes to be involved in pro bono and public service legal work. The purpose is to facilitate access to justice by hosting a conference that helps lower barriers to pro bono work for Washington attorneys, to introduce legal professionals to Washington organizations, and to give Washington organizations an opportunity to recruit and share upcoming events and initiatives. This will be a virtual event (via On24) with facilitated access resources available.

Three CLEs will be available for free and for credit on Oct. 2, from 9 a.m. – 12:30 p.m. for 3 CLE credits including 1 Ethics:

A View from the Bench: Judges’ Perspectives on Pro Bono
Pro Bono Stories: The Impact of Pro Bono From Those Engaged
Pro Bono Ethics: What You Need to Know to Practice

Contact publicservice@wsba.org for more information or to obtain a link to sign up for individual attendance.

About the author

Gabriel Hinman is an associate attorney at Smith Alling P.S. in Tacoma, where he focuses his practice on land use matters and appeals. He chairs the WSBA Pro Bono and Public Service Rules and Policy Subcommittee where he works to enhance access to quality legal representation for all Washingtonians. He can be reached at:

gabe@smithalling.com

NOTES

1. Supporting Justice IV: A Report on the Pro Bono Work of America’s Lawyers, Standing Committee on Pro Bono & Public Service and the Center for Pro Bono (2018) at 44, www.americanbar.org/content/dam/aba/administrative/probono_public_service/other-documents/ls_pb_supporting_justice_iv_final.pdf.

2. “A lawyer’s responsibility under this Rule can be fulfilled either through the activities described in paragraph (a)(1) and (2) or in a variety of ways as set forth in paragraph (b).” RPC 6.1 cmt. 5.

3. Notably, under the current optional pro bono reporting system through the WSBA, lawyers are invited to report both 6.1(a) and 6.1(b) hours worked independently so that the WSBA may separately track hours under both subsections of the Rule. Any recommended rule change would maintain this distinction.

4. Administrative data received from the WSBA Regulatory Services Department.

5. Those states include Florida, Hawaii, Illinois, Indiana, Maryland, Minnesota, Mississippi, Nevada, New Mexico, and New York.

6. Report available at https://supremecourt.flcourts.gov/content/download/242827/file/2008_Pro_Bono_Report.pdf.