Andrew Bookbinder L’24
Andrew Bookbinder is a second-year law student and Toll Public Interest Scholar at the University of Pennsylvania Carey Law School. Prior to law school, Andrew worked at the Public Defender Service of the District of Columbia, where he will return for a 2023 summer clerkship.
All of the Benefits, None of the Burdens: The Unique Responsibility to Provide Pro Bono Legal Services and Why it Should be Mandatory in Pennsylvania
“’Equal justice under law’ is one of America’s most proudly proclaimed and routinely violated legal principles. It embellishes courthouse doors, but in no way describes what goes on behind them. Millions of Americans lack any access to justice let alone equal access. More than four-fifths of the legal needs of the poor and a majority of the needs of middle-income Americans remain unmet.”
— Deborah L. Rhode, The Trouble with Lawyers
The legal distress of indigent Pennsylvanians embodies the broken American promise of “equal justice under law” highlighted by Rhode above. The Commonwealth currently suffers from a dual crisis of a shockingly neglected indigent criminal defense system and a stunning justice gap when it comes to civil legal representation. Pennsylvania is one of two states in the country that fails to provide state funding for indigent defense, with one legal aid lawyer for every 6,415 Pennsylvanians living in poverty. Against an ever-growing rate of houselessness, the Commonwealth must implement a 50-hour-per-year pro bono requirement for all licensed lawyers in the state to more adequately address the representation issue throughout the state.
This requirement would result in a guaranteed annual 2,470,600 combined pro bono hours from the 49,412 licensed lawyers in Pennsylvania. Pro bono work has become an essential tool in narrowing the justice gap throughout the nation and a statewide mandatory pro bono requirement would represent a permanent infusion of millions of dollars’ worth of legal assistance into the Pennsylvania legal system. Such a requirement falls within the bounds of the Fifth and Thirteenth Amendments of the Federal Constitution and further addresses the affirmative responsibility of lawyers to provide pro bono services through the unique role they hold in American society.
Additionally, implementing a mandatory pro bono scheme will broaden the impact of many self-serving aspects of pro bono work for lawyers. These benefits include but are not limited to legal skills building, trial experience, exposure to the community, and opportunities for professional development and growth. Surveys by the American Bar Association frequently identify a lack of connection to the public good as the top source of dissatisfaction when it comes to young lawyers in their work. Lawyers as a whole are interested in engaging in pro bono work, with an empirical study of attorneys finding that only 22% of survey lawyers are “very satisfied” with the amount of time they spend on pro bono work. Mandatory pro bono responsibilities can serve as the institutional excuse that many attorneys chasing billable hour targets desire, allowing them to engage in meaningful amounts of pro bono work without feeling that it is detracting from their billable hours. At the same time, the 50-hour per year figure is moderate enough so as not to be overly burdensome to attorneys. Averaging less than an hour a week, this proposed requirement strikes the balance between creating space for meaningful service, but not in a restrictive or prohibitive manner for lawyers in the Commonwealth.
Implementing a mandatory 50-hour-per-year pro bono requirement for Pennsylvania licensed lawyers is a radical but necessary step for the Commonwealth to take. This proposed policy would go a long way to addressing the overwhelming indigent criminal and civil representation crisis in a manner that is both constitutionally permitted and carries great potential benefits for Pennsylvania attorneys while allowing them to fulfill their responsibility to the community.
A Crisis of Representation
Even under the best of circumstances, public defender services face a daunting gauntlet of hurdles when delivering justice when it comes to their clients. From funding disparities with district attorney offices to policing practices and public perception issues, public defenders face tremendous pressure to do more with less. Pennsylvania takes that treatment of public defense to an extreme as one of only two states in the nation that provides neither state funding or state oversight for indigent defense.
Indigent individuals in need of legal representation for civil issues in the Commonwealth do not fare better. For each individual that successfully received representation through a Pennsylvania Legal Aid Network program, there were on average more than two people that had asked for assistance but received either inadequate or no assistance for their problem that were eligible. Only 29% of eligible applicants for such services were provided with legal representation that fully resolved their case. Institutions within the Commonwealth acknowledge that the need for civil legal representation is acute. The Disciplinary Board of the Supreme Court of Pennsylvania has found that currently in the Commonwealth, there is only one attorney for every 6,415 people living in poverty. In 2018, the Supreme Court of Pennsylvania, in an attempt to address the legal representation crisis, created an emeritus status for retired attorneys, allowing them to provide pro bono services to legal aid organizations if they desired.
