The answers below are intended to address common obstacles to performing legal service, by reviewing general principles and suggesting further resources; JRCLS attorneys should always consult their state’s Rules of Professional Conduct.
Q: What are the ABA and State Bar Associations’ guidelines for pro bono service?
A: ABA Model Rule 6.1 provides:
“Every lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should aspire to render at least (50) hours of pro bono publico legal services per year. In fulfilling this responsibility, the lawyer should:
(a) provide a substantial majority of the (50) hours of legal services 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 persons of limited means; and
(b) provide any additional services through:
(1) delivery of legal services at no fee or substantially reduced fee to individuals, groups or organizations seeking to secure or protect civil rights, civil liberties or public rights, or charitable, religious, civic, community, governmental and educational organizations in matters in furtherance of their organizational purposes, where the payment of standard legal fees would significantly deplete the organization’s economic resources or would be otherwise inappropriate;
(2) delivery of legal services at a substantially reduced fee to persons of limited means; or
(3) participation in activities for improving the law, the legal system or the legal profession.
In addition, a lawyer should voluntarily contribute financial support to organizations that provide legal services to persons of limited means.”
Q: Who qualifies for pro bono assistance?
A: The American Bar Association provides guidance on qualification for legal assistance and links to various legal service providers around the country.
Q: When a Law Society attorney wishes to take on a pro bono matter, how is the attorney-client relationship formed?
A: Law Society attorneys must not hold themselves out as representing the Law Society, Brigham Young University or the LDS Church in any pro bono representation. When the attorney-client relationship has been facilitated by the Law Society, the attorney should enter a written engagement with the client which makes clear that neither the J. Reuben Clark Law Society, Brigham Young University, or the LDS Church is representing the client.
Q: What requirements for competency must an attorney meet when providing pro bono service?
A: ABA Model Rule 1.1 sets forth a basic competency requirement:
“A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”
Most states have similar rules.
Q: Can I provide pro bono or reduced-fee service in areas in which I don’t normally practice?
A: Attorneys should work under the direction of a supervising attorney if they do not meet the competency requirement in their state. For attorneys willing to accept a case from legal aid groups, the group often provides a supervising attorney who is experienced in the practice area for which assistance is needed. When the attorney is introduced to the prospective client from another source, such as a local church leader, legal aid groups may be willing to admit the attorney and the prospective client into their program as a pair, and provide a supervising attorney, provided both the attorney and client meet their admission criteria. For example, Public Law Center in Orange County, California, and Bet Tzedek in Los Angeles, have agreed with Law Society leaders to work with their members in this manner as they serve community members in need.
Q: May an attorney provide limited-scope pro bono service without taking on full representation?
A: Yes, if the rules governing such work, including client consent, are carefully followed. Since 2000, ABA Model Rule 1.2 has provided:
“A lawyer may limit the scope of representation if the limitation is reasonable under the circumstances and the client gives informed consent.”
The ABA Reporter’s Explanation of Changes noted that this change was intended to expand the ability of attorneys to provide limited pro bono or reduced fee service:
“The Commission recommends that paragraph (c) be modified to more clearly permit, but also more specifically regulate, agreements by which a lawyer limits the scope of the representation to be provided a client. Although lawyers enter into such agreements in a variety of practice settings, this proposal in part is intended to provide a framework within which lawyers may expand access to legal services by providing limited but nonetheless valuable legal services to low or moderate-income persons who otherwise would be unable to obtain counsel.”
Many states’ Rules provide an exception for limited legal advice, including advice provided at a qualifying legal clinic. A list of State rules on limited-scope engagement can be found in this 2014 ABA white paper. Attorneys should consult their state’s current Rules of Professional Conduct. Local clinics should be able to provide information on compliance with the Rules in their jurisdiction.
Q: How can an attorney secure malpractice coverage for pro bono legal service?
A: Many law firms have a pro bono program through which malpractice coverage is provided if the attorney submits the matter to the firm for approval.
