Can a judge sign a letter to all lawyers in the state encouraging them to do pro bono work?

Plain-English summary

A unified state bar asked a state supreme court justice to sign a letter, on the justice's stationery, encouraging every lawyer in the state to provide pro bono legal services under Model Rule 6.1 and to contact the bar for volunteer opportunities. The bar would print and mail the letter, the salutation would not be personalized, and the bar would not track responses or report back to the justice. The opinion concludes the justice may sign such a letter.

The opinion reads Rule 3.7(B) of the Model Code of Judicial Conduct, which states that "[a] judge may encourage lawyers to provide pro bono publico legal services," together with Comment [5], which lists non-exhaustive examples such as providing lists of programs and recognizing pro bono work. Because "including" signals examples rather than a closed list, the opinion concludes that signing an encouraging letter, though not specifically listed, fits within the rule.

The opinion then works through the limits in Rule 3.7(A)(2) and Rule 3.1. It concludes the letter is not a prohibited solicitation of a "contribution," reading Rule 3.7(A)(2) and (B) harmoniously so that encouraging lawyers to seek a list of pro bono opportunities does not become a banned solicitation. Under Rule 3.1, the opinion finds that signing the letter is a de minimis activity that will not interfere with judicial duties, will not lead to frequent disqualification, will not undermine the judge's independence, integrity, or impartiality, and uses court resources only incidentally.

On coercion, the opinion concludes that the described letter, a general, aspirational appeal to the entire bar with no monitoring, would not lead a reasonable person to feel obligated to act. It then identifies factors that could make such a letter coercive in other circumstances: the number of lawyers and judges in the jurisdiction, whether the letter is personalized, whether participation is monitored, and the tone of the letter. The opinion also concludes the letter does not abuse the prestige of judicial office under Rule 1.3 or convey improper influence under Rule 2.4(C).

In practice

Under the Model Code as it stood at the time of the opinion, a judge's authority to encourage pro bono service under Rule 3.7(B) extends beyond the examples listed in the comments to signing a general letter to the bar. The opinion holds that a broad, unmonitored, aspirational appeal mailed by the bar is not a prohibited solicitation, is not coercive, and does not abuse the prestige of office. The opinion identifies the features that keep it permissible (general salutation, no follow-up monitoring, aspirational tone, large recipient pool) and flags the opposite features (small jurisdiction, personalization, monitoring, dictatorial tone) as the ones that could make a similar letter coercive.

Common questions

Q: Can a judge ask lawyers to do pro bono work?

A: Yes. The opinion relies on Rule 3.7(B), which states that a judge "may encourage lawyers to provide pro bono publico legal services," and concludes a signed general letter is a permitted form of encouragement.

Q: Is a pro bono appeal a prohibited solicitation of contributions?

A: No, on these facts. The opinion reads Rule 3.7(A)(2) and (B) harmoniously and concludes that encouraging lawyers to contact the bar for a list of opportunities is not a solicitation of a "contribution."

Q: When would such a letter become coercive?

A: The opinion lists factors that could make it coercive: a small jurisdiction or few judges, a personalized salutation, post-letter monitoring of participation, and a dictatorial tone. A general, unmonitored appeal in a large bar is not coercive.

Q: Can the judge use court stationery for the letter?

A: Yes, as described. The opinion treats using a single piece of stationery for a letter the bar prints and mails as incidental use permitted under Rule 3.1, and notes leadership of the court system may not even be extrajudicial.

Background and rules framework

The opinion interprets the ABA Model Code of Judicial Conduct (2007/2011), principally Rule 3.7 (participation in and support of organizations and pro bono encouragement, including 3.7(A)(2) on solicitation and 3.7(B) on pro bono), Rule 3.1 (extrajudicial activities generally), Rule 1.2 (promoting confidence in the judiciary and access to justice), Rule 1.3 (not abusing the prestige of office), and Rule 2.4(C) (external influence). It connects this to Model Rule of Professional Conduct 6.1, the lawyer's aspirational pro bono responsibility, and notes each jurisdiction's own rules control.

Citations and references

Rules of Professional Conduct:

• ABA Model Rule 6.1 (voluntary pro bono publico service)
• ABA Model Code of Judicial Conduct Rule 3.7 (pro bono encouragement; solicitation), Rule 3.1 (extrajudicial activities)
• Model Code Rule 1.2, Rule 1.3 (prestige of office), Rule 2.4(C)

Cases:

• Williams-Yulee v. Florida Bar, 135 S. Ct. 1656 (2015), judicial solicitation (noted, not decided on)

Other opinions cited:

• Florida Sup. Ct. Jud. Eth. Adv. Op. 2010-13 (2010): general pro bono solicitation letter
• Maryland Jud. Eth. Comm. Op. 1996-20 (1996): personal letters asking lawyers to do pro bono

See also

• ABA Formal Op. 488: Judges' Social or Close Personal Relationships
• ABA Formal Op. 462: Judge's Use of Electronic Social Networking Media
• NY State Bar Op. 491: Judge-Elect Political Activity

Source

• Landing page: ABA Formal Ethics Opinions index
• Original PDF: aba-formal-opinion-470.pdf