Will Mandating Pro Bono Work Bring Hardship?

On the up-coming change to Ethics Rule 6.1-"mandating" or "requiring" every

lawyer [to] "contribute" 30 hours per year to the Bar’s pro bono legal assistance program as an "aspirational" goal. (See remarks by the Hon. Chief Justice appearing in the Nov. 23 issue of Bar News.) Some comments on time and money real economics.

Having spent 12 of the last 15 years of my practice practicing "solo," I found the following to be true:

• With family, community and health and exercise and vacation commitments, I was able to devote about 1600 hours per year to billable hours. Using a "work year" of 48 weeks (plus two weeks for vacation and two weeks for holidays, sick days and CLE’s) meant I averaged 33 hours per week, or 6.67 hours per work week day. Remember, these are pure billable hours, and don’t include administrative time spent on office management, non-billable, community service, charitable service, etc.
• As a general rule-of-thumb, approximately two thirds or more of collected fees go to expenses of running the office; salaries for secretaries (including Social Security taxes and benefits), federal income taxes, insurance, CLE programs, bar dues, Supreme Court assessments, real estate taxes on the office, mortgage and maintenance. Thus, if a lawyer charges $125.00 per hour (my last highest rate) "I" was really making a maximum of around $40-$42 per hour. Thus, if "I" were to "donate" 30 hours per year to the formal pro bono program (I say "formal" because like most lawyers I know, we all did work for people and organizations for free or for out-of-pocket expenses who/that didn’t go through the formal process of becoming a "client" of the Bar’s pro bono program) the result unintended consequences:

1. Either "I" would lose around $1200 from my own pocket (with no IRS deduction for such) and I might cut back on my money contributions to other charities or;
2. The 30 hours would have to come from either my family time, my vacation/recreation time, or from the time I spent on community or other charitable "good works" outside of the practice of law; AND in either case,
3. It would cost me around $2500 in non-recoverable expenses in running my office, since most pro bono work can’t be done while sitting in the sun on a beach or while mowing the lawn, helping your wife, or serving on a charitable or community board. In my (admittedly limited) experience, pro bono work requires as much secretarial support and time in the office as does the average for-pay project.

This is not intended to discourage lawyers from devoting time to pro bono work, and those who do should be given plenty of credit [although "pro Bono SWAT teams"

may be a bit over the top, likening landlords to violent criminals]. However, even the best-intentioned rule-making judges who are appointed for life and who receive the same salary regardless of whether they work 33 or 80 hours per week (and I readily acknowledge that most work much more than 33 hours per week) and whose "office expenses" are not paid as a result of their own daily efforts, sometimes forget what the real economics are of running a law practice that allows one to have a family life, make a decent living, provide for kids’ education and a modest retirement, but doesn’t over- charge clients.

The point is, before any rule is adopted, the rule-maker should perform a simple cost analysis. Along these same lines, the small (199 page) philosophy book entitled "Jurismania-the Madness of American Law" by Paul F. Campos, Oxford University Press, should be required reading for all legislative, executive and judicial employees who have rule-making authority. I realize that for now, this change to Ethics Rule 6.1 may be "aspirational" only, but I am old enough to remember when paying Bar dues, funding [the] client indemnity fund, and carrying professional liability insurance were all voluntary and 12 hours per year of CLE was an "aspirational" goal.

If this Rule 6.1 change is adopted, perhaps, in fairness to pro bono clients, the rule should also require each judge and each clerk and each clerical staffer to hold a special "pro bono case morning" one Saturday per month, sitting between 9:30 a.m. and 12:00 noon to hear and decide only pro bono cases, without pay. Since lawyers can’t help pro-bono clients in most cases without the help of courts, why not mandate courts participate in this goal of 30 hours of pro bono work per year?

Robert H. Fryer,

Williamsburg, Virginia.

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