Pro Bono Program

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Pro Bono Public Service in Florida

The Story of Legal Aid Society’s Pro Bono Commitment

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Pro Bono Public Service in Florida

                                ...(E)very lawyer of this state who is a member of The Florida Bar
                                has an obligation to represent the poor when called upon by the
                                courts and...each lawyer has agreed to that commitment
                                when admitted to the..practice of law in this state.  Pro bono is
                                a part of a lawyer's public responsibility as an officer of the Court.
                                In Re Amendments to Rules Regulating The Florida Bar -- 1-3.1(a)
                                and Rules of Judicial Administration -- 2.065 (Legal Aid).,
                                573 So. 2d 806 (Fla. 1990).

First opinion, December 13, 1990.  573 So. 2d 800, (Fla. 1990). Second opinion, February 20, 1992.  598 So. 2d 41, (Fla. 1992). Third opinion, June 23, 1993.  As clarified on Denial of Rehearing, February 3, 1994.  630 So. 2d 501, (Fla. 1993). Petition to Eliminate Mandatory Annual Reporting denied, 696 So. 2d 734 (1997). Code of Judicial Conduct Amendments..Pro Bono Activities by Judges and Judicial Staff. 840 So. 2d 1023 (February 20, 2003). Amendments fo Rules regulating The Florida Bar, Pro Bono Activities by Government Lawyers. 841 So. 2d 443 (February 20, 2003).

            In response to a petition filed on behalf of 58 members of The Florida Bar in 1990, the Florida Supreme Court wrote four opinions over the next four years.  Before it announced each opinion the Court heard arguments from many groups and individuals with diverse views.  It also received a report from the Joint Commission of The Florida Bar and The Florida Bar Foundation on the Delivery of Legal Services to the Indigent and later asked the Commission to submit proposals for rules implementing the Court's decisions.  Justice Overton wrote for the majority in each opinion.

            In the first opinion, a unanimous Court found that each attorney has an obligation to provide legal services to the poor as a result of the attorney's admission to the bar.  The Court reviewed the history of the legal system and cited the important role a lawyer/advocate plays in making the legal system work.  It concluded that a judge has the power to appoint an attorney to represent an indigent in civil matters.  The appointment would not be involuntary servitude or taking without compensation and would not violate the Thirteenth and Fifth Amendments.

            The Joint Commission filed a report that covered a number of issues.  In Recommendation No. 24, the commission proposed a voluntary pro bono plan with a suggested minimum contribution from each attorney of 20 hours of pro bono legal services per year or a payment of $350 to a legal services program, a narrow definition of legal services, a description of a variety of activities for pro bono attorneys, and a plan for the reporting of pro bono participation by lawyers.

            The majority of the Supreme Court in the second opinion adopted the Joint Commission's Recommendation to have a voluntary plan with a mandatory reporting requirement.  Two justices supported a mandatory pro bono plan, and two justices were opposed to mandatory reporting.

            After the Joint Commission submitted proposals for the rules, the Court issued its third opinion on June 23, 1993.  Three justices concurred with the majority opinion without comment.  Three justices concurred, but each expressed different concerns about the buy-out option.  The opinion narrowly defined legal services to the poor; deferred participation in pro bono work temporarily for the judiciary and their staffs; deferred those government attorneys who are prohibited from participating by statute, rules, or other regulation; permitted collective satisfaction of pro bono in limited circumstances; approved mandatory reporting requirements; discussed the obligation of out of state members; and encouraged the development of local pro bono plans.

            The Court adopted an extensive amendment to the Rules of Professional Conduct, which is Chapter 4 of the Rules Regulating The Florida Bar.  The amendments were to Rule 4-6 Public Service and were effective on October 1, 1993.  The new rules (4-6.1 and 4-6.5) contain a definition of pro bono, describe the activities which will fulfill the rule, include a form for use by attorneys in reporting pro bono activities, establish the Voluntary Pro Bono Plan, outline the duties of the Standing Committee on Pro Bono Legal Service, and summarize the role of circuit pro bono committees.

            Several motions were filed in response to this opinion and the court entered a very brief fourth opinion on February 3, 1994.  The court denied the rehearing requests and made a technical clarification of the wording of the rules.  In 1997, The Florida Bar petitioned to amend 4-6.1 of the Rules Regulating The Florida Bar by removing the mandatory annual reporting.  The Court denied the petition.

            The requirements for members of The Florida Bar are set in the Rules Regulating the Bar, 4-6.1 and 4-6.5.  Every member of The Florida Bar is required to report each year on the extent of his or her pro bono participation. The rules recommend that each attorney donate at least 20 hours of pro bono legal services or contribute $350 to a legal aid organization annually. Because the pro bono plan is voluntary, an attorney can report that he or she did not participate in any pro bono activity.  An attorney must make a good faith estimate of their hours or contribution, or indicate that they did not do pro bono work.  Only the reporting is mandatory.  The dues statement sent out each year in May contains a statement that must be signed by the attorney member and returned with the dues payment.

            The Standing Committee meets regularly and set policy.  Local circuit committees were activated under the rules and were as varied in their response and activities as are the circuits. 

            In 2000, the Supreme Court appointed a special judicial task force to work with the Standing Committee on Pro Bono Legal Services and to propose a plan to facilitate participation in pro bono activities by the judiciary and judicial staff. The Task Force on Pro Bono Activities by Judges and Judicial Staff Attorneys with the Standing Committee filed a report with the court in 2002 which proposed changes to the judicial canons.  Throughout 2001, the Standing Committee also conducted hearings on participation by government attorneys in pro bono. In December 2001, they submitted a report recommending that the deferral of government attorneys be removed.  In addition, the Judicial Ethics Advisory Committee petitioned the court to make changes to the judicial canons and those changes were endorsed by the County and Circuit Judges Conferences.

            The Supreme Court in 2003 adopted the recommended changes with some modifications to Judicial Canons 4 and 5. The canons now provide that judges can encourage and engage in activities that encourage pro bono.  The court rejected the requested changes to The Florida Bar Rules Regulating the Bar, Rule 4-6.1, and left in tact the existing rule which provides a deferral to the judiciary, their staff and to government lawyers who are prohibited from performing legal services by constitutional, statutory, rule, or regulatory prohibitions.

            The Judicial Canons were recently amended related to some fundraising activities, including pro bono. See Amendments to the Code of Conduct-Limitations on Judges Participating in Fundraising, 33 Fla. L Weekly S328a (May 22,2008). The Standing Committee hired a consultant to conduct a study of the progress of pro bono legal services under the rules. The report which is entitiled, Pro Bono: Looking Back, Moving Forward, and prepared by Kelly Carmody and Associates, was issued in September 2008. (Available at http://www.floridasupremecourt.org, look for Public Information and then Reports)

            If you participate in the pro bono programs offered by the Legal Aid Society of the Orange County Bar Association, your participation will meet the requirements of the rules.  If you have any questions, please contact us.  We will be happy to provide you with the information about your pro bono activities.  Cathy Tucker, ctucker@legalaidocba.org.