Tennessee Rule 6.1

Its Origin, Evolution and Impact

Tennessee Rule of Professional Conduct 6.1 has been around for a decade (since March 1, 2003), when the Tennessee Rules of Professional Conduct (TRPC) first became effective.[1] The original version of TRPC 6.1, unlike its ABA Model Rule counterpart, did not contain the aspirational goal of “at least 50 hours of pro bono public legal services per year.”[2] Instead, it provided simply that “a lawyer should render pro bono publico legal services.”[3] In 2009, however, the Tennessee Supreme Court amended TRPC 6.1, and it now mirrors the same aspirational goal set out in the model rule.[4] This is just one of many rule changes implemented in the past several years to strengthen TRPC 6.1 and enable attorneys to live up to its aspirations, as the timeline beginning on the next page shows.

During that time, the Tennessee Supreme Court, its newly formed Access to Justice Commission, and the Tennessee Bar Association (TBA) have worked together to prioritize access to justice. This article catalogues a number of examples of such efforts and urges attorneys to incorporate this priority in their own practice.

The current version of TRPC 6.1 encourages attorneys to render at least 50 hours of pro bono service each year.[5] The rule, adopted at the TBA’s urging, further admonishes that a “substantial portion” of these services should be rendered for no fee for persons of limited means or organizations designed to serve the needs of persons of limited means.[6] Any remainder of the pro bono services an attorney provides should be through delivery of legal services for no charge or “at a substantially reduced fee” to organizations that protect rights or charitable organizations when those organizations’ resources would be significantly depleted if they had to pay standard legal fees, or to persons of limited means at significantly reduced fees, or participation in activities to improve the law, the legal system, or the legal profession.[7] In addition to providing legal services, TRPC 6.1 admonishes attorneys to provide financial support to organizations that provide legal services to persons of limited means.[8] These obligations are imposed on all lawyers, regardless of prominence or workload, and regardless of whether they practice civil or criminal law.[9]

With respect to the obligation to provide financial support to legal services organizations, Comment 9 recognizes that there are times when it may not be feasible for an attorney to provide pro bono services. At those times, the attorney should discharge his or her responsibility for providing pro bono service by providing financial support to legal services organizations in an amount roughly equivalent to the value of the hours of service that would have otherwise been provided.[10] Imagine the impact if every attorney who was unable to render pro bono services in a year donated an amount equal to her hourly rate multiplied times the TRPC 6.1 goal of 50 hours. The impact would be great, but only equal to the impact that each attorney performing at least 50 hours of pro bono service would have. The Tennessee Bar Association and the Tennessee Supreme Court have recognized the need for pro bono services and taken many actions during the past several years to encourage and facilitate pro bono work.

Consistent with TRPC 6.1, within the past decade, the TBA has campaigned to encourage law firms and organizations with legal departments throughout the state to adopt formal policies encouraging their employees to perform pro bono service.[11 ]To date, the TBA has recognized more than 50 firms that have adopted such policies.[12]

Moreover, programs in different cities throughout Tennessee have begun to encourage law firms to lead the charge on tackling specific areas of need and/or specific populations in need of legal assistance by becoming “pillar” firms and providing pro bono services to address those needs or assist those populations.[13] Several firms in Nashville have committed to becoming pillar firms. In the past year, the TBA and the Access to Justice Commission held meetings in Memphis and Knoxville to encourage firms in those cities to become pillar firms as well. Initiative from individual lawyers and law firms is indispensable to the assurance that all residents of Tennessee will have access to justice. Also important in increasing access to justice for the indigent residents of our state are the support the Tennessee Supreme Court has given to this issue and the rule changes it has implemented (often with support and assistance from the TBA) to encourage attorneys to provide more pro bono service and to facilitate that service.

How It Came About

In December 2008, the Tennessee Supreme Court expressly made access to justice a priority. In April 2009, it established the Access to Justice Commission, which was charged with (1) promoting pro bono work, (2) advocating for changes in laws, rules, and policies to increase access to justice, (3) educating the public, and (4) increasing resources.[14] The commission began meeting and announced its strategic plan in June 2010. In January 2011, a pro bono summit was held. The effects of the Tennessee Supreme Court’s priorities and the commission’s work (with collaborative support from the TBA) are evident in part in the rule changes that have gone into effect since December 2008.

