In preparing recently for a CLE program on ethical issues in pro bono service, I had the opportunity to review a wide range of ethics rules, opinions, practice/admission rules and court decisions on the topic. Taking a broad look at the interplay of ethics rules and the ever-worsening crisis in access to justice reveals that the current framework of ethics guidance for lawyers and judges often impinges upon important and innovative approaches to access to justice.
Today, more than ever, the law is both a business and a profession. Heightened competition, lower client demand, a misallocation of legal talent that looks like oversupply from the perspective of lawyers and inaccessibility in the experience of all but the wealthiest of clients, a shaky recovery from the Great Recession — all of these factors combined have made the legal community more concerned and protective of their economic well-being than ever before.
The two key elements of our identity as professionals are service to others and a willingness to rigorously regulate ourselves. The ethics rules and codes that govern our behavior, while not wholly unique, are among the strongest and most impactful of all the professions, and their purpose is both to inform the behavior of lawyers and to protect clients. Increasingly, however, those rules and codes are out of step with today’s justice system and are viewed through a lens of economic protectionism rather than client service.
In the pro bono and public interest context, this often results in the creation of unnecessary obstacles to pro bono service and access to justice. Here are a few examples:
Multijurisdictional Practice. In an era of lawyer mobility, advances in technology and the growth of multijurisdictional clients and practice, the current state-by-state admission and regulation of lawyers seems dated. While framed in the context of client protection, these rules seem far more grounded in lessening competition for clients. The fact that admission and practice requirements in many states limit not only commercial practice but also the ability to undertake pro bono work at a time when it is desperately needed is particularly troubling. In the in-house context, for example, current rules in many jurisdictions are either silent or impose unnecessary limitations on the ability of in-house lawyers licensed and in good standing in one state but working for their corporate client in another to undertake pro bono work. The problem is not limited to in-house counsel. Regional, national and global law firms and public interest groups handling multijurisdictional pro bono matters also experience difficulties. While pro hac vice is seen as a solution, it is a cumbersome and inefficient approach if our goal is to promote and grow pro bono service.
Student Practice Rules. A consensus has emerged that today’s law students need to develop practice skills to make them more marketable in this dismal legal economy. And decades of experience with law school clinical and pro bono programs demonstrates that law students can be effective pro bono advocates. In many states, however, student practice rules that have been on the books for many years are unduly restrictive and complex.
Code of Judicial Conduct. At a time when the judiciary can and must be a critical element in enhancing pro bono and access to justice, varying state interpretations of the Code of Judicial Conduct and uncertainty about what is permissible can have a chilling effect. For example, some judges believe that it is desirable but impermissible for them to play a role in recruiting or acknowledging pro bono volunteers. In other jurisdictions, the bench feels constrained in supporting efforts to increased funding and resources for civil legal aid. While courts in some jurisdictions are actively partnering with pro bono groups, law firms and legal departments, those in other states are concerned that creating partnership projects may be seen as impairing their objectivity and independence. As key stakeholders and influencers, judges must have the clear capacity to undertake a wide range of activities to promote and improve access to justice.
Unbundled Services. The “justice gap,” along with client cost concerns and desire for more control of their cases, have resulted in a flood of self-represented litigants and driven a movement to enable lawyers to provide discrete, unbundled legal assistance. In a number of jurisdictions, courts and lawyers have embraced this development. In others, the ethics rules have not kept pace with these developments. Judges are uncertain about the role they can and should play when one or both parties are not represented by counsel, and lawyers are concerned that providing limited-scope representation may be considered unethical. Not all clients want or can afford full-service representation, but their choice is not consistently respected or supported by existing ethics rules.
Conflict of Interest. Avoiding conflict of interest is an essential element of ethical legal practice. However, overdefining conflicts has a devastating impact on pro bono capacity. Ethics rules and court decisions need to more stringently define the parameters of potential conflict situations. Particularly concerning is the notion of “imputed disqualification,” the ethical construct that if one lawyer in a large legal setting has a conflicts issue, all lawyers in that institution are presumed to share the same information and conflict. We must ensure an approach that protects client confidences and loyalty while not unduly limiting pro bono due to a presumption that in larger legal settings is unrealistic and unwarranted.
The issues cited above are only the tip of the iceberg. A critical element of solving the access-to-justice crisis is a broad-ranging, critical review and reassessment of current ethical and practice rules that in today’s legal world have a dampening effect on innovations. And we must promote and support initiatives that can improve access to justice, including the use of technology by legal aid and pro bono lawyers; increased use of nonlawyers; taking full advantage of the large “boomer lawyer” generation as they move out of commercial legal practice; and incentivizing pro bono service by offering CLE credit for experiential learning in pro bono matters.
In these and other areas, our ethics framework has not kept pace with the changes in law practice and the status of access to justice and pro bono service. If, as a profession, we do not act, the pressures of the current crisis may be addressed instead by governmental entities at the cost of our profession’s independence and autonomy in regulation.
Esther F. Lardent is the president and chief executive officer of the Pro Bono Institute.