Financial Support for Legal Aid

Financial Support for Legal Aid

The final sentence of Rule 6.1 turns from service to money: “In addition, a lawyer should voluntarily contribute financial support to organizations that provide legal services to persons of limited means.”¹ The wording marks it as encouragement. Should and voluntarily together say what the profession hopes for, not what it demands, and the sentence sets no dollar amount against which a lawyer's generosity could be measured.

The sentence sits beside the responsibility the rule announces at its start: “Every lawyer has a professional responsibility to provide legal services to those unable to pay,” with an aspiration of at least fifty hours of pro bono publico service per year.² A check to a legal aid organization provides no legal services itself. It supports an organization that does.

The phrase to remember is in addition. Rule 6.1 encourages financial support in addition to, but not as a substitute for, providing pro bono legal services.³ A question that describes a gift to a legal aid society invites the conclusion that the lawyer has done enough, and that conclusion skips a step. Two separate questions arise: whether the lawyer met the hours aspiration, and whether the lawyer also gave the extra support the last sentence encourages.

State rules need not copy the Model Rule, and Schwarz v. Kogan shows a different design surviving a challenge. The Florida rule at issue let Bar members substitute a legal aid contribution of $350 for a donation of legal services.⁴ The court did not ask whether that option was wise. Under rational-basis review it asked only whether there was a “conceivable basis” for the substitution, and it found “an entirely rational basis,” especially since nothing in the rule required Bar members to donate either time or money to the indigent.⁵ It also found the choice of $350 not irrational, because a larger amount might discourage voluntary contributions or encourage a perception that the provision benefits only wealthy attorneys.⁶

The court conceded that the other side had reasonable arguments. It cited a special concurrence that saw “an inherent inequality when those who cannot pay are asked to provide twenty hours of work, and those with money can ‘buy out’ for the value of a few hours.” Even so, it said its task was not to decide whether the justifications for the buy-out were more persuasive than the objections.⁷

The two designs part ways on the very point this unit has stressed. The Model Rule asks for money in addition to service, while the Florida rule let money take the place of service.⁸ Schwarz does not turn a gift into hours under the Model Rule. It holds only that a state could rationally choose to allow the substitution. When a question refers to the Model Rules, answer that a gift supplements service and does not replace it. When a question recites a state rule that lets a contribution satisfy the goal, apply that rule.