On both the criminal and civil fronts, this is a crisis of representation and funding. A mandatory indigent or pro bono hours requirement would have a cascading positive effect on the existing system of indigent representation in Pennsylvania. The additional hours of civil legal services made available by such a requirement would have the direct benefit of reducing the lack of representation for civil issues and tangible effects on the indigent criminal defense crisis as well. It is well established that holistic advocacy, where indigent criminal defendants receive assistance with civil legal issues in concert with representation for their criminal case, enhances the quality and outcomes of criminal cases. A large and sustained surge in pro bono civil representation as a result of the hours requirement would serve as a rising tide that lifts all indigent civil and criminal representation boats, so to speak. Additionally, the subsequent increase in indigent civil representation would free up funding to be allocated by counties throughout the Commonwealth to more appropriately fund indigent criminal defense.
An annual 2,470,600 combined pro bono hours from the 49,412 licensed lawyers in the Commonwealth would bolster levels of legal representation throughout Pennsylvania to previously unheard-of levels, shrinking the justice gap. Potential results include a wide spectrum of positive improvements for Pennsylvanians, ranging from increases in quality of life measures to reduced budget and administrative costs for costly statewide institutions such as prisons.
Constitutionality and the Affirmative Responsibility to Represent
A common challenge to court-compelled legal services come in the forms of suits claiming that mandated legal representation constitutes involuntary servitude in violation of the Thirteenth Amendment, or that it constitutes a taking of property, violating the Fifth Amendment. On both issues, modern courts have a history of upholding compelled service in the face of challenges. A well-settled line of precedent has established that the prohibitions on involuntary servitude laid out by the Thirteenth Amendment only extend to physical restraint or confinement. As the sanctions levied against those refusing to engage in pro bono work have not historically included imprisonment, courts have largely rejected such involuntary servitude challenges. The implementation of such a requirement in the Commonwealth would similarly shy away from imposing incarceration upon lawyers refusing to engage in pro bono work, effectively addressing the question of involuntary servitude.
Similarly, courts have generally dismissed objections to compelled legal service based on takings grounds established under the Fifth Amendment based on the theory that pro bono service is a duty already owed by attorneys. In holding that governments need not pay for the performance of a public duty if that duty is already owed, the courts have held that so long as the required amount of service is not unreasonable, such takings claims will fail. Given the relatively small individual burden involved in the proposed pro bono requirement, averaging less than an hour per week, the policy should adequately address Fifth Amendment takings claims.
Additionally, the proposed pro bono requirement embraces a theory of affirmative responsibility among lawyers to provide pro bono services due to the unique privileges this group holds in the United States. Law school graduates find doors open to them in a manner not seen with any other higher education degree. Attorneys populate fields of legislative politics, policy, federal and state government, economics, and business, in addition to the traditional fields of litigation, legal transactions, and the judiciary. The lofty status of American lawyers derives in part from the fact that American lawyers enjoy a broader absolute right to provide legal assistance than lawyers in other countries. This monopoly on access to the law creates tangible, distinct, and exclusionary advantages for U.S. lawyers, but in practice it means that access to a lawyer is tantamount to accessing the law. American lawyers bear a distinct responsibility to engage in legal representation and pro bono work when such services are not available in their communities. Both courts and the ethical codes of various bar codes highlight the fact that the state creates exceptional monopoly privileges for attorneys, which in turn result in exceptional obligations. The proposed pro bono requirement would embrace this theory of affirmative responsibility, allowing Pennsylvania to directly address the dire lack of representation within the Commonwealth by deploying the lawyers that benefit the most from the legal status quo.
