Five for Friday #264

Welcome to Friday and the 264^th legal ethics quiz.

Earlier this week I pondered whether today’s intro might reference the NCAA basketball tournament. As any fan of or participant in March Madness likely knows, there are always 64 teams in the “bracket.” Indeed, who can forget 2020, when 48 concepts involving legal ethics and professional responsibility joined 16 quotes from My Cousin Vinny in this blog’s “Professional Responsibility Madness” bracket. Vermont’s legal profession voted out a Final Four that looked like this:

Anyhow, in the tournament, 64 teams are divided into four “regions.”  Each region has 16 teams, with the teams seeded 1 thru 16 according to perceived strength. Much of the discussion in the weeks leading up to the tournament focuses on predicting which teams will receive the coveted top seed in each bracket.

With that as a backdrop, as this week went on, I noticed an uptick in news of the bizarre coming from the world of legal ethics and professional responsibility. Here are four stories from the past week alone:

• The Ohio judge who was indefinitely suspended for, among (many) other things, conducting “business in a manner befitting of a game show host.”  Above The Law has the story here. Having read the opinion, I wonder whether game show hosts will object to the comparison. 
• The lawyer who, as reported by the Portland Press Herald, was sanctioned for having a sexual relationship with a client AND for certifying that that he had done CLE when, in fact, his employee had done it for him.
• As reported by The Volokh Conspiracy, the lawyer who was sanctioned for plagiarizing opposing counsel’s (!!) motion! Yes, you read that correctly.  Here is the court’s opinion in response to a motion for sanctions. The first two lines cut straight to the chase.
• The Legal Profession Blog has the story of a Kansas lawyer who accepted title to a client’s motorcycle as security for payment of legal fees.  The client, S.R., didn’t pay and didn’t deliver the motorcycle when asked to do so by the lawyer. As for what happened next, here’s an excerpt from the Kansas Supreme Court order suspending the lawyer’s license: “Respondent wrongfully reported to law enforcement that S.R. had stolen Respondent’s motorcycle. Respondent knew, or should have known, this misleading report could have provided the district court grounds to revoke S.R.’s probation (which Respondent previously negotiated on behalf of S.R.) and to sentence S.R. to a term of imprisonment.”

If we were having a Was That Wrong? tournament, each of these stories would be a contender for a regional top seed and the championship itself.

Sadly, if I had put some effort into this, I probably could’ve created a bracket that made it to sixty-four.

And since this is a quiz introduction, I prefer the phonetic version of the previous sentence:

“Sadly, if I had put some effort into this, I probably could’ve created a bracket that made it 2 64.”

As always, let’s be careful out there.

Onto the quiz!

Rules

• None.  Open book, open search engine, text-a-friend.
• Exception:  Question 5.  We try to play that one honest.
• 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 consider sharing the quiz with friends & colleagues
• Share on social media.  Hashtag it – #fiveforfriday

Question 1

Next week is National Celebrate Pro Bono Week.  The Rules of Professional Conduct include a series of rules that address pro bono work.  One of those rules makes clear that other rules are somewhat relaxed for lawyers who, with no expectation of continued representation, offer short-term legal services at programs sponsored by a court or non-profit.

What’s the topic of the rules that are somewhat relaxed?

PS: for information on how to participate in pro & low bono programs, go here or email Mary Ashcroft, the VBA’s wonderful Legal Access Coordinator.  Mary has announced her retirement.  Mary – thank you for you all that you’ve done for Vermonters and to increase access to both justice and legal services!

Question 2

Here’s language from the comment to a rule.  Fill in the blank. Hint: it’s 4 words, one of which is one of the 7Cs of Legal Ethics.

“In such situations, the advocate’s proper course is to remonstrate with the client confidentially, advise the client of the lawyer’s duty of ____________ and seek the client’s cooperation with respect to the withdrawal or correction of the false statements or evidence.”

Question 3

By rule, what is required to be “communicated to the client, preferably in writing, before or within a reasonable time after commencing the representation?”

• A.   Whether the lawyer has malpractice insurance and, if so, the policy limits.
• B.   Whether the lawyer has designated a successor to review and triage files if the lawyer becomes incapacitated during the representation.
• C.   The basis or rate of the lawyer’s fee, and expenses for which the client will be responsible, except when the lawyer will charge a regularly represented client on the same basis or rate.
• D.  All the above.

Question 4

A dispute involving New York’s version of a rule made national headlines this week, even bringing legal ethics to the sports pages.  Here’s a comment to Vermont’s version of the rule.  The SAME word correctly fills in each blank.  What word?

“In the case of a represented__________, this rule prohibits communications with a constituent of the _________  who supervises, directs or regularly consults with the __________’s lawyer concerning the matter or has authority to obligate the __________ with respect to the matter or whose act or omission in connection with the matter may be imputed to the ________ for purposes of civil or criminal liability.”

Question 5

In 2015, the Wisconsin Supreme Court suspended a lawyer for 60 days for misconduct that occurred while the lawyer was representing a client who hired the lawyer to assist in recovering money spent on John Lennon memorabilia that turned out to be fake.

Four years earlier, in an article about a different client, the Milwaukee Journal Sentinel quoted the lawyer as referring to a deceased former client as “an aberration of a human being that comes around about once every 50 years and does a hell of a lot of damage.” According to the paper, the lawyer added that the deceased former client was “the wimpiest guy I ever met.”

In 1992, and before the client died in prison, a jury rejected the lawyer’s evidence and argument that the client was insane at the time of the client’s depraved and horrific crime spree that spanned more than a decade.

The deceased client is the subject of two relatively new Netflix productions. One, a documentary, is the 4^th most watched show on Netflix this month. The other, a dramatized version of the client’s crimes and trial, is the 2^nd most watched. Variety reported that in the week that followed the dramatized version’s September release, the show “was the 10^th most-streamed program ever recorded in a single week in Nielsen history.”

Honestly, watching the dramatized version, the opening scene so disturbed/scared me, that I had trouble making it through.

Name the deceased former client.

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

• 

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:

• 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.

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.

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 Gilmore, Ryan Smith Carbine
• Bob Grundstein, Esq.
• Keith Kasper, McCormick, Fitzpatrick, Kasper & Burchard
• Jeanne Kennedy, JB Kennedy Associates, My mom
• Lawyers in Cars Eating Chick Fil-A
  • Elizabeth Kruska
  • Wesley Lawrence; Theriault & Joslin
• Lon McClintock, McClintock Law Offices
• Jack McCullough, Project Director, Vermont Legal Aid Mental Health Law Project
• Jeff Messina, Bergeron Paradis Fitzpatrick
• Hal Miller, First American
• Herb Ogden, Esq.
• Eric Parker, Bauer Gravel & Farnham
• Bob Pratt, Pratt 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, 

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 

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.

 

#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!”

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 States. I 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.

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.