MANDATORY PRO BONO

Roger C. Cramton*

Should lawyers be required to devote a portion of their time or

money to public service activities? This issue, commonly referred to
as "mandatory pro bono," is much discussed these days. The purpose
of this article is to illuminate the policy choices before the profession
by surveying the arguments for and against mandatory pro bono.'
You may recall the sagacious comments of Woody Allen concerning
the dilemma of choice:
One path leads to despair and utter hopelessness.
The other, to total extinction.
Let us pray we have the wisdom to choose correctly.
Fortunately, the choice in this instance is between relative goods
rather than between two disastrous outcomes.
My involvement in civil legal assistance for the poor dates from
1975 to 1979, when I served as the first chairman of the board of the
national Legal Services Corporation.3 Those were heady years when
the federally funded legal services program was reaching out in an
attempt to provide quality service to a growing portion of the nation's

* Robert S. Stevens Professor of Law, Cornell University. Valuable research assistance

was provided by Julia H. Lee '92, Cornell Law School.
1. Although brief consideration is given to legal and constitutional issues, see infra
notes 99-104, I take the view that mandatory pro bono is primarily a policy question turning
on normative judgments and prudential considerations. Even if the constitutional issues are
resolved in favor of mandatory pro bono proposals, however, the concerns raised in that
context suggest caution. For discussions of the policy aspects of mandatory pro bono propos-
als, see D. LUBAN, LAWYERS AND JUsTICE: AN ETHICAL INQUIRY 240-89 (1988) [hereinafter
LUBAN] (urging a "practical" pro bono proposal after considering and rejecting opposing
arguments); R. ABEL, AMERICAN LAWYERS 128-40 (1989) [hereinafter ABEL]; Shapiro, The
Enigma of the Lawyer's Duty to Serve, 55 N.Y.U.L. REV. 735 (1980) (focusing on the legal
authority of courts to appoint private counsel to handle litigation and generally opposed to
mandatory pro bono); Rosenfeld, Mandatory Pro Bono: Historical and Constitutional Perspec-
tives, 2 CARDOZO L. REV. 255 (1981); Millemann, Mandatory Pro Bono in Civil Cases: A
PartialAnswer to the Right Question, 49 MD. L. REV. 18, 55-75 (1990); Note, Why Manda-
tory Pro Bono Is a Bad Idea, 3 GEO. J. LEGAL ETHICs 623 (1990).
2. W. A=LEN, My Speech to the Graduates, in SIDE EFFECTs 57 (1980).
3. See Drew, A Reporter at Large: Legal Services, NEW YORKER 97 (Mar. 1, 1982)
(discussing the formation and activities of the Legal Services Corporation, 1974-82).
 HOFSTRA LAW REKVEW [Vol. 19:1113

poor. During the last ten years, when the federal program has fallen
on relatively hard times,4 I have viewed developments from afar. 5
Now things are heating up and mandatory pro bono is a hot topic.

NEw YORK PLAN

In April 1988, Chief Judge Sol Wachtler of the New York Court
of Appeals appointed a committee (known as the Marrero Committee,
named after its chairman) to study and report on ways of meeting the
legal needs of the poor.6 The committee's proposal is that the courts
adopt rules compelling lawyers to donate 40 hours every two years to
advance the legal needs of the poor.7 Although the Marrero Commit-
tee stated that voluntary pro bono activities by the bar would be

4. See Menkel-Meadow, Legal Aid in the United States: The Professionalization and
Politicization of Legal Services in the 1980s, 22 OSGOODE HALL L.J. 30 (1984).
-5. This article uses the New York proposal as a basis for discussion. The issues are
much the same with respect to proposals under consideration elsewhere. See Note, supra note
1, at 632-41 (summarizing developments since 1980 in North Dakota, Oregon, Maryland,
Florida, and California). The Maryland experience is extensively discussed in Millemann,
supra note 1.
6. The Marrero Committee was appointed by Chief Judge Wachtler "to improve the
availability of legal services" in New York (the quotation reflects the official title of the
Committee). Its Final Report of April 27, 1990 proposed an obligation of all active lawyers
to provide a minimum of 40 hours of qualifying pro bono legal services every two years.
COMMTTEE To IMPRovE THE AVAILABIUTY OF LEGAL SERVICES, FINAL REPORT TO THE
CHIEF JUDGE OF THE STATE OF NEW YORK (April 1990), reprinted in 19 HOFsTRA L. REV.
755, 768 (1991) [hereinafter MARRERO REPORT]. Qualifying services, unlike under the MODEL
RULES OF PROFESSIONAL CONDUCT Rule 6.1 (1990) [hereinafter MODEL RULES] and other
prior ABA policy statements, would be limited to services and activities on behalf of poor
persons. MARRERO REPORT at 769. Some of the details of the Marrero proposal are discussed
in the text.
7. The legal authority of the New York Court of Appeals to promulgate a court rule
requiring lawyers to perform specified services for poor clients is discussed in the MARRERO
REPORT. See MARRERO REPORT, supra note 6, at 814-19. Two dissenting members of the
committee argued that "there is no basis for the Committee's proposal that New York's Con-
stitution or existing statutes authorize the Chief Judge, or any other person or entity, to com-
pel lawyers at large to render free legal services." Statement of Sol Neil Corbin, MARRERO
REPORT, supra note 6, at 850. This paper does not deal with the question of legal authority,
but only with the underlying policy issues. It should be noted that New York differs from
most other states in that regulation of lawyers is not confined exclusively to the State's high-
est court. See C. WOLFRAM, MODERN LEaAL Emi-cs 25 n.31 (discussing the statutory basis
for the regulation of lawyers in New York) [hereinafter WOLFRAM]. In New York, unlike
many states, there is legislation regulating the legal profession; and judicial regulation of the
profession is carried on, not by the highest court, but by the intermediate appellate courts
(the Appellate Divisions of the Supreme Court of New York). (In New York the "Supreme
Court" is the trial court of general jurisdiction.) See WOLFRAM, supra, at 31 n.70.
1991] MANDATORY PRO BONO

inadequate,8 Chief Judge Wachtler postponed any action on the report

for two years, until May 1992, to determine whether bar encourage-
ment of voluntary pro bono would suffice.9
The committee's mandatory pro bono proposal contains the fol-
lowing details:'* Law firms could credit the excess hours of some
firm lawyers to meet the obligations of others." Lawyers in smtll
firms of less than ten lawyers alone could satisfy their obligation by
paying $1,000 each to support legal service to the poor in lieu of
time.12 A third alternative permits law firms (or unaffiliated lawyers)
to hire an attorney to discharge their collective obligation to donate
13
their time.

BAR REACTION

The proposal, like mandatory pro bono plans elsewhere, has

divided the bar.' 4 Most bar leaders have come out in opposition to
the plan, but individual lawyers and a few bar associations support
it. 5 The Association of the Bar of the City of New York, which is
representative of New York City's large fins, "'reluctantly' but
forcefully endorsed the proposal as essential to meet a 'desperate'
need."' 6 On the other hand, a large number of "county bar associa-
tions with members drawn mostly from smaller firms [have] strongly
criticised the proposal as a form of 'conscription' and an unworkable

8. MARRERO REPORT, supra note 6, at 768.

9. See Sack, Judge Presses New York Bar to Help Poor, N.Y. Times, May 2, 1990, at
BI, col. 5; Fox, 6000 Lawyers to be Sent Pro Bono Poll; Wachtler Seeks to Gauge Scope of
Statewide Effort, N.Y.L.L, Jan. 23, 1991, at 1, col. 6 (stating that 6,000 randomly selected
attorneys are to receive survey questionnaires as part of a campaign by Chief Judge Sol
Wachtler to assess their pro bono efforts last year on behalf of the poor. Presumably, the
matter will be reconsidered in May, 1992).
10. See MARRERO REPORT, supra note 6, at 783-814 (discussing the details of the pro-
posal).
11. See id. at 856.
12. See id. at 855 (stating that these lawyers "may satisfy all, or part, of their qualify-
ing services requirement by a payment of $50.00 for each hour of qualifying services not
performed.").
13. See id. at 798.
14. See, e.g., Wise, Bar Leaders Resist Pro Bono Plan; Urge Wachler Weigh Voluntary
Effort, N.Y.L.J. Oct. 17, 1989, at 1, col. 3 (stating that the leaders of nine county bar associ-
ations oppose mandatory pro bono and encourage increased voluntary efforts) [hereinafter
Wise, Bar Leaders Resist].
15. See id.
16. Wise, Bar Groups Split on Mandatory Pro Bono Plan, N.Y.L.J., Oct. 20, 1989, at
1, col. 4.
 HOFSTRA L4W REVIEW [V'ol. 19:1113

'tax.' ' 17 New York is likely to be similar to other states: a majority

of lawyers and most bar associations oppose mandatory pro bono, but
it has substantial and growing support."i

