Additional Services Under Rule 6.1(b)

Additional Services Under Rule 6.1(b)

Paragraph (b) governs the pro bono hours left over once a lawyer has provided the core service of paragraph (a). It tells the lawyer to “provide any additional services through” three channels: no-fee or substantially reduced-fee service to rights-protecting groups and to certain charitable and similar organizations; substantially reduced-fee service to persons of limited means; and participation in activities for improving the law, the legal system, or the legal profession.¹ The word additional carries the structure. Paragraph (a) directs a substantial majority of the fifty hours to no-fee service for its listed recipients, and paragraph (b) addresses the rest.² Together the two paragraphs describe a core and a periphery, and the periphery admits a wider range of worthwhile work.

The three channels depart from the core in three different ways. The first reaches groups and organizations that work to secure civil rights, civil liberties, or public rights, along with charitable and similar organizations pursuing their own purposes. The second serves persons of limited means but leaves them paying a reduced fee. The third involves no individual client at all, because its beneficiary is the legal system or the profession. Each is real public service, yet a lawyer could perform any one of them without giving free help to a single person of limited means, and the rule’s opening sentence ties the lawyer’s responsibility to “those unable to pay.”³ Ranking these channels second keeps the rule centered on those who cannot pay, and it still credits the profession for valuable work outside the core.

Because the channels differ in their recipients and in how they treat fees, each deserves its own look. The first, service to rights-protecting groups and to charitable and similar organizations, comes next, and the other two follow in turn.

Civil Rights and Organizations

Rule 6.1(b)(1) covers two kinds of clients. The first is “individuals, groups or organizations seeking to secure or protect civil rights, civil liberties or public rights.” The second is “charitable, religious, civic, community, governmental and educational organizations in matters in furtherance of their organizational purposes.” The lawyer serves them “at no fee or substantially reduced fee,” and only “where the payment of standard legal fees would significantly deplete the organization's economic resources or would be otherwise inappropriate.”⁶ This is the first additional-service channel, and it ranks behind the no-fee core of paragraph (a).⁷

Both kinds of client pursue a purpose, whether protecting rights or advancing an organization’s mission, and a standard fee takes money from that pursuit. A lawyer who waives or sharply reduces the fee leaves the money for the purpose, and the public benefit travels through the client. The same mechanism explains the ranking. The client need not consist of people unable to pay, so those people benefit, if at all, only through the organization, and the rule’s opening sentence is served less directly than it is by free work for persons of limited means.⁸

The qualifier at the end of the provision screens the clients, and it has two alternative triggers: standard fees would significantly deplete the organization’s economic resources, or standard fees would be otherwise inappropriate. The text does not say what else might make a standard fee inappropriate, so a fact pattern will most often supply the depletion branch. Without the qualifier, a discount to any client of a listed type would count, even a client that can pay without strain. That discount would help someone who did not need help, and the hours would earn credit although no one was spared a barrier of cost. Tying the discount to need keeps the tier aimed at organizations whose work a standard fee would actually cut into.

Need shows up in facts about the client’s budget and about what a standard fee would consume.

Paragraph (b)(1) borrows its list of organization types from Rule 6.1(a)(2), and that overlap is the usual source of confusion. Paragraph (a)(2) asks whether the matter is “designed primarily to address the needs of persons of limited means,” and it requires service without fee or expectation of fee.⁹ Paragraph (b)(1) asks whether the matter furthers the organization’s own purposes, permits a substantially reduced fee, and adds the fee-depletion qualifier.¹⁰ Suppose a charitable arts society needs a lease for its studio, a matter that has nothing to do with the needs of poor people. The lease falls outside paragraph (a)(2), but it can qualify here if standard fees would significantly deplete the society’s budget.

Most errors come from stopping at the first step. A stem that names a charity and a discounted rate has not yet said whether the qualifier is met, and a discount, however deep, does not turn work for a well-funded client into additional service.

Reduced Fees for the Poor

Rule 6.1(b)(2) names the second channel of additional service: the “delivery of legal services at a substantially reduced fee to persons of limited means.”¹³ This work is sometimes called “low bono” service.¹⁴ Here the client is an individual, which invites a direct comparison with the no-fee core of paragraph (a).

