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.

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Celebrate Pro Bono

This week marks the National Celebration of Pro Bono.  This year, the ABA encourages lawyers to provide pro bono services to events and organizations that assist homeless youth. To me, the focus calls to mind Jay Diaz’s fantastic work as the Vermont Bar Foundation’s Poverty Law Fellow.

Anyhow, I thought I’d use the National Celebration of Pro Bono to review the section of the Vermont Rules of Professional Conduct that applies to pro bono services.

pro bono

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.

That’s all for now. I hope you celebrate pro bono week by providing some pro bono hours.  For opportunities to do so, contact Mary Ashcroft or Angele Court.

pro bono