On #GivingTuesday, consider pro bono.

I took a class in “logic” at UVM.  Upon realizing it was far more complicated than solving problems like the knights & knaves puzzle, I withdrew.[1]  As such, I’m not certain that the following works as a proper syllogism.

• This blog is about legal ethics, professional responsibility, and the Rules of Professional Conduct.
• The Rules of Professional Conduct include a section on pro bono.

Ergo, I should post on the pro bono rules every so often.

Even if it makes logical sense, I’m sometimes reluctant to do so. Or, in legal ethics parlance, I feel conflicted about doing so.

Why?  First, some background.

In 2017, the ABA’s Standing Committee on Pro Bono & Public Service surveyed 47,000 lawyers from 24 states on pro bono work.  Here’s an excerpt from the final report:

• “In Vermont, 77.5% of the attorneys reported having done at least some type of public service activity in 2016 – the highest percentage among the states participating in the survey. Additionally, attorneys in Vermont outperformed other states in terms of the percent having offered reduced fee services in 2016. Approximately one third (33.6%) of Vermont’s attorneys had offered such services. Finally, Vermont was one of the top states in terms of the percent of attorneys having offered limited scope representation as part of their practice, surpassed only by Wisconsin; 41.5% of Vermont’s attorneys offered such services in 2016.”[2]

Hence my conflict.

• Vermont lawyers already give so much.
• I know how hard it is to practice law right now.

Ergo, I’m conflicted about a post that will be read as asking lawyers to give even more.

That said, today is #GivingTuesday.  As I have in prior years, I’m marking the event by asking lawyers to consider pro bono.  In 2018, I used the starfish story.  Then, on #GivingTuesday in 2019, I reminded lawyers that “the hashtag won’t be trending tomorrow.  But those it’s intended to help will still need your time. Tomorrow and many tomorrows to follow.”

The need persists. To learn more about opportunities, check out the resources below. In the meantime, thank you for considering this post. And thank you all that you do and all that you’ve done.

[1] I was a master of “add/drop” deadline as well as of “withdraw – passing.”

[2] Supporting Justice: A Report on the Pro Bono Work of America’s Lawyers, p. 39.  On page 41, the report goes on to note that states whose lawyers had “high levels of motivation for doing pro bono included Maine, Oregon, California, New York, Mississippi, and Vermont. Maine and Oregon were leading states for the percent of attorneys (89.3% and 85.8% respectively) indicating that they believe doing pro bono is important. Both states also had relatively low ratings for the list of discouraging factors (2.8 and 2.69 respectively). California and New York were both leading states for the average ratings for the list of motivating factors (2.9 and 2.84 respectively). Mississippi and Vermont were both leading states in terms of the percent of attorneys indicating they were likely to do pro bono in 2017 (62.9% and 58.9% respectively). Meanwhile, both Wyoming and Vermont had particularly low ratings for the list of discouraging factors (2.79 and 2.81 respectively).”

OPPORTUNITIES & RESOURCES

• Mary Ashcroft is the Vermont Bar Association’s Legal Access Coordinator. E-mail Mary for information related to the VBA’s pro and low bono programs.
• Sam Abel-Palmer is the Executive Director of Legal Services of Vermont. Formerly known as Lawline of Vermont, LSV has opportunities here.
• Vermont participates in the ABA’s Free Legal Answers program.  As I noted in Pro Bono: There’s an App for That!, think of VT Free Legal Services “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.”
• A 7-question quiz that is intended to highlight pro bono FAQs

Pro Bono: a celebration and FAQs

As Kool and the Gang sang, it’s time to celebrate!

Celebrate pro bono, that is.

Yes, it’s National Celebrate Pro Bono Week.  On this page, ABA President Reginald M. Turner shares a brief message on this year’s theme: Moving Forward in a Post-Pandemic World.  The pandemic has only increased the need to ensure access to legal services.

Now, disclaimer: I serve as the chair of the Vermont Bar Association’s Pro Bono Committee. Still, there’s an entire section of the Rules of Professional Conduct dedicated to pro bono. So, it’s a topic that’s eminently appropriate for this blog.  I thought I’d mark the occasion by sharing the more common questions I receive about pro bono.

