Voluntary Pro Bono Reporting FAQs

On February 27, 2018, the Supreme Court of Virginia approved a new provision requesting that each active VSB member report their pro bono hours and/or financial contribution in support of pro bono legal services on their annual dues statement. 

When does the new rule go into effect?

December 1, 2018

When will I see it on my annual dues statement?

The July 2019 dues statement for the 2020 bar year will be the first to incorporate voluntary pro bono reporting.

If I plan to report on my annual dues statement, when should I begin tracking my pro bono contributions?

Attorneys can report contributions made during the 12 months prior to the annual dues statement. As a practical matter, attorneys should start tracking their hours and financial support starting on July 1 of the year prior to the annual dues statement on which they plan to report. They should continue tracking through June 30 of the current year’s dues statement. For example, attorneys who wish to report on their July 2019 dues statement should start tracking on July 1, 2018, and keep tracking through June 30, 2019.

What membership classes are subject to voluntary pro bono reporting?

The rule requests that active members voluntarily supply information regarding pro bono service and financial contributions.

Does the rule allow me to opt out if I don’t wish to report my pro bono hours and/or financial contribution?

Yes. The new rule sets forth voluntary, not mandatory, pro bono reporting. Active members who wish to opt out of reporting should select option 4: No Report.

Does the new rule mean that I must perform pro bono service?

No. The new voluntary pro bono reporting rule is meant to complement the aspirational goals of Rule 6.1 of the Virginia Rules of Professional Conduct. This new rule is an opportunity for active Virginia bar members to report their contributions to pro bono and as a mechanism to assess the justice gap and respond with programming to help close it.

What types of pro bono service hours can I include in my report?

Legal services for which you should track and report your hours include the following four categories taken from Rule 6.1(a) and its comments:

  1. Providing low bono or pro bono legal assistance to someone who lacks the financial resources to hire a lawyer (poverty law). Examples in this category include but are not limited to providing advice or representation to low-income clients through legal aid and the independent pro bono programs in the Free and Low Cost Legal Resources in Virginia pamphlet, or through partnership programs like the Triage Project, or answering client questions on Virginia.freelegalanswers.org.
  2. Providing nominal fee or free legal assistance to assert or protect the rights of individuals in which society has an interest (civil rights law). Examples in this category include but are not limited to providing advice or representation to veterans, ACLU clients, and people with disabilities.
  3. Providing pro bono or sliding scale legal services to religious, charitable or civic groups (public interest law). Examples in this category include but are not limited to providing advice or representation to non-profit organizations through the Greater Richmond Bar Foundation’s Pro Bono Clearinghouse or the Fairfax Law Foundation.  
  4. Engaging in volunteer activities to increase the availability of pro bono. Examples in this category include but are not limited to training and mentoring lawyers who have volunteered to take legal aid referrals, helping recruit lawyers for pro bono referral programs, developing informational materials that provide legal information to the public or promote pro bono programs, joining the VSB Special Committee on Access to Legal Services or other boards, committees or bodies that increase access to pro bono services on the state or local level.

Can I report hours devoted to court-appointed criminal defense work performed for a statutory fee? 

No. Court-appointed criminal defense work where the attorney is awarded a statutory fee, even though the fee is low, does not qualify as pro bono under the current rule. This is true even if the funding for the fee cap waiver runs out and the court-appointed attorney is aware of this fact before starting work on a case.

What if I waive my fee? 

Yes. Court-appointed criminal defense work where the attorney’s fee is waived does qualify as pro bono. Comment 1 defines pro bono legal services as "any professional legal services for which the lawyer would ordinarily be compensated." Court-appointed criminal defense attorneys are ordinarily paid for this work, although the statutory flat fee is very low. Additionally, there must be a connection between the pro bono legal services being provided and one of the pro bono categories outlined under Rule 6.1 (a). In this case, the court-appointed criminal defense attorney is performing pro bono services in the "poverty law" category by providing uncompensated legal representation to a person who does not have the financial resources to pay for an attorney.

Can I report hours devoted to court-appointed GAL work performed for a fee? 

No. Court-appointed GAL work for a fee, even though the hourly rate is very low, does not qualify as pro bono under the current rule.

What if I waive my fee?

