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31-36
37-42
43-48
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67-72
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163-168
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223-228
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activities should facilitate participation by government lawyers, even when restrictions exist on their
engaging in the outside practice of law.
[3]Persons eligible for legal services under paragraphs (a)(1) and (2) are those who
qualify for participation in programs funded by the Legal Services Corporation and those whose
incomes and financial resources are slightly above the guidelines utilized by such programs but,
nevertheless, cannot afford counsel. Legal services can be rendered to individuals or to organiza-
tions such as homeless shelters, battered women's centers and food pantries that serve those of
limited means. The term "governmental organizations" includes, but is not limited to, public
protection programs and sections of governmental or public sector agencies.
[4]Because service must be provided without fee or expectation of fee, the intent of the
lawyer to render free legal services is essential for the work performed to fall within the meaning of
paragraphs (a)(1) and (2). Accordingly, services rendered cannot be considered pro bono if an
anticipated fee is uncollected, but the award of statutory attorney’s fees in a case originally accepted
as pro bono would not disqualify such services from inclusion under this section. Lawyers who do
receive fees in such cases are encouraged to contribute an appropriate portion of such fees to
organizations or projects that benefit persons of limited means. In some cases, a fee paid by the
government to an appointed lawyer will be so low relative to what would have been a reasonable fee
-- as in post-conviction death penalty cases -- that the lawyer should be credited for the purpose of
this rule as having rendered the services without fee.
[5]While it is possible for a lawyer to fulfill the annual responsibility to perform pro bono
services exclusively through activities described in paragraphs (a)(1) and (2), to the extent that any
hours of service remained unfulfilled, the remaining commitment can be met in a variety of ways as
set forth in paragraph (b). Constitutional, statutory or regulatory restrictions may prohibit or impede
government and public sector lawyers and judges from performing services the pro bono services
outlined in paragraphs (a)(1) and (2). Accordingly, where those restrictions apply, government and
public sector lawyers and judges may fulfill their pro bono responsibility by performing services
outlined in paragraph (b).
[6]Paragraph (b)(1) includes the provision of certain types of legal services to those whose
incomes and financial resources place them above limited means. It also permits the pro bono
attorney to accept a substantially reduced fee for services. Examples of the types of issues that may
be addressed under this paragraph include First Amendment claims, Title VII claims and
environmental protection claims. Additionally, a wide range of organizations may be represented,
including social service, medical research, cultural and religious groups.
[7]Paragraph (b)(2) covers instances in which attorneys agree to and receive a modest fee
for furnishing legal services to persons of limited means. Participation in judicare programs and
acceptance of court appointments in which the fee is substantially below a lawyer's usual rate are
encouraged under this section.
[8]Paragraph (b)(3) recognizes the value of lawyers engaging in activities that improve the
law, the legal system or the legal profession. Serving on bar association committees, serving on
boards of pro bono or legal services programs, taking part in Law Day activities, acting as a
continuing legal education instructor, a mediator or an arbitrator and engaging in legislative
lobbying to improve the law, the legal system or the profession are a few examples of the many
activities that fall within this paragraph.
[9] Because the provision of pro bono services is a professional responsibility, it is the
individual ethical commitment of each lawyer. Nevertheless, there may be times when it is not
feasible for a lawyer to engage in pro bono services. At such times a lawyer may discharge the pro
bono responsibility by providing financial support to organizations providing free legal services to
persons of limited means. Such financial support should be reasonably equivalent to the value of
the hours of service that would have otherwise been provided. In addition, at times it may be more
feasible to satisfy the pro bono responsibility collectively, as by a firm's aggregate pro bono
activities.
[10] Because the efforts of individual lawyers are not enough to meet the need for free legal
services that exists among persons of limited means, the government and the profession have
instituted additional programs to provide those services. Every lawyer should financially support
such programs, in addition to either providing direct pro bono services or making financial
contributions when pro bono service is not feasible.
[11] Because this Rule states an aspiration rather than a duty, it is not intended to be
enforced through disciplinary process.
See Rule 1.0(l)
There is no counterpart to the Proposed Rule in the Disciplinary Rules. EC 2-25 states that
the "basic responsibility for providing legal services for those unable to pay ultimately rests upon
the individual lawyer. . . . Every lawyer, regardless of professional prominence or professional
workload, should find time to participate in serving the disadvantaged." EC 8-9 states that "[t]he
advancement of our legal system is of vital importance in maintaining the rule of law . . . [and]
lawyers should encourage, and should aid in making, needed changes and improvements."EC 8-3
states that "[t]hose persons unable to pay for legal services should be provided needed services."
