Encouraging pro bono service

In the fall 2004 issue of the Judicial Conduct Reporter, an article explained that, as a corollary to the prohibition on judges’ personally participating in the solicitation of funds for a charitable organization and a reflection of the adage that “time is money,” judicial ethics committees have advised that a judge may not solicit attorneys to provide pro bono legal services to individuals, including signing a letter distributed to the bar.

In 2007, the American Bar Association Model Code of Judicial Conduct was revised to provide, in Rule 3.7(B), that “a judge may encourage lawyers to provide pro bono publico legal services.”  Comment 5 explains:

In addition to appointing lawyers to serve as counsel for indigent parties in individual cases, a judge may promote broader access to justice by encouraging lawyers to participate in pro bono publico legal services, if in doing so the judge does not employ coercion, or abuse the prestige of judicial office.  Such encouragement may take many forms, including providing lists of available programs, training lawyers to do pro bono publico legal work, and participating in events recognizing lawyers who have done pro bono publico work.

Recently, in a formal opinion, the ABA Standing Committee on Ethics and Professional Responsibility advised that a state supreme court justice may sign a letter on the justice’s stationery that is duplicated and mailed by the unified state bar association encouraging all lawyers in the state to provide pro bono legal services to persons in need and to contact the bar association for information about volunteer opportunities.  ABA Formal Advisory Opinion 470 (2015).  The committee noted that “signing a letter encouraging lawyers to perform pro bono services is not one of the specific activities listed as permissible in Comment [5]” but “is consistent with the encouragement listed in Comment [5].”

The committee explained that the proposed letter would not be soliciting a contribution but “encouraging lawyers to meet their professional responsibility to provide pro bono legal services pursuant to Model Rule of Professional Conduct 6.1,” stating “a contradictory reading [of the code] would be unreasonable.”  In approving judicial involvement, the committee emphasized that:

  • The proposed letter was encouraging lawyers to perform pro bono service in general without identifying a specific agency or program.
  • The proposed letter would not have a personal salutation and would be sent to every lawyer in the state.
  • Use of court resources would be incidental because the bar would duplicate and mail the letter so only one piece of the justice’s stationery would be used.
  • The justice will not know any lawyer’s response to the letter because the state bar, the supreme court, and the justice would not do any “follow-up monitoring.”

“Forsee[ing] facts under which a letter from a judge urging a lawyer to perform pro bono legal services could be viewed as coercive by a reasonable person,” the committee identified factors a judge should weigh before sending a letter, including the number of lawyers who will receive the letter, the number of judges in the jurisdiction, and the tone of the letter.  “A letter in which the justice speaks in aspirational and encouraging language will have a much different impact,” the committee advised, “than a letter that features dictatorial, condescending language.”

Accord Alabama Advisory Opinion 2004-847 (a judge may write a letter to members of a local bar association encouraging them to participate in the state bar’s volunteer lawyers program); Florida Advisory Opinion 2010-31 (a chief judge may send a letter soliciting lawyers’ participation in a Florida Bar campaign by donating pro bono legal services or making a monetary donation to a legal aid organization); Kentucky Advisory Opinion JE-107 (2005) (a judge may not write a personal letter urging members of the bar to donate time to a particular pro bono organization but may write a generic letter to the bar at large that does not refer to a specific organization); Texas Advisory Opinion 258 (2000) (a board of judges may send out a letter signed by all of the judges to all members of the local bar association asking them to consider donating time and services to a volunteer lawyer project’s pro bono legal clinic).

See also Alaska Advisory Opinion 2004-1 (a judge may make general appeals to participate in pro bono efforts, including referring to a list of available pro bono programs; may participate in a workshop or CLE seminar available at no cost to attorneys who undertake pro bono cases; may write articles for bar or general circulation media encouraging attorneys to participate in pro bono work; and may publicly acknowledge the pro bono activity of particular attorneys; a judge may not send letters of congratulation directly to attorneys or host a social event for attorneys who have participated in pro bono activity); Colorado Advisory Opinion 2006-2 (a judge may encourage attorneys to perform pro bono services and act as an advisor to the local legal service’s call-a-lawyer program); Florida Advisory Opinion 2012-26 (a judge may solicit attorneys to volunteer as pro bono attorneys ad litem for children in dependency cases at a local bar associations’ regular lunch meetings or request local bar associations to convene a special meeting for that purpose); Maryland Advisory Opinion Request 2013-29 (judges may solicit attorneys to represent indigent parties pro bono by writing to attorneys individually, by speaking publicly to bar gatherings, or by placing advertisements in bar publications.); Michigan Advisory Opinion J-7 (1998) (a judge may “write, speak, lecture, and otherwise participate in a wide range of activities designed to promote and encourage attorneys to engage in . . . pro bono representation”); New York Advisory Opinion 2009-68 (a judge who serves on a court pro bono committee may sign formal or handwritten letters of appreciation on behalf of the committee, using court or committee letterhead, to attorneys who serve as volunteer pro bono advocates before other judges).

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