ABA promulgation of a mandatory pro bono rule that has no realistic prospects of being adopted would weaken the stature and credibility of the entire Model Rules construct. The ABA has for many years been seen as a source of leadership and vision. The Commission well knows that leadership does not emanate from an idealized view of the world as it ought to be, but instead reflects careful calculation of what is possible based on experience. Claims experience against pro bono lawyers has been almost non-existent. As a result, malpractice coverage for pro bono lawyers is readily available at very low rates.
Disciplinary counsel have very full dockets handling serious lawyer misconduct.
The burdens of a mandatory rule will fall disproportionately on some segments of the bar. Our work with local pro bono referral agencies has revealed that solo and small firm lawyers B those who focus their practices on providing personal legal services B already provide a major portion of pro bono service. A mandatory rule would weigh most heavily on this segment of the bar, requiring additional record-keeping and inflexible additional obligations that may put at risk law practices that operate with thin margins. These lawyers have given pro bono service, and can be expected to continue to do so. We should not impose a mandatory service rule on them.