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.
Deciding what type of service to
render, to whom to render it, and how you can cost-effectively provide
pro bono assistance are issues each attorney must consider. This article
gives you the 'chute you need before you make the pro bono
jump. |
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
|
Hannah C. Dugan, U.W. 1987,
litigation/development attorney at the Legal Aid Society of Milwaukee
Inc., is a former coordinator of the Volunteer Lawyers Projects and a
former member of the State Bar Legal Assistance Committee. She currently
serves on the Bar's Professional Ethics Committee and as president-elect
of the Milwaukee Bar Association. |
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
In whatever manner you choose to exercise your voluntary pro bono
practice, take pride in knowing that all pro bono work is significant.
"A single pro bono attorney can make a big difference in the life of an
individual client. Cumulatively, pro bono representation significantly
improves the quality of the justice system and thereby the lives of all
Wisconsin residents."18
Endnotes
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.
Wisconsin Lawyer