Jumping Into Pro Bono Service

By Hannah C. Dugan

So you are going to take the pro bono plunge and take a case without expectation of payment. Terrific. There are plenty of cases to undertake. But you have concerns about how to smoothly integrate a pro bono case into your private or corporate practice.¹ This article presents some practical considerations to help you do just that.

Supreme Court Rule 20:6.1
Pro Bono Publico Service

To begin, review the Supreme Court Rule on pro bono publico.² It provides:

"A lawyer shall render public interest legal service. A lawyer may discharge this responsibility by providing professional services at no fee or at reduced fee to persons of limited means or to public service or to charitable groups or organizations, by service and activities for improving the law, the legal system or legal profession, and by financial support for organizations to provide legal services to persons of limited means."³

The rule itself provides several options for providing pro bono publico service. However, it clearly states that pro bono service is legal service. Not to put too fine a point on it, pro bono publico is understood to mean you are exercising your professional skills to meet the aspirational goals of this professional rule.

Supreme Court Rules provide a framework for the ethical practice of law. SCR Chapter 20 Preamble, Scope also provides the bases for professional discipline. Wisconsin, however, has not disciplined attorneys under SCR 20:6.1.⁴ As a longstanding tradition, pro bono publico service is considered an integral part of the practice of law; undertaking such service really is left to the discretion of individual lawyers.⁵ When you undertake a pro bono case all rules regarding ethical representation apply; for example, avoiding conflict of interest, client-lawyer relationship, terminating representation, professional independence, competency, and meritorious claims and contentions.

Types of pro bono publico service

Individual client representation. Even though you don't accept a fee for a pro bono case, all of the attorney responsibilities and professional conduct provisions under the Supreme Court Rules apply. Therefore, it is advisable that you begin a pro bono effort by complying with your law firm's procedures, policies, and practices when establishing an attorney-client relationship.⁶ As with any case, your pro bono client and relevant persons or parties should be entered in your firm's conflict system. You should draft a client representation agreement and engagement letter discussing the terms of representation; that is, the scope of representation, including whether appeals will be undertaken; the attorney's expectations of the clients; the client's understanding of the terms of representation; and, in cases involving statutory fee-shifting potential, the recipient of any attorney fees awarded if your client prevails. (The accompanying sidebar contains a sample agreement.) If you take a case under the reduced-fee standards, clarify the amount of the reduced fee when initiating the attorney-client relationship, according to usual practice, including payment terms.

Service to charitable groups or organizations. Attorneys often are asked to serve as directors and officers on the boards of nonprofit organizations and religious entities. As a participant in board policy deliberations, including budget and personnel matters, confirm that your firm is not serving as opposing counsel in any matter involving the organization; and follow your firm's policies or procedures regarding acceptance of board appointments. By taking these steps, you will reduce the potential of any future, unwaivable conflicts of interests.

When board issues arise requiring legal advice, clarify whether you are acting as counsel. Board actions taken, after relying upon your comments as legal opinion, can come back to haunt you.⁷ Further, casting a vote based upon legal advice you have rendered can be sticky. Especially if you have not discussed nor agreed to serve in the dual role of director-counsel, it is best to curb your generosity when asked to help with legal concerns of an organization or its employees, outside the scope of board actions. For example, advice provided to an organization's staff member might end up being the basis for an employment law action against the board.

Hotlines and other community legal information services. Many local bars and community organizations sponsor legal information hotlines, Law Day events, community forums and the like at which attorneys are asked to speak to a group or singly with individuals. These occasions offer terrific public service opportunities to educate the public about the judicial branch and the legal system. However, consider these questions: When does legal information you provide become legal advice? At what point does the volunteer answering the legal hotline and the anonymous caller form an attorney-client relationship, triggering ethical responsibilities and professional liabilities? Whether an attorney-client relationship is formed depends upon the intent of the parties and is a question of fact.⁸ Wisconsin Ethics Opinion E-95-5, "Formation of Attorney-Client Relationship," addresses attorney-volunteers providing legal information:

"An attorney-client relationship is not formed simply because one of the parties knows that the other is an attorney. Such knowledge, however, coupled with legal advice being sought and provided is enough to establish the relationship."⁹

The opinion continues with suggestions to avoid transforming the conversation from one of public service to one of professional, person-specific advice: 1) emphasize that only general information is being provided; 2) refrain from providing legal advice specific to the individual; and 3) clearly state through disclaimers and warnings that you are not forming an attorney-client relationship.

