Mandatory Pro Bono Continues to Face Challenges

In an effort to address unmet legal needs, some jurisdictions have tried their hand at mandatory pro bono service and reporting, but these systems continue to face challenges. Whether it is New Jersey’s longstanding requirement that lawyers represent indigent defendants or a new proposal in California that would ask lawyers to tell the state bar the number of pro bono service hours they complete each year, the debate among lawyers, state bar associations, and others continues.

Background: Pro bono service has historically been encouraged, but not mandated. First adopted in 1983, the American Bar Association’s Model Rules of Professional Conduct rejected mandatory service and mandatory reporting, substituting “should” for “shall” contained in previous proposals.

The current Model Rule 6.1 provides that “[e]very lawyer has a professional responsibility to provide legal services to those unable to pay,” but falls short of making that moral directive a requirement. Rather, every lawyer should “aspire” to provide at least 50 hours of pro bono legal services a year to low-income individuals and the groups that serve them. The Commentary to the Rule acknowledges that “there may be times when it is not feasible for a lawyer to engage in pro bono services” and offers that lawyers who cannot feasibly provide pro bono services “may discharge the pro bono responsibility by providing financial support to organizations providing free legal services to persons of limited means.”

Most states similarly include aspirational language regarding pro bono service, with some states adopting the American Bar Association’s goal of 50 hours and others setting a lesser goal of 20 to 30 hours. New York is the first and only state to require 50 hours of pro bono service as a condition to receiving a law license. The Orange County Bar Association (Florida) requires all members to accept two Legal Aid case referrals per year, contribute $350 to Legal Aid, or participate in an alternative approved project, but notably, membership is voluntary.

Most states have adopted some type of reporting system – whether mandatory or voluntary – to track pro bono service. A majority of those states (at least 20) have opted for voluntary reporting; however, at least 12 states require mandatory reporting.

Legal Challenges to Mandatory Pro Bono in New Jersey: New Jersey has the most stringent mandatory pro bono program in the United States, requiring lawyers to represent indigent defendants without pay where the legislature has made no provision for the Public Defender to represent defendants who are entitled to counsel, with some exceptions.

A 1992 New Jersey Supreme Court case, Madden v. Delran, 126 N.J. 591 (1992), is the source of the state’s requirement. The Court recognized in that decision the burden placed on lawyers by the requirement and highlighted the need for other branches of government to assist in meeting access to justice needs of indigent defendants: “We cannot forever accept a system so clearly inefficient, historically unfair and potentially unconstitutional. We stay our hand only because we believe other branches of government, state, county and local, are equally committed to meeting the constitutional obligation, and equally concerned with the unfairness that inevitably affects the present system.” That assistance from other branches of government has largely not come to fruition, however, leaving the burden on pro bono lawyers. Lawyers may be assigned cases involving an unfamiliar area of the law, and they are expected to review training materials to provide competent representation.

Several recent lawsuits have challenged the constitutionality of this longstanding Madden requirement. While the assigning judges in four recent cases ultimately relieved lawyers from the underlying pro bono assignment, pushback continues.

Despite this pushback, judges in New Jersey have taken a hard line regarding a lawyer’s mandatory pro bono obligations. In one case from 2023, a lawyer challenged their assignment to represent a defendant in a contempt of a domestic violence restraining order on the basis that the lawyer could not effectively represent the defendant, which the lawyer argued created risk of violating the Rules of Professional Conduct. The assigning judge found that under Madden, lawyers may receive assignments for which they lack experience and are “required not only to learn how to defend those cases but to find out where the courthouse is.” That judge only relieved the lawyer from the assignment at the would-be client’s request.

The latest lawsuit to challenge New Jersey’s mandatory pro bono requirements, filed in mid-March, argues that the requirements expose lawyers to malpractice claims and ethics grievances for representing clients in cases outside their expertise. The plaintiff in that lawsuit, a senior associate at a law firm who specializes in labor law, claims “anticipatory stress” and the possibility of malpractice if they appear in a case where they do not have experience. The lawsuit argues the practice is unconstitutional and violates New Jersey’s rules of professional conduct, which require competent and diligent representation, forbid false or misleading communications about a lawyer, and bar conduct prejudicial to the administration of justice.

The New Jersey State Bar Association (NJSBA) has long been a critic of Madden, arguing that “the Madden assignment system has proven to be an obstacle to equality, a barrier to access and justice, and a disservice to all.” The NJSBA has maintained that Madden was a stop-gap measure until the legislature acted and funded more broadly the right to counsel. At the time the Court decided Madden, there was no statewide municipal public defender system, which now exists. In a recent Resolution, the NJSBA reiterated its calls for additional funding for the public defender’s office; authorizing municipal public defenders to manage municipal appeals; funding nonprofit providers with expertise in specific subject matter areas; and increasing pool attorney rates, among other measures they believe will better implement the right to counsel.

Mandatory Pro Bono Reporting Legislation in California: In California, legislative efforts related to mandatory pro bono have failed. But a recent proposal encouraging reporting of pro bono hours may have a light enough touch to move forward.

Under California Business and Professions Code Section 6073, lawyers are “expected” to contribute pro bono legal services or make donations to legal services organizations, but the law does not provide a specific number of hours. In 2016, then-Governor Jerry Brown vetoed Senate bill 1257, which would have required State Bar applicants to complete at least 50 hours of pro bono service, citing the burden on law students saddled with high tuition rates and who may struggle to find employment. And in 2018, a bill that would have required lawyers to perform 25 hours of pro bono service or donate $500 to a legal services organization died in committee, with the California Lawyers Association arguing that lawyers forced to do pro bono work may not do their best work and may even resent the obligation.

The latest legislative proposal, Assembly Bill 2025, proposed by Assemblymember Jesse Gabriel (D-Encino) and sponsored by the Legal Aid Association of California, would ask lawyers to tell the state bar how many hours of pro bono work they provided over the year. While the bill would require reporting, the information would be confidential, and there would be no enforcement mechanism for failure to comply. Assemblymember Gabriel has stated the bill would provide aggregate data that would help “design better policy solutions.” Many legal services providers support the proposal because it would collect data that will inform outreach efforts to attorneys about offering pro bono services statewide, including in rural areas.

While the Vice Chair of the Judiciary Committee voted against the bill, saying it amounted to “subtle coercion and shaming,” the bill has advanced out of Committee for the full Assembly’s consideration later this spring.

Takeaways: Despite longstanding efforts and recent legislative proposals, mandatory pro bono systems continue to face challenges. In New Jersey, mandatory pro bono obligations have sparked lawsuits questioning their constitutionality and practicality, with critics advocating for broader legislative and budgetary support for indigent defendants. Meanwhile, California’s legislative attempts have faced obstacles, with recent proposals focusing on mandatory reporting about pro bono, which some other states have adopted, rather than mandatory pro bono service, which has been met with greater controversy. Ultimately, pro bono service and reporting requirements seek to address  the access to justice gap; however, to be successful, they require buy-in from the lawyers subject to the requirements, bar associations, and legislators.