On April 3, 2009, around the same time the commission was formed, the Tennessee Supreme Court amended TRPC 6.1 to include a minimum number of annual pro bono hours as the aspirational goal of all attorneys licensed to practice law in Tennessee.[15] This amendment adopted some of the language in the ABA Model Rule virtually verbatim: “[A] lawyer should aspire to render at least 50 hours of pro bono publico legal services.”[16]

However, the amendment did not include the word “voluntary” as it appears in the title of the ABA Model Rule.[17] TRPC 6.1 identifies the additional duty of attorneys to “voluntarily contribute financial support to organizations that provide legal services to persons of limited means.”[18] However, the remaining obligations of TRPC 6.1 are not described as “voluntary.” Though comments emphasize that the number of hours is an aspiration rather than a mandatory ethical duty and therefore should not be enforced through a disciplinary process,[19] they also emphasize that providing pro bono legal services is a professional responsibility and ethical commitment every attorney must make.[20] The frequent use of the word “responsibility” in TRPC 6.1 stands in stark contrast to the term “voluntary.” The number of hours of pro bono service performed may be an aspirational goal, but the professional and ethical responsibility to perform pro bono services is a duty.

Making It Easier to Report

In amending TRPC 6.1 to include the goal of providing at least 50 hours of pro bono services each year, the Tennessee Supreme Court was acting on a petition presented by the Tennessee Bar Association. This petition also asked the court to require each lawyer “to respond to a request for a report of the number of hours spent per year on pro bono legal services.”[21] The Tennessee Supreme Court did not grant this request, but instead took it under advisement and referred it “to the Access to Justice Commission for its consideration and recommendation.”[22] In the meantime, as a result of the adoption by the Tennessee Supreme Court of new Section 20.11 to TSCR 9 on Nov. 2, 2009, attorneys have the opportunity to report the number of hours of pro bono legal services they perform each year when they renew their registration with the Board of Professional Responsibility.[23 ]Currently, every lawyer who must file an annual registration statement with the Board of Professional Responsibility is asked to “also voluntarily file a pro bono reporting statement, reporting the extent of the lawyer’s pro bono legal services and activities during the previous calendar year.”[24] Lawyers are also asked to disclose whether they made any voluntary financial contributions under TRPC 6.1(c) (but not to disclose the amount).[25]

The information attorneys disclose in response to these requests is to be kept confidential, but the Board of Professional Responsibility “may compile statistical data derived from the statements” that does not identify individual attorneys and release that data to the public.[26] Last June, 46 percent of attorneys in Tennessee reported performing pro bono legal services.[27]

“So far, approximately 3,860 lawyers with Tennessee law licenses residing in Tennessee reported 329,285 hours of pro bono work,” according to the court.[28] This is a dramatic increase, reflecting the highest level of reporting since voluntary pro bono reporting began in 2009.[29] The commission has a goal of having 50 percent of attorneys or more report next year, commission chair George T. “Buck” Lewis said in a release.[30] In addition to setting an aspirational goal for the number of hours of pro bono service performed each year, and emphasizing the importance of meeting that goal by inviting attorneys to report on their pro bono service each year, the court has effected a number of additional rule changes to encourage and facilitate the provision of pro bono services by attorneys each year.

Seals of Recognition to Be Awarded

To encourage individual attorneys to meet or exceed the aspirational goal of performing 50 hours of pro bono service each year, the court has announced a new initiative, proposed by the commission as part of its 2012 Strategic Plan. As each attorney reports the number of pro bono hours worked in order to renew his or her license, the court will review the reports and identify those who have met or exceeded the 50-hour goal. Each attorney who meets or beats the goal will receive permission to place a seal evidencing this achievement on his or her website, or other promotional materials. The court will also provide a model press release for the attorney to use in announcing this achievement. Additionally, a separate seal is available to a law office whose attorneys collectively average 50 hours or more of pro bono legal services during a year. The court will begin issuing these seals of recognition based on hours of pro bono service performed during 2013.

The Tennessee Supreme Court and the Access to Justice Commission, as well as the Tennessee Bar Association, have led the way in prioritizing access to justice and pro bono service as every attorney’s obligation and in facilitating and encouraging the provision of pro bono service, especially to persons of limited means. This leadership and standard setting is remarkable and to be envied by other states.

