“Pro Bono Publico” is a Latin phrase meaning “for the good of the public.” The phrase has come to refer to something done or donated without charge, especially with respect to legal representation.
Every year the nation celebrates National Pro Bono Week. Pro Bono Week was started over eight years ago by the Standing Committee on Pro Bono of the American Bar Association as “a coordinated national effort, to meet the ever-growing needs of this country’s most vulnerable citizens by encouraging and supporting local efforts to expand the delivery of pro bono legal services and by showcasing the great difference that pro bono lawyers make to the nation, its system of justice, its communities and, most of all, to the clients they serve.”
Pro Bono Week events take place all over the country, and even overseas. Pro Bono Net, a national nonprofit, has an interactive map that highlights everything happening around the world at www.probono.net. Of course, the need for pro bono legal assistance, and the opportunity to provide pro bono services, is year round. This need is ever growing, and the impending loss of federal funding of the Legal Services Corporation makes pro bono volunteerism even more critical.
While the ABA, through Model Rule 6.1, and many states through their respective rules governing the practice of law, encourage, and in some cases, require, attorneys to provide legal services to those unable to pay, there is still a tremendous difference nationwide between the number of attorneys admitted to practice, and those actually providing pro bono services. There are a variety of reasons that attorneys are reluctant to take a pro bono case. There are those that say they don’t have the time. There are those that say they have no way to waive the conflicts. There are concerns about malpractice coverage. There are those who are associates in firms and their firms do not give them credit for taking a pro bono case. And most popular among business lawyers—they do not want to go to court.
Let’s start with the time commitment. Yes, there are some pro bono cases that can take a great deal of time. Just ask any attorney who has worked on a death penalty case or a Hague Convention child custody case. But there are many pro bono opportunities that will take no more than a couple of hours of time—for example, staffing walk-in clinics, manning small claims hotlines, or going to public libraries to demonstrate how to use and understand different legal and court websites. If you are not certain what programs are available in your area, you can go to the ABA website, to the webpage for the Standing Committee on Pro Bono & Public Service, where you will find a Directory of Local Pro Bono Programs. That directory will guide you to a pro bono provider in your area, who will, in turn, advise you what volunteer opportunities are available to you.
Attorneys working for “big law” are concerned about the conflicts that pro bono work can trigger, especially attorneys working to help borrowers or debtors seeking to save their homes or discharge credit card debt. How does the representation avoid violating Model Rule 1.7?
Client-Lawyer Relationship
Rule 1.7 Conflict Of Interest: Current Clients
(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.
(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:
(1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
(2) the representation is not prohibited by law;
(3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and
(4) each affected client gives informed consent, confirmed in writing.
All states, as well as the District of Columbia, have adopted Model Rule 1.7 in some form.
If an attorney is working at a walk-in or phone-in clinic, there is no time or opportunity to clear conflicts or get written waivers. Moreover, some attorneys are concerned about providing legal help that would conflict with the interests of banking clients—cases, for example, involving foreclosure assistance or bankruptcy. Some states have exceptions to these conflict rules when the attorney is doing a pro bono case as part of a walk-in clinic or small claims hotline. For example the New York Rule of Professional Conduct 6.5 has a limited exception to the conflict rules if the lawyer “under the auspices of a program sponsored by a court, government agency, bar association or not-for-profit legal services organization, provides short-term limited legal services to a client without expectation by either the lawyer or the client that the lawyer will provide continuing representation in the matter.” “Short-term limited legal services” is defined in the rule as “services providing legal advice or representation free of charge as part of [a program described above] with no expectation that the assistance will continue beyond what is necessary to complete an initial consultation, representation or court appearance.”
Another benefit of taking a pro bono case through a legal aid provider is that the attorney has malpractice coverage. Thus, so long as the case is referred through the appropriate agency, malpractice insurance should not be an issue.
Often business lawyers tell me they don’t take pro bono cases because they will not go to court. Many pro bono cases do not involve court appearances at all. Many legal aid providers around the country have small claims clinics or landlord tenant clinics that, whether by telephone or walk-in, require a commitment of a couple of hours. The clinic organizers usually have scripts that provide the answers to the most common questions and “experts” available if the answers are not readily ascertainable.
There are also opportunities for business lawyers to advise companies whether those companies are in the start-up phase or are dealing with ongoing business issues. For example, the Florida Bar Business Law Section conducts pro se clinics for not-for-profit businesses in different cities around the state. Clients have included a job training program for veterans, a collective for visual artists, and a cooperative for micro-businesses for women in poverty. Their needs have varied from creating all the documents necessary to start the business, to filing annual reports, to drafting resolutions to lease space or equipment, to creating documents for fundraising under section 501(c). And, unfortunately, once in a while, volunteers have provided legal advice relating to financial distress.
Many law schools around the country are doing business start-up clinics. For example, Duke Law School has the Start-Up Ventures Clinic, which “provides legal advice and assistance to seed and early state entrepreneurial ventures . . . including formation, intellectual property protection, commercialization strategies and operational issues.” These programs are springing up all over the country and it is likely that a law school near you either has such a program or is considering such a program. The students in these start-up clinics need mentors. Where the new venture qualifies as a pro bono client in your state, you can get pro bono credit for being a mentor.
Pro bono service is something that every law firm should encourage. For those young lawyers in your firms that want trial experience, pro bono cases give those young lawyers the opportunity to get courtroom experience not usually available for attorneys at entry level positions in firms. Those law firms that don’t have a formal pro bono policy should consider adopting a policy. Even if your firm encourages pro bono participation without a policy, the lack of a formal policy may discourage young lawyers from pursuing those opportunities. If your firm doesn’t encourage pro bono participation, you need to ask yourself why.
If your firm does have a pro bono policy make sure it is up to date. If your law firm does not have a pro bono policy, or it needs updating, take a look at the resources available at the webpage of the ABA Standing Committee for Pro Bono & Public Service, or on the Pro Bono Institute’s website. You can also take a look at the Florida Bar Business Law Section’s Best Practices Guide for a Firm Pro Bono Policy, located here. The Pro Bono Committee of the Florida Bar Business Law Section developed this Guide to encourage law firms to adopt a formal pro bono policy, or, if a firm already has a policy, to provide suggestions for improvements.
In sum, there is no reason not to do pro bono. And it makes business sense to do pro bono. As my colleague Judge Catherine McEwen from the Middle District of Florida is fond of saying “pro bono is like a box of assorted donuts; open it up and you will find the flavor just for you.”
