Oregon State Bar Bulletin OCTOBER 2013
The Ethical Pro Bono
Increasing Access to Justice
By Amber Hollister
“Equal justice under law is not merely a caption on the facade of the Supreme Court building, it is perhaps the most inspiring ideal of our society. It is one of the ends for which our entire legal system exists. … It is fundamental that justice should be the same, in substance and availability, without regard to economic status.”
—Justice Lewis Powell Jr.
What used to have the nice ring of something lawyers might choose to do in their “spare time” has become, over the past several decades, both a personal and professional responsibility of the modern lawyer. The fact is lawyers who volunteer their services help fill a huge unmet need for legal services that threatens to create a crisis of confidence in our legal system and democratic institutions.
—Oregon Attorney General Ellen Rosenblum
All Oregon lawyers are called to provide pro bono service. The need for pro bono representation, especially given today’s economic climate, is acute. Studies show that despite the valiant efforts of legal service organizations, Oregon lawyers meet less than 20 percent of the civil legal needs of Oregon’s poor. Access to justice remains elusive for many Oregonians who cannot afford a lawyer.
Lawyers who provide pro bono representation make a meaningful difference. In support of our collective pro bono efforts, the bar’s bylaws provide that all Oregon lawyers should endeavor to perform at least 80 hours of pro bono service annually.1 Of this total, the bylaws suggest that each lawyer should aspire to handle two cases involving the direct provision of pro bono legal services to the poor. For lawyers who have not yet found their pro bono niche, opportunities abound statewide.2 Lawyers who report their pro bono hours to the bar help measure the positive impact of pro bono services in Oregon and help make the case for access to justice.3
How can a lawyer who answers the call to provide pro bono service avoid ethical dilemmas while increasing access to justice?
Mastering New Areas of Law
Often pro bono lawyers represent clients on matters that are outside of their everyday area of expertise. A tax lawyer might represent a victim of domestic violence in a restraining order hearing. A corporate litigator might represent a client in an eviction proceeding. Lawyers who venture outside of their comfort zone to advance the cause of access to justice should be celebrated. But those same lawyers must also be confident that they have developed the necessary knowledge, skill, thoroughness and preparation to competently represent pro bono clients. SeeRPC 1.1; OSB Formal Ethics Op 2007-178. Lawyers should remember that when representing a client pro bono, ethical standards of competence remain unchanged.
One easy way to ensure competency is to find a mentor or training in the particular area of law. Programs such as the Oregon New Lawyers Division’s Practical Skills through Public Service Program, Legal Aid Services of Oregon’s Volunteer Lawyers Project and the Oregon Law Center Pro Bono Project all provide mentors and resources to volunteers. Free trainings are offered every October as part of National Pro Bono Week and year-round by various OSB certified pro bono programs.
Lawyers who are retired or otherwise not practicing but still want to make a pro bono contribution can do so by becoming active pro bono members. Active pro bono members agree to donate their time to certified pro bono programs or the bar. In return, the bar helps active pro bono members master new areas of law by offering eight hours of free continuing legal education.
Clients of limited financial means often have a multitude of legal needs. For this very reason, it is of utmost importance that lawyers establish the scope of representation of pro bono clients in advance. Taking time to explain what a lawyer will and will not do for a pro bono client helps manage expectations and build trust. Such limits are explicitly condoned by Rule 1.2(b): “A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.”4
Often lawyers limit the scope of representation by limiting the tasks the lawyer agrees to perform. For instance, a lawyer may agree to discuss a pending case with a pro selitigant without appearing as counsel of record or to review a residential rental contract without engaging in negotiations with the landlord. Alternately, lawyers may limit the scope of representation by limiting the issues on which they will provide advice. For example, a lawyer might agree to provide pro bono advice on an employment discrimination claim but not a related unemployment claim. Limiting the scope of a pro bono representation is one way to ensure the client does not expect advice on legal issues that are completely unfamiliar to the lawyer.
One simple way to limit the scope of representation is to volunteer to provide initial consultations, discrete advice or general legal information to pro bono clients through an established legal clinic. For instance, attorneys who volunteer for St. Andrew Legal Clinic’s Night Clinic conduct client intakes during evening shifts to allow staff attorneys more time to work on active cases during the day. Similarly, attorneys with LASO’s Pro Se Assistance Project offer limited assistance to clients by providing discrete legal advice or document review.
