Today is not simply “Wellness Wednesday.” It’s WW of National Celebrate Pro Bono Week! What’s wellness got to do with pro bono? I’m glad you asked!
Eileen Blackwood is a former president of the Vermont Bar Association and former chair of the VBA’s Pro Bono Committee. Twice a year, Eileen and I present a seminar for new lawyers. I open by discussing professional responsibility, then Eileen Blackwood homes in on the pro bono opportunities. Over the past few presentations, we’ve used “wellness” as segue from my presentation to Eileen’s. Specifically, Eileen has made it a point to mention that one of the most rewarding cases of her career was one that she took pro bono. While Eileen says it better than I can, the reward is the positive feeling that comes from having helped someone who desperately needed it.
With that said, here are answers to common questions about pro bono & professional responsibility.
Where is/are the rule(s)?
The Vermont Rules of Professional Conduct include a section titled “PUBLIC SERVICE” that spans Rules 6.1 thru 6.5.
What is the rule?
It’s V.R.Pr.C. 6.1.
How many hours?
Here are the first two lines of V.R.Pr.C. 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.
Do all 50 of my hours have to be pro bono, or does low bono count too?
V.R.Pr.C. 6.1 states that in fulfilling the 50 hours, 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.”
Once at a “substantial majority” of 50 hours, the rule goes on to indicate that a lawyer may provide any additional services by:
- Delivery of legal services at no fee or a substantially reduced fee to certain types of individuals, groups and organizations.
- Delivery of legal services to persons of limited means.
- Participating in activities that are meant to improve the law, the legal system, or the legal provision.
Who qualifies as a “person of limited means?”
- See, Rule 6.1, Comment  (“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.”
My client didn’t pay, that’s pro bono, right?
- Wrong. 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  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 . . ..”
I’m a government attorney, so I don’t have to do pro bono, right?
- Wrong. Rule 6.1 applies to all lawyers. Comment , 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).
Ok Mike, 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 work is not a license to act unethically.
Mike, you mentioned competence. Given my practice area, I don’t know much about the areas of law in which there’s a need for pro bono work. Is that a problem?
Not necessarily. V.R.Pr.C. 1.1 mandates competence. However, here is Comment :
- “A lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar. Some important legal skills, such as the analysis of precedent, the evaluation of evidence and legal drafting, are required in all legal problems. Perhaps the most fundamental legal skill consists of determining what kind of legal problems a situation may involve, a skill that necessarily transcends any particular specialized knowledge. A lawyer can provide adequate representation in a wholly novel field through necessary study. Competent representation can also be provided through the association of a lawyer of established competence in the field in question.”
The VBA often puts on trainings in areas more likely to involve pro bono work. Many of those trainings are available in the VBA’s video library. For more information, contact Kim Velk.
Specifically referencing the Public Service rules, Comment  adds:
- “A lawyer may accept representation where the requisite level of competence can be achieved by reasonable preparation. This applies as well to a lawyer who is appointed as counsel for an unrepresented person. See also Rule 6.2.”
What about the conflict rules?
If certain conditions are met, the conflict rules are relaxed. See, V.R.Pr.C. 6.5. Those conditions are:
- The lawyer provides short-term limited legal services,
- under the auspices of a program sponsored by a nonprofit organization or court, and
- without expectation by the lawyer or the client that the lawyer will provide continuing representation in the matter.
If each condition 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 before providing the legal services. See, V.R.Pr.C. 6.5, Comment  (“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.”
Paragraph (b) makes clear that if a lawyer who provides legal services under the specified conditions, any conflict that might result as a result of the short-term representation will not be imputed to other lawyers in the pro bono lawyer’s firm.
How can I learn about pro bono opportunities?
Mary Ashcroft is the Vermont Bar Association’s Legal Access Coordinator and is an excellent resource. Also, here’s a list of pro & low bono programs. Pressed for time? Vermont Free Legal Answers is a way to provide pro bono assistance without leaving your home or office. Finally, Sam Abel-Palmer is the Executive Director of Legal Services of Vermont. LSV collaborates with the VBA to run the Vermont Volunteer Lawyers Project.
Thank you for considering pro bono. And remember, it can be a source of wellness, for both you and the client.
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