State Rules and Reporting

State Rules and Reporting

Rule 6.1 tells every lawyer to aspire to render at least fifty hours of pro bono publico legal services a year.¹ The states have done little to harden that aspiration. No state has imposed a mandatory pro bono requirement; a few require lawyers to report annually the hours they contributed, and many invite voluntary reporting.² The most demanding state rule therefore asks a lawyer what the lawyer did, never how much the lawyer must do. A reporting state collects the accounting from every lawyer, and a state that invites reports collects it only from lawyers who volunteer. Neither disciplines a lawyer for a low number.

A goal that nothing enforces leaves a jurisdiction guessing whether lawyers are meeting it. A yearly report answers that question without turning the goal into a command, and Schwarz v. Kogan shows a court accepting exactly that logic. Schwarz challenged Florida's aspirational pro bono rule, which asks members to report their compliance. The Eleventh Circuit rejected the challenge by asking only whether a "conceivable basis" supported each feature of the rule it addressed. That is deferential rational-basis review: a court upholds a rule if some legitimate reason plausibly explains it, and it does not decide whether the reason is the best one.³

The court found an adequate nexus between aspirational pro bono goals for Florida Bar members and the Florida Supreme Court's legitimate interest in encouraging legal services to the indigent. It also observed that Schwarz could not dispute the powerful, documented need to broaden and improve legal representation for the poor. It found a rational basis, too, for letting members substitute a $350 legal aid contribution for donated legal services, a feature covered earlier in this chapter.⁴ The remaining feature, the expectation that members report their compliance with the goals, is the one that matters here.

The Florida Supreme Court had recently rejected amendments that would have eliminated the reporting requirement. It stated that accurate reporting is essential for evaluating the delivery of legal services to the poor and for determining where such services are not being provided. In its words, "there is no more effective way to gauge the success of lawyers in meeting their obligation to represent the poor," an obligation every member of the Bar swears to undertake.⁵ The Eleventh Circuit found it rational for that court to conclude that reporting does two jobs. It encourages lawyers to honor the goals, and it gives the court a pool of information that may show what additional measures the poor need to obtain counsel and secure access to the courts.⁶ Those two jobs are the ones an aspirational rule leaves open: a nudge for the lawyer and information for the jurisdiction.

The standard of review decided the case. The court said its task was not to weigh whether the justifications for a feature of the rule were more or less persuasive than the arguments against it, and it stressed that nothing in the rule requires Bar members to donate either time or money.⁷ That emphasis carries a lesson beyond Florida. A rule that compels no service gives a challenger little to attack, and a reporting duty asks a lawyer only to state what the lawyer did. Against so light a burden, the jurisdiction's interest in information about unmet need carried the day. Schwarz reviews Florida's rule and says nothing about how any other state should draft its own.

Bar exam questions on this topic often pair a state reporting rule with a lawyer who has done no pro bono work, and the trap is to treat the report as a command.

The answer changes only if the state converts the goal into a minimum enforced by discipline. That would be a mandatory pro bono requirement, and no state has imposed one.⁸ Schwarz supplies the other half of the analysis. A lawyer who attacks the reporting requirement itself must overcome deferential review, and a requirement that helps a jurisdiction evaluate its program and find unmet need clears that bar.