Notice: Pro bono for judges report

first_img June 1, 2002 Notices Notice: Pro bono for judges report The Report of the Task Force on Pro Bono Activities by Judges and Judicial Staff and The Florida Bar Standing Committee on Pro Bono Legal Services is before the Florida Supreme Court for consideration.In 1993 when the Supreme Court adopted a comprehensive pro bono legal service plan, it recognized that judges and their staff attorneys are prohibited from practicing law. Thus, the Court deferred members of the judiciary and their staffs from the pro bono requirements of Rule Regulating the Bar 4-6.1. See, Amendments to Rules Regulating The Florida Bar – 1-3.1(a) and Rules of Judicial Administration – 2.065 (Legal Aid), 630 So. 2d 501, 503-04. At that time, the Court explained:The responsibility of judicial officers and government employees in providing legal services to the poor presents a unique dilemma. Judicial officers and their staffs are expressly prohibited from practicing law, specifically: (a) article V, section 13, of the Florida Constitution (judge shall devote full time to judicial duties and shall not engage in the practice of law); (b) Code of Judicial Conduct, Canon 5B(1) (judge should not serve in civic or charitable organization if it is likely the organization will be engaged in proceedings that may come before the judge or will be regularly engaged in adversary proceedings in any court); (c) Canon 5D (judge should not serve in fiduciary capacity); (d) Canon 5F (judge should not practice law); and (e) Rule of Judicial Administration 2.060(c) (same limitations apply to judicial clerks).These prohibitions are designed partially to prevent judges and their staffs from taking time away from their judicial duties. More importantly, however, the prohibitions are to prevent them from placing themselves in positions where their actions could directly or indirectly be influenced by matters that could come before them or could provide the appearance that certain parties might be favored over others. As a result, members of the judiciary and their law clerks are unable to participate in providing pro bono legal services to the poor absent a broadening of the definition of those services to such an extent that the services would no longer be limited to legal services. As discussed above under the definition of legal services, we believe that a narrow definition of pro bono services is necessary to ensure that the purposes behind the implementation of these rules are in accordance with our authority. Consequently, we find that members of the judiciary and their staffs should be deferred at this time from participating in the program.We emphasize, however, that judges and their staffs may still teach or engage in activities that concern non-adversarial aspects of the law. Canon 4. Although those activities would not be governed by these rules, we strongly encourage the participation of the judiciary in those activities and request the judicial conferences to consider appropriate means to provide support and allow participation of judges and law clerks in pro bono activities. Id. The Court went on to note that there are activities that judges can do to advance the principles of pro bono service. For example, the Eleventh Judicial Circuit in Dade County, in a cooperative effort with the Dade County Bar Association, created a comprehensive pro bono program called “Put Something Back.” More than forty judges participate in the program. They train attorneys, staff clinics, and prepare forms and handbooks. Additionally, such activities as teaching seminars for legal aid lawyers or serving on legal aid boards could count toward pro bono service for judges. Id. at 504, n. 3.In October 2000, the Court created the Task Force on Pro Bono Activities by Judges and Judicial Staff to work with the Standing Committee on Pro Bono Legal Services to address the continued necessity for judicial deferment and to propose a plan to facilitate participation in pro bono activities by the judiciary and judicial staff. See In re Pro Bono Activities by Judges and Judicial Staff, Fla. Amended Admin. Order No. AOSC00-7 (Oct. 25, 2000). The Court specifically directed the Task Force and the Standing Committee to:• Study how a pro bono commitment, or similar undertaking, can be carried out by judges and judicial staff;• Collect information on non-traditional pro bono activities by judges and judicial staff in Florida and other states; and• Consider need for rules relating to pro bono service by judges and judicial staff.In accordance with this charge, the Task Force and Standing Committee have filed their report.The Court invites all interested persons to comment on the report, as well as on the proposed amendments to Rule Regulating the Florida Bar 4-6.1 and Canons 4(B) and 4(D) of the Code of Judicial Conduct. The proposed amendments are reproduced below. The full report, along with the proposed amendments, is reproduced in full online at www.flcourts.org/sct/sctdocs/proposed.html. Comments also are sought on whether pro bono legal service