THE UNDERLYING SOCIAL PROBLEM

There is general agreement that the problem the plan address-
es-inequalities in the distribution of legal services-is a serious and
intractable one. Legal services are made available primarily on a fee-
for-service basis in the United States. Those who want lawyers and
are able to pay for them have little difficulty finding reasonably com-
petent professional services. The growing demand for legal services,
coupled with high incomes in some sectors of the profession, has led
to rapid growth in the number of lawyers and a marketplace for legal
services that is extremely competitive. 9 Most lawyers provide coun-
seling and transactional services to businesses and reasonably well-to-
do individuals who seek out the services of these lawyers and who
are able to pay rates that are strongly influenced by competitive pres-
sures.2" These services (e.g., drafting a will or checking a land title)
will not be provided if the client is unable to pay the customary

17. IL
18. An earlier occasion for considering mandatory pro bono in New York was triggered
by a report of a special committee of the Association of the Bar of the City of New York
in 1979. The report recommended that "the profession move toward acceptance by every
practicing lawyer of a mandatory obligation ... of public service practice." Assoc. of the
Bar of the City of New York, Special Comm. on Pro Bono, Toward a Mandatory Contribu-
tion of Public Service Practice by Every Lawyer 5 (1979) [hereinafter Mandatory Contribu-
tion]. The report proposed an initial minimum obligation of 30-50 hours of service per year.
Il The report argues that a lawyer, "as a professional and as an officer of the law, has a
unique responsibility and opportunity to make some contribution to the satisfaction" of "needs
for legal services and reform of justice in our society." Id. at 9. Public service activities were
broadly defined, but did not include bar association work unless it was "designed to improve,
or increase the availability of legal services" to individuals or groups unable to pay fully. Id.
at 6, 13. The committee concluded that "some flexibility in implementation is desirable" to
reflect "individual circumstances." Id. at 5. A majority opposed imposition of a collective
responsibility on law firms or a financial payment alternative to rendition of individual servic-
es. See id, See also Margolick, Lawyers and Compulsory Public Service: Resisting the Inevi-
table, N.Y. Times, Jul. 17, 1988, at B9, col. I (discussing the bar reaction to the proposed
North Dakota plan); Hengstler, Mandatory Pro Bono?, 74 A.B.A. J. 28 (1988) (discussing the
reaction to the proposed Maryland plan).
19. For discussion of changes in the size, structure, demographics, and competitive posi-
tion of the legal profession, see ABEL, supra note 1, passim. See also Mandatory Contribu-
tion, supra note 18, at 8 (stating that the recent rapid passage of laws and regulations has
caused a dramatic increase in the need for lawyers.
20. See ABEL, supra note 1, at 128.
1991] MANDATORY PRO BONO

fee.21 Available alternatives (e.g., self-help, resort to non-lawyer

service providers) are lower in cost, but are hemmed about by legal
restrictions and concerns regarding the quality of service.'
Similarly, the availability of lawyers to those desiring to litigate
is largely governed by the potential client's ability to pay. A potential
plaintiff may decide to forego a claim" or, if an individual, may
pursue it pro se. Experience teaches, however, that if the claim is to
be pursued successfully a trial lawyer must be retained.24 A defen-
dant in litigation has even fewer options, since the plaintiff controls
the initiation of litigation. Although the defendant may also proceed
pro se, prudence ordinarily requires the defendant to hire a lawyer
and to invest resources in defense commensurate with what is at
stake.
On the other hand, the American system of financing litigation
does provide potential plaintiffs with two options that are available
without regard to the plaintiff's ability to pay: the contingent fee and
one-way fee shifting.26 The contingent fee gives the poor plaintiff
meaningful access to the courtroom by giving a lawyer an incentive
to pursue a meritorious claim that will produce a substantial settle-
ment or judgment. One-way fee shifting statutes tend to make compe-
tent lawyers available for the vindication of claims subject to fee-
shifting by giving the prevailing plaintiff a separate award of reason-
able attorney fees.27 Each of these mechanisms must be kept in
mind when considering the availability of lawyers to potential plain-
tiffs.
In addition to these partial mechanisms for making privately
retained counsel available, public programs provide assistance to some

21. See id. at 128-29.

22. See LUBAN, supra note 1, at 247 (describing the regulations restricting the unautho-
rized practice of law). See also id. at 244 (describing how the legal system is "designed to
be operated by lawyers and not by laypersons.").
23. See ABEL, supra note 1, at 129 (stating that the "[u]se of lawyers is an acquired
habit; most people never surmount the barriers of fear, ignorance and unfamiliarity."). See
also LUBAN, supra note 1, at 259-60 (describing a situation where a potential plaintiff could
not sue because she could not afford a lawyer or the court fees).
24. See id. at 245 (describing the difficulties that a lay person would have with self-
representation).
25. See Powell v. Alabama, 287 U.S. 45, 68-69 (1932) (describing the deficiencies of a
pro se defense).
26. See Rowe, American Law Institute Study on Paths to a Better Way: Litigation,
Alternatives and Accomodation, 1989 DuKE L. L 824, 886-902 (discussing the effects of the
contingent fee and one-way fee shifting).
27. See id. at 888-89.
 HOFSTRA L4W REVIEW [Vol. 19:1113

poor people. During the last quarter century, publicly-funded civil

legal assistance has grown from the small scale of traditional legal
aid offices, operated as a local charity, to a substantial national pro-
gram.2 8 Prior to 1965, only about $4 million annually was spent
nationally on civil legal assistance.29 The Office of Economic Oppor-
tunity (OEO) legal services program grew rapidly after 1965 before
encountering strong political resistance.30 The establishment of the
Legal Services Corporation in 1975 led to the creation of a program
of civil legal assistance that was national in scope and substantial in
size.31 At its peak in 1981 there were about 6,000 lawyers providing
civil legal assistance to eligible poor through local legal services
organizations throughout the country. 2 Since then, buffeted by lack
of support from the executive branch and confusion about priorities
and goals, the program has shrunk to about 4,000 lawyers.33 About
one-fourth of current funding comes from local and state funds, with
the remaining three-fourths from the federal government.' Legal
services lawyers are prohibited from taking cases in which private
representation on a contingent-fee basis is likely to be available.35
The social arrangements by which legal services are delivered in
the United States raise substantial concern about the fairness of their
distribution. Publicly-funded civil legal assistance, the voluntary pro
bono activities of lawyers, and the twin devices of the contingent fee
and fee-shifting statutes each meet a portion of the legal needs of
ordinary Americans. But for most Americans, most of the time, legal
services are available only to those who are able and willing to pay
relatively high professional charges. Low-income people are especially
disadvantaged. As President Jimmy Carter stated in 1978: "No re-

28. See generally E. JOHNSON, JR., JUsIcE AND REFORM: THE FORMATIVE YEARS OP
THE AMERICAN LEGAL SERVIcES PROGRAM (2d ed. 1978).
29. See Menkel-Meadow, supra note 4, at 35.
30. Id. at 38.
31. See id. See also Legal Services Corporation Act, Pub. L. 93-355, 88 Stat. 378
(1975) (establishing the Legal Services Corporation).
32. 1981 LEGAL SERVS. CORP. ANN. REP. pt. I, at 8.
33. See LUBAN, supra note 1, at 241-42 (stating that the Reagan administration's budget
cuts caused the Legal Services Corporation's programs to lose thirty percent of their attor-
neys); Barr, Doers and Talkers, AM. LAW., July-Aug. 1990, at 51, col. 1 (discussing the
Reagan Administration cutbacks in funding for the Legal Services Corporation).
34. See generally LEGAL SERVICES FOR THE POOR: TIME FOR REFORM (D.J. Besharov
ed. 1990).
35. See Legal Services Corporation Act, supra note 31, at § 1007(b)(1), and regulations
implementing these statutory restrictions, 45 C.F.R. § 1609. See also Cramton, Crisis In
Legal Services for the Poor, 26 VIIL. L. REV. 521 (1981).
1991] MANDATORY PRO BONO 1119

sources of talent and training in our own society, even including the
medical care, is more wastefully or unfairly distributed than legal
skills. Ninety percent of our lawyers serve 1036percent of our people.
We are over-lawyered and under-represented."
The working poor, and large portions of the middle class, en-
counter problems in selecting and paying lawyers. Often they go
without legal services because the monetary and other costs of using
the legal system are larger than their willingness to bear them.37 For
the poorest Americans, who may be dependent on welfare and other
social benefits, the high cost of legal services is an even greater
barrier to access to justice. The categorical assistance provided by
public programs starts with a relatively arbitrary eligibility standard
usually framed in terms of income and wealth.38 The convenience of
using these categories should not blind us to the fact that individuals
at the margin have similar problems: those at the upper end of the
permissible income can devote some resources to legal services; those
who are just above the eligibility line have great difficulty paying for
high quality legal services.
There are many poor persons in the nation as well as in New
York State. About 13% of the U.S. population (over 30 million peo-
ple) lives below the poverty line,39 which now is defined as a fami-
ly of four living on an annual income of less than $12,000. 40 New
York has 1.2 million households at or below 125% of the federal
poverty line, which determines eligibility for federally funded civil
legal assistance for the poor.4' Fourteen thousand dollars (approxi-

