Supreme Court to consider pro bono rule changes

September 3, 2010
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Earlier this month, the court issued two alternative amendments that could alter what is expected from lawyers as public service, said Candace Crowley, director of external development for the State Bar of Michigan.

“Alternative A,” which was proposed by the court, makes clear that pro bono responsibilities are voluntary and can’t be enforced through the disciplinary process. It makes no other changes.

“Alternative B,” which Crowley said is supported by the state bar association, combines two sections that address the issue, and details the type of work that falls under the pro bono category. In language that was added by the court, it also clarifies that pro bono service is voluntary.

The pro bono rule was based on the American Bar Association version and first adopted in Michigan in 1988, Crowley said. Two years later, the state bar added more detail, giving lawyers the option to provide, voluntarily, 30 hours, three cases or donate $300 in support of services to individuals and organizations that can’t afford legal representation.

Crowley said the State Bar of Michigan Representative Assembly in March approved its proposal, which reflects the American Bar Association’s Model Rule of Professional Conduct 6.1.

Among its provisions:

  • It urges lawyers who can afford it to increase to $500 their annual contribution to “a legal services agency that provides free legal service to the poor or to traditionally underrepresented groups.”

  • It suggests that lawyers make either the $300 or $500 contribution toward free services for the needy in addition to pro bono services.

  • “A substantial majority” of the fee-free work should go toward the poor or to charitable, religious, civic, community, governmental and educational organizations that address the needs of the poor.

  • Counted toward the 30 hours or three cases would be additional services for no or “substantially reduced” fees for civil and public rights, civil liberties cases; or for charitable, religious, civic, community, governmental and educational organizations “in furtherance of their organizational purposes” if standard legal fees would deplete the coffers or be inappropriate; reduced fees for needy individuals; and activities aimed at improving the law, the legal system or profession.

The bar’s proposal also suggests that in addition to supporting one of the state’s legal aid organizations, financial support may be directed to the Access to Justice Fund, which is administered by the Michigan State Bar Foundation and distributes money to provide legal services to the poor.

It also states that a firm may make a donation or conduct pro bono activities collectively on behalf of all of its lawyers.

The court’s alternative makes no such changes, leaving the rule basically as-is.

Justices Robert P. Young Jr. and Stephen J. Markman commented in opposition to the State Bar’s Alternative B, and Justice Maura D. Corrigan concurred with both.

The justices said they think the bar proposal is too detailed and restrictive and changes a system that isn’t broken.

“It is not so much what is singled out in their proposal that is objectionable; it is the fact that no cause should be singled out,” Markman wrote. “This misguided attempt at specific definition altogether fails to reflect the full range, and the genuine diversity, of the charitable and public service interests of the nearly 40,000 lawyers of this state.”

Written comments on ADM File No. 2010-18 may be sent to the Supreme Court clerk at P.O. Box 30052, Lansing, MI, 48909, or via e-mail to MSC_clerk@court.mi.gov, and will be posted online. While no date has been set for a public hearing, the notice will be available at www.court.michigan.gov/supremecourt

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