Also, it’s apropos that this post falls on a Wednesday.  More on that at the end of the post.  First, the FAQs.

What’s the rule?

It’s 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.”

The remainder of the 50 hours can be satisfied in any of the 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.”

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 [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 . . ..”

I’m a government attorney, so I don’t have to do pro bono.

•  False.  Rule 6.1 applies to all lawyers.  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).

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 person 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.

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.”

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.

Finally, it’s Wellness Wednesday.  What’s that got to do with pro bono?  I’m glad you asked.

Eileen Blackwood is a former president of the VBA and former chair of the 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, for no other reason than because you could.

Wellness indeed.

Thanks for considering pro bono!

Know a lawyer who deserves recognition for pro bono work? Nominate!

Pro Bono is a professional responsibility.

If you know a Vermont lawyer who deserves recognition for their pro bono efforts, this blog’s for you.  But you need to act fast.

Nominations for the Vermont Bar Association’s Pro Bono Award are due tomorrow.  Nominations should be sent to me or Teri Corsones. 

There’s never a bad time to recognize those who give of themselves.

Related posts:

• Pro Bono: FAQs & Opportunities
• The Power of Pro Bono

• 

Wellness Wednesday: Pro Bono Award Recipients

Having spent time at the bar exam the past two days, I was reminded of the Basic Skills Seminar that the VBA presents for new lawyers.  It occurs twice each year: the days before Mid-Year and Annual Meetings.

The agenda includes 2 hours on “Vermont Professionalism.”  I open by discussing professional responsibility, then Eileen Blackwood hones 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 feelings that flow from helping someone who desperately needed it, for no other reason than because you could.

On the flip side, let’s leave no doubt: pro bono work is a form of giving that can improve another’s wellness.  To that end, on Wellness Wednesday, I’d like to call your attention to the recipients of the VBA’s 2020 Pro Bono Award: Tom French & Samantha Lednicky.

I’ve pasted in the VBA’s official announcement.  The link is here.

The Vermont Bar Association is proud to announce that Attorneys Thomas M. French and Samantha V. Lednicky will both be this year’s recipients of VBA’s 2020 Pro Bono Service Awards.  The award is given annually to one or more attorneys who exemplify the best traditions of our profession by giving unselfishly of their time and skill to provide pro bono legal services to the poor and disadvantaged.

Thomas M. French is a pro bono emeritus attorney in Brattleboro who was nominated by attorneys James Valente and Thomas Costello for his work with military veterans.  Following military service himself as a JAG attorney, French worked as a general practitioner in Windham County for 50 years, often serving clients pro bono.  After retirement, Attorney French set up a pro bono program at his local American Legion post where he can be found every Tuesday and Thursday helping veterans obtain benefits they have been wrongfully denied.  In 4 years, Attorney French has won 14 out of the 15 actions he brought for his veteran clients, securing nearly $500,000 in benefits for them.  

Samantha V. Lednicky is with the firm of Murdoch Hughes Twarog and Tarnelli in Burlington.  She was nominated by Hon. Helen Toor and Frank Twarog, Esq. who recognized her work in the rent escrow clinic in Chittenden Civil Division.  Not only does Attorney Lednicky regularly volunteer to represent low income tenants at these clinics, but she frequently continues representation beyond the clinic to ensure that the tenants receive justice in the court process.  Attorney Twarog also praised Lednicky for her successful pro bono efforts to win parenting rights for a low income, homeless parent in a case to which she brought “a fresh prospective and her usual diligence.”

Attorneys French and Lednicky will be presented with the VBA’s Pro Bono Service Award at our mid-year meeting luncheon on March 27 in Burlington. 

Congratulations – and thank you – to Sam & Tom!

Related Posts:

• Wellness Wednesday: Meet Alison, Samantha, Shireen, and Alison
• Pro Bono: Rules, FAQs, and Opportunities

 

Wellness Wednesday: Law Day

Happy Law Day!

This year’s theme: free speech, free press, free society.

(Try saying that 3 times fast and learn why today might also be national tongue twister day.)

What’s this got to do with wellness?  Let me try to convince you that it does.

