Monday Morning Answers #135

Welcome to Monday!

Friday’s questions are here.  The answers follow today’s honor roll.

Honor Roll

 

Answers

Question 1

Fill in the blanks.  The same phrase goes in each blank.

When providing pro bono legal services, a substantial majority of the 50 hours should be provided to persons of limited means or certain organizations designed to serve persons of limited means.

That’s the phrase in Rule 6.1  For a definition, see Comment [3].

Question 2

This is a “what am I” question:

  • In Bar Counsel Universe, I’m often referred to as “unbundled legal services;”
  • I am a way to help provide access to legal services for those who might not be able to afford a lawyer.
  • I am specifically authorized by Rules for Family Proceedings and the Rules of Civil Procedure
  • I am specifically authorized by the Vermont Rules of Professional Conduct
  • Under the Rules of Professional Conduct, I am allowed only if (a) I am reasonable under the circumstances, and (b) the client gives informed consent.

What am I?

I ama limited representation.  See, Rule 1.2(c).

Question 3

Lawyer called me with an inquiry involving Client and  Other. I listened.  Then, I said:

“it’s ok as long as:

  1. Client gives informed consent;
  2. there’s no interference with your professional judgment or your relationship with Client; and,
  3. you don’t share any information about the representation with Other absent Client’s consent.”

What is Other’s involvement with this situation?

Other is paying Lawyer.  See, Rule 1.8(f).

Question 4

Later today, I’m speaking to the New Hampshire Association of Criminal Defense Lawyers.

For a criminal defense lawyer, which rule should spring to mind if a plea deal is conditioned upon the lawyer’s client waiving claims of ineffective assistance of counsel?  The rule on:

  • A.   Candor to the Tribunal
  • B.    Meritorious Claims & Contentions
  • C.    Client Confidences
  • D.   Conflicts of Interest

Several advisory opinions have reached the same conclusion: the criminal defense lawyer’s personal interests conflict with the client’s and, in addition, implicate the rule that prohibits a lawyer from asking a client to agree to limit the lawyer’s liability unless the client is represented by counsel.  See, Rules 1.7(a)and 1.8(h). For more, see Pennsylvania Bar Association Formal Opinion 2014-100, provided by Thomas Wilkinson, a regular member of the honor roll.

Question 5

Speaking of Vermont & New Hampshire . . .

In 2012, Tommy Lee Jones was nominated for the Academy Award for Best Supporting Actor. The nomination was for his role in Lincoln.  He played a Pennsylvania lawyer who was elected to Congress as a “Radical Republican,” chaired the Ways & Means Committee during the Civil War, and whose fierce opposition to slavery was instrumental in the passage of the 13th and 14th Amendments.

My favorite quote attributed to him? As a trial lawyer, and in response to a judge who warned that he was manifesting contempt: “Sir, I am doing my best to conceal it.”

Oh, by the way, the Pennsylvania lawyer was born and raised in Vermont, then attended college in New Hampshire.

Thaddeus Stevens.

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Discovery: It’s not a Toy

Since 2000, I’ve reviewed approximately 4,000 disciplinary complaints.  Not many – I’d guess fewer than 20 – involved allegations of discovery violations.

Anecdotally, however, it’s common for lawyers to tell me that “so & so abuses discovery all the time.”  Or, “once I found out who was on the other side, I told my client that she wouldn’t be able to afford the discovery.”

A few thoughts: there’s a common misconception that discovery violations are the sole province of the courts, not the Professional Responsibility Program.  Trust me, I do not want to – and won’t – become the arbiter of legitimate discovery disputes.  Abusive or dilatory discovery tactics?  That’s another issue.

Take a look at Rule 3.4 of the Vermont Rules of Professional Conduct:

“A lawyer shall not . . .

  • (c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no such obligation exists;
  • (d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party.”

Of interest, the title of the rule: “Fairness to Opposing Party and Counsel.”

And isn’t that important?  Although adversarial, the process is supposed to be fair.  Not only that, the rules of the game require lawyers to play fairly.

In my view, the rules of procedure – whether civil, criminal, probate, or family – are rules of a tribunal.  Thus, a knowing violation of the obligations imposed by the procedural rules violates Rule 3.4(c).  In addition, Rule 3.4(d) speaks for itself when it comes to abusive & dilatory discovery.

Earlier today, I came across a post in the ABA Journal: Let’s trash ‘data dump’ litigation The author makes compelling arguments against not just abusive & frivolous discovery, but what I call “mindless” discovery.   By “mindless,” I mean a discovery request or response made for no other reason than to say “we asked for everything!” or “we gave them everything!”