The Proposed Rule is identical to ABA Model Rule 6.1 except that the Proposed Rule does
not specify a target with respect to the amount of pro bono legal service each lawyer should render
each year. The target in ABA Model Rule 6.1 is 50 hours each year.
Made
The Memphis Bar Association has voiced a concern about what it perceives to be a
contradiction between the precatory language of the Rule and the statement in Comment [11] that
states that the responsibility set forth in the Rule is not intended to be enforced through the
disciplinary process. Although the Committee believes that Comment [11] is consistent with the
that the Rule is aspirational and that, as a result, it is not intended to be enforced through the
disciplinary process.
PROPOSED RULE 6.2
ACCEPTING COURT APPOINTMENTS
cause, such as:
Conduct or other law;
lawyer; or
the client or the cause is so repugnant to the lawyer as to be likely to impair the
client-lawyer relationship or the lawyer's ability to represent the client.
[1] A lawyer ordinarily is not obliged to accept a client whose character or cause the lawyer
regards as repugnant. The lawyer's freedom to select clients is, however, qualified. All lawyers
have a responsibility to assist in providing pro bono publicoservice. See Rule 6.1. An individual
lawyer fulfills this responsibility by accepting a fair share of unpopular matters or indigent or
unpopular clients. A lawyer may also be subject to appointment by a court to serve unpopular
clients or persons unable to afford legal services.
[2] For good cause a lawyer may seek to decline an appointment to represent a person who
cannot afford to retain counsel or whose cause is unpopular. Good cause exists if the lawyer could
not handle the matter competently, see Rule 1.1, or if undertaking the representation would result in
an improper conflict of interest, for example, when the client or the cause is so repugnant to the
lawyer as to be likely to impair the client-lawyer relationship or the lawyer's ability to represent the
client. A lawyer may also seek to decline an appointment if acceptance would be unreasonably
burdensome, for example, when it would impose a financial sacrifice so great as to be unjust.
[3] An appointed lawyer has the same obligations to the client as retained counsel, including
the obligations of loyalty and confidentiality, and is subject to the same limitations on the
client-lawyer relationship, such as the obligation to refrain from assisting the client in violation of
the Rules.
See Rule 1.0(m)
“Unreasonable”See Rule 1.0(i)
There is no counterpart to the Proposed Rule in the Disciplinary Rules. EC 2-29 states that
when a lawyer is "appointed by a court or requested by a bar association to undertake
representation of a person unable to obtain counsel, whether for financial or other reasons, the
reason. Compelling reasons do not include such factors as the repugnance of the subject matter of
the proceeding, the identity or position of a person involved in the case, the belief of the lawyer that
the defendant in a criminal proceeding is guilty, or the belief of the lawyer regarding the merits of
the civil case." EC 2-30 states that "a lawyer should decline employment if the intensity of the
lawyer’s personal feelings, as distinguished from a community attitude, may impair his effective
representation of a prospective client."
Additional details that were included in the Preliminary Draft were deleted so that the Rule
would conform with the ABA Model Rule. The additional detail was not sufficiently important to
warrant departing from the Model Rule.
Made
PROPOSED RULE 6.3
MEMBERSHIP IN LEGAL SERVICES ORGANIZATION
law firm in which the lawyer practices, notwithstanding that the organization serves persons having
interests adverse to a client of the lawyer. The lawyer shall not knowingly participate in a decision
or action of the organization:
obligations to a client under Rule 1.7; or
representation of a client of the organization whose interests are adverse to a client
lawyer.
[1] Lawyers should be encouraged to support and participate in legal service organizations.
A lawyer who is an officer or a member of such an organization does not thereby have a
client-lawyer relationship with persons served by the organization. However, there is potential
conflict between the interests of such persons and the interests of the lawyer's clients. If the
possibility of such conflict disqualified a lawyer from serving on the board of a legal services
organization, the profession's involvement in such organizations would be severely curtailed.
[2] It may be necessary in appropriate cases to reassure a client of the organization that the
representation will not be affected by conflicting loyalties of a member of the board. Established,
written policies in this respect can enhance the credibility of such assurances.
See Rule 1.0(f)
“Law Firm”See Rule 1.0(d)
“Material”See Rule 1.0(g)
Made