The Journal of The DuPage County Bar Association

Back Issues > Vol. 23 (2010-11)

Removing the Mental Obstacles From Pro Bono Practice
By Steven Behnken

Attorneys often hear about the importance of doing pro bono work and, in these economic times, the need has only increased.  Many attorneys, however, have numerous questions or misconceptions that act as mental obstacles and prevent them from getting involved in pro bono work. For example, what actually constitutes pro bono work? Can an attorney be sued by a client for whom that attorney has done work on a pro bono basis?  How does pro bono liability affect an attorney’s malpractice insurance? Can an attorney do pro bono work without impacting his or her malpractice insurance?  Can pro bono work be done on a limited basis without escalating beyond the desired commitment level?  This article attempts to answer some of these questions in the hope that taking the first step toward pro bono service becomes a bit easier.

What is Pro Bono?  What exactly constitutes pro bono work, anyway?  As defined by the Illinois Supreme Court Rules[1] the term “pro bono legal services” is “the delivery of legal services or the provision of training without charge or expectation of a fee….”[2]  The Rules go on to establish four classes of legal services that are pro bono:

(a) legal services rendered to a person of limited means;

(b) legal services to charitable, religious, civic, community, governmental or educational organizations in matters designed to address the needs of persons of limited means;

(c) legal services to charitable, religious, civic, or community organizations in matters in furtherance of their organizational purposes; and

(d) training intended to benefit legal service organizations or lawyers who provide pro bono services.[3]

Just who exactly is a “person of limited means?”  Rule 756 does not establish any specific income level but states that persons whose household incomes are below the federal poverty level and the “working poor” would qualify.[4]  In making an assessment of a potential client’s income situation, attorneys do not need to undertake any sort of investigation but only need to make a good-faith determination as to the client’s eligibility.[5]

Currently, Illinois has no hourly requirement that attorneys provide pro bono services.[6]  However, the Illinois Rules of Professional Conduct state that every attorney has a responsibility to provide legal services to those unable to pay.[7]  This largely incorporates Rule 6.1 of the ABA Model Rules,[8] which sets an aspirational goal for attorneys to perform fifty hours per year of pro bono service.[9]

As the term “pro bono legal services” is defined by Rule 756, performance of legal services at a reduced rate is not, strictly speaking, pro bono work.  Similarly, work for which payment was expected but is uncollectible cannot be counted as pro bono work.[10]  However, Rule 756 states that even if an attorney was originally retained on a fee basis, if a client and the attorney agree that future services will be provided voluntarily, future billable hours may be counted as pro bono work.[11]  Thus, for legal services to qualify as pro bono, it appears that an attorney must go into it with the understanding that he or she will not be compensated. 

In addition to the delivery of legal services, attorneys are encouraged to provide monetary support to the agencies that do pro bono work.  Rule 756 defines the term “qualified monetary contribution” as “a financial contribution to an organization as enumerated in subparagraph (1)(b) which provides legal services to persons of limited means or which contributes financial support to such an organization.”[12]  Financial contributions help bridge the gap in these organizations’ budgets as public funding diminishes and, since many of the organizations qualify as 501(c)(3) charity, donations are often deductible.

As part of the registration process, Rule 756 requires attorneys to report both pro bono legal services and any qualified monetary contributions rendered in the last year.[13]  This information is used to determine what types of pro bono services are being provided throughout the state as well as to help the pro bono community plan its activities.

Pro Bono Liability.  Obviously, any legal services provided to a pro bono client must be of the same quality as would be provided to a paying client.[14]  As such, an attorney performing pro bono work is liable to that client (although suits against pro bono attorneys are almost completely unheard of).  Fortunately, if an attorney chooses to work with a pro bono organization, many, if not most, of these organizations carry malpractice insurance on behalf of their volunteer attorneys.  Thus, depending on the individual area of practice, most attorneys can volunteer their time and services without having to worry about impacting their firm’s individual malpractice coverage.[15]

Alternatively, should an attorney decide to take a case that was not referred by a pro bono organization, he or she should review his or her firm’s particular malpractice insurance policy because an existing policy may explicitly cover pro bono activities.

Restrictions on Pro Bono Work.  As a preliminary matter, an attorney may not take pro bono work if it causes a conflict of interest with an existing client[16] so it is imperative to run the usual conflict checks before taking on any particular case.   Additionally, taking a case in an area of law in which an attorney already practices is a relatively simple prospect but, if an attorney wishes to volunteer in an area of law in which he or she does not regularly practice, there are some concerns. 

The Illinois Rules of Professional Conduct state that an attorney need not have special training or prior experience in order to handle a matter as long as the attorney has made reasonable preparations.[17]  Attorneys who choose to work with established pro bono organizations may also receive training in that particular area of law and receive support from the organization’s staff in the form of mentoring.  Further, if the volunteer attorney lacks the requisite skills to properly handle the case, they may act as co-counsel with a staff attorney.  Thus, pro bono work can be a good way for an attorney to get experience in a new practice area.

