Senate Posts Elena Kagan's Answers to Written Questions

You can read them on the Senate Judiciary Committee website (ht Senatus blog). IMHO Senator Coburn scored a point with his question about pro bono legal work:

[SEN. COBURN:]I believe each profession has an obligation to serve the less fortunate. I take that belief personally and apply it in my career as a physician. While I am not a lawyer, I do know the legal profession encourages and actively promotes, as does my medical profession, pro bono services. In fact, Rule 6.1 of the ABA Model Rules of Professional Conduct, which governs the behavior of attorneys, states “[e]very lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should aspire to render at least 50 hours of pro bono public legal services per year.” It goes on to note the various ways that responsibility should be fulfilled, stating the lawyer should provide those services to “persons of limited means or charitable, religious, civic, community, governmental and educational organizations in matters that are designed primarily to address the needs of persons of limited means.”

Comment 1 of Rule 6.1 reinforces the importance of pro bono services when it states, “[e]very lawyer, regardless of professional prominence or professional work load, has a responsibility to provide legal services to those unable to pay...” Comment 9 goes even further by stating, “[b]ecause the provision of pro bono services is a professional responsibility, it is the individual ethical commitment of each lawyer.”

Based on the Model Rules and your comments in the committee-required questionnaire for your nomination as solicitor general, which merely notes Harvard Law School’s institution of a tuition-free third year and loan forgiveness for students engaged in public service, I am concerned by your personal lack of pro bono legal services.

a. In your Supreme Court questionnaire, you note that you have “served on the boards of numerous non-profit organizations” and “promoted public service and pro bono work” while Dean at Harvard. But, you “did not engage in any individual representation of clients.” In fact, your pro bono work appears to be far less than prior Supreme Court nominees, despite some of those nominees’ restrictions on providing these services due to their careers as judges. Both Chief Justice John Roberts and Harriet Miers listed extensive pro bono activities, including representing indigent clients, in their questionnaires. Even Justices Sotomayor and Alito, who had spent most of their careers as judges and were prohibited from representing clients in pro bono work, had more meaningful volunteer work for the underprivileged and indigent.

i. Since graduating from law school, have you ever volunteered your time for pro bono legal services that would qualify you to fulfill the yearly requirements of Rule 6.1 of the Model Rules of Professional Conduct? Why or why not?

Response:
My pro bono work as a lawyer is listed in my questionnaire response except that I may have done some pro bono work at Williams and Connolly that I do not now recall. My general practice as both a government lawyer and an academic was not to represent individual clients (whether for pay or pro bono). I do not know whether my efforts to expand pro bono opportunities as Dean of Harvard Law School or my service on the boards of several organizations devoted to representation of needy persons falls within Rule 6.1.

[SEN. COBURN:]ii.Please list the cases or clients you have participated in or in which you have represented a client pro bono.

Response:
Please see above.