As the “justice gap” continues and worsens with more low-income and disadvantaged clients in need of diminishing legal aid resources, policymakers, the courts and the legal profession are seeking to address the crisis in access to justice, in part, by increasing sources of legal assistance including pro bono service.
The most recent pro bono initiative, undertaken by the New York court system, which took effect May 1, requires all lawyers admitted to practice in New York to report their pro bono time and financial contributions as part of their biennial registration report. Under that new rule, information on individual lawyers will be available to the public. The rule has encountered opposition from the New York State Bar Association, which does not support mandatory pro bono reporting and also views the public availability of information under the rule as an invasion of privacy.
Despite the fact that eight jurisdictions have put a mandatory pro bono reporting requirement in place beginning in 1993, there has been no evidence-based, rigorous analysis of the impact of mandatory reporting. Proponents and opponents alike, in the absence of reliable data and research, often make unwarranted assumptions about the benefits and drawbacks of reporting. While we at the Pro Bono Institute have not undertaken the in-depth investigation that this issue deserves, we have reviewed the publicly available data in the context of the Pro Bono Institute’s almost two decades of experience in pro bono reporting and have found that many misconceptions exist.
Mandatory pro bono reporting inevitably leads to mandatory pro bono requirements. FALSE
As noted above, mandatory reporting has been in place in one jurisdiction — Florida — for more than 20 years, and there is no mandatory pro bono in that jurisdiction or in the other six jurisdictions that put mandatory reporting in place between 2002 and 2008.
Mandatory pro bono reporting improves pro bono performance. FALSE/UNPROVEN
In the absence of more exhaustive research and more in-depth recordkeeping and statistical analysis by the seven states that have experience with mandatory reporting, it is difficult to draw any definitive conclusions on the impact of reporting on overall pro bono performance, but the limited data available certainly do not support the conclusion that mandatory pro bono reporting per se increases pro bono hours. In Florida, for example, where the number of bar members has almost tripled since mandatory reporting was introduced, 52 percent of lawyers self-reported pro bono participation in 2000. A report by an independent consultant in 2008 found that the level of pro bono participation in that state “has remained stagnant for the past seven years.” In Mississippi, pro bono hours reported declined from 179,385 in 2008-2009 to 120,469 hours in 2012-2013. In Illinois, while pro bono increased slightly in four of the five years since mandatory pro bono reporting was implemented, it declined slightly in 2011. Other factors — including the impact of the Great Recession on lawyer headcount and employment; the fact that the definition of pro bono for purposes of reporting varies somewhat from jurisdiction to jurisdiction; and the number of mandatory reporting jurisdictions that include activities to improve the bar and the legal profession as part of those definitions, thereby overstating the amount of direct service to clients — make year-over-year and jurisdiction-by-jurisdiction comparisons difficult and unreliable.
The impact of mandatory pro bono reporting is also unproven because the goals and effect are neither clearly defined nor carefully considered. In reviewing the rationale for mandatory pro bono, three goals/effects are typically cited:
1. The need to understand the pro bono landscape. This goal is the most credible and defensible. Voluntary pro bono reporting is subject to bias, and many attorneys do pro bono work outside of the formally established pro bono programs operated by legal aid and bar association programs, so mandatory reporting may be the best vehicle for getting an accurate picture.
2. The “aha” moment. This rationale assumes that the consciousness of pro bono service or the lack of it that comes when reporting pro bono annually or biennially results in a greater likelihood of pro bono service.
3. Shame and blame. This approach, applicable only if individual pro bono information is publicly available, assumes that concern about reputation and professional identity will lead attorneys who otherwise would not perform pro bono service to do so to avoid being identified as unsupportive and uncharitable.
The reality is that there has been no research or testing, at least in the context of the legal profession, of the assumptions underlying approaches 2 and 3.
Pro bono reporting is easily administered and reliable. FALSE
Since 1996, the Pro Bono Institute has administered its Law Firm Pro Bono Challenge, and under the terms of the challenge, major law firms that are challenge signatories annually report their pro bono data to the institute. Despite a much smaller group of reporters (140 law firms as opposed to tens of thousands of lawyers in a variety of practice settings), the task of assembling, reviewing and analyzing the pro bono data we receive is arduous, time-consuming and complex. With only one consistent definition, and 16 years of developing the most consistent understanding of fleshing out what is included in that definition, we still see errors and still field numerous subtle “what counts” inquiries. Imagine, then, how much more difficult and resource-intensive overseeing individual mandatory reporting in any meaningful fashion must be for the courts and other bar admissions and practice entities.
The debate about the wisdom of mandatory pro bono reporting will undoubtedly continue. Given the analysis above, this approach may be infeasible and unwise in some jurisdictions — those, for example, with robust pro bono cultures — and doable in others. It is my hope that researchers will take on the important task of probing and analyzing the information and data currently available so that jurisdictions weighing the costs and benefits of this approach will do so with hard facts and clear goals in mind.
Esther F. Lardent is president and chief executive officer of the Pro Bono Institute. So Jin Kim, a Sheehan Fellow at PBI and a rising 2L at Harvard Law School, provided research and thoughtful perspective.