MSC discussing pro bono (non)rules again

At its administrative conference this morning, the Michigan Supreme Court is discussing proposed changes to the Michigan Rules of Professional Ethics regarding pro bono work and what’s expected, but not required, from Michigan attorneys.

Two alternatives have been proposed, one of which would establish the “aspirational goal” of 30 hours or three cases per year, or a donation of $300 or $500 to an organization that provides pro bono services. The other, a State Bar proposal, would  be a restatement of the current rule, adding that providing pro bono services is “voluntary and  shall not be enforced through disciplinary process or any other means.”

In other words, it’s not a rule, it’s a mission statement. (“Finally! Somebody said it!”) There’s certainly nothing wrong with the court issuing something restating a preference that attorneys give something back to their communities, particularly to those in need. But a making a rule that doesn’t require anything seems a bit pointless.

At the same time, creating an “aspirational goal” of giving 30 hours, three cases or $300 to an organization that “provides free legal services to the poor or to traditionally underrepresented groups” seems over the top, even if it also specifically states that it won’t be enforced.1

So tell us what you think: Should the MSC be wasting its time passing rules that specifically state that they won’t be enforced? And should the court be dictating exactly how much a lawyer should be donating, both in time and money and what type of organizations should receive these donations?

1 For the textualists out there, this isn’t really a rule:

rule – noun \ˈrül\ – a : a prescribed guide for conduct or action; b : the laws or regulations prescribed by the founder of a religious order for observance by its members; c : an accepted procedure, custom, or habit; d: (1) : a usually written order or direction made by a court regulating court practice or the action of parties (2) : a legal precept or doctrinee : a regulation or bylaw governing procedure or controlling conduct.

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MSC hearing on referral fee, pro bono rules

A proposed rule aimed at capping attorney referral fees in contingent fee cases is on the agenda of the Michigan Supreme Court’s September 28 public hearing.

The rule would apply to cases where the attorney’s compensation is an agreed-upon share of the case award or settlement.

Under the proposed amendment of Michigan Rule of Professional Conduct 1.5 (ADM File No. 2010-07), an attorney who refers a contingent fee case to another attorney could receive a referral fee, but the fee would be capped at “25 percent of the amount recovered.”

The rule change is aimed at discouraging attorneys from operating as brokering services and directing clients to lawyers who pay the highest referral fees.

A referring attorney who also contributes a “substantial input of time or cost, or assumption of risk” could receive a larger fee if the other attorney agrees and if the court approves.

The Court will also discuss whether to adopt one of two alternative proposals regarding an attorney’s ethical obligation to provide pro bono services (ADM File No. 2010-18; proposed amendments to of MRPC 6.1).

Alternative A would clarify that attorneys are not subject to disciplinary proceedings to enforce the pro bono rule. Alternative B would require Michigan attorneys to donate 30 hours of professional time or handle three pro bono cases per year, and/or contribute $300 or $500 per year to programs that provide legal services to the poor.

The Michigan Supreme Court periodically holds administrative hearings to allow interested persons to comment on proposed court rule changes and other administrative matters on the Court’s agenda.

Speakers will be allotted three minutes each to present their views, after which they may be questioned by the Justices.

To reserve a place on the agenda, please contact the Office of the Clerk of the Court in writing at P.O. Box 30052, Lansing, Michigan 48909, or by e-mail at MSC_clerk@courts.mi.gov, no later than Monday, September 26, 2011. Requests to speak should include the ADM file numbers for the agenda items the speaker wishes to discuss.

– Information provided by the Michigan Supreme Court.