In one sense, mindless discovery is CYA discovery.  Or, lazy discovery.  CYA & lazy aren’t good.  Indeed, there’s nothing wrong with precise requests and responses.  Odds are that they do the job, and satisfy the duties of competence & diligence, without leaving a lawyer with the need to cover anything.

In another more cynical sense, mindless discovery is less a product of absent-mindedness than it is a product of a mindset to drive up costs or to foster delay.  You know, two of the very things that give lawyers a bad name.

Give the ABA Journal post a read. It makes interesting points on (1) a trend in the federal courts towards requiring “precision” in discovery; (2) the benefits that technology can bring to the discovery process; and (3) the benefits of – oh no! – actually having an honest discussion with opposing counsel about what each side really needs.

A quote from the post jumped out at me:

“Access to justice should not be a function of who can afford the best toys, so there has to be a solution.”

My two cents on a potential solution: don’t use discovery as a toy.

See the source image

 

 

 

 

Pledge to Focus on Lawyer Well-Being

Earlier this year, I blogged on the creation of the Vermont Commission on the Well-Being of the Legal Profession.  The Commission is in the midst of its work.  Its charge and designation is here.

This is a national topic.  Others states have undertaken similar projects.  The ABA has been a leader in raising awareness of issues related to lawyer well-being.

Last week, the ABA Journal reported that several of the country’s largest law firms have signed a pledge to follow a 7-point plan to improve lawyer well-being.  The pledge and the plan are here.   The pledge was developed by the ABA’s Working Group to Advance Well-Being in the Legal Profession.  The group has also developed this Well-Being Toolkit for Lawyers and Legal Employers.

Per the article in the ABA Journal, the goal is for all legal employers to take the pledge by January 1.

Here’s the pledge:

  • “Recognizing that substance use and mental health problems represent a significant challenge for the legal profession, and acknowledging that more can and should be done to improve the health and well-being of lawyers, we the attorneys of _______________________ hereby pledge our support for this innovative campaign and will work to adopt and prioritize its seven-point framework for building a better future.”

The seven-point framework:

  1. Provide enhanced and robust education to attorneys and staff on topics related tow well-being, mental health, and substance use disorders.
  2. Disrupt the status quo of drinking based events by challenging the expectation that all events include alcohol, and, ensuring there are non-alcoholic alternatives when alcohol is served.
  3. Develop visible partnerships with outside resources committed to reducing substance use disorders and mental health distress in the profession: healthcare insurers, lawyer assistance programs, EAPSs, and experts in the field.
  4. Provide confidential access to addiction and mental health experts and resources, including free, in-house, self-assessment tools.
  5. Develop proactive policies and protocols to support assessment and treatment of substance use and mental health problems, including a defined back-to-work policy following treatment.
  6. Actively and consistently demonstrate that help-seeking and self-care are core cultural values, by regularly supporting programs to improve physical, mental, and emotional well-being.
  7. Highlight the adoption of this well-being framework to attract and retain the best lawyers and staff.

The ABA’s program is a 2 year process.  The first year is focused on legal employers to recognize the problem and, as stated above, pledge to commit to promoting awareness & the seven-point plan. Then, in year 2, the ABA will ask legal employers to complete a commitment form that describes steps taken in the prior year.

In my view, whether formally taking the pledge or not, the ABA’s program provides a fantastic vehicle for legal employers to make the workplace healthier.

Wellness

 

Utah to license paralegals

As reported this week by Law Sites, the ABA Journal, and the Professional Responsibility Blog, Utah will license paralegals to practice law in limited areas.  On November 1, rules will go into effect that are expected to result in the licensing of paralegal practitioners sometime in 2019.

Utah’s rules will authorize paralegal practitioners to provide limited representation in three practice areas:

  1. temporary separation, divorce, parentage, cohabitant abuse, civil stalking, custody and support, and name change;
  2. forcible entry and detainer; and
  3. debt collection matters in which the dollar amount in issue does not exceed the statutory limit for small claims cases.

The rules authorize paralegal practitioners to provide limited representation in these areas without working under the supervision of a licensed attorney, but do not authorize court room appearances.  The first classes begin this fall, with the initial licensing exam expected to take place next spring.

I support paralegal licensing.  I view it as but one arrow in the profession’s quiver as it battles to increase access to legal services.

