2. American Bar Association, Commission on Evaluation of Professional Standards, Model Rules of Professional Conduct (Discussion Draft, Jan. 30, 1980) (hereinafter referred to as Draft Model Rules).Google Scholar

3. Id. rule 8.1.Google Scholar

4. See Slonim, Scott, Commission Votes Down Pro Bono Reporting, 66 A.B.A.J. 951 (1980).Google Scholar

5. F. Raymond Marks with Kirk Leswing & Barbara A. Fortinsky, The Lawyer, the Public, and Professional Responsibility (Chicago: American Bar Foundation, 1972).Google Scholar

6. Id. at 288–93.Google Scholar

7. 100 ABA Reports 684 (August 1975). Note also, that the House of Delegates adopted the other recommendations of the Special Committee on Public Interest Practice, as follows:. Further Resolved, That public interest legal service is legal services provided without fee or at a substantially reduced fee, which falls into one or more of the following areas:. 1. Poverty Law: Legal services in civil and criminal matters of importance to a client who does not have financial resources to compensate counsel. 2. Civil Rights Law: Legal representation involving a right of an individual which society has a special interest in protecting. 3. Public Rights Law: Legal representation involving an important right belonging to a significant segment of the public. 4. Charitable Organization Representation: Legal service to charitable, religious, civic, governmental and educational institutions in matters in furtherance of their organizational purpose, where the payment of customary legal fees would significantly deplete the organization's economic resources, or would be otherwise inappropriate. 5. Administration of Justice: Activity, whether under bar association auspices or otherwise, which is designed to increase the availability of legal services, or otherwise improve the administration of justice. Further Resolved. That public interest legal services shall at all times be provided in a manner consistent with the Code of Professional Responsibility and the Code of Judicial Conduct. Further Resolved. That so long as there is a need for public interest legal services, it is incumbent upon the organized bar to assist each lawyer in fulfilling his professional responsibility to provide such services as well as to assist, foster and encourage governmental, charitable and other sources to provide public interest legal services. Further Resolved. That the appropriate officials, committees or sections of the American Bar Association are instructed to proceed with the development of proposals to carry out the interest and purpose of the foregoing resolutions.Google Scholar

8. Annotated Code of Professional Responsibility, Canon 2, at 27 (Chicago: American Bar Foundation, 1979). Note, however, that the ethical considerations to Canon 2 do urge, as an “aspiration,” the notion that the obligation to provide service to those who cannot pay rests ultimately with the individual lawyer. EC 2–25, id. at 97. But that notion was not expressed in the canon itself or in any disciplinary rule.Google Scholar

9. It should be remembered, however, that the action of the ABA House of Delegates has no binding force upon individual lawyers except as state bar associations having regulatory authority over lawyers adopt it.Google Scholar

10. Assembly Bill No. 4050.Google Scholar

11. American Bar Association, Special Committee on Public Interest Practice, Implementing the Lawyer's Public Interest Practice Obligation (Chicago: American Bar Association, 1977). See also Implementing the Lawyer's Public Interest Practice Obligation, 63 A.B.A.J. 678 (1977).Google Scholar

12. Id.Google Scholar

13. Draft Model Rules, supra note 2, rule 8.1.Google Scholar

14. And sometimes the reasons have been fuzzy and unconvincing. For example, one article that urged the profession to accept a pro bono obligation and that discussed the issue of mandatory service but stopped short of espousing the mandatory concept found the obligation to arise by virtue of professional duties expressed in the Code of Professional Responsibility and in the existence of a need “to improve the efficacy of the legal system.”Sasso, Cassandra G. & Nordwind, Betty L., Public Interest Law—Lawyers' Obligations and Opportunities, 9 Colo. Law. 230 (1980). But, of course, the mere expression of a somewhat ambiguous duty in the code is not very compelling without some indication of why the duty exists and why it must be accepted as imperative. And, the existence of a need does not, without more, mean that lawyers have a duty to fill it.Google Scholar

15. Id.Google Scholar

16. E.g., Alexander Forger, as quoted in Podgers, James, Mandatory Pro Bono: Basic Question Remains, 66 A.B.A.J. 280 (1980).Google Scholar

17. See Ronald L. Olson, Mandatory Pro Bono Work Is a Necessity for Lawyers, B. Leader Mar.-Apr. 1978, at 2–3.Google Scholar