Not only would a statewide pro bono requirement be one of the most substantial steps ever taken by a state to address issues of indigent representation, but it would serve as a boon to the legal industry throughout the Commonwealth. Engaging in pro bono work is not only something that attorneys currently wish they could do more, but it is an exciting chance to engage in meaningful professional legal development. Specifically, pro bono work creates opportunities for attorneys of all levels to supplement their everyday working experiences. Pro bono work can result in numerous positive experiences for attorneys, including providing consistent exposure to direct client and community interactions, the chance to build and explore roles and professional skills that would not be available to them through their paying work, and to engage on a regular basis with issues that are personally fulfilling.
As one of the leading challenges young attorneys face are feelings of disconnect between their work and promoting the public good, this proposed pro bono requirement can serve as an important outlet for attorneys to remain connected to their communities and issues close to them. Regularly engaging in advocacy for indigent clients or pro bono causes need not be viewed as a burden imposed upon the lawyers of the Commonwealth. Instead, studies and data indicate that for many lawyers, pro bono matters provide their most rewarding professional experiences. When paired with the tangible professional development potential of increased pro bono work, the proposed policy serves as an opportunity for Pennsylvania attorneys to lean into tendencies that already exist, creating a more well-rounded class of lawyers.
The proposed implementation of a mandatory 50-hour-per-year indigent client representation and pro bono requirement throughout the Commonwealth is undeniably bold. On its face, it is a radical and nearly unacceptable change that promises to upset the current system. The reality is that the dual crisis of representation in the indigent criminal and civil legal fields of Pennsylvania is unacceptable and demands bold action and change to appropriately address an issue of such magnitude. Seizing this opportunity to directly confront the ongoing representation crisis in a constitutional manner that embraces a progressive theory of American attorney responsibility to the community while tangibly benefiting attorneys throughout the Commonwealth is a unique route that would best serve Pennsylvania in this time of need.
 Deborah L. Rhode, The Trouble with Lawyers 30 (2015).
 Indigent Defense Reform, ACLU Pa., https://perma.cc/CJ9Y-JLYG (last visited Apr. 24 , 2023) [hereinafter ACLU Pa]; Pro Bono, The Disciplinary Bd. of the Sup. Ct. of Pa. , https://perma.cc/DN7V-D358 (last visited Apr. 24 , 2023) [hereinafter Disciplinary Bd.].
 ACLU Pa., supra note 5.
 Disciplinary Bd., supra note 5.
 See Model Rules of Pro. Conduct r. 6.1 (Am. Bar Ass’n 2019).
 National Lawyer Population Survey, Lawyer Population by State 2022, A.B.A. (2022), https://perma.cc/F9HS-W6CN.
 Scott L. Cummings & Rebecca L. Sandefur, Beyond the Numbers: What We Know—and Should Know—About American Pro Bono, 7 Harv. L. & Pol’y Rev. 83, 83–111 (2013).
 Deborah L. Rhode, Pro Bono in Principle and in Practice, 53 J. Legal Educ. 413, 431–464 (2003).
 Rhode, supra note 2, at 54.
 Rhode, supra note 11, at 447, 452.
 Id. at 452.
 Katie Meyer, Despite Outlier Status, Pa. Lawmakers Don’t Make Public Defense A Priority, Whyy (Oct. 2, 2018), https://perma.cc/7HM9-62ZU.
 ACLU Pa., supra note 4.
 Pa. Legal Aid Network & Pa. IOLTA Bd., supra note 6, at 4 (collecting data over a six-week period in March and April of 2017).
 Disciplinary Bd., supra note 5.
 Court Creates Emeritus Status for Retired Attorneys to Do Pro Bono Work, The Disciplinary Bd. of the Sup. Ct. of Pa. (May 10, 2018), https://perma.cc/S4F6-BCRF.
 Brooks Holland, Holistic Advocacy: An Important But Limited Institutional Role, 30 N.Y.U. Rev. L. & Soc. Change 637, 637–652 (2006).
 A.B.A., supra note 8.
 Rhode, supra note 11, at 428.
 Why Lawyers Rule American Politics, Niskanen Ctr. (Aug. 25, 2021), https://perma.cc/9YHC-JP8P.
 Rhode, supra note 11, at 432.
 Brian J. Murray, The Importance of Pro Bono Work in Professional Development, A.B.A. (Apr. 20, 2011), https://perma.cc/4B6K-H89C.
 Rhode, supra note 2, at 55.
 Rhode, supra note 11, at 447.