Despite a narrow vote of disapproval from Virginia State Bar leaders last fall, a Virginia Supreme Court commission is asking the justices to require all Virginia lawyers to annually report their pro bono contributions.
In a May 29 letter to Chief Justice Donald W. Lemons, members of the Virginia Access to Justice Commission said they “respectfully recommend” rule changes to adopt pro bono reporting.
The recommendation followed “careful study” of ways to promote pro bono participation, the letter said.
The letter is signed by Commission co-chair John E. Whitfield, head of a Harrisonburg-based legal aid network. The other co-chair is a member of the court, Justice S. Bernard Goodwyn.
The letter described frustrating efforts to measure whether Virginia lawyers are meeting the 2-percent aspirational pro bono goal now incorporated into the rules.
“After significant analysis of other states’ pro bono reporting models, the Commission came to the unanimous conclusion that for the legal profession to have no means to measure its most crucial public service responsibility is an administrative shortcoming,” Whitfield wrote.
The commission urged adoption of a reporting model now used by 10 other states, the letter said.
“This is in no way a mandatory pro bono rule, or a slippery slope toward one,” Whitfield wrote.
“We believe, however, that the act of reporting will itself raise awareness among the Bar of the compelling need for pro bono and encourage pro bono participation among Virginia lawyers,” the letter states.
Goal to increase contributions
The proposal would add two questions to lawyers’ annual license renewal form asking the number of hours worked and the amount of money donated to legal services for the public good.
Empirical data from other states indicated that required reporting “positively impacts” the amount of pro bono contributions by lawyers, although the letter acknowledges that both Florida and Maryland experienced a “leveling off” of reported pro bono benefits after early surges.
The commission rejected a voluntary reporting plan. Other states that tried it switched to mandatory reporting, the commission said.
“We do not want to invite empty cynicism. We mean business,” Whitfield wrote.
Bar Council opposed
The commission waited seven months to send its recommendation to the court after a 29-25 vote by the VSB Council not to endorse the mandatory reporting proposal. At the October meeting in Roanoke, several council members said their constituent lawyers strongly objected to what they saw as an “insulting” plan to measure their charity.
Lemons has not given any signal about how a mandatory reporting proposal might be received by the court. At a Judicial Conference in May, however, he acknowledged that action by the court to require reporting could be seen as a repudiation of the bar council.
The commission’s letter to the court noted that one-third of the bar council’s 81 members were absent when the Council voted in October. The letter also noted that written comments to the VSB favored reporting by a 4-to-1 ratio.
The letter sought to answer some of the opposition. The reporting requirement would not be “intrusive,” Whitfield said, since the proposal would add just two line items on lawyers’ renewal forms.
Fears of a “slippery slope” are unfounded, the commission said, since the panel is on record as rejecting mandatory pro bono and no other states have moved from reporting to compulsory pro bono.
The commission pointed to support from bar organizations, including the Virginia Bar Association’s Board of Governors, the Virginia Trial Lawyers Association and the Old Dominion Bar Association.
“The only statewide bar association that declined to endorse the proposal was the VSB Council, and it did so by a split vote of only two-thirds of its members,” Whitfield wrote.
“The Commission respectfully submits that this overall record provides compelling support among the members of the Bar and their service organizations for the Court to adopt annual pro bono self-reporting. The moral imperative to take action to narrow the Access to Justice Gap is clear,” Whitfield wrote.
Access-to-Justice gap cited
An estimated 400,000 needy Virginians who must “fend for themselves in civil legal matters each year are generally obtaining worse legal outcomes simply because they cannot afford a lawyer,” the letter said. The commission also noted a decrease in public funding for legal aid organizations, “collapsing” IOLTA revenues and growing poverty rolls.
“The Commission believes the Court correctly calibrated the Justice Threshold at 2% or an alternative equivalent financial contribution, and that compelling annual measurement of each lawyers’ participation in pro bono is the next step in reaching that longstanding standard,” the commission said.
The court could take up the proposal at its next session beginning Sept. 18.
Joanna L. Suyes of Richmond, an advocate for improved access to legal services, said she and Whitfield sought to take the measure of Virginia lawyers’ pro bono efforts three years ago.
While the two concluded it was impossible to say with any confidence the level of help lawyers were providing, the amount clearly was far short of the nearly one million hours that would result if all lawyers gave their allotted two percent.
“There’s still a big gap between what people are doing and the two-percent goal,” Suyes said. “Mandatory reporting would be very helpful for us to figure out what people are doing because we just don’t get good information on that.”
Suyes acknowledged the bar council vote could be an obstacle.
“I can see that that would concern the justices, but it was a close vote,” she said.