36. Remarks at 100th Anniversary Luncheon of the Los Angeles County Bar Associa-
tion, 14 WEEKLY COMp. PRES. DOc. 834, 836 (May 4, 1978).
37. See LUBAN, supra note 1, at 259-60.
38. See, e.g., Legal Services Corporation Act, supra note 31, at 383 (stating that the
Legal Services Corporation must establish -maximum income levels... for individuals
eligible for legal assistance under this title.").
39. As of 1987, U.S. government statistics stated that 32,370,000 Americans were living
below the poverty level. U.S. DEPT. OF COMMERCE, STATISTICAL ABSTRACT OF THE UNITED
STATES 38 (1989) [hereinafter STATISTICAL ABSTRACT]. See also id. at 456 (stating that by
1986, 13% of all American families, and 46% of all American families headed by single
mothers, lived below the poverty level).
40. See STATISTICAL ABSTRACT, supra note 39, at 420 (providing separate listings of
the poverty thresholds, adjusted for inflation, for families containing one to nine members for
the years 1970 through 1986). See also LUBAN, supra note 1, at 241-243 (discussing the
legal needs of the poor); MARRERO REPORT, supra note 6, at 771-79 (discussing the legal
needs of the poor in New York State).
41. In New York, the percentage of the population living below the poverty line is
approximately 14.6% as of 1987. MARRERO REPORT, supra note 6, at 772 (citing U.S. Cn-
sus Bureau data); see also STATISTICAL ABSTRACT supra note 39, at 452 (stating that, as of
 HOFS4RA LAW REVIEW [Vol. 19:1113

mately 125% of the poverty line figure)42 is a substantial income in

Bangladesh,4 3 but it doesn't go very far in terms of a decent Ameri-
can standard of living.
Those living below the poverty line (hereinafter "the poor" or
"poor people") encounter many legal problems, albeit not as many as
people with more resources, but still quite a few." Perhaps some
legal needs or desires may be viewed as luxuries-a will or a name
change, for example. Other kinds of civil legal assistance, however,
involve more fundamental matters, such as the desire to straighten out
family relations by means of divorce or child custody, obtain social
benefits to which one is entitled, or fight eviction from one's
home.4 5 If a poor person is charged with crime, the state (since
Gideon v. Wainwright46) must supply a defense lawyer;4 7 but the
courts have repeatedly declined to say that a defendant in a civil case
has a constitutional right to a lawyer free of charge when liberty is

1979, New York State had 2,299,000 people living below the poverty line, comprising 13.4%
of its population, which is the highest percentage of any state in the northeast). Nationally,
43,500,000 or 18.1% of all Americans were living below 125% of the poverty level as of
1987. Id. at 456. By 1986, 18% of all American families headed by single mothers lived
below 125% of the poverty level. Id.
42. See STATISTICAL ABSTRACT, supra note 39, at 452 (stating that for a family of
four, $14,514 was 125% of the poverty level in 1987).
43. See id. at 822 (listing national per capita incomes as of 1985 and stating that per
capita income in the U.S. was $16,240, while the per capita income in Bangladesh was
$143).
44. The draft final report of the New York Legal Needs Study states that low income
households interviewed reported having experienced, on average, 2.37 non-criminal legal prob-
lems per household for which they had no legal help. New York State Bar Association Com-
mittee of Legal Aid, New York Legal Needs Study: Draft Final Report, at 17 (cited in
MARRERO REPORT, supra note 6, at 19); see also 1978 LEGAL SERVs. CORP. ANN. REP. pt.
I, at 8; Mandatory Contribution, supra note 18, at 8 (citing LSC's low estimate of 400,000
annual civil legal problems of New York City's poor, and its higher estimate of 2 million).
45. See Dean, Legal Needs in New York, N.Y.L.J, Nov. 20, 1989, at 3, col. 1 (citing a
study on the legal need in New York, stating that " '[b]y far the most prevalent and the
most serious' of legal problems facing poor persons throughout the state involve landlord-
tenant relations. In New York City, 44.5 percent of the poor persons polled identified housing
problems as their most serious unmet legal need," and listing other areas of need).
46. 335 U.S. 391 (1963).
47. The Sixth Amendment right of "assistance of counsel" "[i]n all criminal prosecu-
tions" has gradually been expanded to include public provision of counsel to those unable to
afford privately retained counsel. See Powell v. Alabama, 287 U.S. 45 (1932) (stating that
provision of a lawyer is an essential ingredient of due process in a death penalty case);
Johnson v. Zerbst, 304 U.S. 458 (1938) (noting that the federal government must provide
counsel to an indigent charged with a federal crime); Gideon v. Wainwright, 335 U.S. 391
(1963) (holding that an indigent charged with a felony in a state court is entitled to appoint-
ed counsel); Argersinger v. Hamlin, 407 U.S. 25 (1972) (extending Gideon to misdemeanors
that can result in imprisonment).
1991] MANDATORY PRO BONO

not at stake. 8
No one knows what proportion of the legal needs of the poor
are now going unmet.49 The federally-funded legal services program
now provides about 4,000 lawyers nationwide, who meet a portion of
the need." Efforts since 1982 to encourage and support private bar
involvement in legal services have had some success. In New York,
for example, the number of lawyers volunteering their services has
climbed from 6.6% to 18.5% of practicing lawyers. 1 But informed
observers agree that there remains a tremendous unmet need, estimat-
ed at 75% to as much as 95% of the total legal needs of the poor. 2
The Marrero Report, which reviewed current data, stated 53
that at least
86% of the total need was unfilled in New York State.

THE PROFESSIONAL IDEAL OF PUBLIC SERVICE

At the core of professional ideology is the idea that the special

privileges of the profession are justified because its members are
dedicated to the interests of clients and the public.' Although law-

48. Constitutional procedural due process does not generally confer on indigents a right
to appointed counsel in civil matters not involving loss of liberty. See Lassiter v. Dep't of
Social Servs., 452 U.S. 18 (1981) (terminating parental rights of incarcerated mother); In re
Smiley, 36 N.Y.2d 433, 330 N.E.2d 53, 369 N.Y.S.2d 87 (1975) (noting that an indigent
spouse in divorce proceeding involving child custody was not entitled to appointed counsel);
f Payne v. Superior Court, 17 Cal. 3d 908, 553 P.2d 565, 132 Cal. Rptr. 405 (1976) (stat-
ing that an indigent prisoner seeking to defend a civil suit is entitled to appointment of
counsel at state expense).
49. However, a 1987 pilot survey commissioned by the American Bar Association esti-
mated that nationwide, 80 percent of poor people's civil legal needs go unmet. Barr, supra,
note 34 at 51, col. 2.
50. See supra notes 32-33.
51. See Wise, supra note 14, at 2; see also Dean, supra note 45, at 3 (stating that
according to the New York Legal Study report authors, 7,000 of the 88,000 attorneys regis-
tered to practice in New York are enrolled in organized pro bono programs); Mandatory Pro
Bono-The Shape of Things to Come?, A.B.A. J., Dec. 1, 1987 at 62, 63; MARRERO REPORT,
supra note 6, at 777; Wise, supra note 14, at I, col. 1. Robert J. Rhudy, President of the
National Association of IOLTA programs, estimates that 130,000 of the nation's more than
750,000 lawyers are participating in organized programs providing civil legal assistance to the
poor. Remarks of Robert J. Rhudy, in Legal Services Corporation, The Legal Services Pro-
gram: 1965-1990, at 164 (1990) (transcript of conference).
52. LUBAN, supra note 1, at 241-243; see also Ferren, Guidelines for Budgeting Pro
Bono Legal Service, DIST. LAW., Sept.4Oct. 1980, at 28 (listing the percentages of filings that
are pro se in various types of civil cases); Fried and Siegel, The Unmet Need: Providing
Legal Services to the Poor, 55 FLA. B.J. 313 (1981) (estimating that "only 12-15 percent of
the legal needs of the poor are being met.").
53. See MARRERO REPORT, supra note 6, at 774.
54. See American Bar Association Commission on Professionalism, "In the Spirit of
 HOFSTRA LAW REVIEW [Vol. 19:1113

yers earn their living by representing clients, they do so "in the spirit
of public service."' An arduous process of selection, education, and
socialization arms lawyers with the skills and the knowledge that are
of great utility to their clients. 56 But the interests of a client are to
be preferred over those of the lawyer; and the representation of the
client occurs in a context in which the lawyer, as an officer of the
court, vindicates the premises of the legal system.57 The lawyer
makes the adversary system work, but assists the search for truth and
justice in ways that go beyond the negative command that the lawyer
not violate the law in the course of representation. The professional
ideal is that each lawyer should strive to make the legal system live
up to its grand premise of equality before and under the law. 8

