Ethics Matters

Opinion: Mr. Bar Regulator, Tear Down This Wall

, The Connecticut Law Tribune

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Mark Dubois
Mark Dubois

As part of my duties on a committee studying the problem of the "justice gap," the void between those needing legal services and those who can provide them, I recently looked at the laws of Virginia and Colorado as they pertain to non-admitted lawyers providing pro bono services. Holy macaroni!

Both states have decided to supplement their stable of pro bono attorneys by allowing out-of-state lawyers to be admitted without much in the nature of hurdles. Virginia allows those already admitted as house counsel to also do pro bono, but without any supervision by fully-admitted local counsel like the new Connecticut rule requires. Colorado allows any lawyer admitted anywhere to go to the state and do pro bono. From what I can see, they just get on the interstate (or the bus) and start doing their work.

All of this might not matter much to the average "lawyer in the street," who probably thinks that growing the pool of willing providers has no downside and might actually help folks who need help get it. The real sin of our present system is that the legal services agencies turn away many more than they can help, and maybe anything that grows the supply is a good thing.

Pro bono is defined in our Rule 6.1 as covering not only free legal services, but also "reduced fee" services, and not only for persons of limited means but also services to public service or charitable groups. Colorado's rule is a bit different from ours, and leans more towards free services, though it also covers "substantially reduced" fees. (They also have a 50 hour per year suggested pro bono target, but some of that can be used to offset their MCLE requirement.)

So would it be a good thing or a bad thing if we adopted the Colorado rule and allowed any licensed lawyer to come here as long as they agree to serve the slice of the community that can't afford to or won't use our bar members? From personal experience, I can tell you that you can pretty much run a law office today with a laptop, a cell phone and a good high-speed internet connection. I know some enterprising lawyers who operate very efficiently this way. If they can find a way to do well while they do good, is it a problem?

Some argue that we would not be able to regulate these folks. That is a problem easily solved by creating a simple registration regime. Both Virginia and Colorado have forms. Discipline is not a problem because Rule 8.5 gives the grievance folks jurisdiction over any lawyers who practice here, admitted or not. As for the need to learn the local procedures and protocols, it's not that different here than other places. Lawyers are risk-averse and malpractice concerns probably would ensure that the new guys educate themselves. Well, wouldn't some carpetbagger possibly come in here, grab fees, and do no work? Maybe, but I just read a bunch of lawyer discipline reports, and it seems some of our fully-licensed and admitted brethren do just that now.

We are never going to see a national law license; the states value their independence too much. But some states (Washington/ Oregon/ Idaho and New Hampshire/Vermont) have worked out interstate compacts allowing lawyers to move among their various jurisdictions without admission by motion or anything else. From my experience, the federal system works pretty much the same way.

Whenever I broach the subject of allowing out-of-state lawyers come here to work, some of my colleagues blanch, accusing me of giving away their bread and butter. My thought is that as long as the privilege is reciprocal, I might like eating someone else's lunch for once. Work has occasionally taken me to Rhode Island, and picking a jury using their truncated voir dire and trying a case in Providence is something I might like to do more of.

So are the Virginia and Colorado pro bono approaches a reasonable step to take to fill the justice gap, or is it the camel's nose under the tent flap? •

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