Aspirational, Not Mandatory

Aspirational, Not Mandatory

Rule 6.1 opens with a flat statement of responsibility and then softens the verb. “Every lawyer has a professional responsibility to provide legal services to those unable to pay,” it begins, and continues: “A lawyer should aspire to render at least (50) hours of pro bono publico legal services per year.”¹ The operative word is aspire. Elsewhere in the Rules of Professional Conduct, mandatory directives govern a lawyer's conduct, and Rule 6.1 departs from them on purpose.² Reading should as shall turns an aspiration into a disciplinary offense. An exam stem about a lawyer who did no pro bono work invites exactly that mistake.

The scope of the responsibility is as broad as its sanction is weak. Comment 1 applies it to “every lawyer, regardless of professional prominence or professional work load.” Even so, the framers of the Model Rules thought it inappropriate to define the obligation in a way that formally binds all lawyers, or to enforce it through disciplinary sanction.³ The practice of the states follows that judgment. No state has imposed a mandatory pro bono requirement. A few require lawyers to report each year how many hours they contributed, and many invite voluntary reporting.⁴ Reporting asks a lawyer to disclose a number. A report of zero hours records a fact about the year and does not, by itself, establish that the lawyer broke a rule.

Rule 6.2 is the rule to hold beside Rule 6.1. It says: “A lawyer shall not seek to avoid appointment by a tribunal to represent a person except for good cause.”⁵ The two rules differ in who has asked. Under Rule 6.2, a tribunal has already chosen a lawyer for a particular person. Under standard practice, courts appoint only lawyers who have volunteered to be available and who have shown experience and competence in the type of case, and appointed lawyers typically are entitled to payment.⁶ Rule 6.1 involves no such request. Its responsibility runs to “those unable to pay” generally, and no one asks any particular lawyer to take any particular matter. That difference explains why one rule uses “shall” and the other “should aspire.”

One objection remains: a responsibility that no one enforces may seem to be only a suggestion. Professors Geoffrey Hazard and William Hodes and attorney Peter Jarvis answer that “the obligation is still a ‘real’ one, for the very lack of an enforceable duty heightens the moral duty.”⁷ With no outside sanction behind it, the duty rests on the lawyer's own conscience, and that dependence strengthens it. The rule supplies a concrete target for that conscience, and the next section turns to the fifty-hour figure.