[This post is from Ray McKoski.]
Today, the ABA issued Formal Opinion 470 advising that a judge may author a letter encouraging lawyers to participate in pro bono legal service programs. While the casual observer might not see an issue with such a laudable endeavor by a judge, it took the Committee on Ethics and Professional Responsibility ten well-written pages to explain why the judge’s letter did not violate the ABA Model Code of Judicial Conduct. Part of the problem is that Rule 3.7(B) of the ABA Model Code does not permit judges to “solicit” attorneys to provide free legal services but only permits judges to “encourage” lawyers to provide such services. This limitation is curious because Rule 3.7(A)(3) of the ABA Model Code authorizes judges to personally solicit lawyers to join the ABA and other bar associations. It is especially difficult to understand the rationale for allowing the solicitation of bar association members but not pro bono attorneys since, according to Opinion 470, offices funded by the Legal Services Corporation turned away 944,000 people in one year due to a lack of resources.
The ABA needs to amend Rule 3.7(B) of the Model Code by replacing the word “encourage” with the word “solicit” so that Rule 3.7(B) reads: “A judge may solicit lawyers to provide pro bono publico legal services.” If nothing else, this amendment will place the poor and bar associations on equal footing in the eyes of the ABA’s judicial code.