In 2015, I chaired the Legal Education Committee of the Vermont Joint Commission on the Future of Legal Services.  My committee recommended licensing paralegals to provide limited legal services.  The recommendation was based, in part, on the staggering number of self-represented litigants in Vermont’s civil docket. The report of the Joint Commission is here.  The recommendations from the Legal Education Committee begin on page 11.

Last December, I posted this blog: Paralegal licenses: incremental improvement to access isn’t perfect, but it isn’t badI openly questioned whether my committee had recommended a paralegal licensing program that created unnecessary barriers to entry.  My thoughts flowed from Mary Juetten’s post in the ABA Journal entitled The limited license legal technician is the way of the future of law.

I believe that, right now, there are many Vermont paralegals who could provide competent legal services in the exact areas in which Utah will soon authorize paralegals to practice.  Or, as I wrote last December:

  • “Let’s be honest: right now, there are high-quality Vermont paralegals who, without any additional training, could walk into a courthouse and provide much needed access to the scores of family law litigants without any.  Seriously.  If you were to get divorced tomorrow, who would you choose? A paralegal who has worked for years in a family law practice, or, me?  I’ve been licensed for 23 years and wouldn’t know the first thing to do for you.”

If some training is necessary, fine.  Let’s design the program, administer it, and allow paralegals to provide legal services for people who are going without.

Will the program solve the access crisis? No.  But it’d be better than nothing.

As I wrote in December:

  • “Some of you might be rolling your eyes and asking ‘what good would that do in the bigger picture?’   You’re right, it’s not perfect.  There will still be too many people who can’t afford legal services. But, we have to stop looking for the magic bullet that solves the entire problem at once.  The ‘big picture’ gets smaller by providing access to 1 person at a time. One of my priest’s favorite sermons centers on Loren Eisley’s The Starfish Story.  Here’s the story:

One day a man was walking along the beach when he noticed
a boy picking something up and gently throwing it into the ocean.

Approaching the boy, he asked, ‘What are you doing?’

The youth replied, ‘Throwing starfish back into the ocean.
The surf is up and the tide is going out.  If I don’t throw them back, they’ll die.’

‘Son, the man said, “don’t you realize there are miles and miles of beach and hundreds of starfish?
You can’t make a difference!’

After listening politely, the boy bent down, picked up another starfish,
and threw it back into the surf.  Then, smiling at the man, he said
“I made a difference for that one.’

Soon I hope we stop letting the desire to help everyone keep us from helping anyone.

See the source image

 

 

Pro Bono? There’s an App for that!

Well, not really an app.

So, in 2016, the ABA released a Report on the Future of Legal Services in the United StatesI don’t think the report received enough attention, but that’s a blog for another day.

Today’s point is limited to a theme expressed in the report.  It’s a theme that the ABA’s Ellyn Rosen stressed in a seminar that I attended two days ago: technology can help to close the access gap.

Ellyn cited to an eye-opening finding in the report. It’s on page 14, and quotes this 2014 article by Gillian Hadfield.

  • “Even with the profession’s deep commitment to pro bono and further innovations, pro bono work alone will not resolve the tremendous need for civil legal representation. Data shows that annually ‘U.S. lawyers would have to increase their pro bono efforts … to over nine hundred hours each to provide some measure of assistance to all households with legal needs.’ ”

Here’s one way to help: Vermont Free Legal Answers.  Think of it as pro bono without ever having to leave your desk.  All you have to do is sign up, then pick & choose the questions you want to answer.  It’s that simple.  If you’re reading this and are licensed in a jurisdiction other than Vermont, odds are that your state has it too. Over 40 states have adopted the ABA’s free legal answers model.

Am I asking you to increase your hours to 900? I am not.  I’m simply reminding you that every little bit helps. Think of the starfish story:

One day a man was walking along the beach when he noticed
a boy picking something up and gently throwing it into the ocean.

Approaching the boy, he asked, “What are you doing?”

The youth replied, “Throwing starfish back into the ocean.
The surf is up and the tide is going out.  If I don’t throw them back, they’ll die.”

“Son, the man said, “don’t you realize there are miles and miles of beach and hundreds of starfish?
You can’t make a difference!”

After listening politely, the boy bent down, picked up another starfish,
and threw it back into the surf.  Then, smiling at the man, he said
“I made a difference for that one.”

When it comes to unmet legal needs and pro bono, you too can make a difference for that one.

See the source image

Should we allow nonlawyers to own, manage, and invest in law firms?

