Priority Services Under Rule 6.1(a)

Priority Services Under Rule 6.1(a)

Paragraph (a) tells a lawyer where most of the pro bono hours should go. A “substantial majority” of the fifty should be provided “without fee or expectation of fee” to the recipients the paragraph lists.¹ The lead-in to the rule has already stated the responsibility and the fifty-hour target, and it directs the lawyer to fulfill the responsibility in the ways that follow.² Paragraph (a) is the first of those ways.

Two phrases carry the paragraph, and each does a separate job. “Substantial majority” fixes a proportion without fixing a figure: most of the fifty hours belong with the listed recipients, and the rest may go to other service. “Without fee or expectation of fee” fixes the character of the work: the lawyer charges nothing and anticipates nothing.³ The second phrase also marks the boundary with paragraph (b). Services delivered at a substantially reduced fee, even to persons of limited means, are additional service, however valuable.⁴ A lawyer who bills a discounted rate has done good work, and that work belongs in the second group.

The first sentence of the rule explains the emphasis, because it ties the whole responsibility to people unable to pay.⁵ If any public-spirited work could fill the fifty hours, a lawyer could meet the aspiration without once serving a person whom cost shuts out of the legal system. Free service closes that gap in a way a discounted fee cannot, since a person with very little may be unable to pay even a reduced fee. Paragraph (a) keeps the obligation attached to its purpose, and the word “majority” leaves room for other worthwhile service.

Committee work of that kind is participation in activities for improving the law, the legal system, or the legal profession, and it belongs among the additional services of paragraph (b).⁶ It cannot stand in for the core. Paragraph (a) itself names two kinds of recipients: individuals who are persons of limited means, and organizations that serve them. The next two subsections take them in that order.

Persons of Limited Means

Rule 6.1(a)(1) names the first recipients of the core hours: “persons of limited means.”⁹ Read with the lead-in, the subsection directs a substantial majority of the fifty hours, without fee or expectation of fee, to such persons.¹⁰ It is the first of two categories toward which the rule steers most of a lawyer's time.¹¹ The lawyer here serves an individual client, such as a low-income tenant facing eviction or a parent who cannot afford counsel in a family matter. The rule's opening sentence is the best guide to the phrase, because it ties the whole responsibility to people unable to pay.¹²

The two requirements answer to different concerns. The recipient requirement follows from the purpose of the responsibility: people who cannot pay are the ones the legal system most easily shuts out, so the rule aims the largest share of volunteered time at them. The fee requirement guards against a subtler barrier, because even a small price asks a client for money that a person with nothing to spare cannot give. The words expectation of fee extend the requirement past what the lawyer actually collects. A lawyer who takes a matter expecting payment is not rendering no-fee service, even if the client never pays.

Reduced-fee work keeps a place in the rule. It is an additional service to persons of limited means, sometimes called “low bono.”¹⁵ Paragraph (b)(2) gets its own treatment later, and for now it is enough that a reduced fee moves the work out of paragraph (a)(1).

An exam stem that stresses a client's sympathetic circumstances, or a lawyer's modest charge, is testing which element is missing. A low fee cannot stand in for no fee, and no fee cannot stand in for a client of limited means.

Organizations Serving the Poor

Rule 6.1(a)(2) names the second recipients of the core hours: “charitable, religious, civic, community, governmental and educational organizations in matters that are designed primarily to address the needs of persons of limited means.”¹⁸ Read with the lead-in, the subsection directs a substantial majority of the fifty hours, without fee or expectation of fee, to work of this kind.¹⁹ The previous subsection concerned an individual client. Here the client is an institution, and the lawyer reaches poor people through it.²⁰

The rule includes organizations because of leverage. A food bank, a shelter, or a legal clinic serves many low-income people at once, so a lawyer who puts its lease, its bylaws, or its tax filings in order protects a service that reaches a whole community and not a single household. Counting that work in the core advances the responsibility stated in the rule's first sentence, which runs to people unable to pay.²¹

The subsection has two parts, and students tend to skip the second. The first part concerns the client and is broad: charitable, religious, civic, community, governmental, and educational organizations all qualify. The second part concerns the matter, which must be designed primarily to address the needs of persons of limited means. A qualifying type of client therefore does not settle the question, and the test turns on what the matter is designed to do. If the client's type were enough, the subsection would reach any work for any nonprofit, and a lawyer could fill the core hours with matters that never touch anyone whom cost shuts out of the legal system. The words “designed primarily” keep the category tied to its purpose, and they exclude a matter that benefits the organization while doing nothing for the poor people it serves.

A near miss shows why step two carries the weight.

That work is not worthless to the rule. Rule 6.1(b)(1) covers the same list of organizations, among others, but it asks a different question about the matter. It looks to work “in furtherance of their organizational purposes,” and it applies where paying standard legal fees “would significantly deplete the organization's economic resources or would be otherwise inappropriate.”²⁴ The two paragraphs share a client list and part ways on the matter. A lease that serves the arts society's own mission can be additional service under paragraph (b)(1) when those conditions are met. The fee works the same way. A substantially reduced fee, even for an organization that serves the poor, takes the work out of paragraph (a), which requires no fee or expectation of one, although paragraph (b)(1), which speaks of “no fee or substantially reduced fee,” can still reach it.²⁵

Both lawyers handled a lease for a charity and charged nothing. What differed was the work's connection to poor people, which is why a stem that names a nonprofit client has not yet told you the category. The common error is to stop at the client's name and call the work core service. Ask instead what the matter is designed to do, because the answer decides whether the hours belong in paragraph (a)(2) or among the additional services of paragraph (b).