by judicial staff should continue to be limited in the same manner as pro bono service by judges.An original and seven copies of all comments must be filed with the Court on or before September 3, 2002, with a certificate of service verifying that a copy has been served on The Honorable William A. Van Nortwick, Jr., Chair, Task Force on Pro Bono Activities by Judges and Judicial Staff, First District Court of Appeal, 301 South Martin Luther King Jr. Blvd., Tallahassee, Florida 32399-1850, and Natasha W. Permaul, Chair, Standing Committee on Pro Bono Legal Services, 100 South Hughey Ave., Orlando, Florida 32801. A separate request for oral argument should be filed if the person filing the comment wishes to participate in oral argument which has been scheduled for Thursday, November 7, 2002. IN THE SUPREME COURT OF FLORIDA AMENDMENTS TO CODE OF JUDICIAL CONDUCT AND THE RULES REGULATING THE FLORIDA BAR RE: PRO BONO ACTIVITIES OF JUDGES AND JUDICIAL STAFF, CASE NO. SC02-1034. 4-6.1 PUBLIC SERVICE RULE 4-6.1 PRO BONO PUBLIC SERVICE (a) Professional Responsibility. Each member of The Florida Bar in good-standing, as part of that member’s professional responsibility, should (1) render pro bono legal services to the poor and (2) participate, to the extent possible, in other pro bono service activities that directly relate to the legal needs of the poor. The professional responsibility to render pro bono legal services cannot apply to members of the judiciary and members of the bar employed by the judiciary, because such persons are prohibited or restricted from practicing law by constitutional or other provisions of law. With respect to members of the judiciary and members of the bar employed by the judiciary, the aspirational responsibility to provide pro bono service is set forth in Canons 4(B) and 4(D) of the Code of Judicial Conduct. This professional responsibility does not apply to members of the judiciary or their staffs or to government lawyers who are prohibited from performing legal services by constitutional, statutory, rule or regulatory prohibitions. Neither does this professional responsibility apply to those members of the bar who are retired, inactive, or suspended, or who have been placed on the inactive list for incapacity not related to discipline. (b) Discharge of the Professional Responsibility to Provide Pro Bono Legal Service to the Poor. The professional responsibility to provide pro bono legal services as established under this rule is aspirational rather than mandatory in nature. The failure to fulfill one’s professional responsibility under this rule will not subject a lawyer to discipline. The professional responsibility to provide pro bono legal service to the poor may be discharged by:(1) annually providing at least 20 hours of pro bono legal service to the poor; or(2) making an annual contribution of at least $350 to a legal aid organization. (c) Collective Discharge of the Professional Responsibility to Provide Pro Bono Legal Service to the Poor. Each member of the bar should strive to individually satisfy the member’s professional responsibility to provide pro bono legal service to the poor. Collective satisfaction of this professional responsibility is permitted by law firms only under a collective satisfaction plan that has been filed previously with the circuit pro bono committee and only when providing pro bono legal service to the poor:(1) in a major case or matter involving a substantial expenditure of time and resources; or(2) through a full-time community or public service staff or(3) in any other manner that has been approved by the circuit pro bono committee in the circuit in which the firm practices. (d) Reporting Requirement. Each member of the bar shall annually report whether the member has satisfied the member’s professional responsibility (i) to provide pro bono legal services to the poor or, (ii) in the case of judges or members of the bar employed by the judiciary, pro bono service under Canons 4(B) and 4(D) of the Code of Judicial Conduct. Each member shall report this information through a simplified reporting form that is made a part of the member’s annual membership fees statement. The form will contain the following categories from which each member will be allowed to choose in reporting whether the member has provided pro bono legal services to the poor :(1) I have personally provided ___ hours of pro bono legal services;(2) I have provided pro bono legal services collectively by: (indicate type of case and manner in which service was provided);(3) I have contributed $ to: (indicate organization to which funds were provided);(4) I have provided legal services to the poor in the following special manner: (indicate manner in which services were provided); or (5) I am a member of the judiciary or a member of the bar employed by the judiciary and I have personally provided _____ hours of pro bono services and/or contributed $______ to a legal aid organization. (5) (6) I have been unable to provide pro bono legal services to the poor this year. (6) (7) I am deferred