Additionally, most legal aid groups provide malpractice coverage for matters accepted by volunteer attorneys. If you have a pro bono potential client (for example, from an LDS Bishop or other source), legal aid groups like Public Law Center and Bet Tzedek in Southern California may be willing to admit you and the prospective client into their program as a pair, providing malpractice coverage, provided the attorney and client both meet their admission criteria, or similar groups in your area. Such groups will often provide a supervising attorney who is experienced in the practice area for which assistance is needed.
Many legal aid clinics provide coverage for limited advice provided to volunteers at their clinic. For more information, contact Susan Griffith at BYU Law School, Executive Director of the Timpanogos Legal Clinic in Provo, Utah, at griffiths@law.byu.edu; or JoLynn Spruance, Director of the Pro Bono Initiative at the University of Utah, at jolynn.spruance@law.utah.edu.
Q: How can law students provide pro bono service within the rules of professional conduct governing competency and experience?
A: Law students are generally able to provide limited legal service within professional conduct rules. For example, Utah Rule of Professional Conduct 14-807 covers “Law student and law graduate legal assistance”:
(a) The purpose of this rule is to provide eligible law school students and recent law school graduates with supervised practical training in the practice of law for a limited period of time and to assist the Bar and the judiciary to discharge their responsibilities to help create a legal system which helps provide access to those individuals of limited means.
The ABA’s standard on student service includes Interpretation 302-10:
Each law school is encouraged to be creative in developing substantial opportunities for student participation in pro bono activities. Pro bono opportunities should at a minimum involve the rendering of meaningful law-related service to persons of limited means or to organizations that serve such persons; however, volunteer programs that involve meaningful services that are not law-related also may be included within the law school’s overall program. Law-related pro bono opportunities need not be structured to accomplish any of the professional skills training required by Standard 302(a)(4). While most existing law school pro bono programs include only activities for which students do not receive academic credit, Standard 302(b)(2) does not preclude the inclusion of credit-granting activities within a law school’s overall program of pro bono opportunities so long as law-related non-credit bearing initiatives are also part of that program.
Information from the ABA on pro bono opportunities for law students can be found here.
For more information or examples, contact JoLynn Spruance, Director of the Pro Bono Initiative at the University of Utah Law School, at jolynn.spruance@law.utah.edu, or Susan Griffith at BYU Law School, Executive Director of the Timpanogos Legal Clinic in Provo, Utah, at griffiths@law.byu.edu.
Q: Can inactive attorneys provide pro bono service?
A: Inactive attorneys, including attorneys raising children, can be a valuable resource for chapters seeking volunteer attorneys to serve their local community.
Many states’ Rules of Professional Conduct authorize inactive attorneys to provide limited pro bono service. For example, Utah Rule of Professional Conduct 14-803 authorizes inactive lawyers to provide legal services for legal services organizations, provided they have previously been admitted to practice, are approved to participate in the inactive pro bono lawyer program by the Bar’s Office of Professional Conduct, do not receive compensation from clients, and receive approval from a supervising attorney with a legal services organization; and the legal services organization files a notice of authorization.
Q: How can I find organizations in my area with whom Law Society members can form partnerships or provide support by performing pro bono or other service?
A: The American Bar Association’s website maintains a list of organizations providing pro bono service in each state. The ABA also lists organizations focusing on special populations in need of legal service, including the elderly, domestic violence victims, persons with disabilities, breast cancer victims, military personnel, and children.
Other helpful resources may include the LDS Church’s Humanitarian Department; The United Way; groups in your state funded by the federal Legal Services Corporation, which can be found here; or agencies serving the elderly or other vulnerable populations in your area.
Q: What opportunities are available for providing service to those who do not qualify for free legal service?
A: Many state or local bar organizations have established “Modest Means” programs by which attorneys can assist clients at reduced rates. For example, information about Utah’s program can be found here.
Q: What if my firm does not support pro bono work?
A: If your firm does not provide malpractice coverage or otherwise support pro bono service, there are good reasons for the firm to do so. In addition to serving the local community and helping attorneys meet their ethical obligation, pro bono work often provides significant opportunities for court experience, negotiation, and direct client interaction, especially for newer attorneys. Such experience not only gives balance and fulfillment to attorneys, it can also improve their legal skills and prepare them to better serve the firm’s regular clients.