With only a few exceptions, U.S. jurisdictions prohibit:

  • nonlawyer ownership of law firms;
  • nonlawyer management of law firms; and,
  • lawyers from sharing fees with nonlawyers.

Vermont does so through Rule 5.4.

In the lingo, “alternative business structures” are prohibited.

Last year, I posted a series of blogs related to Rule 5.4 and alternative business structures (“ABS.”)  Among them:

Here’s a summary of oft-cited arguments for & against allowing nonlawyers to own, manage, and invest in law firms:

Arguments for ABS

  • Increased Access to Legal Services
  • Enhanced Financial Flexibility for Law Firms
  • Enhanced Operational Flexibility for Law Firms
  • Improved Cost Effectiveness & Quality of Services

Arguments against ABS

  • Threat to Lawyers’ Core Values & Professional Independence
  • Will Lead to Less Pro Bono Work
  • Threatens the Attorney-Client Privilege
  • Promised Benefits Not Likely to Happen

The idea didn’t gain much traction in Vermont.  Today, the ABA Journal reports that the State Bar of California has formed a task force to study nonlawyer ownership.  Per the ABA Journal, California commissioned a report that indicated that amending the rules to allow ABS would:

  • “(1) drive down costs; (2) improve access; (3) increase predictability and transparency of legal services; (4) aid the growth of new businesses; and (5) elevate the reputation of the legal profession.”

It’s an interesting concept.  At the very least, I think it’s one worth studying, as Vermont continues to struggle with acccess to affordable legal services.

Image result for alternative business structures

Ghostwriting as Access

I ain’t afraid of no ghost!

As such, in December 2016, I argued that ghostwriting is one tool at the profession’s disposal in the battle to increase to access to justice.  The post is here.  A quick recap:

  • Rule 1.2(c) authorizes lawyers to enter into limited representation agreements;
  • While ghostwriting used to be frowned upon, the trend is to conclude that it’s a permissible form of limited representation;
  • undisclosed ghostwriting does not provide a self-represented litigant with an unfair advantage;
  • undisclosed ghostwriting does not constitute misrepresentation by omission;
  • lawyers who “ghostwrite” must abide by the Rules of Professional Conduct while providing limited services; and,
  • lawyers should be aware of court rules that require self-represented litigants to disclose having received assistance from a lawyer.

Last week, the Mississippi Bar issued Ethics Opinion 261.  The opinion addresses two questions:

  1. Is it ethical for a lawyer to prepare documents for pro se litigants?
  2. If the answer to question 1 is yes, is the preparing lawyer required to disclose either the name of the preparer or that the document was prepared by a lawyer?

Here’s a summary of the Mississippi Bar’s conclusions.

On the first question:

  • limited representation “is an important means of providing access to justice for all persons regardless of financial resources;”
  • as long as doing so is reasonable and the client fully understands the limitation, limiting a representation to writing or preparing a document is a permissible; and
  • lawyers who provide limited representation must abide by “the full panoply of ethical obligations.”

As to the second question:

  • the preparing lawyer is not required to disclose having provided assistance;
  • undisclosed assistance does not constitute misrepresentation by omission; and,
  • undisclosed assistance does not provide an otherwise self-represented litigant with an unfair advantage.

Sounds familiar.

The Mississippi Bar added a few notes of caution.

First, the opinion stresses the importance of ensuring that the client understands what it means to receive “limited representation” in the form of ghostwriting.

  • “For example, if the lawyer only drafts a motion for summary judgment but does not appear at the hearing, the client will have to present the motion and respond to questions from the court that the client may be unable to answer.”

Second, the opinion makes clear that a limited representation is exactly that: limited.  It’s likely unethical for a lawyer to use a limited scope representation as cover to participate actively & substantially in the matter on an ongoing basis. That would be deceptive.

Finally, the opinion alerts lawyers to the fact that, like this blog, it’s limited to an analysis under the Rules of Professional Conduct. Other law, including court rules, might require disclosure.

Image result for images of ghostwriting

 

 

 

 

 

108

I do a lot of CLEs this time of year.  This week, I’ve met with the Professional Responsibility Program, the State’s Attorneys, and the Chittenden County Bar Association.  Later today I’m presenting at the Defender General’s training.  Next week: the Attorney General’s Office and Andy Mikell’s VATIC conference.

Obviously, each presentation is different.  Yet, I’ve started each (and will start each) with a report on the relatively new Vermont Commission on Well-Being in the Legal Profession.   The response has been fantastic.  After each presentation so far, I’ve been contacted by lawyers who are willing to get involved to help other lawyers.