Public Service:" A Blueprint for the Rekindling of Lawyer Professionalsm (1986), reprinted
in 112 F.I.D. 243, 261 (1987) [hereinafter ABA Professionallsm Report].
55. Id. The phrase comes from Roscoe Pound's definition of a profession:
The term refers to a group ... pursuing a learned art as a common calling in the
spirit of public service-no less a public service because it may incidentally be a
means of livelihood. Pursuit of the learned art in the spirit of a public service is
the primary purpose.
R. POUND, THE LAWYER FROM ANTIQUITY TO MODERN TIMES 5 (1953). A more elaborate
definition prepared for the ABA Commission by sociologist Elliot Freidson includes as a
central element, justifying the special privileges of the profession, that "the client's trust [will
be inevitable because the client cannot adequately evaluate the quality of the service] is
overbalanced by devotion to serving both the client's interest and the public good." ABA
Professionalism Report, supra note 54, 112 F.R.D. at 261-62.
56. See ABA Professionalism Report, supra note 54, 112 F.R.D. at 261-62.
57. See id.
58. The classic modem statement of the profession's view of itself and its responsibili-
ties is the report of the ABA-AALS Joint Conference on Professional Responsibility. Profes-
sional Responsibility: Report of the Joint Conference, 44 A.B.A. J. 1159 (1958). Professor
Lon L. Fuller played a leading role in the formulation of the report. The legal profession,
according to the Report, imposes special obligations on lawyers, who "must evidence a dedi-
cation, not merely to a specific assignment, but to the enduring ideals" of the profession. Id.
at 1159. "Only such a dedication will enable [the lawyer] to reconcile fidelity to those he
serves with an equal fidelity to an office that must at all times rises above the involvements
of immediate interest." Id. The lawyer's role in partisan advocacy, for example, "is not a
concession to the frailties of human nature, but an expression of human insight in the design
of a social framework within which man's capacity for impartial judgment can attain its
fullest realization." Id. at 1161. This social framework sets limits on partisan advocacy:
The advocate plays his role well when zeal for his client's cause promotes a wise
and informed decision of the case. He plays his role badly, and trespasses against
the obligations of professional responsibility, when his desire to win leads him to
muddy the headwaters of decision, when, instead of lending a needed perspective
to the controversy, he distorts and obscures its true nature.
Id. at 1161. The Report also considers the lawyer's responsibilities as a counselor, as an
agent in the private ordering of affairs, and the lawyer's responsibilities of public service.
The central message is that everything a lawyer does, if done in accordance with the reasons
and restraints implicit in a proper understanding of the lawyer's calling, is a form of public
1991] MANDATORY PRO BONO

Unlike other professions, lawyers have embodied their aspirations

concerning access to justice in their codes of professional ethics.'
The lawyers' codes, however, state the obligation of public service in
aspirational rather than mandatory terms. Rule 6.1 of the Model Rules
of Professional Conduct, effective in the majority of American states,
provides that "[a] lawyer should render public interest legal service"
and then specifies activities aimed at achieving that goal (including
the provision of legal services to "persons of limited means ... at no
fee or a reduced fee). '' 60 The wording of the rule reflects an explicit
rejection of earlier drafts which mandated pro bono service. The
comment states explicitly that this responsibility "is not intended to
be enforced through disciplinary process., 61 The comment also states
that "[t]he basic responsibility for providing legal services for those
unable to pay ultimately rests upon the individual lawyer, and person-
al involvement in the problems of the disadvantaged can be one of
the most rewarding experiences in the life of a lawyer."'62 The ne-
cessity for publicly funded legal assistance for the poor is recognized
and "every lawyer" is urged63
to "support all proper efforts to meet this
need for legal services.,
These aspirational pronouncements do not limit "public interest
legal service" to lawyering for poor people. Legal work for "charita-
ble groups or organizations" and activities to improve the law, the

service. See Id. at 1162. As beneficiary and defender of the adversary system, the lawyer is
obliged to give reality to its underlying premise, equality before the law, by making legal
services available to all and by providing representation to unpopular causes. See id. at 1216.
59. See generally I. KULTOEN, ETHICS AND PROFESSIONALISM 262-269 (1988) (discuss-
ing the extent to which various professional codes meet the professional ideal that proficient
service be available to all who need it, without regard to ability to pay). Law, Kultgen con-
cludes, "is the one profession that deals with the problem in any important way" in its pro-
fessional code, but even its mention of a service obligation is narrow in scope and not sub-
ject to disciplinary enforcement. fI at 265.
60. MODEL RULES OF PROFESSIONAL CONDUCT Rule 6.1 (1990).
61. MODEL RULE 6.1 comment (1990).
62. Id.
63. MODEL RULES OF PROFESSIONAL CONDUCT Rule 6.1 comment (1983). The MODEL
CODE OF PROFESSIONAL RESPONSIBILITY (1969) also falls to mandate pro bono service. The
subject is dealt with in various Ethical Considerations, but not in the Disciplinary Rules. EC
2-25 states that the "basic responsibility for providing legal services for those unable to pay
ultimately rests upon the individual lawyer ... . Every lawyer, regardless of professional
prominence or professional work load, should find time to participate in serving the disadvan-
taged." EC 8-9 stated that "[tihe advancement of our legal system is of vital importance in
maintaining the rule of law . . . [and] lawyers should encourage, and should aid in making
needed changes and improvements." EC 8-3 states that "[t]hose persons unable to pay for
legal services should be provided needed services.
 HOFSTRA LAW REVIEW (Vol. 19:1113

legal system or the legal profession also qualify as "pro bono publico
service. " c' As previously indicated, the Marrero proposal would give
credit only to services that are directly related to the delivery of legal
services to persons categorized as poor.65
To what extent do lawyers voluntarily comply with these public
service responsibilities? Various studies show that most lawyers do
participate in some pro bono activities,' but much of that time is
directed toward activities that build relations with other lawyers, such
as bar association work, or work that is designed to attract clients,
such as free or reduced-rate work for local charities.67 Although law-
yers probably devote more time to public service activities than any
other profession, there is an inevitable shortfall between the ideal of
equal access to justice and the realities of today's world. 68

64. MODEL RuLEs OF PROFESSIONAL CONDUCT Rule 6.1 (1990).

65. MARRERO REPORT, supra note 6, at 768-69.
66. According to American Lawyer's survey of 86 of the nation's wealthiest law finns,
the average lawyer in a big firm works approximately 40 hours a year on pro bono work.
The survey focused on legal work done by lawyers, excluding support staff time, and did not
include charitable contributions. Barr, supra note 33, at 54, 56. Deborah Rhode notes that the
"average investment from the bar as a whole, according to another survey, was 6.2 percent
of billable hours." Rhode, Why the ABA Bothers: A Functional Perspective on Professional
Codes, 59 TEE. L. REV. 689, 699 (1981).
67. See Barr, supra note 33, at 51 (listing the specific nature of pro bono work under-
taken by 86 of the largest firms in the nation. Also examining pro bono time, counting only
legal hours as opposed to non legal work such as serving on a board, an ABA committee,
or fundraising). A 1982 survey conduct by the ABA showed that 68% of lawyers polled
contributed time in uncompensated public service activities. Among those who do participate,
the greatest percentage of their time was spend in work for charitable organizations. Law
Poll, 68 A.B.A. L 912 (1982).
68. David L. Chambers of the University of Michigan Law School has been engaged in
annual surveys of that school's graduates for a number of years. One survey provided infor-
mation concerning the pro bono attitudes and interests of graduates of two classes in the
early 1970s and two classes in the early 1980s. At the time of the survey, the older gradu-
ates were 15 years out of school and the younger graduates were 5 years out of school. A
majority of both groups opposed mandatory requirements that lawyers devote a specified
amount of time each year to pro bono legal services, but the older classes were more strong-
ly opposed. Graduates in both periods averaged about 30 hours per year of pro bono repre-
sentation of clients; in addition, the younger graduates devoted about 20 hours per year to
law-related pro bono work (e.g., bar committees, legal services boards), while the older grad-
uates averaged 41 hours per year on such" activities. Three-fourths of those in private practice
were engaged in pro bono work, while the percentages were nearly reversed for those em-
ployed by governments and corporations (nearly two-thirds of these lawyers did no pro bono
work). Private practitioners who did pro bono work averaged about 90 hours per year, ap-
proximately two weeks of work. Although some of the activity may be good public relations
or aid in client cultivation, the total effort is still substantial. D.L. Chambers, Pro Bono Work
by Michigan Graduates: Attitudes and Performance (1986) (unpublished survey).
1991] MANDATORY PRO BONO

