Reactions were mixed, with Forbes saying compulsory pro bono is tantamount to “forced labor.” Meanwhile, the National Law Journal wrote that while the suggestion garnered praise from different legal groups, Big Law, overall, expressed concern that mandating pro bono work would be troublesome for the profession.

Another juxtaposition, reports American Lawyer, is that since Donald Trump was elected President, donations have poured into public interest groups and many large law firms are reporting an uptick in offers to volunteer. American Lawyer reports in December that six major law firms announced they will work pro bono for a group of gun control groups to fight for more stringent gun control laws.

Increased interest in pro bono stems from concern among some that President Trump will follow through on some of his election promises, such as limiting immigration. However, because the President has already backtracked on a few of his campaign promises, such as threatening to have former Presidential candidate Hillary Clinton arrested soon after he took office, people are unsure how to respond.

Pushing Pro Bono

Mandating pro bono will require more than simply implementing new court rules formalizing the initiative. “There is and has been a lot of debate for mandating pro bono,” says Eve Runyon, president and CEO of the Pro Bono Institute (PBI), an organization that seeks to improve access to justice by providing resources to strengthen the impact of pro bono.

The non-profit also creates initiatives to encourage pro bono activities “short of mandating it”, says Runyon, who is licensed to practice law in Washington, DC. Runyon says she is not surprised by the mixed reviews Sotomayor’s proclamation received.

“There are concerns about mandating [pro bono],” she says. For example, lawyers who toil in legal assistance programs full-time may not want to expend additional time and effort assisting the same type of clients they already work with, she says.

Another hurdle is in-house lawyers licensed in one state but whose firm moves them to practice in another. “They are allowed to practice for that company but not allowed to provide pro bono” in that new state, Runyon says. There are also categories of lawyers who are not permitted to provide pro bono representation, such as judges.

“There will always be some who are resistant to offering pro bono and it’s not in the client’s best interests to have a disgruntled attorney providing pro bono services,” Runyon says.

Stephen Chappelear, a member of the Columbus office of Frost Brown Todd and a former president of the Ohio State Bar Association and the Columbus Bar Association, says “all lawyers have an ethical and professional obligation to participating in pro bono activities. There are different ways to fulfill that obligation, based on an individual attorney’s time, talent, training, financial resources, and interests.”

Chappelear notes that while pro bono is not mandatory in Ohio, the state’s Supreme Court holds pro bono efforts in high regard. Comment 1 to Rule 6.2 of the Ohio Rules of Professional Conduct states, ’All lawyers have a responsibility to assist in providing pro bono public service.’

Runyon agrees, to a point. “As a profession, it is important to recognize we have an ethical obligation and we seek to develop an ethos within our organization that supports pro bono,” she says. Pro bono efforts are not limited to licensed attorneys, either.

According to Runyon, 30 law schools require students to provide anywhere between 20 to 70 hours of pro bono work prior to graduation. Runyon says she favors law students providing pro bono work while still in school for several reasons. She says the initiatives reinforce the ethical obligation incumbent on lawyers to provide pro bono while increasing the likelihood that pro bono efforts will continue once the lawyer is licensed.

Chappelear is happy to see law schools requiring their students to provide pro bono hours. “The benefit is that law students learn in a pragmatic way about their obligation, and get started early in that mindset. The biggest difficulty is that law students have limited competence to provide legal advice,” he says.

Interesting Statistics

In 2015, the PBI conducted a Law Firm Pro Bono Challenge in an attempt to measure where lawyers were providing the most pro bono services. The United States was divided into regions, so the results relate to areas of the nation, not individual states.

The results of that challenge show that attorneys in the Mid-Atlantic region provided the most pro bono hours. According to Runyon, in-house and big law lawyers in the Mid-Atlantic donated an average of 3.99% of their billable hours to pro bono efforts. A close second were attorneys in the West, who reported donating an average of 3.95% of their billable time to counseling clients for free or for greatly reduced fees. Lawyers in the Northeast took the bronze.

The West’s ascent to second is impressive for another reason. In 2014, big law and in-house attorneys in that region reported donating an average of 3.08% of their billable hours to pro bono efforts. The nearly one percentage point jump in 2015 represented the largest increase in the average of billable hours allocated to pro bono work among all regions.

If pro bono becomes mandatory, how many hours should attorneys be required to provide? According to Chappelear, “the number that a number of states have considered is 50, and that seems an appropriate number,” he says.

Tami Kamin Meyer is an Ohio attorney and writer.