Can a voluntary county bar association require every lawyer in the county to accept rotating indigent appointments or pay a fee for declining?

Plain-English summary

Opinion E-75-20 addressed a voluntary county bar association's proposal that all attorneys in the county render gratuitous legal services to indigents on a rotating basis, with each member assessed roughly $100 to $150 for any assigned case refused. One or more lawyers objected. The committee framed three questions: whether such a plan could bind both members and non-members with offices in the county; whether it was proper to give lawyers the option of taking a case in a possibly unfamiliar field or paying an assessment; and whether refusing to participate would violate a lawyer's responsibility to provide legal services to low-income persons.

Drawing on ABA Formal Opinions 227 and 291, the committee found clear precedent that all lawyers in an area may participate in a legal referral or aid program and may be bound by reasonable rules and regulations, including registration fees, but found no precedent for compelling non-members of a local bar to participate. On the take-case-or-pay alternative, it applied the reasonableness principle and DR 2-103(D), which lets a lawyer cooperate with a local bar's legal services activities provided his independent professional judgment is not controlled by another; the option to accept a case or pay the assessment preserved that independent judgment. On competence, the committee noted (Canon 6) that a lawyer not qualified for a matter must decline it or associate qualified counsel, and that the pay-the-fee option accommodated this.

The committee concluded that a voluntary county bar may establish and maintain a legal aid plan on a voluntary basis, require its members to participate as a condition of membership, and invite non-members to participate voluntarily, using reasonable rules including the rotating-case-or-assessed-fee alternative. It stressed that while participation is encouraged by Canon 2, EC 2-25, and DR 2-103(D), it is not required, and that only the Supreme Court, or an integrated state bar acting under the court's authority, can promulgate a compulsory plan binding all lawyers in a geographical area. A lawyer who does not subscribe to such a plan can still fulfill his obligation to serve those unable to pay on an individual basis.

Currency note

This opinion was issued in 1975, before Wisconsin's July 1, 2007 adoption of the revised Rules of Professional Conduct for Attorneys (the state's Ethics 2000 update), and it applies the former Code's Canon 2, EC 2-25, DR 2-103(D), and Canon 6, along with the Attorney's Oath. The current counterparts are SCR 20:6.1 / Model Rule 6.1 (voluntary pro bono service) and SCR 20:6.2 / Model Rule 6.2 (accepting appointments). 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: Can a voluntary bar association require its members to take indigent cases?

A: Under this opinion, yes, as a condition of membership. The committee concluded a voluntary county bar may require members to participate in its legal aid plan and may use reasonable rules, including a rotating-case-or-pay-a-fee alternative.

Q: Can it force lawyers who are not members to participate?

A: No. The committee found no precedent for compelling non-members of a local bar to participate, and said only the Supreme Court or an integrated state bar can mandate a plan binding on all lawyers in an area.

Q: Does declining to join such a plan violate a lawyer's pro bono duty?

A: No. The committee found no ethical rule requiring participation in a voluntary bar plan; a lawyer can meet the obligation to serve those unable to pay on an individual basis.

Background and rules framework

The opinion applied the former Code's Canon 2, EC 2-25, DR 2-103(D), and Canon 6, with ABA Formal Opinions 227 and 291, to a voluntary bar association's proposed indigent-services plan and the limits on compelling participation. The current counterparts are SCR 20:6.1 / Model Rule 6.1 (voluntary pro bono service) and SCR 20:6.2 / Model Rule 6.2 (accepting appointments).

Citations and references

Rules of Professional Conduct:

• Model Rule 6.1 / SCR 20:6.1 (voluntary pro bono publico service); former Code Canon 2, EC 2-25, DR 2-103(D)
• Model Rule 6.2 / SCR 20:6.2 (accepting appointments); former Code Canon 6

Other opinions cited:

• ABA Formal Opinion 227: lawyers in an area may participate in a legal aid program under equal, reasonable rules and registration fees
• ABA Formal Opinion 291: no hard-and-fast requirement on confining referral panels to local bar members

See also

• WI Ethics Op. E-75-18: Legal Aid Representation of Indigent Co-Defendants
• WI Ethics Op. E-87-7: For-Profit Lawyer Referral Services

Source

• Landing page: https://www.wisbar.org/formembers/ethics/pages/formal-opinions.aspx
• Original PDF: https://www.wisbar.org/formembers/ethics/Ethics%20Opinions/E-75-20.pdf