Per today’s ABA Journal, there are “gaps in Americans’ civic knowledge.”  The gaps were revealed by the 2019 ABA Survey of Civic Literacy.  Honestly, the numbers don’t look terrible to me. Especially compared to numbers I reported in this space a few years.

In this post, I referenced this poll.  37% of those surveyed couldn’t name EVEN ONE of the protections in the 1st Amendment to the United States Constitution.

Free speech, free press, and free society indeed.

As I blogged back then,

Worse, per the same poll, only 1 in 4 Americans can name all 3 branches of government!

If 3 out of 4 don’t know the branches, how are we to impress upon the executive & legislative branches the importance of an independent & fully funded judicial branch?

Here’s a simple way to help: contact the Vermont Bar Association at info@vtbar.org  Ask for a pocket constitution.  Give the pocket constitution to a kid, or to a teacher, or to a client who is a school board member.

Or, do what a number of Vermont lawyers have been doing around the state: volunteering their time to visit schools and civic organizations to talk about the Constitution and civics.  It might sound like a small step.  It is.  But small steps often lead in the right direction.

Earlier that week, I’d posted Constitution Day & Karaoke. In it, I laid down this challenge:

As I’ve mentioned at a few seminars, my initial exposure to the U.S. Constitution was during the Saturday morning cartoons I watched as a kid.  Courtesy of the folks at Schoolhouse Rock!, that’s when, where, and how I first learned about the origins of the Constitution and the words to The Preamble.

Of course, if people are not able to access the legal services that they need to protect their rights, the Constitution might mean little to them.  So, in honor of Constitution Day, if an attorney or firm donates $1,000 to the Vermont Bar Foundation’s Access to Justice Campaign by Friday, September 29, I’ll karaoke the Schoolhouse Rock! version of The Preamble at the VBA’s upcoming annual meeting.

Within days, the challenged was accepted and my singing debut finalized.  At the October 2017 Annual Meeting of the Vermont Bar Association I  subjected those in attendance  to my rendition of the Schoolhouse Rock! song.  How it has not gone viral is truly the 9th wonder of the modern world.

If picturing me singing The Preamble to a ballroom full of 300 as my parents looked on in abject horror doesn’t improve your mood, then I don’t know what wellness is.

Furthermore, last week, Eileen Blackwood and I presented on professionalism at the VBA’s Basic Skills conference.  Eileen urged the new lawyers to consider pro bono work.  Among its other benefits, Eileen shared a poignant story of how a case that she handled pro bono brought her a measure of personal satisfaction that she didn’t always find in her work for “paying” clients.

Her story is relevant today.

Pro bono is a professional responibility.  The rule here.  It states that a substantial majority of a lawyer’s pro bono hours should be provided to persons of limited means or to organizations whose primary purpose is to support persons of limited means.

After that, however, Rule 6.1(b)(3) indicates that additional hours may include “participation in activities for improving the law, the legal system or the legal profession.” Per Comment [8], this includes “taking part in Law Day activities.”

So,

• it’s clear that we need to do more to increase civic knowledge;
• Rule 6.1(b)(3) and Comment [8] indicate that Law Day activities count as pro bono;
• as Eileen shared, pro bono work can improve your sense of wellness.

Thus, volunteering to raise civic wellness might include the added benefit of improving your wellness.

Get involved.  The rule of law needs lawyers, and lawyers need wellness.

#GivingTuesday & Pro Bono

Today is #GivingTuesday.  It follows #CyberMonday, #SmallBusinessSaturday, and #BlackFriday.  In this day & age, how Sunday escaped unnamed is beyond me.

Anyhow, for lawyers, pro bono is a way to give.  So, I thought I’d share some old posts and links to pro bono opportunities.

• Mary Ashcroft is the VBA’s Legal Access Coordinator.  Contact Mary if interested in any of these pro bono & low bono programs.
• Legal Services of Vermont (formerly Lawline) has volunteer opportunities
• VT Free Legal Answers builds on the ABA’s free legal answers model.  My blog post on the model is here.;
• Here some FAQs on the pro bono rules.

Remember – you don’t have to solve the access to legal services problem on your own.  Whatever you can give, it makes a difference.

“One day, an old man was walking along a beach that was littered with thousands of starfish that had been washed ashore by the high tide. As he walked he came upon a young boy who was eagerly throwing the starfish back into the ocean, one by one.

