Ariz. R. Sup. Ct. ER 6.1
Ariz. R. Sup. Ct. ER 6.1
COMMENT [2003 AMENDMENT]
[1] This Rule does not create a mandatory duty. Nonetheless, the State Bar has expressed in its ethical rules the aspiration that lawyers will do pro bono publico service. The ABA House of Delegates has formally acknowledged "the basic responsibility of each lawyer engaged in the practice of law to provide public interest legal services" without fee, or at a substantially reduced fee, in one or more of the following areas: poverty law, civil rights law, public rights law, charitable organization representation and the administration of justice. The ABA model code, which was originally adopted in Arizona, expressed that policy but did not spell out conduct that would satisfy the ethical aspiration. The State Bar believes that the basic responsibilities expressed by the Rule, while continuing to be aspirational, should be conduct specific. Accordingly, the Rule was amended in 1990 to set a minimum standard to satisfy the ethical aspiration.
[2] The rights and responsibilities of individuals and organizations in the United States are increasingly defined in legal terms. As a consequence, legal assistance in coping with the web of statutes, rules and regulations is imperative for persons of modest and limited means, as well as for the relatively well-to-do.
[3] The basic responsibility for providing legal services for those unable to pay ultimately rests upon the individual lawyer, and personal involvement in the problems of the disadvantaged can be one of the most rewarding experiences in the life of a lawyer. Every lawyer, regardless of professional prominence or professional workload, should find time to participate in or otherwise support the provision of legal services to the disadvantaged. The provision of free legal services to those unable to pay reasonable fees continues to be a responsibility of each lawyer as well as the profession generally, but the efforts of individual lawyers are often not enough to meet the need. Thus, it has also been necessary for the profession and government to institute additional programs to provide legal services. Accordingly, legal aid offices, lawyer referral services and other related programs have been developed, and others will be developed by the profession and government. Every lawyer should support all proper efforts to meet this need for legal services.
[4] The Rule is designed to afford the individual lawyer great flexibility in achieving the ethical aspiration. The Rule allows a lawyer to perform pro bono work in either criminal, civil, agency or any other area of law; either by representation of persons who are poor under federal guidelines utilized by legal service corporation grantees or by representation of the near poor; either by performance of work for free or at a substantially reduced rate; either by direct representation of persons or by participation in law-related education programs or other professional activities.
[5] The Rule broadly allows service to be satisfied by activities for improving the law, the legal system or the legal profession. It is not possible to state the many different kinds of service that may be covered. Among others, the following kinds of activities are contemplated: activities in law-related education, both to the public and in training other lawyers; law enforcement personnel, or law-related personnel; speaking appearances where the topic is educational and is about the law or the legal system; assistance or research for another volunteer lawyer or pro se indigent; service on certain boards, sections or committees of a state or county bar if the board, section or committee is engaged in work to improve the law and legal system; volunteer assistance to the poor or aged on income tax return preparation; screening or intake for legal services organizations; participation in law days or brief legal advice programs.
[6] The Rule also broadly allows service by providing professional services at substantially reduced rates. Again, it is not possible to list the many different kinds of services covered. Work performed at low rates through participation in judicature programs, mediation or court arbitration programs are within the Rule. Although contract indigent defender service is not normally considered pro bono publico work, it can be when the rates are substantially below an attorney's regular hourly rates. Thus, representation of indigent death row inmates, even at Criminal Justice Act compensation rates, is covered by the Rule if the rates are substantially reduced rates. The Rule only requires that the attorney enter a substantially reduced fee case in acknowledgment of the Rule.
[7] Lawyers banded together in practice can jointly satisfy the Rule through the assignment of major pro bono publico cases to a few attorneys in the firm. The minimum numerical standard remains fifty hours per attorney per calendar year, so that a firm's designated pro bono hours divided by fifty determines the number of firm attorneys whose responsibilities may be discharged.
[8] It is anticipated that lawyers will be creative in satisfying the responsibility and the Rule is designed to allow creativity. A law firm could lend lawyers to legal aid organizations, or set up legal aid fellowships under the Rule. It is expected that both public and private organizations of lawyers will establish office wide policies for compliance with the Rule.
[9] Whether pro bono publico services should be mandatory is a topic that is debated across the country. This Rule is not mandatory. Nonetheless, the State Bar believes that delineating in conduct-specific terms the kinds of activities that will satisfy the profession's responsibility to pro bono publico service, will encourage further vo-lunteer.
HISTORICAL NOTES
Former ER 6.1 of Rule 42 and the comment thereto were abrogated by order dated Oct. 10, 1990, effective Dec. 1, 1990.