18. Smith, Chesterfield, Lawyers Who Take Must Put—at Least a Bit, I J. Legal Profession 27 (1976)Google Scholar

19. Id. at 30, 31.Google Scholar

20. J. Thomas Greene, as quoted in Podgers, supra note 16, at 280.Google Scholar

21. Roscoe Pound, The Lawyer from Antiquity to Modern Times: With Particular Reference to the Development of Bar Associations in the United States 5 (St. Paul, Minn.: West Publishing Co., 1953).Google Scholar

22. Henry S. Drinker, Legal Ethics 5 (New York: Columbia University Press, 1953).CrossRefGoogle Scholar

23. Id.Google Scholar

24. Id. at 326.Google Scholar

25. Although the Marks study, supra note 5, concluded that the bar's public interest effort had been relatively small, it did so on the basis of a qualitative examination of the characteristics of a few selected public interest responses and not a quantitative evaluation of pro bono services generally. See also Lochner, Philip R. Jr., The No Fee and Low Fee Legal Practices of Private Attorneys, 9 Law & Soc'y Rev. 431 (1975). This illuminating exploration of the nature and characteristics of lawyers' no-fee and low-fee practices was also qualitative and hence did not attempt to make quantitative observations about the amount of such work, either in the aggregate or with respect to particular classes of lawyers. Note, also, that the Public Citizen Lawyers Project Report, summarized in Sharon Tisher, Lynne Bernabei, & Mark Green, The Sad State of Pro Bono Activity, Trial, Oct. 1977, at 43, seems to have been a qualitative case study. It, too, found lawyers' pro bono activities to be inadequate.Google Scholar

26. E.g., Joel F. Handler et al., Public Interest Activities Among Private Practice Lawyers, Institute for Research on Poverty Discussion Papers (Madison: University of Wisconsin, 1974), which, through interviews with a large nationwide sample of lawyers, found, among other things, that “approximately 6 percent of the average lawyer's billable time” is public interest work (although suggesting that this figure was “probably inflated”) and that “more public interest work is done by solos than by firm lawyers or by large firm urban lawyers.”Id. at 22. See also tables at 4, 16. But this study is fatally flawed, and the reliability of its findings is in doubt, an instance, perhaps, of a little learning being a dangerous thing. The researchers used in their questionnaire a law practice term that they apparently did not understand. The lawyers interviewed were asked what percentage of their “billable hours” was spent in pro bono work. Some respondents may have interpreted “bill-able hours” to mean something like “client-related time,” as the researchers seem to have intended. But among lawyers, “billable hours” are generally thought of as those hours that can be and are billed to clients. Thus, the likelihood is very great that many—perhaps most—lawyers interviewed understood the term “billable hours” to exclude, by definition, work done voluntarily and without hope of pay during regular working hours. If this is so, then the data produced by the “billable hours” question would include only that so-called pro bono work done during regular working hours for which the lawyers expected payment and for which the clients were in fact billed but for which the lawyers were not ultimately paid—their bad accounts, as it were. Because there is no way of knowing how the respondent lawyers interpreted “billable hours,” the real meaning of the data cannot be determined.Google Scholar

27. See, e.g., Law Poll—Public Interest Legal Services: Perceptions and Preferences, 64 A.B.A.J. 1494 (1978). This study, done for the American Bar Association by an independent public opinion research firm, was a telephone survey of a sample of some 600 lawyers nationwide. It produced findings about both the opinions of lawyers with respect to public interest legal services and, purportedly, the extent of their involvement in public interest work. For instance, it found that “[t]hree in five lawyers reported that they or their firms, or both, had contributed legal services in the public interest” and that “the median number of hours was in the 70–80 per year range.”Id. at 1495. The study also showed the distribution of this service among lawyers according to age, income, size of firm, size of city, and region of the country, as well as according to the type of public interest service performed. Such findings would surely deserve extended discussion were they not highly suspect. A telephone survey may be well suited to public opinion polling; it is not suited to the task of eliciting reliable data of the kind that was attempted to be gathered here. In order to provide accurate data—or even reasonably realistic estimates—of the amount and kind of pro bono work that they do, most lawyers would have to refer to time records, and even then, in-depth face-to-face interviews, using carefully defined terms, would be required to make sure that the pro bono activities reported by one lawyer were really comparable to those reported by another. By contrast, a telephone survey, which asks respondents to reply almost instantaneously to questions about information that they are not likely to have readily in mind or at hand, and in which the essential terms are largely undefined, cannot hope to elicit anything but off-the-top-of-the-head guesses about activities that may mean something different to each lawyer responding. Note, however, that on questions dealing with opinion, the study is no doubt reliable. See also The District of Columbia Bar Survey of Current Public Service Activities (unpublished 1974), a mail survey of the membership of the bar of the District of Columbia. Although this study appears not to have employed a scientifically acceptable methodology and thus made no pretense to scientific accuracy, it did turn up some interesting findings. For example, 42 percent of the respondents did no pro bono work at all. Of those lawyers doing pro bono work, solo practitioners reported spending a greater percent of their time on pro bono work than did lawyers in any other category, although large firm lawyers handled more controversial kinds of work. Note, however, that because of its large contingent of government lawyers, the District of Columbia bar is not representative of the legal profession as a whole, and we should probably not generalize from the findings of this study.Google Scholar