For more, read on.  I’m pasting in a blog that I posted a few months ago.

108

The Substance Abuse and Mental Health Services Administration is a branch of the U.S. Department of Health & Human Services.  In 2015, SAMHSA conducted a national survey on drug use and health.  The survey found that approximately 4% of Vermonters had experienced serious thoughts of suicide over the previous year.  The Vermont results are here.

There are approximately 2,700 lawyers with active licenses in Vermont.  If lawyers suffer at the same rate as other Vermonters, 108 Vermont lawyers have had serious thoughts of suicide over the past year.

108.

In 2016, the ABA’s Commission on Lawyer Assistance Programs and the Hazelden Betty Ford Clinic released a study on lawyers’ behavioral health.  The ABA announced the study’s results here.

Per the announcement, the study revealed “substantial and widespread levels of problem drinking and other behavioral health problems in the U.S. legal profession.”  In addition, the study “determined that lawyers experience alcohol use disorders at a far higher rate than other professional populations, as well as mental health distress that is more significant.”

Fact: in the past 3.5 years, 5 Vermont attorneys have committed suicide.

Fact: 2 of those 5 took their lives in 2018.

Fact: since September 2016, as many lawyers have had their licenses transferred to disability inactive status due to mental health or substance abuse issues as did in the previous 16 years.

There’s a problem.

Fortunately, the profession has started to address it.

In response to the ABA/Hazelden Study, three groups spurred creation of a National Task Force on Lawyer Well-Being.  The groups:

Last summer, the National Task Force published “The Path to Lawyer Well-Being: Practical Recommendations for Positive Change.”  The report makes a series of recommendations to the legal profession’s various stakeholders and urges state supreme courts to form committees to review the recommendations.

On January 2, 2018, the Vermont Supreme Court issued a charge & designation creating the Vermont Commission on the Well-Being of the Legal Profession.  The Commission includes a representative from each of the stakeholder group mentioned in the National Task Force’s Practical Recommendation for Positive Change.   Each Commission member has formed a sub-committee to review the recommendations for that particular stakeholder group.

For example, I’m on the Commission as the representative from the “attorney regulators” stakeholder group.  My sub-committee includes one representative from each of the following: the Professional Responsibility Board, the Board of Continuing Legal Education, the Board of Bar Examiners, the Character & Fitness Committee, and the Judicial Conduct Board. I also appointed a lawyer who has long represented lawyers and judges in professional conduct investigations and prosecutions.  My sub-committee will review and report on recommendations that the Court’s various regulatory bodies ensure that lawyer health & wellness is prioritized throughout the licensing/regulatory scheme.

The Commission’s work will be the subject of the plenary session at the Vermont Bar Association’s upcoming midwinter meeting.  For more information, including how to register, please visit this site.

As I’ve blogged, the report from the National Task Force is a call to action.  In my view, we have duty to keep this issue on the front burner.

Why?

Because 108.  That number is far too high.

Other posts on this topic:

#3 in 2017: We can’t let perfect be the enemy of good.

This week I’m counting down the 5 most-read posts of the year.  So far,

 

Starfish

The third most-read post of the year was this post on authorizing (and licensing) paralegals to perform tasks that, for now, only lawyers are authorized to perform. It’s a post in which I urge the profession not to let perfect be the enemy of the good and, more specifically, to consider whether licensing paralegals is much simpler than we’ve made it.

The post includes one of my favorite anecdotes. It’s an anecdote that reminds me of how the profession attempts to tackle the issues it confronts. I often wonder if the profession is the “man on the beach” when, what we really ought to be, is a child smiling with hope. I’ll leave you with that anecdote.

*********

“One of my priest’s favorite sermons centers on Loren Eisley’s The Starfish Story.  Here’s the story:

One day a man was walking along the beach when he noticed
a boy picking something up and gently throwing it into the ocean.

Approaching the boy, he asked, “What are you doing?”

The youth replied, “Throwing starfish back into the ocean.
The surf is up and the tide is going out.  If I don’t throw them back, they’ll die.”

“Son, the man said, “don’t you realize there are miles and miles of beach and hundreds of starfish?
You can’t make a difference!”

After listening politely, the boy bent down, picked up another starfish,
and threw it back into the surf.  Then, smiling at the man, he said
“I made a difference for that one.”

In a Season of Giving, Consider Pro Bono

It’s a season of giving.  As I’ve aged, I’ve learned that the gift of time is often more appreciated than a gift of a thing.  The lesson might translate to the legal profession.

