Does serving as an unpaid judge pro tem count toward a lawyer's pro bono service?
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This page answers the general question as of 1991. Ezel answers yours: whether it's allowed on your facts, under the current rules of professional conduct in your state, with citations.
Plain-English summary
The State Bar's Legal Services Committee asked whether a lawyer who serves as a judge pro tem without pay may treat that service as pro bono publico under the recently amended ER 6.1. The committee noted that lawyers commonly sit as judges pro tem for individual cases.
The committee read the amended rule's definition of pro bono service broadly. ER 6.1 reaches not only direct representation of the poor but also non-representational activities designed to improve the law, the legal system, or the legal profession, and the Comment lists many examples (law-related education, training, service on certain bar committees, brief-advice programs, and the like).
The committee concluded that judges pro tem are essential to the administration of justice in Arizona, because many courts' civil and criminal delay-reduction plans depend on their availability to hear cases when assigned judges are in trial. Because unpaid service as a judge pro tem is activity designed to improve the administration of justice, the committee held it qualifies as pro bono publico service under ER 6.1.
Currency note
This opinion was issued in 1991, before Arizona's 2003 adoption of the Ethics 2000 revisions to the Rules of Professional Conduct. ER 6.1 and its categories of qualifying service have since been revised. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.
Common questions
Q: Does serving as an unpaid judge pro tem count as pro bono?
A: Yes. The opinion concluded that unpaid judge pro tem service qualifies as pro bono publico under ER 6.1.
Q: Why does judging count when ER 6.1 is associated with serving the poor?
A: The opinion concluded ER 6.1 reaches activities that improve the law, the legal system, or the profession, not only direct representation of the poor, and that judge pro tem service improves the administration of justice.
Q: What made judge pro tem service qualify specifically?
A: The opinion concluded judges pro tem are essential to the administration of justice because courts' delay-reduction plans rely on them to hear cases when assigned judges are occupied with trials.
Background and rules framework
The opinion applies ER 6.1 (Model Rule 6.1), the voluntary pro bono publico service rule as recently amended in 1991. The rule encouraged lawyers to render public-interest legal service, including activities to improve the law, the legal system, or the legal profession, with the Comment cataloging many qualifying non-representational activities.
Citations and references
Rules of Professional Conduct:
- MR 6.1 / AZ ER 6.1 (voluntary pro bono publico service)
See also
- AZ Ethics Op. 87-07: Conflicts, Solicitation, and Pro Bono
- AZ Ethics Op. 89-03: Conflict of Interest
Source
Original opinion text
Reproduced from the official source for research purposes. The linked source is authoritative.
6/1991
Attorney, who serves as a judge pro tem without pay, may properly count such judicial activity as pro bono publico service under ER 6.1, as amended.
FACTS AND QUESTION
The Legal Services Committee of the State Bar has requested an opinion from this committee on the question whether an attorney, who serves as a judge pro tem without pay, may properly count such judicial activity as pro bono publico service under E.R. 6.1, as recently amended.
ETHICAL RULE INVOLVED
ER 6.1. Voluntary Pro Bono Publico Service
(a) A lawyer should voluntarily render public interest legal service. A lawyer may discharge this responsibility by rendering a minimum of fifty hours of service per calendar year by one or a combination of the following activities:
(2) Providing services at no fee or at a substantially reduced fee in connection with law-related education sponsored by the Arizona Bar Foundation or activities for improving the law, the legal system or the legal profession; or
OPINION
It is a common practice for lawyers to serve as judges pro tem for individual cases. The Legal Services Committee of the State Bar has asked this committee whether judicial service as a judge pro tem, without pay, constitutes pro bono publico service under ER 6.1, as recently amended.
The new Ethical Rule defines pro bono publico service in a broad manner. It includes not only direct representation of the poor and near poor, but also embraces non-representational activities which are designed to improve the law, the legal system or the legal profession. The Comment to the recently amended rule states, in part:
The Rule broadly allows service to be satisfied by activities for improving the law, the legal system or the legal profession. It is not possible to state the many different kinds of service that may be covered. Among others, the following kinds of activities are contemplated: activities in law related education, both to the public and in training other lawyers, law enforcement personnel, or law-related personnel; speaking appearances where the topic is educational and is about the law or the legal system; assistance or research for another volunteer lawyer or pro se indigent; service on certain boards, sections or committees of a state or county bar if the board, section or committee is engaged in work to improve the law and legal system; volunteer assistance to the poor or aged on income tax return preparation; screening or intake for legal services organizations; participation in law days or brief legal advice programs.
The availability of judges pro tem is essential to the administration of justice in Arizona. Many of the courts' civil and criminal delay reduction plans are dependent upon the availability of judges pro tem to hear cases when a regularly assigned judge is occupied with a trial. Service as a judge pro tem plainly is activity designed to improve the administration of justice.
Accordingly, it is the opinion of this committee that service as a judge pro tem, without pay, is pro bono publico service under ER 6.1, as amended.
**Formal Opinions of the Committee on the Rules of Professional Conduct are advisory in nature only and are not binding in any disciplinary or other legal proceedings. **
©State Bar of Arizona 1991
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