In terms of TRPC 6.1, making every Tennessee lawyer recognize the professional and ethical responsibility to provide pro bono representation cannot be the priority of only the court, the commission and the TBA. Each Tennessee attorney must not only recognize the responsibility by providing the hours of pro bono urged by TRPC 6.1 but must also take up the mantle and make pro bono a priority in his or her practice. When this happens, attorneys will not chafe at reporting their annual pro bono service hours; they will be anxious to do so.

Notes

  1. Tennessee Rules of Professional Conduct (2003); effective date March 1, 2003, pursuant to In re: Tennessee Rules of Professional Conduct, Case No. M2000-02416-SC-RL-RL (Tenn. Aug. 27, 2002).
  2. Model Rules of Professional Conduct R. 6.1(1993).
  3. Supra, n.1.
  4. In re: Pro Bono Service Rules Amendments, Case No. M2008-01403-SC-RL1-RL, (Tenn. Apr. 3, 2009).
  5. TRPC 6.1.
  6. TRPC 6.1(a)(1), (2).
  7. TRPC 6.1(b)(1), (2), (3).
  8. TRPC 6.1(c).
  9. TRPC 6.1, Cmt. 1.
  10. TRPC 6.1, Cmt. 9.
  11. TRPC 6.1, Cmt. 11 (“Law firms should act reasonably to enable and encourage all lawyers in the firm to provide the pro bono legal services called for by this Rule.”).
  12. http://www.tba.org/resource/tennessee-law-firms-adopt-pro-bono-policies.
  13. See e.g.: http://www.tba.org/news/firms-invited-to-learn-about-pillar-law-firm-pro...
  14. Tennessee Supreme Court Rule (TSCR) 50.
  15. Supra, n. 4.
  16. TRPC 6.1; Model Rules of Professional Conduct, R. 6.1 Voluntary Pro Bono Publico Service: “Every lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should aspire to render at least 50 hours of pro bono publico legal services per year. In fulfilling this responsibility, the lawyer should:
    (a) provide a substantial majority of the 50 hours of legal services without fee or expectation of fee …”
  17. TRPC 6.1: “Pro Bono Publico Service”; Model Rule of Professional Conduct R 6.1 (“Voluntary Pro Bono Publico Service”).
  18. TRPC 6.1(c) (emphasis added).
  19. TRPC 6.1, Cmt. 12 (“Because this Rule states an aspiration rather than a mandatory ethical duty, it is not intended to be enforced through disciplinary process.”).
  20. TRPC 6.1, Cmt. 9 (“Because the provision of pro bono services is a professional responsibility, it is the individual ethical commitment of each lawyer.”); Cmt. 1 (“Every lawyer … has a responsibility to provide legal services to those unable to pay …”).
  21. Petition of the Tennessee Bar Association at 7, In re: Pro Bono Service Rules Amendments, Case No. M2008-01403-SC-RL1-RL (Tenn. Apr. 3, 2009).
  22. In re: Pro Bono Service Rules Amendments, Case No. M2008-01403-SC-RL1-RL (Tenn. Apr. 3, 2009).
  23. http://www.tbpr.org/portal/AttorneyPortalTutorial.aspx
  24. TSCR 9, Section 20.11.
  25. Ibid.
  26. Ibid.
  27. http://www.tncourts.gov/press/2012/06/ 25/tennessee-attorneys-reporting-more-pro-bono-hours
  28. Ibid.
  29. Ibid.
  30. Ibid.

JOHN T. BLANKENSHIP is the senior partner in the law firm of Blankenship & Blankenship in Murfreesboro, where he practices in the areas of commercial law including construction and real estate litigation, arbitration and mediation. He is a member and past chair of the Tennessee Bar Association’s Dispute Resolution Section; member and past chair of the TBA Access to Justice Committee; and a member of the TBA Standing Committee on Ethics and Professional Responsibility. He received his law degree from the University of Tennessee College of Law and his LL.M. in dispute resolution from the University of Missouri School of Law.

ALEX MACKAY is a member of Stites & Harbison PLLSC in Nashville, assisting clients in litigation and transactional matters involving intellectual property. She is co-chair of the firm's Diversity Committee, serves on the board of the Tennessee Justice Center, and is chair of the Tennessee Bar Association’s Access to Justice Committee. She received her law degree from the University of Michigan in 2000.