from the provision of pro bono legal services to the poor because I am: (indicate whether lawyer is: a member of the judiciary or judicial staff; a government lawyer prohibited by statute, rule, or regulation from providing services; retired, inactive or suspended).The failure to report this information shall constitute a disciplinary offense under these rules. (e) Credit Toward Professional Responsibility in Future Years. In the event that more than 20 hours of pro bono legal service to the poor are provided and reported in any 1 year, the hours in excess of 20 hours may be carried forward and reported as such for up to 2 succeeding years for the purpose of determining whether a lawyer has fulfilled the professional responsibility to provide pro bono legal service to the poor in those succeeding years. (f) Out-of-State Members of the Bar. Out-of-state members of the bar may fulfill their professional responsibility in the states in which they practice or reside. Comment Pro bono legal service to the poor is an integral and particular part of a lawyer’s pro bono public service responsibility. As our society has become one in which rights and responsibilities are increasingly defined in legal terms, access to legal services has become of critical importance. This is true for all people, be they rich, poor, or of moderate means. However, because the legal problems of the poor often involve areas of basic need, their inability to obtain legal services can have dire consequences. The vast unmet legal needs of the poor in Florida have been recognized by the Supreme Court of Florida and by several studies undertaken in Florida over the past two decades. The Supreme Court of Florida has further recognized the necessity of finding a solution to the problem of providing the poor greater access to legal service and the unique role of lawyers in our adversarial system of representing and defending persons against the actions and conduct of governmental entities, individuals, and nongovernmental entities. As an officer of the court, each member of The Florida Bar in good standing has a professional responsibility to provide pro bono legal service to the poor. Although members of the judiciary are prohibited from practicing law by article 5, section 13 of the Florida Constitution and members of the bar employed by the judiciary are restricted in the practice of law by Rule of Judicial Administration 2.060(b), it is recognized that the primary purpose of pro bono service is overall a public one and is consistent with the constitutional obligation of the judiciary to ensure access to the justice system. Thus, members of the judiciary and members of the bar employed by the judiciary may fulfill their obligation pursuant to Canons 4(B) and 4(D) of the Code of Judicial Conduct. Certain lawyers, however, are prohibited from performing legal services by constitutional, statutory, rule, or other regulatory prohibitions. Consequently, members of the judiciary and their staffs, government lawyers who are prohibited from performing legal services by constitutional, statutory, rule, or regulatory prohibitions, members of the bar who are retired, inactive, or suspended, or who have been placed on the inactive list for incapacity not related to discipline are deferred from participation in this program.In discharging the professional responsibility to provide pro bono legal service to the poor, each lawyer should furnish a minimum of twenty hours of pro bono legal service to the poor annually or contribute $350 to a legal aid organization. “Pro bono legal service” means legal service rendered without charge or expectation of a fee for the lawyer at the time the service commences, legal services written off as bad debts do not qualify as pro bono service. Most pro bono service should involve civil proceedings given that government must provide indigent representation in most criminal matters. Pro bono legal service to the poor is to be provided not only to those persons whose household incomes are below the federal poverty standard but also to those persons frequently referred to as the “working poor.” Lawyers providing pro bono service on their own need not undertake an investigation to determine client eligibility. Rather, a good faith determination by the lawyer of client eligibility is sufficient. Pro bono legal service to the poor need not be provided only through legal services to individuals; it can also be provided through legal services to charitable, religious, or educational organizations whose overall mission and activities are designed predominately to address the needs of the poor. For example, legal service to organizations such as a church, civil, or community service organizations relating to a project seeking to address the problems of the poor would qualify.While the personal involvement of each lawyer in the provision of pro bono legal service to the poor is generally preferable, such personal involvement may not always be possible or produce the ultimate desired result, that is, a significant maximum increase in the