Yesterday I noticed this tweet from Attorney Bob Carlson.  Bob is the President-Elect of the American Bar Association.  It reminded me that the need for our time never goes away.

Pro Bono is the legal profession’s way of giving time.  As Bob tweeted, one easy way to give of your time is through the ABA’s Free Legal Answers program.  Vermont participates in the program.  For more information, please visit https://vt.freelegalanswers.org/

In addition, Mary Aschroft is the Vermont Bar Association’s Legal Access Coordinator.  Please contact Mary if you’re interested in learning more about the various opportunities to provide pro bono (or low bono) legal services.

I’ve pasted in a refresher on the ethics of pro bono at the end of this post.

For now, thank you for considering a gift of your professional time.

Give Pro Bono

*******************************************************************************

These tips originally appeared in October 2016.

Per Rule 6.1,

  • “Every lawyer has a professional responsibility to provide legal services to those unable to pay.  A lawyer should render at least 50 hours of pro bono publico legal services per year .  In fulfilling this responsibility, a lawyer should
    • (a) provide a substantial majority of the 50 hours without fee or expectation of fee to:
      • (1) persons of limited means; or
      • (2) charitable, religious, civic, community, governmental, and educational organizations in matters which are designed primarily to address the needs of people with limited means.” (emphasis added).

The remainder of the 50 hours can be satisfied in ways outlined in Rule 6.1(b).

  • Who qualifies as a “person of limited means?”
    • See, Rule 6.1, Comment [3] (“Persons eligible for legal services under paragraphs (a)(1) and (2) are those who qualify for participation in programs funded by the Legal Services Corporation and those whose incomes and financial resources are slightly above the guidelines used by such organizations but nevertheless cannot afford counsel.”
    • Key points made at the CLE this morning included the point that there are plenty of people who make more than the guidelines but who cannot afford legal services.  Those people need help as well.
  • My client didn’t pay, that’s pro bono.
    • Categorically false.  Rule 6.1(a) is clear:  a “lawyer should provide substantial majority of the 50 hours of legal services without fee or expectation of fee . . ..”
    • Comment [4] drives home the point:  “Because services must be provided without fee or expectation of fee, the intent of the lawyer to render free legal services is essential for the work performed to fall within the meaning of paragraphs (a)(1) and (2).  Accordingly, services rendered cannot be considered pro bono if an anticipated fee is uncollected . . . .”
    • Note, however that the Comment goes on to indicate that “. . . the award of statutory attorney’s fees in a case originally accepted as pro bono would not disqualify such services from inclusion under this section.  Lawyers who do receive fees in such cases are encouraged to contribute an appropriate portion of such fees to organizations or projects that benefit persons of limited means.”
  • I’m a government attorney, so I don’t have to do pro bono.
    • False.  Rule 6.1 applies to every lawyer.  Comment[5], however, recognizes that government lawyers may not be able to satisfy the requirements of Rule 6.1(a) and, therefore, should be allowed to satisfy the pro bono requirement via provision of services set out in Rule 6.1(b).  Specifically, the Comment states
      • “Constitutional, statutory, or regulatory restrictions may prohibit or impede government or public sector lawyers and judges from performing the pro bono services outlined in paragraphs (a)(1) and (2).  According, where those restrictions apply, government and public sector lawyers and judges may fulfill their pro bono responsibility by performing services outlined in paragraph (b).
  • So I’m doing pro bono work, what other rules apply?
    • All of them!  You must be competent & diligent.  You can’t communicate with a represented party on the subject of the representation without counsel’s consent.  You can’t lie.  In short, pro bono is not license to act unethically.
  • What about the conflicts rules?
    • Rule 6.5 relaxes the conflicts rules IF a lawyer provides:
      • short term limited legal services
      • under the auspices of a program sponsored by a nonprofit organization or court
      • without expectation by the lawyer or the client that the lawyer will provide continuing representation in the matter.
    • If each of these is present, the conflicts rules apply only if the lawyer KNOWS of a conflict.  In other words, if the 3 conditions are met, a lawyer does not have to do a conflict check prior to commencing the representation.  See, Rule 6.5, Comment [1] (“Such programs are normally operated under circumstances in which it is not feasible for a lawyer to systematically screen for conflicts of interest as is generally required before undertaking a representation.”
    • Remember: a lawyer may provide pro bono services outside the auspices of program sponsored by a nonprofit or court.  However, if so, the lawyer must check for conflicts.