by Toby J. Rothschild
The California Rules of Professional Conduct urge every lawyer to help meet the need for legal services for the unserved and underserved.
“[E]very lawyer should aspire to render at least fifty hours of pro bono publico legal services per year. The lawyer should aim to provide a substantial majority of such hours to indigent individuals or to nonprofit organizations with a primary purpose of providing services to the poor or on behalf of the poor or disadvantaged. Lawyers may also provide financial support to organizations providing free legal services.”1
The need is truly overwhelming. Every study of the unmet need for legal services shows a substantial shortage of lawyers to assist poor and underprivileged clients.
The California legislature recognized this need in adopting Business and Professions Code section 6073:
It has been the tradition of those learned in the law and licensed to practice law in this state to provide voluntary pro bono legal services to those who cannot afford the help of a lawyer. Every lawyer authorized and privileged to practice law in California is expected to make a contribution. . . . In view of their expertise in areas that critically affect the lives and well-being of members of the public, lawyers are uniquely situated to provide invaluable assistance in order to benefit those who might otherwise be unable to assert or protect their interests, and to support those legal organizations that advance these goals.2
Before going further, it is useful to understand what is meant by pro bono3 in the context of the rules. For purposes of this article, pro bono refers to the direct delivery of legal services without expectation of compensation to indigent individuals or to not-for-profit organizations whose primary purpose is to provide legal services to the poor or disadvantaged.
When undertaking pro bono work, lawyers need to recognize that their ethical obligations are no different for pro bono clients than for any other clients (with three exceptions to be discussed later).4 The California Supreme Court made that fact clear in Segal v. State Bar of California, 44 Cal. 3d 1077 (1988): “Segal’s argument presupposes that pro bono clients deserve less diligent services than paying clients, a proposition that undermines the integrity of the legal profession. An attorney’s standard of professional conduct to a pro bono client should be no different from his or her responsibility to any other client.”5 The duties owed to the pro bono client, as with every client, include competence, diligence, communication, confidentiality, loyalty, and all the other duties lawyers owe their client. While the duties and the rules are the same, the issues often present themselves differently in pro bono representation.
Conflicts of interest are among the most frequent ethical issues to arise in pro bono representation. The conflicts rules are the same for pro bono clients as for any other clients, and for the same reason—to avoid breaches of the duties of loyalty and confidentiality.6 The same conflict check must be run on pro bono cases as on any others. One way to avoid a conflict of interest is to seek out pro bono cases in practice areas different from your firm’s practice. For example, if your firm represents financial institutions, you should not accept pro bono work at a bankruptcy clinic; however, work assisting immigrant victims of domestic violence regularize their status is unlikely to raise conflict issues.
There is one exception to the normal conflicts rules. If an attorney provides short-term limited legal services to a client under the auspices of a program sponsored by a court, government agency, bar association, law school, or nonprofit organization, without any expectation by the attorney or the client of continuing representation, the normal conflicts rules do not apply.7 Instead, the lawyer must be conflicted out only if he or she is personally aware that the representation would be a conflict for the attorney, either directly or by imputation from the law firm.8 If the assistance extends beyond the initial limited scope services, the attorney then must comply fully with the normal conflicts rules.9
Another issue that creates some difficulty with pro bono representation is competence. Rule 1.1 requires lawyers to perform legal services with the learning and skill “reasonably necessary for the performance of such services.”10 There are several ways to address this concern. To address the learning and skills issue, most pro bono providers offer training, mentoring, or co-counseling to allow almost any lawyer to meet the requirement of competence.11 This is one of many reasons for obtaining pro bono clients through a legal services or pro bono program.12 If you prefer to stay within your field, you can find pro bono matters that are in your area of practice. Nonprofit organizations often need help with tax or human resource issues. Low-income housing developers need help with acquisition, permitting, and other development issues. Many lawyers can find pro bono opportunities within their area of expertise.
Closely tied to competence is diligence. Rule 1.3 requires that a lawyer not neglect, disregard, or delay a legal matter entrusted to the lawyer. Just because the client is not paying for the attorney’s services is not an excuse to put paying clients ahead of pro bono clients in prioritizing work to be done. In Segal v. State Bar of California, Mr. Segal took on two pro bono matters. His paying work got busy and he put aside the pro bono cases. The Supreme Court suspended him for one year.