quantity and quality of legal service provided to the poor. The annual contribution alternative recognizes a lawyer’s professional responsibility to provide financial assistance to increase and improve the delivery of legal service to the poor when a lawyer cannot or decides not to provide legal service to the poor through the contribution of time. Also, there is no prohibition against a lawyer contributing a combination of hours and financial support. The limited provision allowing for collective satisfaction of the 20-hour standard recognizes the importance of encouraging law firms to undertake the pro bono legal representation of the poor in substantial, complex matters requiring significant expenditures of law firm resources and time and costs, such as class actions and post-conviction death penalty appeal cases, and through the establishment of full-time community or public service staffs. When a law firm uses collective satisfaction, the total hours of legal services provided in such substantial, complex matters or through a full-time community or public service staff should be credited among the firm’s lawyers in a fair and reasonable manner as determined by the firm.The reporting requirement is designed to provide a sound basis for evaluating the results achieved by this rule, reveal the strengths and weaknesses of the pro bono plan, and to remind lawyers of their professional responsibility under this rule. The fourth alternative of the reporting requirements allows members to indicate that they have fulfilled their service in some manner not specifically envisioned by the plan.The 20-hour standard for the provision of pro bono legal service to the poor is a minimum. Additional hours of service are to be encouraged. Many lawyers will, as they have before the adoption of this rule, contribute many more hours than the minimum. To ensure that a lawyer receives credit for the time required to handle a particularly involved matter, this rule provides that the lawyer may carry forward, over the next 2 successive years, any time expended in excess of 20 hours in any 1 year. CANON 4. A Judge May Engage in Activities to Improve the Law, the Legal System, and the Administration of Justice A. A judge shall conduct all of the judge’s quasi-judicial activities so that they do not:(1) cast reasonable doubt on the judge’s capacity to act impartially as a judge;(2) demean the judicial office; or(3) interfere with the proper performance of judicial duties.B. A judge may speak, write, lecture, teach and participate in other quasi-judicial activities concerning the law, the legal system, and the administration of justice, subject to the requirements of this Code. Encouragement of and support for attorneys providing pro bono legal services is an activity by judges and members of The Florida Bar employed by the judiciary which relates directly to the improvement of the administration of justice and furthers the judiciary’s constitutional responsibility to ensure access to the justice system. Accordingly, judges and members of The Florida Bar employed by the judiciary are encouraged to engage in pro bono service activities intended to facilitate and encourage attorneys to perform pro bono legal services, including, but not limited to: speaking, writing, lecturing, and teaching; participating in events to recognize attorneys who perform pro bono legal services; establishing procedural or scheduling accommodations for pro bono counsel, as feasible; and acting in an advisory capacity to pro bono programs. Further, judges and members of The Florida Bar employed by the judiciary are encouraged to perform pro bono service activities which relate to improving access to the justice system for the poor, including the working poor, but which do not involve the practice of law by the judiciary or the restricted practice of law by members of The Florida Bar employed by the judiciary and are otherwise consistent with the requirements of this Code.C. A judge shall not appear at a public hearing before, or otherwise consult with, an executive or legislative body or official except on matters concerning the law, the legal system or the administration of justice or except when acting pro se in a matter involving the judge or the judge’s interests.D. A judge may serve as a member, officer, director, trustee or non-legal advisor of an organization or governmental agency devoted to the improvement of the law, the legal system or the administration of justice, subject to the following limitations and the other requirements of this Code.(1) A judge shall not serve as an officer, director, trustee or non-legal advisor if it is likely that the organization(a) will be engaged in proceedings that would ordinarily come before the judge, or(b) will be engaged frequently in adversary proceedings in the court of which the judge is a member or in any court subject to the appellate jurisdiction of the court of which the judge is a member.