The phrase pro bono strikes at any practicing lawyer like a lioness’ paw protecting her cubs from a predator. It stalks us as we study our receivables and stare despairingly at the legal services we have provided for “free.” As we dwell on the latest give away of our expertise, a primordial lawyer scream explodes from our golden throats, “its unfair,” “its not right.” Then we yell, “Its pro bono!” to rationalize our fate.
We look up pro bono and find Illinois Supreme Court Rule 756(f). But we find our hopes dashed as we read, “Legal services for which payment was expected, but is uncollected, do not qualify for pro bono legal service.” So much for our mental gymnastics!
Suggested, Not Mandatory. Supreme Court Rule 756 regulates the annual registration by
Illinois lawyers and proscribes the content of the registration form. Subsection (f) of the Rule addresses pro bono services. It does not require but only encourages the performance of pro bono services by asking Illinois lawyers to report the “approximate amount of his or her pro bono legal service hours and the amount of qualified monetary contributions made during the preceding 12 months.” This model of encouraging pro bono work tracks the ABA Model Rule of Professional Responsibility 6.1 that reads:
“Every lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should aspire to render at least 50 hours of pro bono public legal services per year.”
Unlike the ABA rule, Illinois does not set forth a goal for the number of hours each attorney should annually devote to pro bono work.
Current research suggests that encouraging pro bono work rather than requiring it does not meet the goal of lawyers performing substantial pro bono services. Lawyers have consistently preferred not to have a mandatory pro bono requirement. Lawyers on average spend less then half an hour each week on pro bono services, whereas doctors average nine hours per week.
In the current economic environment, there would appear to be an extreme need for pro bono services. In Washington D.C., the new Congress is proposing to cut $75 million from the Legal Services Corporation budget and states are also cutting funds to legal service organizations in an attempt to balance their budgets.
In the face of this reality, the statistics show that Lawyers are less likely than other professionals to engage in pro bono services and that legal expenditures directed to legal aid and public interest legal organizations is under 1% of the U.S. total. Lastly, of the lawyers who donate legal services, only 10% to 20% do so for low income clients.
So why encourage rather than mandate pro bono services? For one, it puts the focus on giving rather than obeying. In donating rather than mandating, it helps to move us away from our usual routine, stretching us professionally and personally. It benefits us personally by bolstering our self esteem. At the same time, it furthers our profession by raising the public’s regard for lawyers. Providing pro bono assistance reaffirms that the law is the foundation of a free society, that lawyers are gatekeepers for the justice system, and that each of us is needed to keep America free. But what exactly is pro bono service?
Supreme Court Rule 756(f) Defines Pro Bono. What does Rule 756(f) say about pro bono service? It defines pro bono legal services as either the delivery of legal services or monetary contributions to qualified organizations. To qualify as pro bono, the delivery of the legal service must be performed “without charge or without expectation of a fee.”
In addition to being without charge or expectation of a fee, the legal service must fit into one of four categories. Three of the categories focus on legal services for either individual or organizational pro bono services. Subsection (1)(a) allows legal services to qualify if rendered directly to a persons of “limited means.” Subsection (1) (b) allows legal services to qualify if rendered to “charitable, religious, civic, community governmental or educational” organizations but only if they relate to “matters designed to address the needs of persons of limited means.” Subsection (1)(d) allows legal services to qualify if they involve training intended to benefit legal service organizations or lawyers who provide pro bono services.
“Limited means” is defined in subsection (2) as those persons whose household incomes are below the federal poverty standard or are considered working poor. The 2011 federal poverty level for the working poor is defined as a family of four with an annual household income under $22,350 or a single person who earns under $10,890 per year. An attorney is not required to undertake an investigation i.e., see tax returns, pay stubs etc. but may use a good faith determination regarding a client’s eligibility.
Limited Means Not Always Required. There are two categories that do not require that pro bono services be “…rendered to persons of limited means or matters designed to address the needs of persons of limited means.” Subsection (1)(c) provides that legal services may be reported as pro bono if rendered to “charitable, religious, civic or community organizations in matters in furtherance of their purposes.” There is no requirement that the organization’s purpose relate to the needs of persons of limited means. However, this subsection also dictates that legal services provided to educational organizations “in matters in furtherance of their purpose” do not qualify.
Continued Representation, but for No Further Fee Qualifies. Also, a legal service qualifies as pro bono when a client and lawyer agree in a fee case that the lawyer’s further services will be provided voluntarily. This allows a lawyer’s billable hours rendered after the agreement to qualify as pro bono services. There is no requirement that the services be to a person of limited means; that they are matters designed to address the needs of persons of limited means; or that they are rendered to charitable, religious civic or community organizations. This category allows legal services to any client, no matter their economic means, no matter their case, no matter the amount involved, to be considered pro bono so long as the parties agree there is no charge for future work and the work is performed by the attorney.
Note, this rule does not allow an attorney to declare past hours as pro bono for which he or she expected to be paid. This, however, might be an advantageous method to perform pro bono service in situations in which there is no chance of payment, but, for whatever reason, altruistic or otherwise, the attorney wishes to continue assisting the client.
Yes, Donating Money Counts. Finally, monetary contributions qualify as reportable pro bono services if they are financial contributions, not in-kind contributions, and are to a charitable, religious, civic, community government or educational organization that provides legal services to persons of limited means or which contributes financial support to such an organization. Under the rule, you cannot report your church, PTA or United Way contribution as pro bono unless it contributes to an organization that “provides legal services to persons of limited means.” However, the rule, on its face, does not require that the organization contribute a set or minimum percentage of the donated funds, only that it does contribute them.
The Supreme Court’s Rule is a good start at encouraging more pro bono activity by Illinois attorneys, but it needs to be broadened. The authors would suggest, for example, that the Supreme Court allow some pro bono legal services, rendered to organizations such as Prairie State Legal Services, to count toward the mandatory continuing legal education requirement.
Pro bono service could also be encouraged if governmental bodies that do business with private firms endeavor to place their legal work with those firms that have an established, written, and active program that encourages its members to do pro bono work.
There are certainly many other ways to encourage pro bono activity by lawyers, but perhaps the best first step is simply for each lawyer to recognize the benefits of becoming engaged in pro bono activities and get out in the community and donate his or her legal services. Of course, if time does not permit, donating money to legal aid organizations is a fine place to start. Either way, the reward of pro bono work will be realized.
 Ill. S.Ct.R. 756(f).
 Ton Lininger, From Park Place to Community Chest: Rethinking Lawyers’ Monopoly, 101 Nw. U. L. 1343, 1347 (Spring 2007).
 Ill. S.Ct.R. 756(f)(1).
 Ill. S.Ct.R. 7456(f)(1)(a) to (d).
 Ill. S.Ct.R. 576(f)(2).
 Department of Health and Human Services, Office of the Secretary, Annual Update of the HHS Poverty Guidelines, 76 Fed. Reg. 13 (January 20, 2011).
 Ill. S.Ct.R. 756(f)(1)(c).
 Ill. S.Ct.R. 756(f).
 Ill. S.Ct.R.756(f)(3).