Yes. Comment 1 defines pro bono legal services as "any professional legal services for which the lawyer would ordinarily be compensated." Attorneys are ordinarily paid for GAL work, so if the GAL services are being provided for free and to meet the needs of at least one the pro bono categories outlined under Rule 6.1 (a), it counts as pro bono.

Can I report volunteer time spent on client intake and screening work for legal aid or other Qualified Legal Services Providers?

Yes. Volunteer attorney time spent on client intake and screening work for legal aid or other Qualified Legal Services Providers counts as pro bono under Rule 6.1 (a) as a "volunteer activity designed to increase the availability of pro bono legal services" because such work aids in identifying qualified clients to receive free legal services through these organizations and the pro bono attorneys serving them.   

What about volunteer time spent drafting or editing substantive legal content for self-help materials or informational materials designed to educate the public on the law? 

Time spent assisting a civil, religious, or charitable organization in drafting substantive legal content to create brochures and other informational resources (printed, video, online, etc.) containing legal information of interest to the public qualifies as pro bono "public interest law" under Comment 4 so long as the activity is a professional service for which an attorney would ordinarily be compensated. 

Can I report hours spent preparing and presenting an informational legal clinic to the public (i.e. no direct legal advice is provided)? 

Yes, volunteer time an attorney spends preparing and presenting an informational legal clinic to the public counts as pro bono if the attorney is performing the service to meet one or more of the needs described in Rule 6.1 (a) and the activity is a professional service for which an attorney would ordinarily be compensated.

Does time an attorney spends as a volunteer arbitrator on behalf of a public service program run by a religious, civic or charitable group count as pro bono?

Yes, time spent volunteering as a third-party neutral is a reportable contribution if an attorney would ordinarily get paid for this type of work and the dispute resolution program serves the public interest consistent with Comment 4.

What about time spent giving free legal consultations? 

Time spent assisting a civil, religious, or charitable organization in drafting substantive legal content to create brochures and other informational resources (printed, video, online, etc.) containing legal information of interest to the public qualifies as pro bono "public interest law" under Comment 4 so long as the activity is a professional service for which an attorney would ordinarily be compensated.

Can I report hours that I have discounted or written off in retrospect because the client couldn’t or didn’t pay my fees? What about hours related to losses associated with contingency fee cases?

No. Comment 6 to Rule 6.1 requires that the free or nominal fee nature of the legal work must be established in advance of the representation for it to be considered pro bono under the rule – i.e., no writing off fee losses and no contingency fees.

What types of financial contributions can I include in my report? 

Active bar members should report direct financial support of programs that provide direct delivery of legal services to meet the needs outlined in Rule 6.1 (a). Donations to legal aid and other nonprofit Qualified Legal Services Providers that provide direct legal representation to low-income persons (poverty law) counts under the Rule. 

Do donations to nonprofits serving a quasi-legal services function count?

Yes, these kinds of donations count if the financial contribution supports the program providing the direct legal services work. If the donation isn't earmarked to the legal services program and the donor can't otherwise determine how much of the donation goes to the legal services program, it doesn't count.

What about donations to non-legal services organizations that provide informational legal materials or informational legal clinics to the public?

No. Donations count under Rule 6.1 (c) only if the financial contribution directly supports a program that provides direct delivery of legal services designed to meet the needs described in paragraph (a). Programs are not engaged in the direct delivery of legal services simply by providing the public with access to informational legal materials or informational legal clinics. As such, donations to these organizations do not count. Please note, although organizations providing these legal informational materials and clinics to the public are not providing direct legal services under the Rule by doing so, attorneys assisting in these efforts may be entitled to pro bono credit (see FAQs about volunteer time spent drafting or editing substantive legal content for public materials and legal aid clinics).

Can I report the purchase price of tickets to legal aid and other QLSP fundraising events?

Yes, if the ticket proceeds support programs that provide direct delivery of legal services to meet the needs described in Rule 6.1 (a). Like the approach under the IRS rules related to charitable donations, the amount claimed as pro bono should be the price paid for the ticket minus the value of the ticket to the purchaser (food, entertainment, etc.). Lawyers purchasing tickets to these types of events should contact the organization to get a tax receipt.

Updated: Jan 30, 2019