Rerun: #GivingTuesday & Pro Bono

Sometimes it pays to listen to that nagging voice.

When I awoke, I resolved to blog on Giving Tuesday & pro bono.  As lawyers, Rule 6.1 asks us to give our time to those who desperately need it.  Then, I went for a run, intending to clear my mind before posting.

As I ran, my brain kept telling me that something was wrong.  “Yes,” I answered, “it’s that %^$@$% north wind that is freezing our face off!”  My brain disagreed.

Turning south back towards to the office, warmed (relatively) by the rising sun, I realized that my brain was right: something was wrong, and it wasn’t the weather.  It was my idea for a blog post.  The subject area isn’t wrong, but had I written it as if the thought just struck me today, I’d have been very wrong.

Why?

Because the idea that popped into my head this morning is exactly what I wrote last year!

The post is here.  It’s on #GivingTuesday and pro bono.

I understand — and think it’s terrific – that many of you have likely given money to many of the causes being promoted with today’s trending hashtag. But, don’t forget, there are other ways to give.  One is to give your time.  To your family, to your friends, to yourself and, yes, to people who cannot afford to pay for a lawyer’s time.

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.

Thank you.

For more information, here’s an excerpt from last year’s blog:

Image result for pro bono images

 

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 & KaraokeIn 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.

Schoolhouse Rock Preamble

Monday Morning Answers #144

Monday, Monday.   Can’t trust that day.

Friday’s questions are here.  The answers follow today’s Honor Roll.  A safe & peaceful New Year to all.

Honor Roll

  • Beth DeBernardi, Administrative Law Judge, VT Dept. of Labor
  • Jake Durrell, Esq.
  • Erin GilmoreRyan Smith Carbine
  • Bob Grundstein, Esq.
  • Keith KasperMcCormick, Fitzpatrick, Kasper & Burchard
  • Jeanne Kennedy, JB Kennedy Associates, My mom
  • Lawyers in Cars Eating Chick Fil-A
  • Lon McClintockMcClintock Law Offices
  • Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
  • Jeff MessinaBergeron Paradis Fitzpatrick
  • Hal Miller, First American
  • Herb Ogden, Esq.
  • Eric ParkerBauer Gravel & Farnham
  • Bob PrattPratt Vreeland Kennelly Martin & White
  • Jonathan Teller-Elsberg, Vermont Law School, Class of 2020, Staff Editor, Law Review

Answers

Question 1

I often blog about tech competence.

19 years ago today, there was great fear that we were only days away from a massive tech problem.  The Deputy Secretary of Defense warned that the problem was the “electronic equivalent of the El Niño and there will be nasty surprises around the globe.”

What is the name associated with the problem that, in fact, didn’t turn into much of a problem at all?

Y2K Bug

Question 2

Somewhat related . . .

. . . Rule 1.6 prohibits lawyers from disclosing information related to the representation of a client.  Rule 1.16(d) requires lawyers to deliver the file upon the termination of a representation.  I’ve also blogged on what to do when subpoenaed to produce a client file.

In 2016, a Minnesota court considered a dispute between a deceased person’s estate lawyers and divorce lawyers.

Client’s estate lawyers wanted the divorce file, asserting that it might contain “potentially relevant” information as to Client’s potential heirs.  Client’s divorce lawyers (who work at a different firm than the estate lawyers) refused, arguing that it had a professional obligation not to disclose “information protected by the attorney-client privilege and work product doctrine which was generated and acquired during the decedent’s lifetime.”

The Court agreed with the estate lawyers and ordered the divorce lawyers to produce the file.

The Client was a famous musician. Name the musician’s song that somewhat relates to the previous question and today’s New Year theme.

1999

See the source image

Question 3

Imagine that someone files a disciplinary complaint against a lawyer.  I screen the complaint.  The complainant alleges that she met the lawyer at a New Year’s Eve party and was offended when she overheard him refer to her as “a verbally incontinent spinster who smokes like a chimney, drinks like a fish and dresses like her mother.”  Yet, the complainant concedes that the insult caused her to resolve to make changes in her life.

Specifically, the complainant credits the lawyer’s rudeness with causing her to write as follows:

New Year’s Resolutions

These are the things I decided I would do this year.
1. Stop smoking.
2. Develop a mature
relationship with an adult man.
3. Go to the gym.
4. Be kinder and help others more.

