Encouraging Pro Bono Service

Encouraging Pro Bono Service

Rule 3.7(B) gives a judge a specific thing to say to the profession: a judge may encourage lawyers to provide pro bono publico legal services.¹ The Latin phrase means "for the public good," and here it names legal help given to people who cannot pay for it. The verb is encourage, and its object is lawyers as a group. The permission therefore covers what a judge says to the bar about its professional responsibilities, and the text goes no further. The fundraising rules above still decide whom a judge may ask for money, and they apply to a request for a legal aid contribution just as they apply to any other.

The boundary follows from how Rule 3.7 works. The rule permits law-related and charitable activities only "subject to the requirements of Rule 3.1,"² so every message a judge sends is tested against the general limits on participation discussed earlier, including the limit on coercive appearance. A speech to the profession at large asks nothing of any identifiable lawyer, and no one has to answer the person who will rule on the next motion. A personal request aimed at lawyers who appear in the judge's court is different, because it carries the weight of the office with it.

Schwarz v. Kogan supplies the policy reason from the other direction. A Florida pro bono rule set aspirational goals for lawyers, including an annual $350 contribution to a legal aid group, and the court that adopted the rule exempted judges, their staffs, and government attorneys. Schwarz argued that it was irrational not to ask even those individuals to aspire to contribute. The court rejected that argument. The prohibitions on these individuals' practicing law, the adopting court had explained, exist partly to protect judicial time but more importantly to keep them out of positions where matters that could come before them might influence their actions or suggest that some parties are favored.³ Asking them to honor the rule would have forced them to navigate between conflicting ethical obligations and probably to decide against honoring it, so exempting them and concentrating on compliance by private lawyers was rational.⁴ The reviewing court added that the same concerns "may caution against encouraging them to contribute money to organizations servicing the legal needs of indigents."⁵

The case has limits. It reviewed a state bar rule for rationality and did not construe Rule 3.7(B), and it concerned whether judges should be encouraged to give, not whether judges may encourage others. What it adds is the reason courts treat judges as standing outside the class of lawyers expected to give time or money: their position invites influence and the appearance of favor. That reasoning points the same way as a rule that lets a judge urge others to serve and stops short of letting the judge press anyone for money.

Three things changed between the luncheon and the letter, and each marks where encouragement ends. The first is what is requested: services in the speech, money in the letter. The second is the audience, which was the profession at large in the speech and a chosen group of lawyers who depend on the judge's goodwill in the letter. The third is the manner, since a public statement of a professional value differs from a personal request over the judge's signature, and the letter is the kind of conduct the general limits on participation exist to catch. The legal aid fund's link to the administration of justice does not rescue the letter, because the contribution rule limits who may be asked for money whatever the cause.

The same line runs through a legal aid fundraising dinner. A judge may speak at, or be featured on the program of, an event that serves a fund-raising purpose only if the event concerns the law, the legal system, or the administration of justice.⁷ If a legal aid dinner meets that test, the judge may use the occasion to urge the audience to volunteer their time. A personal appeal from the podium for pledges is a solicitation of contributions and falls under the audience limit.⁸