THE ARGUMENT FOR MANDATORY PRO BONO

Most lawyers will agree with the following assumptions: First,

poor people encounter legal problems with some frequency. Although
it is true that having more resources gives rise to a somewhat greater
use of lawyers, poor persons are subject to regulatory regimes involv-
ing public benefits and facilities that give rise to special legal
needs.7" The legal problems of the poor, like those of other Ameri-
cans, range from the simple and routine to the highly complex.7 As
with other groups, investments in legal services can explore and cre-
ate legal uncertainties which further legal investments can then shape
in the interests of those receiving the service.
Second, the assistance of lawyers is either essential or highly
advantageous in dealing with court or administrative proceedings such
as housing evictions,7 2 divorces,73 or simple bankruptcies.74 Al-
though paralegals or non-lawyers could handle many routine tasks,
especially if the opposing interests are also represented by non-law-
yers, a poor person is at a severe disadvantage if an experienced and
able lawyer is representing the opposing interest.75 These are situa-
tions in which the absence of legal representation has a major effect
on the outcomes of such proceedings.
Third, the widespread unavailability of legal assistance to poor
persons undermines ideals we all take seriously (e.g. equal justice
under law, access to the legal system, and the rule of law).76 As
previously indicated, the belief system of the legal profession is
founded on these ideals. Severe departures from them give rise to

69. See supra notes 20-53 and accompanying text.

70. See Barr, supra note 33, at 51 (noting that in a 1989 study of legal needs by the
Chicago and Illinois Bar Associations it was concluded that to obtain basic rights and neces-
sities such as food and housing, "society has made its most vulnerable citizens deal with an
increasingly complex state bureaucracy and a confusing legal system").
71. See supra notes 44-48 and accompanying text.
72. See Dean, supra note 45, at 3, col. 1. The New York Legal Needs Study found
that 44.5% of poor persons questioned indicated that housing problems were their most seri-
ous unmet legal need. See id.
73. The New York Legal Needs Study concluded that it is nearly impossible for low
income people to find a lawyer for a contested divorce. See Ea at 7, col. 1.
74. Dean noted that the typical consumer case involved a low income person enrolled in
a vocational program where he or she either went into debt to pay the tuition and never
received the promised training or a refund of the tuition. See id.
75. See d. at 3, col. 2 (noting that where tenants were represented by counsel, evictions
were averted in over 90% of the cases. However, where tenants were not represented by
counsel, 85% of the cases were estimated to have ended in eviction).
76. See MARRERO REPORT, supra note 6, at 775.
 HOFSTRA LAWREP7EW [Vol. 19:1113

self-doubt and external attack: Is the ideal of professional service

merely a facade that conceals an attempt on the part of lawyers to
advance their own status and reward at the expense of the communi-
ty?
The case for mandatory pro bono rests on the undisputed fact
that there is a serious social need that is not being met by the present
system, which includes the volunteer efforts of lawyers. 7 The next
step in the argument is that lawyers have a special responsibility to
provide legal assistance to the poor because of the profession's public
commitment to justice 78 and its monopoly of the provision of legal
services. Therefore, proponents argue, the profession must take up-
on itself the obligation of meeting the poor's most serious needs. At
least it must do so until the problem can be handled by other means,
such as greater taxpayer support of legal services or judicare pro-
grams.
The remainder of this article considers the practical and moral
objections to mandatory pro bono in the light of underlying policy
considerations. Although important, the constitutional issues are not
emphasized. 0 The policy issues are in the foreground and may be
the decisive factor in rejecting mandatory service. Although constitu-
tional doubts influence the discussion by suggesting a cautious ap-
proach respectful of the rights asserted,"1 I believe that the policy
issues are likely to be determinative. If American states, by judicial
rule or legislative action, impose a limited pro bono service require-
ment on licensed lawyers, it is likely that its constitutionality will be

77. See supra notes 18-46 and accompanying text.

78. See MARRERO REPORT, supra note 6, at 782 (stating that "[m]uch of the law and
what lawyers do is about providing justice, a principle that few lawyers would hesitate plac-
ing nearer to the heart of our way of life and guarded more closely than the services provid-
ed by other professionals. The legal profession serves as indispensable guardians of our lives,
liberties and governing principles.").
79. See id at 780.
80. Federal constitutional issues presented by mandatory pro bono proposals are briefly
discussed infra at notes 99-104.
81. Professor David Shapiro's careful consideration of the constitutional issues concludes
that
[n]one of the constitutional questions discussed here, except perhaps some aspects
of that under the thirteenth amendment, is easily resolved. My own view is that
any system or practice of required service must leave room for the conscientious
objector, that a lawyer who is especially heavily burdened by such a system has a
valid constitutional objection, and that a broader constitutional challenge to a sys-
tem of compulsory service without adequate compensation might fail, but only by
a whisker.
Shapiro, supra note 1, at 777.
1991] MANDATORY PRO BONO 1127

sustained. Successful legal attacks are more likely to turn on constitu-

tional or statutory authority to enact the requirement in a particular
state, rather than on federal constitutional grounds.

PRACTICAL OBJECTIONS TO MANDATORY PRO BONO

There are practical and moral objections, however, to the imposi-
tion of a pro bono obligation on all lawyers. The practical objections
are:
First, will mandatory pro bono lead to low quality or highly
inefficient representation? Compelling lawyers to provide free legal
services may result in grudging and low quality service .2 More
important, the legal problems of poor people involve special knowl-
edge and skills that many private practitioners usually lack. 3 Is an
office lawyer specializing in corporate tax matters likely to be useful
in handling an eviction case in a housing court, a child custody dis-
pute, or a complicated welfare benefits matter? An able lawyer can
pick up these skills given sufficient training and hard work. More-
over, "[c]ompetency," as Michael Millemann correctly states, "is a
comparative concept."' 4 A recent law graduate, despite seven years
of higher education, may have limited competency in doing many
things that experienced lawyers do every day. Yet most graduates can
build on what they know, assisted by advice from more experienced
lawyers, to carry out many routine legal tasks in a reasonably satis-
factory manner.8 Some frequent problems of poor people (e.g., di-
vorce, landlord-tenant, commercial problems) draw on common-law or
other materials familiar to many lawyers. A lawyer unexperienced in
poverty law, by selecting an area drawing on skills or knowledge that
the lawyer has and supplementing this with some educational effort,
may provide highly satisfactory representation to poor clients. 6 The
question remains, however, whether the quality of services performed
grudgingly and by command will be adversely affected.

82. Wise, supra note 14, at 1, col. 5 (quoting A. Thomas Levin, President-Elect of the
Nassau County Lawyer's Association as saying "[i]t's wrong to tell people they have to do
something. You can't mandate good work").
83. But see MARERO REPORT supra note 6, at 812 (noting that lawyers are known to
be generalists, and as such have a capacity to master the unfamiliar complexities of the cases
in areas of the law in which they have little or not prior experience
84. Millenann, supra note 1, at 62.
85. See id.
86. See id at 60 (noting that there is 'little of domestic law practice that is unique to
the poor").
 HOFSTR4A LAW REVIEW [Vol 19:1113

Viewed in light of the alternatives-no representation or self-

representation-the competency problem is overstated. The more
serious issue is that of efficiency: would a dollar contribution used to
employ poverty law specialists provide more and better service?
Funds for the provision of training, backup, and support of thousands
of compelled lawyers might better be spent in hiring poverty law
specialists to do the job. The Marrero proposal addresses this objec-
tion in part through its buy-out provisions: large-firm lawyers may
assign associates to meet the firm's obligation; and small firm lawyers
can pay off their obligation in cash by paying $1,000 per year.87
Committed and specialized legal services lawyers will then be hired
to handle poor people's problems.88
Second, administrative and enforcement problems are substantial
and troublesome. If voluntary bar associations impose the requirement,
their membership may drop. If courts require all lawyers to donate
their time, some lawyers may refuse to comply. If a substantial num-
ber of lawyers did so, the disciplinary authority would be placed in a
difficult posture. A failure to punish conscientious disobedience might
encourage general non-compliance; selective prosecution of a few
visible violators would raise fairness questions; and proceeding against
all violators would strain disciplinary resources and engender in-
creased resentment on the part of many lawyers. There are strong
moral, practical, and legal grounds for recognizing a conscientious
objection exception to any program of mandated service. Moreover,
problems of inclusion and enforcement need to be handled. Will the
requirement apply to lawyers engaged in teaching, politics, business,
or full-time government service? How will the requirement be po-
liced? A substantial bureaucracy would be required to screen the
reports of nearly 90,000 New York lawyers 9 in order to see wheth-
er they were in compliance with the rule.
Further, the details of any proposal raise large issues of fairness
and administrative process. The Marrero proposal, for example, is
attacked by some because its obligations are said to fall more heavily
on solo or small-firm lawyers than they do on large-firm practitio-
ners.' Those who are new to the profession or who are struggling