I ended up dismissing the complaint.  Why? Because by the end of the year, the complainant withdrew it, having learned that the lawyer wasn’t as bad as she initially thought.  He hadn’t broken up her friend Daniel’s marriage, it was the other way around.  The lawyer even bought her a new journal.  Plus, the PRB doesn’t have jurisdiction over barristers.

Who filed the complaint?

Bridget Jones 

See the source image

Question 4

Regular readers know that I’m a fan of Taylor Swift and The Rolling Stones.  I’ve seen each in concert.  However, the first concert that I ever attended was U2. I saw the band in Montreal during The Joshua Tree tour.

While I’m pro Taylor Swift, and pro Rolling Stones, perhaps I’d be well-served to refer to U2 when addressing a particular section of the Rules of Professional Conduct.  New Year’s Day this time of year, or, better yet, a member of the band.

The section is critically important, but often forgotten when thinking of “legal ethics.”  Which section?

Midway thru the day on Friday, I rephrased the question to try to make it easier. I failed. Guess it’s a poor question. 

Anyway, I’m also pro Bono.

And pro pro bono.  Don’t forget!  The public service rules (6.1 – 6.5) are very important!  Here are som FAQs.

Question 5

You represent a client who has been charged with ordering a relative’s death.  You’re well aware that Rule 1.2(a) requires you to abide by your client’s wishes whether to plea, whether to waive a jury trial, and whether to testify.

Your client has opted not to plea. Now, he wants to testify in his own defense.  Specifically, he wants to testify as to what he meant when, during a New Year’s Eve party in Havana, he said to the now deceased relative:

“I know it was you Fredo. You broke my heart.  You broke my heart.”

What is your client’s name?

Bonus: Name the movie.

Michael Corleone, in The Godfather: Part II   The scene is here.

See the source image

 

#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.

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!”

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

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.

Related image

 

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.

 

 

Monday Morning Answers: Timberlake & Pro Bono Bring Sexy Back!

Welcome to Monday!

You might be saying to your self – “self, why is he using an exclamation point?? It’s dark, windy, rainy, and the final week of Daylight Savings Time. WHAT IS HIS PROBLEM??”

Here’s why I used the exclamation point:

I found a backup singer! See below.

Actually, that wasn’t the only (or real) reason for the exclamation point.  This was:

The largest Honor Roll ever!  It’s official: Justin Timberlake and pro bono are bringing sexy back!

Sexy Back

Friday’s questions are here.  The answers follow today’s Honor Roll.

Honor Roll

ANSWERS

Question 1

How much pro bono work do the rules encourage Vermont attorneys to provide per year?

  • A.    A reasonable amount
  • B.    50 hours; Rule 6.1
  • C.    60 hours
  • D.    A meaningful amount

Question 2

True or false: the rules exempt government & non-profit attorneys from the pro bono expectation.

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).”

Question 3

Client retains Lawyer in a divorce.  Client agrees to pay Lawyer an hourly fee.  The fee agreement is reduced to a writing that is signed by Client.

The matter ends with a final order.  By then, Client has paid less than 10% of the total fee and owes Lawyer for approximately 60 hours of work.  Lawyer writes off the bill.

May Lawyer claim the 60 hours as pro bono?

  • A.    Yes, because Lawyer did not get paid.
  • B.    Yes, as long as Lawyer does not continue to try to collect the bill.
  • C.    Yes, but cannot claim the hours if Client decides voluntarily to pay.
  • D.    No.

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 . . . .” 

Question 4

Which section of the rules is relaxed for lawyers who do pro bono work at short-term legal services programs sponsored by non-profits or government agencies?

  • A.   The trust accounting rules
  • B.   Rule 1.1 and the duty of competence
  • C.   Rule 1.6 and the duty of confidentiality
  • D.   The conflicts rules. Rule 6.5

Question 5

At various live quizzes, I’ve used questions related to the ethics of P2P filing sharing and the legal battle between Napster & Metallica.

Your task: name the movie in which Justin Timberlake played Sean Parker, the co-founder of Napster.

There’s a hint in the tags.  And, here’s a bit of the dialogue:

Sean Parker: Well, I founded an internet company that let folks download and share music for free.
Amy: Kind of like Napster?
Sean Parker: Exactly like Napster.
Amy: What do you mean?
Sean Parker: I founded Napster.

The Social Network

 Social Network

 

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