Client communication is another area that often presents issues in pro bono matters. Rule 1.4 sets forth a number of requirements for lawyers to communicate with their clients, including informing them of significant developments in the matter,13 consulting on the means to accomplish their goals for the representation,14 and explaining the matter sufficiently to allow the client to make informed decisions about the matter.15 This responsibility raises three issues for the pro bono lawyer. First, many pro bono clients are difficult to contact. They may move frequently. They may not have regular access to a telephone or email. Even if they have a cell phone, they may have a problem keeping it charged or may have limited minutes of use. One way to minimize this problem is to get from the client at the initial meeting the contact information for a friend or family member for the limited purpose of helping to locate the client.
A second concern is that a significant number of pro bono clients do not speak English as a first language. Communication with such clients generally requires an interpreter to translate the questions and answers between the lawyer and client. When choosing an interpreter, the lawyer must consider the ability of the interpreter to speak and understand both languages fluently. The interpreter must also understand and accept the responsibility of confidentiality and the need to translate accurately what the lawyer and client are saying without adding anything more. It is also important that the interpreter not have a stake in the matter that might color the accuracy of the interpretation.
Use of an outside professional interpreter is the surest way to assure that appropriate standards are met. “In most situations, the verification of a prospective interpreter’s or translator’s level of skill and capacity to convey legal concepts is best achieved through engagement of the services of an outside professional to assist the lawyer in the delivery of legal services.”16 Using qualified in-house staff or associating bilingual co-counsel are other frequently used methods. Clients often provide a family member or friend to interpret for them, but this creates many problems meeting the qualifications of skill, understanding, confidentiality, and lack of interest in the matter. This should be a last resort.
The third issue, often related to the second, is that clients who are not fluent in English often have a different cultural background than the lawyer. Even if the words are correctly translated, the lawyer needs to understand the cultural context of the client and be able to address the client’s needs with empathy and understanding.17
One question that frequently arises in pro bono representation is whether the lawyer can pay the costs and expenses of the client. As a general rule, a lawyer cannot pay the business or personal expenses of a client.18 Rule 1.8.5(b) lists exceptions to the rule. Rule 1.8.5(b)(4) allows an attorney to “pay the costs of prosecuting or defending a claim or action, or of otherwise protecting or promoting the interests of an indigent person in a matter in which the lawyer represents the client.” The term “costs” in this section is defined in rule 1.8.5(c) as including both costs recoverable in court and “any reasonable expenses of litigation, including court costs, and reasonable expenses in preparing for litigation or in providing other legal services to the client.” The expression “otherwise protecting or promoting the interests of an indigent person” is not defined. It is generally considered to include such items as copying, messengers, and other in-house costs, as well as paying for transportation, meals, and other needs of the client. Whether it includes paying to settle a case, such as back rent in an eviction case, is an open question.
Many pro bono representations are undertaken on a limited scope basis. Often the engagement is for brief advice or for preparing letters or pleadings for the client. Rule 1.2(b) permits the parties to limit the scope of the representation in a way that is helpful to the client and reasonable under the circumstances. In undertaking a limited scope representation, it is very important to document in writing the terms of the engagement and to clearly delineate what tasks the lawyer is undertaking and, more importantly, what tasks the lawyer is not undertaking. It is then important for the lawyer to notify the client when the engagement is completed, and to avoid undertaking additional tasks without documenting the new limits of the engagement.
Pro bono representation of organizations, rather than individuals, allows lawyers with expertise in corporate law, tax, transactional matters, and other areas of law to offer their services. Such representation presents additional issues. Often the client group may be an unincorporated association or a group wishing to incorporate as a nonprofit corporation. It is important to know the status of the organization in deciding what services are needed. It is also important to know who speaks for the organization and what the organizational structure is. Finally, it is necessary to know if there is a higher authority within the organization, such as a board of directors, to whom the lawyer can address any issues.
While there are ethical issues to watch out for when providing pro bono services, it remains the most fulfilling and rewarding part of the practice of law.
Toby J. Rothschild is pro bono general counsel of OneJustice, a legal services program. He is a member of the Orange County Bar Ethics and Professionalism Committee. He can be reached at email@example.com.