Pro Bono: To Report or Not To Report

, New Jersey Law Journal


As the "justice gap" worsens with more disadvantaged clients in need of diminishing legal aid resources, policymakers, courts and the legal profession are seeking to address the crisis, in part, by increasing sources of legal assistance, including pro bono service.

The most recent pro bono initiative, by the New York court system beginning on May 1, requires lawyers to report pro bono time and financial contributions as part of their biennial registration. Information on individual lawyers will be available to the public.

The rule has encountered opposition from the New York State Bar Association, which does not support mandatory pro bono reporting and views public availability of information as an invasion of privacy.

Even though eight jurisdictions have put a mandatory pro bono reporting requirement in place beginning in 1993, there has been no evidence-based, rigorous analysis of its impact. While we at the Pro Bono Institute have not undertaken an in-depth investigation, we have reviewed the publicly available data and found many misconceptions exist.

Mandatory pro bono reporting inevitably leads to mandatory pro bono requirements. FALSE.

Mandatory reporting has been in place in Florida for more than 20 years, and there is no mandatory pro bono there or in the other six jurisdictions that put mandatory reporting in place between 2002 and 2008.

Mandatory pro bono reporting improves pro bono performance. FALSE/UNPROVEN.

In the absence of more exhaustive research and analysis by the seven states with mandatory reporting, it is difficult to draw definitive conclusions, but the limited data do not support the conclusion that mandatory pro bono reporting per se increases pro bono hours.

In Florida, where the number of bar members has almost tripled since mandatory reporting began, 52 percent of lawyers self-reported pro bono participation in 2000. A report by an independent consultant in 2008 found that the level of pro bono in that state remained stagnant for the previous seven years.

In Mississippi, pro bono hours reported declined from 179,385 in 2008-09 to 120,469 hours in 2012-13. In Illinois, while pro bono increased slightly in four of the five years since mandatory pro bono reporting began, it declined slightly in 2011.

Other factors — including the impact of the recession on lawyer headcount and employment; the varied definitions of pro bono for reporting purposes; and the number of mandatory reporting jurisdictions that include activities to improve the bar and the legal profession as part of those definitions, thereby overstating the amount of direct service to clients — make year-to-year and jurisdictional comparisons difficult and unreliable.

The impact of mandatory pro bono reporting is also unproven because the goals and effect are neither clearly defined nor carefully considered. In reviewing the rationale for mandatory pro bono, three goals/effects are typically cited:

1. The need to understand the pro bono landscape. This goal is the most credible. Voluntary pro bono reporting is subject to bias, and many attorneys do pro bono work outside formal pro bono programs operated by legal aid and bar association programs, so mandatory reporting may be the best vehicle for getting an accurate picture.

2. The "aha" moment. This rationale assumes that the consciousness of pro bono service or the lack of it that comes when reporting pro bono results in a greater likelihood of pro bono service.

3. Shame and blame. This approach, applicable only if individual information is publicly available, assumes that concern about reputation will lead attorneys to perform pro bono service so as to avoid being identified as unsupportive.

The reality is that there has been no research or testing, at least in the context of the legal profession, of the assumptions underlying approaches 2 and 3.

Pro bono reporting is easily administered and reliable. FALSE.

Since 1996, the Pro Bono Institute has administered its Law Firm Pro Bono Challenge, under which major law firms that are signatories annually report pro bono data to the institute.

Despite a much smaller group of reporters (140 law firms as opposed to tens of thousands of lawyers in a variety of practice settings), the task of assembling and analyzing the data we receive is arduous and complex. With only one consistent definition, and 16 years of developing what is included in that definition, we still see errors and field subtle "what counts" inquiries.

Imagine, then, how much more difficult oversight of individual mandatory reporting in any meaningful fashion must be for courts and other entities.

The debate about mandatory pro bono reporting will undoubtedly continue.

Given the analysis above, this approach may be infeasible and unwise in jurisdictions with robust pro bono cultures and doable in others. It is my hope that researchers will analyze the data available so jurisdictions weighing the costs and benefits will do so with hard facts and clear goals. •

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