Staying in Touch
As a practical matter, staying in touch with financially insecure clients can be a significant challenge. A client on the brink of homelessness, coping with domestic violence or grappling with unemployment may not have a stable address, easy access to transportation or a cell phone. Even so, lawyers have a duty to keep pro bono clients reasonably apprised about the status of their legal matters so that the clients can make informed choices about the representation. RPC 1.4. Obtaining alternate contact information and emphasizing the need to stay in contact can help keep lines of communication open.5
A lawyer who loses contact with a pro bono client may have grounds to withdraw. But lawyers who wish to end a pro bono representation must follow the same rules that apply to withdrawing from paid representations. See RPC 1.16; OSB Formal Ethics Op No 2005-33.
The case of Maples v. Thomas frames this requirement in stark relief. 565 U.S. ____, 132 S. Ct. 912 (2012). In Maples, the U.S. Supreme Court considered an Alabama death-row prisoner’s claim that he missed a filing deadline in state post-conviction proceedings after his two pro bono lawyers abandoned him. The lawyers, young associates at a large New York law firm, had left to accept jobs in public service and were unable to continue the representation. Id. at 919. Unfortunately, neither lawyer informed their client of the departure or filed a motion to withdraw; no substitute lawyers from the firm made an appearance on the client’s behalf. Id.Mail to the lawyers was returned unopened and stamped “return to sender.” Id.
The client only found out that he had missed a state court filing deadline when the attorney general’s office wrote him a letter informing him that the deadline to file a federal habeas petition was fast approaching. Id. at 920. The federal district and appellate courts ruled that the prisoner’s claims were procedurally barred because he had failed to preserve his claims in state court. The supreme court reversed. Although clients are normally bound by the action (and inaction) of their attorneys, given the extreme circumstances of the case, the court ruled that the client’s failure to timely file in state court was not without cause. When lawyers desert a client mid-representation, without notice, there is “cause” to excuse a procedural default. Id. at 927.
Oregon pro bono lawyers can easily avoid similar circumstances by following the notice and withdrawal requirements outlined in Rule 1.16. A lawyer who wants to withdraw must provide a pro bono client with notice of the impending withdrawal, seek the court’s permission to withdraw if the court’s rules so require and take reasonably practical steps to avoid foreseeable prejudice to the client.
Covering the Costs
At the outset of any pro bono representation, lawyers should discuss the issue of costs with pro bono clients. Who will pay for copying costs, filing fees or for a court reporter?
Although, generally, lawyers may not provide financial assistance to a client in connection with pending or contemplated litigation, there is an exception that allows lawyers to pay costs when representing an indigent client. SeeOSB Formal Ethics Op 2005-4. Rule 1.8(e)(2), newly adopted this year, provides that “a lawyer representing an indigent client may pay court costs and expenses of litigation on behalf of the client.” Of course, this rule does not require pro bono attorneys to pay the expenses of litigation, but it does give attorneys the option of doing so for indigent clients.
To avoid any confusion, lawyers should discuss the issue of who pays for costs with pro bono clients early in the representation. If the client is expected to pay, lawyers should recognize that indigent clients may need more time to muster limited financial resources. Explaining up front what costs are likely and when they will be due will help keep the representation on track.
The best way to avoid conflicts of interest is to have a robust intake and screening system. Pro bono clients, like all other clients, should be asked to fill out an intake form so that they can be properly screened for conflicts. Skipping this crucial step can expose pro bono lawyers to unintended consequences down the line.
Lawyers who receive a referral from a legal services program but have a conflict that prevents them from accepting the referral should treat any information obtained about the pro bono client as confidential. SeeRPC 1.18; OSB Formal Ethics Op No 2005-138. Pro bono lawyers who merely accept referrals from a legal services program are not considered part of the legal services firm for conflicts purposes. RPC 1.0(d); RPC 1.10.
If a conflict of interest arises mid-representation, lawyers must either obtain informed consent, if permissible, or withdraw from the pro bono representation. RPC 1.7; RPC 1.9.
This month’s bar counsel article can be summed up in one simple phrase — the same ethics rules apply to paid and pro bono representation. When in doubt, pro bono lawyers should return to this maxim.
1. See OSB Bylaws Section 13.1.
2. A listing of Pro Bono Volunteer Opportunities can be found at www.osbar.org/probono/VolunteerOpportunities.html.
3. Lawyers can report their pro bono hours by logging in at www.osbar.org and selecting “Pro Bono Reporting.”
4. For additional tips and advice about limiting the scope of representation of a client, see “Unbundling Legal Services: Limiting the Scope of Representation” in the July 2011 OSB Bulletin.
5. For practical advice on how to maintain contact with clients, see “Lost and Found: Ethics Implications of the Missing Client, Part I,“ in the November 2012OSB Bulletin.
ABOUT THE AUTHOR
Amber Hollister is deputy general counsel for the Oregon State Bar. She can be reached at (503) 620-0222, or toll-free in Oregon at (800) 452-8260, ext. 312, or by email at firstname.lastname@example.org.
© 2013 Amber Hollister