87. See MARRERO REPORT, supra note 6, at 799-806 (discussing options involved in
compliance with the proposal).
88. See il
89. See STATISTICAL ABSTRACT, supra note 39, at 178 (stating that as of 1985, there
were 72,575 practicing lawyers in New York). ,
90. See Mandatory Pro Bono: Should the New York Bar Require 20 Hours of Pro Bono
1991] MANDATORY PRO BONO

to make a living as a lawyer may find the pro bono requirement

especially onerous, while senior partners in major law firms will find
it easy to let the law firm provide an institutional response.
Third, the actual effects of a mandatory pro bono program on
the delivery of legal services depend very largely on how the obliga-
tion is defined and enforced. Unless the pro bono obligation is re-
stricted to a particular need, such as legal services for the poor, it
may not result in greater representation of poor people. 91 Most of
the pro bono effort of lawyers today involves participation in bar
association activities or volunteered services to friends and community
organizations.' If these latter activities count in meeting the pro
bono obligation, lawyers will be more active in bar association work,
will give more self-promoting speeches to church groups, and do
more free legal work for in-laws and country clubs. On the other
hand, if an effort is made to limit the pro bono obligation to free
legal services for the poor, this will have a negative impact on partic-
ipation in bar activities and on the reduced-fee work that many law-
yers now provide to low-income people, community groups, and
charities.93
There is a further problem in restricting the scope of qualifying
activities to work directly related to the legal needs of those catego-
rized as persons eligible for certain public benefits (the eligible poor).
Many lawyers in sole or small firm practice currently provide reduced
fee service to the near poor or the working poor. Such practitioners
will be disadvantaged by the Marrero proposal because their services
are not provided on a free basis, as is required by the proposal. If
lawyers do not have a broad choice of how they are to help the
eligible poor, it is likely that the assigned activities will be objection-
able to some. Individual-client service for the poor (e.g., a divorce or
an individual bankruptcy) have little or no political coloration, but the
law reform activities of public interest lawyers often seek institutional
or other change that will redistribute income to certain groups or
further political organization of poverty groups. These activities are
not objectionable in themselves, quite the contrary, but when the state

a Year? No, A.B.AJ., Oct. 1989, at 53.

91. See LUBAN, supra note 1, at 278-279; MARRERO REPORT, supra note 6, at 142
(giving statement by Thomas F. Gleason).
92. See supra notes 63-66 and accompanying text.
93. See MARRERO REPORT, supra note 6, at 768 (stating that of three qualifying catego-
ries of services, only one addresses itself to charitable public interest organizations limited to
matters which are designed predominantly to address the needs of the poor).
 HOFSTRA LAW REVIEW [Vol. 19:1113

compels an individual to engage in activities of this character, serious

concerns of individual freedom and expression may arise.94 Prudence
and good judgment suggest that any pro bono requirement provide
each lawyer with a wide choice as to how it may be satisfied. This
in turn suggests a broad definition of qualifying service. Model Rule
6.1 and the ABA declaration of policy in the Montreal Resolution"
take this latitudinarian course.
Fourth, the imposition of a mandatory pro bono obligation on
New York lawyers, not borne by their competitors in other states,
will have adverse effects on the New York legal community. Whether
a pro bono obligation takes the form of an exaction of time, money,
or leaves this choice to the individual lawyer, it constitutes a special
tax on lawyers. The tax burden is likely to fall in part on the lawyers
subject to it and in part on clients who have few other options. 96
New York lawyers compete with lawyers elsewhere for a substantial
portion of the legal business of large corporations, and competition
will prevent the pro bono burden from being passed on to clients
who can go elsewhere for their legal services. Incomes of New York
lawyers will decline somewhat if New York lawyers bear costs that
lawyers elsewhere do not carry. In sectors of the New York legal
services market with high demand and limited supply, legal fees
would rise to cover the cost of the pro bono obligation. Either way,
whether New York lawyers or their clients bear the cost (probably it
would be shared in varying proportions in different sectors of the
legal services market), the overall effect would be a net migration of
lawyers or legal business away from New York to competing loca-
tions. The magnitude of the pro bono obligation, and therefore the
amount of the "tax" it imposes on New York lawyers, will determine
the magnitude of this adverse economic effect. If all jurisdictions
adopted the same proposal, there would be no differential effect on

94. See infra note 99 (discussing the First Amendment challenge to mandatory pro bo-
no).
95. The Montreal Resolution was adopted by the ABA House of Delegates in May
1975. It states that each lawyer has -a basic professional responsibility . . . to provide public
interest legal services," and defines such service broadly as no-fee or reduced-fee work in
poverty law, civil rights law, representation of charitable organizations, and activity to im-
prove the administration of justice.
96. In the short run, economists tell us, the ability of lawyers to pass the burden of tax
to their clients is dependent upon the slope of the demand curve for the particular legal
service. The economic effects of taxes and regulatory requirements are the subject of a large
and complex literature. See generally Tim EcoNoMIcs OF TAXATION (Aaron & Boskin eds.
1980).
1991] MANDATORY PRO BONO

New York lawyers, although the cost of legal services nationally

would increase somewhat.

MORAL OBJECTIONS TO PRO BONO REQUmEMENT

The principal moral objections to mandatory pro bono are:
First, it is a violation of individual liberty to compel a lawyer to
give her time to particular activities. Most of the decided cases in-
volve the somewhat different issue of court appointment to provide
representation in a particular case without compensation. 7 Institu-
tional arrangements for the uncompensated appointment of lawyers to
defend indigents in civil cases raise some special problems: they bear
heavily on one group of lawyers (trial lawyers); the amount of time
required of individual lawyers may be quite large; and the assignment
program may be plausibly viewed as a failure by the state to fund an
activity that is essentially a public function." Nevertheless, such ap-
pointments or programs have been upheld against challenges based on
the first amendment,' the takings clause,"°° the equal protection

97. See Mallard v. District Court, 490 U.S. 296 (1989) (noting that the constitutional
issues were not reached because the federal in fonna pauperis statute permitted the district
court to "request" a lawyer's volunteered services, but did not require those services). The
majority recognized the moral obligation to serve arising from professional tradition; the mi-
nority of four would uphold a statute under which a lawyer could not decline a court ap-
pointment without an adequate reason, such as conflict of interest, undue hardship, or lack of
competency to handle the particular matter. See id.
98. A program of uncompensated assignment in criminal cases would be the most objec-
tionable, because there the state would be placing an obligation it is constitutionally required
to perform upon a subgroup of lawyers who are qualified to handle criminal cases. See State
v. Rush, 46 N.L 399, 217 A.2d 441 (1966) (stating that, although lawyers have a profession-
al obligation to accept an appointment to represent an indigent defendant, this service should
be compensated).
99. The First Amendment challenge to mandatory pro bono rests on an assertion that
compelled representation, by requiring a lawyer to espouse values or ideas that may be dis-
agreeable to her, violates expressive autonomy. See Wooley v. Maynard, 430 U.S. 705 (1977)
(holding that a state may not require a citizen to carry an ideological message on the his or
her license plate). A lawyer does not endorse a client's views and is prohibited from express-
ing a personal opinion about the client's case. See MODEL RULES OF PROFESSIONAL CON-
DUCT Rule 1.2 (1983). The argument properly applies only to appointed representation of a
specific client and not to a program in which a lawyer has wide choice as to how the obli-
gation is met. See id.
100. The practice of law is a property interest protected under the takings clause of the
Fourteenth Amendment. See Konigsberg v. State Bar, 353 U.S. 252 (1957). Thus it is argued
that a state program that takes a portion of this interest without compensation is unconstitu-
tional. The courts have rejected this argument: a requirement that a relatively small number
of hours be devoted to public service falls short of a -taking;" and the bar's historic tradi-
tions of public service and response to court appointments support the enforcement of a pub-
 HOFSTPA LAWREVIEW [V/ol. 19:1113

clause," 1 or the prohibition of involuntary servitude."w A

mandatory pro bono program requiring, 20 hours a year of work for
poor clients in civil matters raises fewer constitutional questions than
does the court appointment practice. 3
The extreme libertarian argument that the imposition of a modest
pro bono obligation on lawyers constitutes involuntary servitude viola-
tive of the Thirteenth Amendment is implausible."° The practice of
law is a regulated industry, infused with the public interest. Requiring
a lawyer to donate a limited amount of time, or a corresponding
amount of money, to a justice-related cause is not unconstitutional.
However, there is a larger issue of whether it is wise and desirable.
This is a normative question resting upon an assessment of competing
moral claims and of prudential considerations such as the seriousness
of the social need and the relative desirability of alternatives.
Second, opponents of mandatory pro bono argue that converting
a gift of volunteered service into a compelled exaction spoils the
moral significance of the basic choice we all should make. Such
choices are the embodiment of what it means to be a good law-
yer.0 5 In a sense, the concept of mandatory pro bono is an oxymo-

