Bar won’t back pro bono reporting

ROANOKE – A proposal to require lawyers to report their pro bono contributions each year will go to the Supreme Court of Virginia without the blessing of the Virginia State Bar.

Members of the VSB Council voted 29-25 Friday not to endorse mandatory reporting of pro bono hours and donations. The vote was a blow to a proposal that came from a Supreme Court-appointed commission and has the backing of legal aid groups and many large law firms, as well as the Virginia Bar Association, the Virginia Trial Lawyers Association and the Old Dominion Bar Association.

Opponents voiced resentment at a government agency checking on their charity work, even as they acknowledged the value of pro bono service and the need for more legal aid resources. Some of the Council members said their constituent lawyers were overwhelmingly against mandatory reporting.

“Don’t try to shame us. Your constituents don’t want this,” said David Oblon of Arlington, who said he was recently re-elected to the Bar Council after declaring his opposition to mandatory reporting.

“Not one of them does not think this is insulting to what we do,” added Gregory T. Hunter, also of Arlington.

Bill Moffet of Abingdon said his constituents were three-to-one against the proposal. Gene Elliott of Roanoke said lawyers he talked to were opposed 4-1.

Proponents contended an annual inquiry from the State Bar would spur lawyers to contribute more unpaid work and more money to struggling legal aid organizations.

“Lawyers are more likely to provide pro bono services because they have to report their pro bono services,” said Douglas Kay of Fairfax.

The goal is to reduce the alarming gap in legal services for the poor, said Chip Nunley of Richmond, chair of a VSB committee on access to legal services.

“If we can get this through, we can help close that gap,” he told Bar Council members. “You may have to go back to some of your constituents and explain your vote,” he acknowledged.

“It’s my boat that’s being swamped in this access-to-justice gap,” said legal aid lawyer Palma Pustilnik of Charlottesville. “We need to have as much information as we can about what people are doing and where they are doing it.”

Richmond’s Stephen D. Otero served as spokesperson for the Supreme Court’s Virginia Access to Justice Commission. He explained that, while an existing ethics rule calls for lawyers to contribute two percent annually to pro bono services, the proposed reporting requirement would carry no consequences.

“There’s no wrong answer. Filling in the blanks is all that’s required,” he said.

A reporting requirement would simply encourage lawyers to think about their professional obligation, he said.

“The fact that we don’t track our progress toward this aspirational goal sends a clear message to the bar that we don’t consider the goal very important,” Otero said.

Eva Juncker of Falls Church said she has had to report pro bono hours as a member of the Maryland bar. “It did cause me to increase services,” she said.

While some Council members urged an alternative of voluntary reporting of pro bono hours, Otero said such a plan had been considered and rejected by the Access Commission. He said Maryland had voluntary reporting for ten years and the highest report rate was just seven percent.

VSB president Michael Robinson rejected a motion to vote on a voluntary reporting plan, ruling that only a yes or no vote on endorsement of the commission proposal was appropriate.

One opponent questioned the expected boost in contributions from motivated lawyers.

While proponents said Florida lawyers more than doubled their pro bono hours in the 23 years since reporting began there, Len Heath of Newport News said the numbers failed to account for a dramatic increase in the number of Florida lawyers in that time frame.

“I think if we mandate anything, we better make sure it’s going to do what it’s supposed to do,” he said.

Otero said the Access Commission expects to submit the pro bono reporting proposal to the Supreme Court for consideration later this month.

“We expect the court will consider all of the information collected in connection with the Commission’s proposal, and wouldn’t want to speculate about how the court might view any particular piece of information in isolation,” Otero said in an email.

He said the full record before the court includes not only the close vote of the VSB Council, but also empirical data from the other 10 states that have adopted similar rules; written comments that were about 4:1 in favor of the proposal; the support of the VBA, the VTLA and the ODBA and two VSB groups (the Young Lawyers Conference and Diversity Conference) and the unanimous support of the VSB Access to Legal Services Committee and the VBA Pro Bono Council.

Duty to act on impaired lawyers

The VSB Council gave unanimous approval to three other matters that now await Supreme Court action.

The Bar Council recommended the court approve a Legal Ethics Opinion outlining a supervising lawyer’s duty to act when another lawyer in a firm becomes impaired. LEO 1886 would require the supervisor to act even before any misconduct has occurred that might require reporting of the impaired lawyer.

Supervising lawyers would have a duty to protect clients by establishing procedures to require treatment and/or limit the impaired lawyer’s work assignments.

The LEO’s guidance is not directed at solo law practices because there is no supervisory attorney at solo offices, explained VSB Ethics Committee chair Eric Page.

Reciprocal discipline reform

The Bar Council recommended a revamp of the rules for reciprocal discipline.

Some lawyers contended – and several VSB Disciplinary Board panels agreed – that the bar’s current reciprocal discipline procedures prevented the bar from imposing proportionate penalties in Virginia based on punishment levied elsewhere.

The proposed changes “remove harsh default provisions,” said Bar Counsel Edward L. Davis. For instance, a lawyer would no longer be automatically suspended based on a suspension in a particular court, he said. Automatic Virginia suspension would be reserved for cases where a lawyer is similarly disciplined by a state agency elsewhere.

The proposed amendments also would remove provisions that “hamstring” the Disciplinary Board by mandating punishment in certain cases, he added.

The proposal is a second effort at rewriting the reciprocal discipline rules, and looks like a “perfect solution,” according to Roscoe Stephenson of Covington, former chair of the bar’s Committee on Lawyer Discipline.

Citizen-generated discipline proceedings

The Bar Council recommended an end to ad hoc court discipline procedures that now allow a citizen to file a public ethics complaint against a lawyer in any circuit court.

The “antiquated procedures” that remain in the Virginia Code predate the carefully crafted court rules that provide for confidential bar investigation before ethics charges are publicly filed, Davis said.

The Bar Council approved amendments to Va. Code § 54.1-3935. If the Supreme Court agrees, it would seek to have those changes enacted by the General Assembly.