Vol. 71, No. 11, November 1998
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
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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.
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