California joins other states in asking lawyers about pro bono work

Attorney groups in Sacramento have long opposed bills that would have required mandatory hours of pro bono service.

But a new law requiring them to report their volunteer hours to the State Bar sailed through the Legislature, after most Republican lawmakers voted no and several spoke against it.

Though the lack of organized opposition by lawyers' groups might seem like a contradiction, California is firmly in line with national trends. Roughly two-thirds of states now have some form of mandatory or voluntary pro bono reporting requirement for attorneys, according to research from the Pro Bono Institute in Washington, D.C.

But mandating that attorneys provide volunteer services to maintain their licenses remains extremely rare.

"Reporting requirements are spreading," said Salena Copeland, executive director of the Legal Aid Association of California, which sponsored California's new reporting requirement. "Definitely over the past 15 years a lot more states have passed them."

One key to the new law is what it does not ask, said California Lawyers Association President Betty J. Williams.

"CLA raised some concerns with AB 2505 but did not oppose the bill," Willams, managing shareholder with Williams & Associates, PC in Sacramento, responded in an email. "We had several discussions with the interested stakeholders and were able to resolve those concerns in a collaborative manner. The bill was amended to allow the State Bar to include, as part of the reporting requirement, options for attorneys who do not track their pro bono hours or reduced fee legal services hours or who decline to answer, to indicate that status when prompted to report."

The information attorneys share is not subject to public disclosure. Copeland said the bill was amended to address concerns that information attorneys shared could be used against them. For instance, rather than listing the specific hours, attorneys will indicate their approximate number of hours from a set of ranges.

"Private attorneys did not love the idea of reporting an exact hour amount," Copeland said. "They were concerned that it was under penalty of perjury, and they would be audited if they reported they did 45 hours, but they only did 42."

A man named David Bolog testified against AB 2505 in the Senate Judiciary Committee hearing in June. Bolog, who identified himself as representing the Serving Family Values Alliance, said the law would "bring a chill to lawyers who do not wish to discuss their pro bono work." He also said hackers could get hold of the attorneys' confidential information and share it. Bolog's name does not appear in the State Bar database or a listing of registered lobbyists in Sacramento.

The bill was written by Assemblyman Jesse Gabriel, D-Woodland Hills, an attorney. Gabriel's office shared support letters from Orrick, Herrington & Sutcliffe LLP and Morrison & Foerster LLP.

In 1993, Florida became the first state to mandate annual reporting of pro bono hours. It did so in the middle of a national debate among lawyers that might sound familiar to anyone following the issue today. In 1981, former American Bar Association President Chesterfield H. Smith published an article in the University of Miami Law Review titled, "A Mandatory Pro Bono Service Standard-Its Time Has Come."

While Smith's call to arms prompted a great deal of debate, it did not lead to many new laws. Instead, it helped set off a backlash against mandatory pro bono service. In 1991, the late Esther F. Lardent wrote, "Mandatory Pro Bono in Civil Cases: The Wrong Answer to the Right Question," in the Maryland Law Review. She argued the recent "resurgence of interest" in forced pro bono work would lead to ineffective counsel and administrative nightmares. Lardent later founded the Pro Bono Institute to promote volunteering of legal services by attorneys.

Beginning in the early 2000s, several states passed mandatory or voluntary reporting requirements. In 2017, the Legal Aid Association of California worked with then Sen. Bob Wieckowski to introduce SB 316. It would have required attorneys to report pro bono hours and money donated to legal aid organizations but died amid budget concerns.

The next year, then-Assemblyman Adam Gray introduced AB 3204. It would have required attorneys to complete 25 hours of pro bono work annually or contribute $500 to a state legal aid fund. In an opposition letter, then CLA president Heather Linn Rosing raised several concerns, including an overly restrictive definition of pro bono services and limited exceptions for attorneys who cannot -- or cannot afford -- to provide pro bono services. She suggested alternatives, such as the reporting requirements in Wieckowski's bill.

Copeland said COVID-19 may have provided a final impetus to get the new reporting requirement into law. The pandemic shut down many of the one-day intake clinics legal aid organizations offered that allowed attorneys to complete several hours of service at once. Many legal aid groups reported huge drops in volunteering -- but Copeland said even anonymous reporting could help.

"When New York started asking for the information, they actually saw an increase in hours," Copeland said. "Attorneys really didn't like reporting zero hours."