lic service obligation. See, e.g., Family Div. Trial Lawyers v. Moultrie, 725 F.2d 695 (D.C.
Cir. 1984) (noting that compulsory appointment of a lawyer was not a taking); United States
v. Dillon, 346 F.2d 633 (9th Cir. 1965) (stating that uncompensated representation of indigent
criminal defendant is not a taking). See Shapiro, supra note 1, at 770; Note, Court Appoint-
ment of Attorneys in Civil Cases: The Constitutionality of Uncompensated Legal Assistance,
81 COLUM. L. REV. 366 (1981); but see State ex rel Scott v. Roper, 688 S.W.2d 757 (Mo.
1985) (suggesting that uncompensated service presents a constitutional question); State ex rel.
Stephan v. Smith, 242 Kan. 336, 370, 747 P.2d 816, 842 (1987) (noting that a lawyer's time
is a property interest protected by the taldngs clause).
101. See Rosenfeld, supra note 1, at 294 (discussing equal protection issues in court
appointment of lawyers).
102. The claim that a required public service obligation is "involuntary servitude" viola-
tive of the Thirteenth Amendment has been and should be rejected where the obligation
constitutes only a modest number of hours per year. An obligation of this kind may be
viewed as an imposition or as a tax, but not as the kind of physical restraint and total loss
of freedom that characterizes the "involuntary servitude" prohibited by the Constitution. Un-
like a slave, a lawyer. always has the option of pursuing other endeavors. See Note, Court
Appointment of Attorneys in Civil Cases: The Constitutionality of Uncompensated Legal Assis-
tance, 81 COLUM. L. REv. 366, 378-382 (1981).
103. See Montague, Take This Case for Free. . . or Else, A.B.A.J. May, 1989, at 54
(discussing programs of court appointment).
104. See Millemann, supra note 1, at 70 (stating that conditions of servitude do not exist
without the threat of legal confinement or physical restraint as an alternative to service).
105. See ia at 64 (stating that opponents of mandatory pro bono argue that requiring
lawyers to help the poor would deprive them of the feeling of self-satisfaction they derive
from doing volunteer work. Proponents of pro bono point out that pro bono work is not
1991] MANDATORY PRO BONO

ron, like military music. The pro bono concept has at its heart the
idea of the committed citizen who chooses to further the public inter-
est rather than exclusively his own." Is the moral significance of
this choice decreased when the ideal of aspiration is replaced by the
morality of duty? Will duty produce better results than the continued
assertion of moral obligation? The better view embraces the prefer-
ence of private choice over public mandate. There is some validity to
George Bush's "thousand points of light." Requiring citizens to work
on the roads or to staff soup lines as a civic obligation is at odds
with present-day notions of liberty and moral choice. Arguably, taxing
them to provide these services is less of an imposition.
Law, as well as moral thinking, distinguishes between the pay-
ment of money and compelled services. Just as specific performance
is thought of as an exceptional remedy as distinct from an award of
damages,"° ordering an individual to provide services is more intru-
sive upon the core of individuality than a general law requiring the
same individual to pay money (e.g., a portion of income). Although
taxation can be onerous, requirements that take the form of personal
service are more likely to result in angry or principled opposition.
Finally, mandatory pro bono proposals tend to be regressive and
inequitable, imposing a heavy burden on economically marginal law-
yers and harried associates, while treating more gently those at the
senior ranks of large law firms. The Marrero proposal does not avoid
this unfairness. The senior partners of a large law firm can meet their
pro bono obligation by assigning an associate to work six months in
a legal services office or by pooling dollar contributions to hire a
full-time poverty lawyer at the much lower paying poverty-law
scale."0 8 These alternatives are either unavailable or impracticable
for the solo practitioner or the small-firm lawyer. Moreover, the
$1,000 tax is highly regressive when applied to lawyers who are
earning, respectively, $30,000 and $300,000. A proposal framed in
terms of a percentage of income or a percentage of legal fees would
more fairly reflect economic reality. There is a further argument that
a tax on lawyers' fees or income is a highly visible way to provide

meant to benefit the lawyer, but to provide legal aid to the poor).
106. See I&.
107. See 3 E. FARNSWORTH, FARNSWORTH ON CONTRACTS § 12.6 (1982) (stating that
equitable relief will not be granted if money damages are adequate).
108. See MARRERO REPORT, supra note 6, at 797-99 (discussing the possibility of allow-
ing groups to assign one or more members to perform qualifying services to satisfy the
group's combined time requirements).
 HOFSTRA LAW REVIEW [Vol. 19:1113

resources for civil legal assistance for the poor. When the costs of a
social program are buried in a less visible "professional obligation,"
issues concerning alternative ways to provide low-cost legal services
to the poor are also submerged.
The underlying issue, of course, is whether lawyers should be
singled out for this tax. We do not expect farmers or grocers to feed
the poor, or doctors to devote a substantial portion of their income to
subsidized health care."° These occupational groups are not expect-
ed to undertake an obligation to meet these massive social problems.
Instead, we look to the general taxpayer for support. Taking a differ-
ent view with respect to lawyers must rest on arguments that lawyers
are different because law is different."n Law is the glue that holds
the community together; lawyers are given exclusive privileges in
maintaining and operating the legal infrastructure. Part of the quid pro
quo for this professional monopoly is the obligation to insure that the
less fortunate have access to the legal system.'

A DuTy To SERVE?
Some lawyers will resolve the issue on the basis of the practical
and moral considerations just discussed. But others will be more
influenced by fundamental ideas of what it means to be a lawyer. Is
there a professional obligation to insure that the legal needs of every-
one are met without regard to ability to pay? Legal practitioners for
centuries have provided no-fee or reduced-fee services to causes they
thought worthwhile and professional aspirations have included the
moral assertion that the individual lawyer should participate in public
interest endeavors. However, this moral claim has not hardened into a
mandatory obligation. David Shapiro's careful analysis of the history
of court assignments of counsel in England and the United States
concludes that "[t]o justify coerced, uncompensated legal services on
the basis of a firn tradition in England and the United States is to
read into that tradition a story that is not there." ' Shapiro also
concludes that the response of American courts to lawyers' objections
to compulsory service "has been far from unanimous from the very
beginning and has become increasingly fractionated in recent de-

109. See id. at 782.

110. See id.
111. See id
112. Shapiro, supra note 1, at 753.
1991] MANDATORY PRO BONO

cades."' The majority in the Supreme Court's divided decision in

Mallard v. District Court"1 4 relied on Shapiro's study in declining
to interpret a federal statute as requiring a lawyer to perform uncom-
pensated services for an indigent civil litigant.
Does a mandatory obligation flow directly from ideas of "profes-
sionalism?" One argument of this character is based on the historical
tradition, just discussed, of lawyers devoting substantial time to wor-
thy causes and of responding to court appointments. No one disputes
the tradition; the issue is whether it is confined to a moral obliga-
tion-a duty of aspiration-and whether putting it in mandatory form
is inconsistent with that tradition. A second argument rests on the fact
that the lawyer's license is an exclusive privilege-non-lawyers are
prohibited from engaging in "the practice of law." The functionalist
view of a profession often includes the assertion of a quid pro quo
between society and the profession: the profession agrees to undertake
public service obligations in return for privileges that protect it from
internal and external competition, thus providing practitioners with the
material security that makes possible uncompensated public ser-
vice.1l5
Although this approach may have had some validity in the small-
town America of the past, in which the fees of a secure and well-
established lawyer would vary with the client's ability to pay, it is
fanciful in today's world.1 6 Nearly 800,000 lawyers are engaged in
an increasingly competitive search to find and retain paying clients. A
small number of large law firms, who are in a special position to
charge high fees for important transactions or litigations in which
they are viewed as having superior qualifications, may still be partly

113. Id at 753.
114. 490 U.S. 296 (1989) (holding that 28 U.S.C. § 1915(d), providing that a court may
"request" an attorney to represent an indigent litigant in a civil case, does not require an
unwilling attorney to accept the appointment); see also Hazard, After Professional Virtue,
1989 SUP. CT. REV. 213 (reviewing Mallard and the traditional ethical obligation of lawyers
to volunteer for pro bono work).
115. See generally J. KULTGEN, supra note 59 (arguing that the special privileges of
certain professions give rise to some public responsibilities); Simon, Babbitt v. Brandeis: The
Decline of the Professional Ideal, 37 STAN. L. REV. 565, 568 (1985) (stating that the profes-
sional ideal seeks to cultivate an altruistic orientation, but is premised on organizational
modes that "immunize their members from certain commercial pressures and . . . guarantee
them a secure threshold of material welfare.")
116. For a discussion of changes in the structure of the legal profession and competition
in the marketplace for legal services, see Galanter, Mega-Law and Mega-Lawyering in the
Contemporary United States, in THE SOCIOLOGY OF THE PROFESSIONS: LAWYERS, DOCTORS
AND OTHERS (P. Dingwall & P. Lewis eds. 1983).
 HOFSTRA LAW REVIEW 19:1113
[V/ol.