To whom should you render pro bono services?

Attorneys might shy away from pro bono service because they don't know how to access a pool of low-income clients, or they assume that low-income people do not need legal services in the substantive area in which they usually practice. In assessing financial need, one thought is to measure your confidence that without your services your pro bono client would be deprived of access to the justice system. This bright line test assures that you are truly helping someone who needs your otherwise unaffordable professional services. In private practice, you may be faced with persons who say they cannot afford an attorney. How can you know? Ask if the potential pro bono client lives in public housing, receives food stamps or other need-based assistance, or lives on a limited, fixed income. Such information may be the easiest way to determine that a person really cannot pursue important interests and add the cost of legal fees to already constrained financial responsibilities.

Be aware that many people (low-income or not) are intimidated by the thought of conferring with an attorney, much less walking into a law office and asking the attorney to work without remuneration but they may seek help from a referral service. So you might consider adding your name to a bar-sponsored referral service, a hotline service, or to a volunteer lawyer panel. An added benefit for attorneys listed with these services is that many such services screen clients for you.¹⁰ Attorneys thus can avoid redefining as a pro bono client a deadbeat client who does not pay a bill, and gain the true satisfaction of providing pro bono legal services that writing off a "bad debt" as "pro bono" does not provide.

Represent only those clients whose cases are meritorious.¹¹ You may be motivated to help someone with a host of problems; however, a legal remedy may not be available or legal recourse may not be the best means of resolving the problems(s), particularly when the ethics code prohibits such practice.

Your current caseload also may yield potential pro bono clients. For example, a person of modest means who no longer can afford your services in a protracted custody battle might ask you to withdraw as counsel because of mounting fees. The two of you might decide that, from that point forward, you will provide legal services at reduced or no cost. It is advisable then that you clarify the services you previously provided that still require payment (that is, past due fees). By renegotiating and redrafting an attorney-client agreement to that effect, you minimize future fee disputes. Providing legal services at a reduced fee or no fee even in the middle of a case provides you with the satisfaction of knowing you have completed a case you started, and that your client is not denied important legal rights due to an inability to pay.

Reducing costs in providing pro bono representation

There are several ways to reduce the costs associated with pro bono representation. One is to accept cases only in substantive practice areas in which you are proficient. By limiting yourself to these areas, you avoid the necessity of learning substantive areas of law that could add a substantial amount of time to a pro bono case, and time away from your other clients. Note, however, that pro bono representation also provides an opportunity to explore new substantive areas of law.

To reduce costs, have your client sign a Petition for Waiver of Fees/Costs Affidavit of Indigency and Order. Per statute, the Wisconsin Judicial Conference has prescribed a uniform affidavit form for use in all counties.¹² The indigency affidavit covers the costs of an action or appeal, but not other costs, such as bail. It covers the cost of sheriff's service, but not the cost of a private process server. Also, an indigent person in a civil case is entitled to waiver of transcript fees on appeal upon a judicial finding that the petitioner believes he or she is entitled to the redress sought on appeal.¹³

While some costs can be waived, be wary of SCR 20:1.8(e) which states that "a lawyer shall not provide financial assistance to a client about pending or contemplated litigation." Two exceptions to this rule are enumerated, the second being that "a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client."¹⁴ Therefore, a lawyer who undertakes a pro bono case should be certain that the client is indigent before providing expenses of litigation and other court costs.¹⁵

Attorneys also may expand pro bono representation without undue financial burden by requesting that the court issue protective orders for unreasonable discovery, or for extraordinary costs that could lead to the attorney compromising his or her responsibility to advocate zealously.¹⁶

Conclusion

Several states require mandatory pro bono practice and/or mandatory pro bono reporting; Wisconsin continues to support voluntary pro bono practice and no pro bono reporting.¹⁷

Endnotes

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¹ Government attorneys have some different practice considerations to evaluate when representing pro bono clients. For more information on the limitations and possibilities for public service by government lawyers, please contact the State Bar of Wisconsin at (800) 728-7788 for a copy of the Government Lawyers Pro Bono Task Force Report, April 1996. Judges also have ethical obligations to abide when promoting access to justice efforts by individuals or by the organized bar, or when exerting influence to increase pro bono activity. See, Billings, Hon. Judith and Jenny M. McMahon, "Expanding Pro Bono: The Judiciary's Power to Open Doors," Dialogue, ABA Spring 1998, Vol. 2, No. 2, at 1. See also, Wisconsin Code of Judicial Ethics SCR 60.05(2) and its commentary, discussing the judiciary's unique position to contribute to the improvement of the law and the legal system.