28. To the extent that we can rely upon them, the Handler, supra note 26, and the Law Poll, supra note 27, studies support this observation.Google Scholar

29. See Smith, Wm. Reece Jr., President's Page, 66 A.B.A.J. 1166 (1980), describing the American Bar Association's Pro Bono Activation Project.Google Scholar

30. With the reservations already noted, see findings of the Marks, supra note 5, Public Citizen Lawyers Project, summarized in Tisher, supra note 25, Handler, supra note 26, and D.C. bar, supra note 27, studies.Google Scholar

31. See the Law Poll study, supra note 27, which indicated that 37 percent of all lawyers do no public interest work whatever. It should be pointed out that this is likely to be one of the more reliable findings of this study. While a lawyer may have some difficulty in making an extemporaneous estimate of the amounts and kinds of his public interest service, he will probably know whether or not he has done any at all. And no lawyer is likely to acknowledge doing no pro bono work if he has in fact done some. Thus, the 37 percent figure probably is reasonably accurate, and it may understate the number who do not perform any public interest service. The D.C. bar study, supra note 27, found 42 percent of the bar doing no pro bono work, but many of these were government lawyers.Google Scholar

32. Robert W. Meserve, as quoted in Slonim, supra note 4, at 951. See also quotation at note 20 supra. Note, too, that the Law Poll study, supra note 27, found that 88 percent of all lawyers disapprove of mandatory pro bono. This figure is probably reliable, as the study's findings about opinion are undoubtedly more accurate than its findings about practices.Google Scholar

33. Geoffrey C. Hazard, Jr., The Lawyer's Pro Bono Obligation 2, Discussion paper for the American Bar Association Second National Conference on Legal Services and the Public, Dec. 7–8, 1979.Google Scholar

34. Id. at 3.Google Scholar

35. Lochner, supra note 26, at 445, 446.Google Scholar

36. With the reservations already noted, see Handler, supra note 26, at 11, which purported to find that “[a]lmost 75 percent of the work mentioned was either general practice—drafting, filing, representation—or general advice and counseling. Almost 19 percent of the work mentioned was litigation, and this was by far most common for individuals with standard criminal offenses. In other words, very little public interest work was done by lawyers for social change oriented clients, and most of the work was general practice or advice, not litigation.”.Google Scholar

37. See Adler, supra note 1, at 25.Google Scholar

38. The ABA Law Poll, supra note 27, found that as many as 37 percent of all lawyers do no pro bono work at all, a finding that is probably reliable.Google Scholar

39. American Bar Foundation, work of lawyers study, interview no. 43 (no report has been published).Google Scholar

40. See Tisher, supra note 25, at 43, to the effect that the pro bono effort of one large firm costs $200,000 annually in fees.Google Scholar

41. See Marks, supra note 5, at 265–70; Tisher, supra note 25, at 43–44.Google Scholar

42. See text at note 39 supra.Google Scholar

43. “Sometimes reference is made to our ‘monopoly’. With law licenses being as easily and widely obtainable as they are, and competition within the profession being what it is, this argument seems absurd.” Hazard, supra note 32, at 4.Google Scholar

44. While the number of lawyers in practice seems large, lawyers constitute only 32 one-hundredths of one percent (.0032 percent—320 thousand out of 101.5 million) of the work force of the country. U.S., Bureau of the Census, Statistical Abstract of the United States: 1978, at 398, 419 (Washington, D.C.: Government Printing Office, 1978).Google Scholar

45. Adler, supra note 1, at 25; Humbach, John A., Serving the Public Interest: An Overstated Objective, 65 A.B.A.J. 564, 565 (1979).Google Scholar

46. For a historical sketch of the profession's efforts to enforce its monopoly, see Christensen, Barlow F., The Unauthorized Practice of Law: Do Good Fences Really Make Good Neighbors—or Even Good Sense?” 1980 A.B.F. Res. J. 159, 161–201.Google Scholar

47. See Smith, supra note 29.Google Scholar