On March 31, the Tennessee Supreme Court prudently decided not to turn Tennessee’s mechanism for lawyers to provide information about how much pro bono they perform each year into a mandatory obligation. Mandatory reporting could have placed lawyers at risk of the administrative suspension of their license for being unwilling to provide such information. Some might see it as a counter-intuitive statement, but declining to turn this into a mandatory obligation was the best thing the Court could do in the long run for pro bono participation in Tennessee.
Just like many other jurisdictions across the United States, our bench and bar has put a significant amount of effort over the last few years into attempting to encourage lawyers to do pro bono and, for those lawyers already doing so, to try to do more of it. Tennessee has, for several years, given CLE credit to lawyers for their pro bono efforts – an approach that has gained more acceptance in other states as well, including Louisiana most recently.
As part of the effort, and to get a better sense of how much pro bono is being performed, Tennessee adopted a voluntary pro bono reporting system to ask lawyers on their annual registration statements to provide some data about how much pro bono they performed in the prior year. Our ethics rules, in RPC 6.1, set a target goal of 50 hours each year, and the rule provides several categories of activities that can qualify. (RPC 6.1, however, is the only purely aspirational ethics rule we have; failure to perform pro bono is not something for which a lawyer could be disciplined.)
The March 31 order came in response to an effort by the Court’s Access to Justice Commission to require lawyers to report how much pro bono they did (even if it was 0 hours) and that would have made the failure to report the kind of misstep that, like not performing required CLE, not paying annual registration fees, or not certifying IOLTA compliance, could lead to administrative suspension of a lawyer’s license. The Tennessee Bar Association opposed such an effort, in part, on the basis that the idea of a lawyer losing the right to practice even temporarily merely for not providing information about efforts made in a realm that is entirely voluntary and aspirational was quite troubling.
Despite a complete lack of proof that there was reason for concern, a strong undercurrent exists within the bar that the end game is to eventually make pro bono a mandatory requirement for lawyers. Hopefully, the Court’s order will go a long way toward quelling such concerns as unfounded while, simultaneously, allowing the Access to Justice Commission, and others who dedicate their time and talents toward increasing pro bono participation, to find new ways to better communicate to lawyers both the need for, and the benefits of, voluntarily providing information about the good work they do in our state.