shielded from market pressures. But, the mass of lawyers, both in the
corporate-law fimn sector and in the individual-client service sector,
are operating in a competitive market place.
Further, it is no longer accurate to speak of a professional mo-
nopoly. Growth in the number of lawyers, the abandonment of re-
straints against internal competition (e.g., advertising and solicitation
of clients, minimum fee schedules, and barriers to new forms of
delivery such as closed plans in prepaid legal services), and changes
in legal culture have reduced or eliminated opportunities for cross-
subsidization. External competition from other service providers is
also increasing, with the consequence that the prohibition of unautho-
rized practice of law is being narrowed to in-court representation.
Many policy arguments support a continued reliance on competi-
tion to protect consumers and to provide them with more options.
Lawyers should operate in a much more open and competitive mar-
ketplace for services of all kinds. Lawyers do have special responsi-
bilities for the maintenance of a just legal system, but each lawyer
should not be viewed as a resource that can be tapped to meet gener-
al social needs. A more desirable alternative to mandatory pro bono,
in my view, is an increase in public funding of civil legal assistance
for the poor and a deregulation of the marketplace for services that
would provide more low-cost alternatives.

ALTERNATIVES TO MANDATORY PRO BONO

My conclusion is that the need for legal services for poor people
is great but other alternatives are preferable to mandatory pro bono.
What are the alternatives?
First, the moral obligation of lawyers to serve those who need
help, but cannot afford to pay, should be continually reasserted. Well-
organized programs that encourage and facilitate private bar participa-
tion in publicly-funded legal services programs should be implement-
ed by state and local bar associations. The effectiveness and number
of volunteer participants can be improved. Much is already being
done in this regard. There is serious debate in a number of law
schools whether they can do more to nurture the public service im-
pulse in future lawyers." 7 A few law schools, including Tulane and

117. See Kornhauser, Mandatory Pro Bono Sought for Law Schools, Legal Times, Oct.
29, 1990, at 6, col. 1. An all-day program at the AALS annual meeting (Jan. 3, 1991) was
devoted to law school measures that might assist in realizing the professional ideal of service,
including pro bono programs for law students.
1991] MANDATORY PRO BONO

Pennsylvania, have made public service a part of the required law

curriculum."' Although an accreditation requirement that would give
law schools no options is unfavorable, it is desirable that schools who
choose to require public service as part of their curriculum provide
this model for those who want to enter the profession.
Second, individual lawyers and the organized bar should favor
the expansion of publicly funded legal services programs. Federal
funding should be increased substantially. Furthermore, state and local
support should be enlarged through increased appropriations and pri-
vate giving. One dramatic new source of funding are programs that
devote the interest earned on lawyers' trust accounts (IOLTA), is
already producing dramatic results.1 9 The funds generated by
IOLTA programs increase dramatically when participation is required,
an approach that is not a substantial invasion of the autonomy of
lawyers or the property of clients.' Part of the increased funding,
as now, should be devoted to improved utilization of the volunteered
activities of private lawyers (e.g., through pro bono coordinators and
training programs in local legal services organizations).
Third, the bar should seek to further the competitive marketplace
in the delivery of routine legal services by abandoning some restric-
tive practices that reduce the availability and increase the cost of
routine legal services. The prohibition on the unauthorized practice of
law should be limited to representation in contested court proceed-
ings.' The current restraints on form of practice (e.g., prohibition
of participation by non-lawyers in the ownership and management of
organizations providing legal services) should be drastically curtailed,
if not eliminated." Provision of a greater variety of service alterna-

118. Id.
119. See Rhudy, Remarks at LSC Conference, supra note 51. IOLTA programs will
generate about $140 million in 1990, most of which is devoted to civil legal assistance.
"Where lawyers are required to participate, the funds raised by IOLTA programs are substan-
tial .... In less that five years, California's mandatory program raised $40 million., G.
HAZARD, JR. & S. KONIAK, THE LAW AND ETHICS OF LAWYERING 565 (1990).
120. See Cone v. State Bar, 819 F.2d 1002 (l1th Cir. 1987) (upholding Florida's manda-
tory IOLTA program against claim that it consisted an unconstitutional taking of property
without just compensation); Carroll v. State Bar, 166 Cal. App. 3d 1193, 213 Cal. Rptr. 305
(1985)(upholding the California mandatory program against various constitutional challenges).
121. See Rhode, Policing the Professional Monopoly: A Constitutional and Empirical
Analysis of Unauthorized Practice Prohibitions, 34 STAN. L. REv. 1 (1981) (discussing the
bar's efforts to suppress the unauthorized practice of law as well as collecting and discussing
statutes and cases from all states).
122. See MODEL RULES OF PROFESSIONAL CONDUCr Rule 5.4 (1983) (prohibiting any
non-lawyer ownership of or profit participation in an organization providing legal services).
 HOFSTRA LAW REVIEW [Vol. 19:1113

fives to all Americans, many of them at substantially lower cost, may

be perhaps the most important step in improving access to justice on
the part of the poor. The situation of most persons who are below the
poverty line is not much different from the millions who are just
above it: they can patch together modest amounts of money to pay
for much-needed services. But this can be done only if the charges
are low and the services readily available.
Finally, it should be remembered that inducements and rewards
are often more efficacious in changing behavior than commands or
threats of punishment. Fee-shifting arrangements that reimburse pre-
vailing plaintiffs for litigation costs, including attorney's fees, have
the effect of providing highly competent counsel to those who seek
damages to enforce violations of statutory rights." Legislative at-
tention should be directed to the proper scope and application of one-
way fee-shifting statutes. This technique is less efficacious when
litigation seeks only injunctive relief or when the needed legal service
is transactional rather than in a litigation format (e.g., drafting legal
documents). Because there is a special risk of lack of proportionality
in expenditures on legal services if the full amounts are paid by the
public, some protections must also be included for defendants who
are put to great expense in defending litigation that turns out to be
non-meritorious.

CONMPETION IN THE LEGAL SERVICES MARKETPLACE

This is a time of enormous change in the nature and structure of
law practice in the United States. 4 There is widespread recognition
of the fact that the legal services industry is a much more competitive
market place than it has been in the past. Restraints against competi-
tion within the profession, such as the prohibitions of advertising,
solicitation, and referral fees, have been largely abandoned." z In-
creases in the demand for legal services have led to the entry of an
enormous number of new lawyers. Competitive pressures for legal

123. See Evans v. Jeff D., 475 U.S. 717 (1986) (discussing the effects of one-way fee
shifting statutes on the availability of lawyers to plaintiffs who have meritorious claims).
David Luban proposes two-way fee shifting (the loser paying the winner's litigation costs) in
civil cases in which a publicly-funded lawyer is engaged in litigation with a privately-retained
lawyer. In order not to discourage meritorious cases or to encourage unmeritorious ones, the
attorney-fee award would be limited to a modest statutory schedule, as in Germany. See
LUBAN, supra note 1, at 273-277.
124. See generally ABEL, supra note 19.
125. Id at 119-26.
1991] MANDATORY PRO BONO

business have increased the variety and quality of available ser-

vice. 12 Specialization and the increased use of paralegals have
lowered the cost and increased the quality and variety of routine legal
services. These developments, which have increased substantially the
total demand for legal services, have primarily benefitted middle-in-
come Americans, although some benefits have flowed to lower-in-
come people.
Routine legal services to individual Americans (wills, uncontested
divorces, simple bankruptcies, residential home transactions, and the
like) are best met by arrangements which assure quality control, ac-
countability, and a competitive price. Lawyers will increasingly be
competing with organizations staffed largely by paralegals in provid-
ing these routine services. Seven years of higher education is not
required for most repetitive transactions of this character. Elimination
of the restrictions on the unauthorized practice of law would further
current developments and help provide legal services to low-income
people.
What about those whose income is so low that a few hundred
dollars for an uncontested divorce is not available? An expansion of
the federally-funded legal services program is a possibility here. Such
a solution would both increase the availability of staff lawyers and
add judicare alternatives in matters like divorce and bankruptcy which
many qualified private practitioners can handle. A tripling of the
federal expenditure on this program, from $300 million to $1 billion,
would help meet current needs.
Finally, the continued assertion of the moral obligation of all
lawyers to devote themselves to the legal needs of the poor, as well
as to other major interests of the justice system, can continue to
expand the number of private lawyers who are volunteer participants.
Not every one will respond. Perhaps it is unrealistic to expect that
more than one-fourth of lawyers will participate. At least those who
do take part will do so cheerfully and responsibly.

126. Id at 74-111.