By Tom Jarvis
As part of a broader initiative to identify and remove barriers to pro bono service that the New Hampshire Supreme Court has embarked upon, voluntary reporting of pro bono hours for NH attorneys is in the early stages of implementation. This project is being undertaken in conjunction with the Access to Justice Commission and with the support of 603 Legal Aid and its existing programs.
“This will give the lawyers in the state an opportunity to record their pro bono hours so that we can individually and collectively measure and acknowledge the tremendous efforts made by lawyers to provide representation to people with limited means,” NH Supreme Court Justice and co-chair of the Access to Justice Commission James Bassett says. “We have an aspirational goal set forth in the Rules of Professional Conduct, but we have had no occasion to measure the performance of attorneys in the state or acknowledge it, so this gives us an opportunity to get a better handle on exactly what kind of pro bono representation the lawyers are currently engaged in. Heretofore, though we have encouraged pro bono, the Court hasn’t acknowledged those who have made exceptional efforts – and we want to be in a position to do that.”
The reporting would be through coordination with 603 Legal Aid and using the platform of the New Hampshire Bar Association’s dashboard. The Court hopes to implement reporting by the end of the 2023-24 reporting year.
“We are long way from the finish line,” Justice Bassett says. “We recognize that there will need to be a number of rules changes, the Bar Association would have to modify the dashboard to accommodate the reporting, and there will be a public commentary process.”
In early 2021, then co-chair of the Access to Justice Commission, US District Court Judge Joseph Laplante, and current co-chair, attorney Mark Rouvalis, created a pro bono task force to identify and recommend ways to increase pro bono service in the Granite State.
In October of the same year, the pro bono task force created a report to the Commission with their findings and recommendations. The report identified the top three barriers to undertaking pro bono representation as lack of time, commitment to family or other personal obligations, and lack of skills or experience in the practice areas needed by pro bono clients. They then focused on identifying what specific measures might be implemented to address or ease the barriers and thereby increase pro bono representation. Voluntary pro bono reporting was one of the numerous recommendations by the task force.
A separate report to the Access to Justice Commission, prepared by Access and Community Engagement Coordinator of the NH Judicial Branch Jackie Waters and former legal counsel to the ABA Standing Committee on Pro Bono and Public Service Steve Scudder, provided a snapshot of the voluntary pro bono reporting processes from five different states. This report will be helpful to the Commission when figuring out the details of execution.
“One thing the Court wants to emphasize is that these new initiatives are not in any way meant to supplant the awards and recognition events that are currently done by 603 Legal Aid,” Justice Bassett says. “This would be something to supplement those recognitions. 603 Legal Aid are important partners in this, and we are doing this in consultation with them and with their help.”
Justice Bassett continues, “Various Supreme Courts around the country have programs where they acknowledge individual lawyers, where they give some sort of certification to law firms that have made a major pro bono commitment, and we think firms that do that should be recognized and should be able to speak to clients, law students they wish to hire, and other firms in terms of their commitment.”
When asked if voluntary pro bono reporting was the beginning of a slippery slope toward mandatory pro bono reporting or even mandatory pro bono in New Hampshire, Justice Bassett says the Court does not view this as a slope at all.
“There will be a public commentary process for this, but we view it as a very discrete step and a very positive step. We hope that people won’t be distracted by those other possibilities that we don’t think are appropriate for the NH Bar at this time.”
Among the pro bono task force’s other recommendations to the Access to Justice Commission was the already-implemented limited active status order, which waives the mandatory CLE requirements and the filing of a Trust Account Compliance form for limited active status attorneys who volunteer for pro bono cases through 603 Legal Aid, NH Legal Assistance, and Disability Rights Center-NH.
Another recommendation is offering CLE credit for pro bono services. According to the pro bono task force’s report, attorneys surveyed by the ABA stated that “CLE credit for doing pro bono” was the third most motivating factor when asked what actions may motive lawyers to accept pro bono cases.
“While we cannot provide attorneys with more time,” the task force writes in the report. “We can help to alleviate some of the burden placed upon their time by providing CLE credit for pro bono service.”
This option is still being considered by the Access to Justice Commission and the NH Supreme Court.
“There is a lot of work to be done,” Justice Bassett says of the eventual implementation of voluntary pro bono reporting. “The devil is in the details, but the Court is solidly committed to encouraging pro bono participation and we are doing a lot of things that will promote that. Voluntary reporting is just one aspect of a bigger, more comprehensive project to enhance pro bono participation throughout the state.”