Both provisions serve persons of limited means, so the fee is the only variable. Paragraph (a) directs a substantial majority of the fifty hours to such persons “without fee or expectation of fee,” while paragraph (b)(2) accepts a fee as long as it has been substantially reduced.¹⁵ The ordering follows the structure of the rule. After a lawyer has addressed the uncompensated service that is the rule’s primary purpose, Rule 6.1(b) encourages additional services, and substantially reduced-fee work for persons of limited means is one of them.¹⁶

Persons of limited means do not all stand at the same point. Some can pay nothing, and others can pay something but not the lawyer’s usual rate. A fee that such a client can manage brings the lawyer’s help within reach, and because the lawyer is paid something, the arrangement stays sustainable for a practice that lives on billable income. A fee, even a low one, is still a price, and the poorest clients may be unable to pay any price, so the no-fee core ranks first and reduced-fee work counts as an addition to it.

The word substantially keeps the category honest. The text supplies no percentage, so the word has to be read against the purpose of the tier, and a reduction counts when it is large enough to change what the client can afford. A trivial discount leaves the client facing nearly the same price as any paying customer, so the barrier of cost still stands. Crediting those hours would let a lawyer count ordinary billable work as public service. An exam question on this provision will often test the word by describing a courtesy discount, and the question to ask is how much of the usual price the lawyer actually gave up.

The client element holds as well. A deep discount for a client who can pay the usual rate without strain is generous, but the person served is not a person of limited means, so the hours fall outside Rule 6.1(b)(2) however large the reduction.

Step two does the sorting that most exam stems turn on. A stem that mentions a bill, however small, has already ruled out the core, so the only live question is whether the reduction is substantial.

Improving the Law and the Profession

Rule 6.1(b)(3) names the third and last channel of additional service: “participation in activities for improving the law, the legal system or the legal profession.”²¹ Like the other two channels, it comes after the uncompensated service that is the rule’s primary purpose, and it supplements that service without replacing it.²² What sets this channel apart is the absence of a client. The first channel serves organizations, and the second serves an individual of limited means at a reduced fee, so each raises a question about what the client pays. Here the lawyer represents no one, so there is no fee to examine, and the beneficiary is the law, the legal system, or the profession itself.

The text names three things that may be improved, and each points to a different kind of activity. Improving the law covers work on the content of statutes and rules, such as drafting model legislation. Improving the legal system covers work on how disputes are decided, such as streamlining court procedures. Improving the legal profession covers work on the standards and practices of lawyers themselves. Keeping the examples inside those three objects matters, because the provision credits activity aimed at improving one of them and leaves out civic or social involvement that has no such aim.

The rule reaches beyond individual representation because of what one act of reform can do. A representation resolves one person’s problem, while a better procedural rule or a clearer statute changes the position of everyone who afterward comes within it. Society gains as well, because the justice system is strengthened and rights and freedoms are made more secure by the continuing public service of the members of the legal profession.²³

The same feature that gives the work its reach explains why it ranks as additional service. Paragraph (a) directs a substantial majority of the fifty hours, without fee or expectation of fee, to persons of limited means and to organizations in matters designed primarily to address their needs.²⁴ Law-improvement activity fits neither description, because it serves no individual and reaches people unable to pay only indirectly, along with everyone else who uses the system. The rule’s opening sentence ties the whole responsibility to those unable to pay, so the rule keeps most of the hours aimed at them and treats reform as a valued supplement.²⁵ A lawyer who spent all fifty hours on a bar committee would therefore have filled the second tier and left the core empty, although the rule’s aspirational wording makes that a point about priorities and not a violation.

Exam stems blur this category by attaching legislative or committee activity to a lawyer’s year and asking whether it counts. The legislative setting settles nothing, because the provision credits activity for improving the law, the legal system, or the profession, and the purpose of the work decides whether it qualifies.

Both lawyers worked on legislation, and the difference lies in whom the work serves. The first lawyer’s effort ends in a benefit for one paying client, while the second lawyer’s effort ends in a changed rule available to everyone. Even for the second lawyer, the hours do not count toward the substantial majority that paragraph (a) reserves for no-fee service to its listed recipients.²⁶