Puzzled, the man looked at the boy and asked what he was doing. Without looking up from his task, the boy simply replied, “I’m saving these starfish, Sir”.

The old man chuckled aloud, “Son, there are thousands of starfish and only one of you. What difference can you make?”

The boy picked up a starfish, gently tossed it into the water and turning to the man, said,

“I made a difference to that one!”

Volunteer for Veterans

Rule 6.1 of the Vermont Rules of Professional Conduct suggests that lawyers provide 50 hours of pro bono legal services per year.  One area in which pro bono services are needed: helping our veterans.

Last Friday, and in anticipation of Veterans Day, President Bob Carlson blogged on the ABA’s work to ensure that our veterans can access legal services, including the services necessary to secure the benefits to which they are entitled. The post includes many tips on how to get involved in pro bono efforts on behalf of veterans.

For those of you who don’t know her, I’m proud to use this opportunity to introduce you to Katelyn Atwood.  Katelyn practices law in Rutland and is a fellow member of the Vermont Bar Association’s Board of Managers.

From 2014-2016, Katelyn served as the Vermont Bar Foundation’s Poverty Law Fellow. She focused on establishing the Vermont Veterans Legal Assistance Program (“VVLAP”).  Today, VVLAP remains an ongoing project in Vermont Law School’s South Royalton Legal Clinic.

Katelyn – today I thank not only our nation’s veterans.  I thank you too – for your tireless efforts to raise awareness as to our veterans’ unmet legal needs.

 

Monday Morning Answers #135

Welcome to Monday!

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

Honor Roll

• Karen Allen
• Matthew Anderson, Pratt Vreeland Kennelly & White
• The Bad News Barristers
  • Jordana Levine, Audrey Sander, Rachel Thompson
• Penny Benelli, Dakin & Benelli
• Evan Barquist, Montroll, Backus & Oettinger
• Andrew Delaney, Martin & Associates
• Doug DiSabito, State’s Attorney, Grand Isle County
• Cary Dube, Bergeron, Paradis, Fitzpatrick
• Bob Grundstein
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Jeanne Kennedy, Mom of the Blogger
• Nicole Killoran, Professor, JD Externship Program, Vermont Law School
• John Leddy, McNeil, Leddy, & Sheahan
• Pam Loginsky, Washington Association of Prosecuting Attorneys
• Kevin Lumpkin, Sheehey Furlong & Behm
• Hal Miller, First American
• Thomas Wilkinson, Jr., Cozen O’Connor

 

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.

Five for Friday #135

Welcome to Friday!

And what a Friday it is!! Go Sox!  I’d say the lock screen is working just fine.

As long-time readers know, when it comes to sports, I’m disturbingly superstitious. I truly believe that quirks like the lock screen will help Boston to win the World Series, perhaps even more than anything the players do on the field.

As I thought about the objective foolishness of the superstitions that I associate with “helping” my favorite teams, my mind wandered, scrolling through various notions of “helping.”

Then . . .  it hit me, and my mind’s equivalent of a cursor stopped dead in its tracks on this realization:  when it comes to some of the most critical help that needs to be provided, Vermont’s lawyers are the equivalent of a team that has won the World Series many times over.

I’m talking about pro bono.

Yesterday was the Vermont Bar Association’s Pro Bono Conference.  I was fortunate enough to speak during the plenary session.  As I did, I looked out over an audience of lawyers of all ages, firm sizes and areas of the state.  Most were there to learn how to help.  Others, the panelists, were there to teach how to help.

I was humbled & full of pride to be in the presence of so many lawyers so willing to give of themselves.

I was as proud to realize how far we’ve come on another topic: lawyer wellness.

The conference’s theme was serving vulnerable Vermonters. I opened my talk by reminding lawyers that, as a profession, we are a vulnerable population.  Then, at lunch, United States Bankruptcy Judge Colleen Brown tied pro bono service to wellness.

Judge Brown stated argued that helping others lends itself to senses of purpose and satisfaction that can’t help but increase wellness.  Quoting Winston Churchill, Judge Brown urged lawyers to remember that:

• “We make a living in what we get.  But we make a life in what we give.”