(2) A judge as an officer, director, trustee or non-legal advisor, or as a member or otherwise:(a) may assist such an organization in planning fund-raising and may participate in the management and investment of the organization’s funds, but shall not personally participate in the solicitation of funds or other fund-raising activities, except that a judge may solicit funds from other judges over whom the judge does not exercise supervisory or appellate authority;(b) may make recommendations to public and private fund-granting organizations on projects and programs concerning the law, the legal system or the administration of justice;(c) shall not personally participate in membership solicitation if the solicitation might reasonably be perceived as coercive or, except as permitted in Section 4D(2)(a), if the membership solicitation is essentially a fund-raising mechanism;(d) shall not use or permit the use of the prestige of judicial office for fund-raising or membership solicitation. Commentary Canon 4A. A judge is encouraged to participate in activities designed to improve the law, the legal system, and the administration of justice. In doing so, however, it must be understood that expressions of bias or prejudice by a judge, even outside the judge’s judicial activities, may cast reasonable doubt on the judge’s capacity to act impartially as a judge. Expressions which may do so include jokes or other remarks demeaning individuals on the basis of their race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status. See Section 2D and accompanying Commentary. Canon 4B. As a judicial officer and person specially learned in the law, a judge is in a unique position to contribute to the improvement of the law, the legal system, and the administration of justice, including revision of substantive and procedural law and improvement of criminal and juvenile justice. To the extent that time permits, a judge is encouraged to do so, either independently or through a bar association, judicial conference or other organization dedicated to the improvement of the law. Judges may participate in efforts to promote the fair administration of justice, the independence of the judiciary and the integrity of the legal profession and may express opposition to the persecution of lawyers and judges in other countries because of their professional activities. Involvement in pro bono activities by judges and members of The Florida Bar employed by the judiciary, as permitted by Canon 4(B), is subject to all the requirements of this Code. Thus, in undertaking pro bono service activities, a judge may not practice law and members of the bar employed by the judiciary may not practice law restricted by the rules of judicial administration; and such pro bono activities may not reflect adversely on the judge’s impartiality, may not interfere with the performance of judicial duties, and may not detract from the dignity of the judge’s office. The aspirational goal of performing pro bono service may be satisfied by providing at least 20 hours of pro bono service related to improving equal access to justice for the poor, including the working poor, or by an annual contribution of at least $350.00 to a legal aid organization. Pro bono service by judges and members of The Florida Bar employed by the judiciary may include (a) participating in activities that encourage or support pro bono legal services by attorneys; (b) teaching, speaking, writing or participating in presentations regarding the rights and responsibilities under the law which relate to improving access to the justice system for the poor and the working poor; (c) participating in activities that relate to improving the fair administration of justice and/or equal access to the judicial system; (d) participating in authorized continuing legal education programs which relate to improving access to the justice system by the poor and the working poor; and (e) participating in activities to educate students about the legal system and the law, including such activities as teen court and practice court. Each judge and member of the bar employed by the judiciary shall annually report his or her pro bono service on the reporting form that is made a part of The Florida Bar’s annual membership fee’s statement. The phrase “subject to the requirements of this Code” is included to remind judges that the use of permissive language in various Sections of the Code does not relieve a judge from the other requirements of the Code that apply to the specific conduct. Canon 4C. See Section 2B regarding the obligation to avoid improper influence. Canon 4D(1). The changing nature of some organizations and of their relationship to the law makes it necessary for a judge regularly to reexamine the activities of each organization with which the judge is affiliated to determine if it is proper for the judge to continue the affiliation. For example, the boards of some legal aid organizations now make policy decisions that may have political significance or imply commitment to causes that may come before the courts for adjudication.center_img Notice: Pro bono for judges reportlast_img

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