² SCR 20:6.2. Accepting appointments raises different issues and has a body of relevant case law to consider. This article does not explore practical considerations and obligations regarding this rule.

³ The State Bar-initiated Equal Justice Coalition is an example of a recipient-project for financial contributions under SCR 20:6.1.

⁴ The commentary to ABA Model Rule 6.1 regarding pro bono public interest legal services states that "the responsibility set forth in this Rule is not intended to be enforced through the disciplinary process." ABA Compendium of Professional Responsibility Rules and Standards, pg. 97, 1997. The commentary to Wisconsin's SCR 20:6.1 does not include this note. In Wisconsin "(c)omments do not add obligations to the Rules, but provide guidance to practicing in compliance with the rules." SCR Chapter 20, Preamble, Scope.

⁵ In 1988 the ABA House of Delegates adopted a resolution urging all attorneys to devote "no less than 50 hours per year, to pro bono and other public service activities." In 1989 the State Bar of Wisconsin Board of Governors adopted a resolution that "all attorneys in Wisconsin perform or contribute to legal services by representation of low-income client(s) without a fee or at substantially reduced fee for at least 25 hours per year [or] by contribution of a dollar amount equivalent to 25 hours per year to an organization or project providing civil legal services for low-income persons."

⁶ For law firms seeking to generate pro bono policies, please see the State Bar of Wisconsin Pro Bono Handbook for Law Firms. A copy is available at no cost from the State Bar.

⁷ For some attorney-director dual role issues to consider see, "Lawyer Serving as Director of Client Corporation," ABA Formal Opinion, 98-410, Feb. 27, 1998. The ABA opinion is thought- provoking; however, it does not address certain ethical issues specific to Wisconsin, for example, SCR 20:1.7 requiring waivers of conflicts to be in writing.

⁸ Marten Transport v. Hartford Speciality Co., 194 Wis. 2d 1, 533 N.W.2d 452 (1995).

⁹ Wisconsin Ethics Opinions, State Bar of Wisconsin CLE Books (1996), at 436.

¹⁰ Many local bar associations and nonprofit law firms throughout the state offer pro bono opportunities. Every county in Wisconsin is included in the service area of the Wisconsin Civil Liberties Union and the four Legal Services Corporation-funded, nonprofit law firms. Three of the LSC-funded law firms Legal Action of Wisconsin, Legal Services of Northeastern Wisconsin, and Western Wisconsin Legal Services maintain Volunteer Lawyers Projects attorney panels; the fourth, Judicare, administers a reduced-fee panel. Call Deb Tobin, the State Bar pro bono coordinator, at (608) 250-6177; one of her main functions is to serve as an information clearinghouse regarding pro bono opportunities in your community.

¹¹ See, SCR 20:3.1 Meritorious Claims and Contentions.

¹² Wis. Stat. §§ 814.29(1)(b) and (c). Contact Deb Tobin at the State Bar for copies of the approved form.

¹³ Giroud v. Jackson Circuit Court, 155 Wis. 2d 148, 454 N.W.2d 792 (1990).

¹⁴ SCR 20:1.8(e)(2). (Emphasis added.)

¹⁵ See, State ex rel. Pederson v. Blessinger, 56 Wis. 2d 286, 201 N.W.2d 778 (1972) and Will v. State, 84 Wis. 2d 397, 267 N.W.2d 357 (discussing indigency considerations in the context of criminal cases); City of Madison v. Uhlman, 115 Wis. 2d 158, 349 N.W.2d 204 (discussing indigency considerations in the context of a civil case).

¹⁶ Wis. Stat. § 804.01(3). See, Arrocha v. McAuliffe, 109 F.R.D. 397 (1986); and Baker v. American Broadcasting Co., 585 F. Supp. 291 (1984) (discussing discovery and out-of-pocket costs in the context of court-appointed counsel cases).

¹⁷ In 1994 the Wisconsin Supreme Court was petitioned to adopt a rule requiring all State Bar members to file an annual report of their hours of pro bono service. The court did not adopt a mandatory reporting rule.

¹⁸ State Bar of Wisconsin, "Commission on the Delivery of Legal Services: Final Report and Recommendations," June 1996, pg. 44.