I agree with Judge Brown.  In my presentation, I used this quote from Justice Sandra Day O’Connor:

• “public service marks the difference between a business and a profession. While a business can afford to focus solely on profits, a profession cannot. It must devote itself first to the community it is responsible to serve.  I can imagine no greater duty than fulfilling this obligation. And I can imagine no greater pleasure.”

Finally, after the day’s seminars ended, Vermont’s newest attorneys took the oath of admission in a ceremony in the well of the House chamber.  In remarks delivered after administering the oath, Justice Harold Eaton urged lawyers to use their talents, skills, and position to help to provide & ensure access to justice.  In addition, he stressed the critical need for lawyers to take care of their own physical and mental well-being.

Two weeks ago, I blogged about choosing to help.  One way to help: pro bono work.  When it comes to pro bono, there never has been and never will be a better time to help than now.

Indeed, next week is the ABA’s 10th Annual national celebration of pro bono.  The focus is disaster relief.  In a message marking the occasion, ABA President Bob Carlson urges lawyers to help with disaster resiliency efforts. (Many states relax their rules on unauthorized practice to allow nonresident lawyers to provide assistance in response to natural disasters.)

Closer to home, if you want to help but don’t know how, contact Mary Ashcroft.  Mary is the VBA’s Legal Access Coordinator and can direct you to pro bono opportunities, as well as to low bono opportunities.

As I said, Vermont’s lawyers are champions when it comes to helping. And Mary Ashcroft is our MVP.

But, in sports, whenever any team wins a championship, there’s always the next season.  Similarly, as much as Vermont has done for those who need but cannot afford legal services, there’s always going to be more to do.

All in all, yesterday reminded me that law is about helping, pro bono is about helping the most vulnerable among us, and, when it comes to lawyer wellness, we need to help ourselves to ensure that we are healthy enough to help others.

Choose to help.

Onto the quiz!

Rules

• None.  Open book, open search engine, text/phone/email-a-friend.
• Exception – but one that is loosely enforced – #5 (“loosely” = “aspirational”)
• Unless stated otherwise, the Vermont Rules of Professional Conduct apply
• Team entries welcome, creative team names even more welcome.
• E-mail answers to michael.kennedy@vermont.gov
• I’ll post the answers & Honor Roll on Monday
• Please don’t use the “comment” feature to post your answers
• Please consider sharing the quiz with friends & colleagues
• Please consider sharing the quiz on social media.  Hashtag it – #fiveforfriday

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 _____________ or certain organizations designed to serve persons of _________________.

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?

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?

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

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.

 

 

 

Pro Bono: FAQs & Opportunities

Disclaimer: I serve as the chair of the Vermont Bar Association’s Pro Bono Committee. Still, there’s an entire section of the Rules of Professional Conduct dedicated to pro bono. So, it’s a topic that’s eminently appropriate for this blog.

Here are my answers to some frequently asked questions.

What’s the rule?

It’s 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.”

The remainder of the 50 hours can be satisfied in any of the 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.”

My client stiffed me, 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 [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 all lawyers.  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).

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.

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.

How can I learn about pro bono opportunities?

Some opportunities are here.  There’s also the Vermont Volunteer Lawyers Project.  To learn more, please contact Mary Ashcroft or Angele Court.

Also, here’s a message that Navah Spero, President of the Chittenden County Bar Association, sent today:  “in addition to the many wonderful opportunities available at non-profits in the area, the courts are always looking for volunteers to serve as guardians ad litem (Family Division), attorneys for proposed wards in guardianships (Probate Division), attorneys for the rent escrow clinic (Civil Division), and more.  Be in touch with the court clerks directly for more information.”

 

There should be a conference on this.

There is.  October 18, 2018, at the Statehouse.   Save the date. The conference will include seminars on:

• legal ethics
• working with victims of trauma
• starting & sustaining legal clinics
• working with clients with disabilities
• meeting the legal needs of the homeless
• the basics of landlord/tenant law
• the basics of domestic violence & harassment law
• “TED”-type talks on pro bono &:
  • post-adoption contract agreements
  • adult involuntary guardianships
  • bankruptcy
  • child support contempt defense
  • the Vermont Volunteer Lawyers Project
  • muncipal boards & basic due process

Thank you.