May 18, 2021
Why do pro bono? A matter of attorney ethics
There is a persuasive argument not only that all lawyers should make the time for pro bono work, but there is an ethical responsibility to help out those who are unable to afford the assistance of an attorney and navigate our system of justice.
Some people will read the title of this article and may think it just is not for them. The practice of law can be challenging and busy, with too much to do and too little time. There are not enough hours in the day to fit in pro bono work. Other lawyers may already give back to the community in other ways and not think about taking on a pro bono case. But please read on. There is a persuasive argument not only that all lawyers should make the time for pro bono work, but there is an ethical responsibility to help out those who are unable to afford the assistance of an attorney and navigate our system of justice.
The two primary sources that regulate the conduct of California Lawyers are the State Bar Act and the Rules of Professional Conduct. Both suggest that pro bono services are something that every licensee should look to provide. Business and Professions Code section 6068, subdivision (h), provides that it is the duty of an attorney “[n]ever to reject, for any consideration personal to himself or herself, the cause of the defenseless or the oppressed.” It is a powerful statement that many lawyers may not have seen, studied, or seriously considered before.
Likewise, California Rules of Professional, rule 1.0, Comment  provides, “A lawyer should be aware of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor cannot afford adequate legal assistance.” The Comment goes on to encourage all lawyers to devote their time and influence to ensuring equal access to our system of justice, particularly for those who face economic and social barriers to achieving that justice. Every lawyer should aspire to render at least fifty hours of pro bono publico legal services per year.
The American Bar Association has been very diligent in communicating the same message. The Standing Committee on Pro Bono and Public Service, in a recent publication, nicely summarized the driving force behind pro bono work by reminding lawyers, “When society confers the privilege to practice law on an individual, he or she accepts the responsibility to promote justice and to make justice equally accessible to all people.” Recognizing the need to spread the word about the need for pro bono service, the Standing Committee actively engages in outreach to the judiciary, government attorney offices, law schools, minority bar associations, small and mid-size law firms, and in-house corporate legal departments. While pro bono work was once largely considered to be the purview of large law firms, it is now recognized that all lawyers, regardless of their position, have an obligation to contribute.
Indeed, ABA Model Rule 6.1 states that every lawyer has a professional responsibility to provide legal services to those unable to pay. The 50-hour aspirational goal set forth in California’s Rule 1.0, Comment , is endorsed. The ABA Rule further recognizes that all lawyers should voluntarily contribute financial support to organizations that provide legal services to people of limited means.
The ABA, through its Center for Pro Bono, has also recognized that pro bono work is not only provided by licensed attorneys. A strong advocate for the underserved, Center for Pro Bono has found that a majority of ABA accredited law schools have formed pro bono or public service programs. Several even require students to perform pro bono work in order to graduate. Today’s law student is being trained from the outset to consider pro bono work as an integral component of the practice of law.
Some states have also taken pro bono to a new level. For example, in 2012, New York became the first jurisdiction in the United States to require 50 hours of pro bono service as a condition to lawyer licensure, with applicants being required to verify their service under oath. The September 2012 report of the Advisory Committee on New York State Pro Bono Bar Admission Requirements discussed the rationale behind the requirement. “For the aspiring lawyer, it is hoped that this initiative will provide several benefits. If law students receive instructive and meaningful pro bono experiences, they will be exposed to the pressing needs of those less fortunate and gain a deeper understanding of the problems confronted by those segments of society that have little access to legal resources and institutions.” Other states mandate that lawyers report their pro bono hours, as a mechanism to increase delivery of legal services and to collect data to allow the development of more effective pro bono programs.
In California, the Judicial Council, in its quest to ensure equal access to the courts, provides toolkits to judges to encourage lawyers to provide pro bono service. One of the toolkit publications, “Eight Reasons Why Lawyers Should Provide Pro Bono Services,” makes the case for lawyers donating their time. For example, pro bono service gives opportunities for newer lawyers. They can learn to effectively network, develop confidence, gain leadership experience, and improve communication skills. Pro bono work also provides the opportunity to develop skills beyond one’s substantive practice area. Retired and nonpracticing attorneys can offer their time to pro bono matters as a way of maintaining their skills. A little-known perk, the Pro Bono Practice Program of the State Bar waives the State Bar license fees for certain attorneys to contribute their legal expertise to Californians in need. Finally, the “Eight Reasons” document discusses a reason that is often overlooked – the deep personal satisfaction that comes from doing pro bono work.
California, like many states, has been struggling with how to ensure access to justice for all residents, as the cost of legal services continue to rise and the myriad of laws governing legal situations have become more complex. As of 2017, and before COVID-19, the Legal Services Corporation reported that 86% of the civil legal problems reported by low income Americans received inadequate or no legal help. And 71% of low-income households experienced at least one civil legal problem in the last year. The numbers are staggering.
In an effort to tackle the justice gap, the State Bar of California directed the formation of the Task Force on Access Through Innovation of Legal Services (ATILS) in July 2018. Since that time, ATILS has explored a variety of ways of addressing the inaccessibility to the system of justice, including the examination of the standard for the unauthorized practice of law, the use of paraprofessionals to provide limited scope legal services, the allowance of sharing fees with nonlawyers, the implementation of alternate business structures with nonlawyer ownership, and much more. While there are a lot of ideas that may ultimately assist with the fundamental lack of legal assistance that many individuals and small businesses face, the fact remains that every lawyer can — today and now — make a personal and individual contribution by agreeing to provide pro bono legal services to someone in need.
Of course, if lawyers consider it to be their ethical obligation to provide pro bono service, they must also be cognizant of their ethical duties to pro bono clients. The fiduciary duties to pro bono clients and paying clients are the same.
Moreover, in any type of practice, including pro bono work, lawyers may encounter clients with diminished capacity. In California, lawyers have the same duties to these clients and must, as far as reasonably possibly, maintain a normal attorney-client relationship with them. The State Bar of California Standing Committee on Professional Responsibility and Conduct (COPRAC) has circulated an interim opinion addressing the application of the duty of confidentiality, the involvement of third parties in the attorney-client relationship, and the possibility of declining to take actions that would frustrate the client’s ultimate purpose.
A related, but different, issue involves communication with clients. Ask any person who has studied relationships and they are likely to tell you one of the core elements of a good relationship is good communications. This is no different in the context of attorney-client relationships. And it is important to remember the cliché that, if a message is not understood, it has not been communicated. Often, pro bono services will be provided to clients who are from a different demographic group than the lawyer. This means that there could be increased barriers to effective communications, including if there are different linguistics — in addition to the trap that some lawyers fall into with use of legalese — different cultures, different generations, or even the much more common different level of sophistication. In discussions with the client, lawyers need to be sensitive to these issues, adapt accordingly, and make sure both that their clients understand them and that they, in turn, understand their clients.
Finally, there are legal malpractice insurance considerations in providing pro bono work. Sometimes, the legal service provider or Bar Association through which the attorney is providing the pro bono services will carry a policy. Other times, it is mandated that the lawyer carry her own policy. It is incumbent of the lawyer providing the pro bono services to make inquiries into coverage before providing services.
It is urged that every lawyer view pro bono service as an core ethical obligation. The impact of each of 190,000 licensed attorneys on active status contributing 50 hours each would be tremendous — almost 10 million pro bono hours to the many Californians in need. Working together, we can make a difference and do much to close the justice gap.