Some pro bono organizations prefer to work with attorneys who practice in the field that the particular organization specializes in, so it is important to check with any organization that you are considering to determine whether and how they can utilize your particular skills.

The Time Commitment.  Obviously, time constraints are among the most significant obstacles that any attorney has to deal with.  When faced with a loaded docket and billable hour targets, it can be easy to say there just isn’t enough time.  Not all pro bono work, however, necessarily involves a lengthy time commitment or a long, drawn-out trial.[18]  To the contrary, a large amount of pro bono work involves shorter “projects” that involve five to ten hours of attorney time.[19]  These opportunities can be as simple as reviewing a lease or purchase contract, drafting a power of attorney or living will for an elderly client, or helping clients with uncontested or default divorces.[20]  Further, in the event that an attorney does a large amount of pro bono work on a particular case, most organizations are careful not to give that same attorney a lengthy case in the following year.

Making the Decision.  When deciding whether to take a pro bono case or to work with a particular pro bono organization, it is important to get a firm grasp of the commitments and expectations.  As a result, getting answers to a few key questions can greatly reduce the uncertainty associated with doing pro bono work and promote an informed decision.  Attorneys should ask some of the following questions:[21]

(1) Does the program screen potential clients for need and the cases for merit?

(2) Does the program match the attorney’s expertise with the client’s situation?

(3) Does the program offer training or support to its attorneys?

(4) Is the case covered by the program’s malpractice insurance or would it fall under the attorney’s own policy?

(5) What is the time commitment involved with the particular case being considered?

(6) Will the attorney be responsible for any expenses, such as court costs?

Specifically with regard to this last question, it is important to note that, unless an attorney is appointed by the court, a pro bono attorney may not be entitled to reimbursement of court costs under the “reasonable fee” provision of 725 ILCS 5/113-3(c).[22] As a result, an attorney should determine what costs are associated with accepting a particular case.  If an attorney does not seek the assistance of a pro bono organization, some of these issues should be addressed in an engagement letter.  With some of these answers in hand, attorneys can select the pro bono organization or client that is the right fit for them.

[1] Ill. Sup. Ct. R. 756 (f)(1).

[2] Id.

[3] Ill. Sup. Ct. R. 756(f)(1)(a)-(d).

[4] Ill. Sup. Ct. R. 756 (f)(2).

[5] Id.

[6] Illinois Rules of Prof’l Conduct Preamble, cmt. 6B (2010).

[7] Illinois Rules of Prof’l Conduct Preamble, cmt. 6A (2010).

[8] Model Rules of Prof’l Conduct R. 6.1 cmt. 1 (1983).

[9] Model Rules of Prof’l Conduct R. 6.1 (1983).

[10] Ill. Sup. Ct. R. 756 (f)(1)(d).

[11]  Id.

[12] Ill. Sup. Ct. R. 756 (f)(3).

[13] Ill. Sup. Ct. R. 756 (f)(4).

[14] Illinois Rules of Prof’l Conduct R. 6.2, cmt. 3 (2010).

[15] Attorneys should still be careful to provide notice to their insurers if the policy requires notice of any potential claim as any liability for professional negligence would likely rest with the attorney rather than the pro bono organization.

[16] Illinois Rules of Prof’l Conduct R. 1.7 (2010).

[17] Illinois Rules of Prof’l Conduct R. 1.1 cmt. 2, 4 (2010).

[18] But see also Mark Curriden, A Life in the Balance: One Lawyer’s Attempt to Keep His Head Above Water Landed a Client on Death Row, ABA Journal (March 2011), 47, 51 (“What I really should have done, [attorney Lionel Barrett said], “is not take the case.”). 

[19] Dispelling the “Myths” of Pro Bono, Public Interest Law Initiative, http://www.pili-law.org/documents/DispellingtheMythsofProBonov.c_000.pdf (last visited 3/1/2011).

[20] Pro Bono: Volunteer Opportunities for Attorneys in the Chicago Area, Chicago Bar Foundation, www.pili-law.org/documents/2007ProBonoOpportunitiesBooklet.pdf (last visited 3/1/2011) (“As the comments to Rule 756(f) underscore, the Supreme Court’s new pro bono reporting requirement is ‘intended to serve as an annual reminder to the lawyers of Illinois that pro bono legal service is an integral part of a lawyer’s professionalism.’”). See also James Podgers, Public Hearing on Judiciary Funding Draws Tales of Courts Begging for Pens, Jury Trials Halted, ABA Journal Law News Now, Feb 9, 2011 (“The plight of the courts and the parties who rely on them is likely to get worse before it gets better.”).

[21] Id.

[22] People v. Smith, 402 Ill. App. 3d 166, 937 N.E.2d 210 (2nd Dist. 2010).

 
 
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