Undeniably Important — Pro Bono Work Made Easier By Recent Ethics Developments | New York Legal Ethics Reporter

Undeniably Important — Pro Bono Work Made Easier By Recent Ethics Developments

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By Jeremy R. Feinberg

[Originally published in NYPRR September 2008]

The words “pro bono publico,” a Latin phrase meaning “for the public good,” is one expression that all attorneys and many clients know. In the practice of law, the public good to be served consists of providing legal services to the needy and increasing access to justice for all. The willingness of lawyers to share their training and expertise with those who cannot afford it is unquestionably one of the highest virtues of our profession. The New York Code of Professional Responsibility recognizes this:

Each lawyer should aspire to provide at least 20 hours of pro bono services annually by providing legal services at no fee and without expectation of fee to: (1) persons of limited financial means, or (2) not for profit, governmental, or public service organizations, where the legal services are primarily designed to address the legal and other basic needs of persons of limited financial means, or (3) organizations specifically designed to increase the availability of legal services to per-sons of limited financial means.

EC 2-34 (formerly EC 2-25). The same Ethical Consideration also suggests that lawyers should, in addition, reduce their fees whenever the fees would “significantly deplete the recipient’s economic resources,” or the recipient is a person of limited financial means, and that lawyers should also strive to participate “without compensation in activities for improving the law, the legal system or the legal profession. …” [Id.]

Although the goal assigned to lawyers by EC 2-34 requires them to perform a relatively modest amount of pro bono services every year (one out of every 85 hours for a typical lawyer, assuming a total of 1700 billable hours), past surveys conducted on behalf of the New York State Unified Court System suggest that this goal has not been regularly met. [See 2004 Report entitled “The Future of Pro Bono” (www.nycourts.gov/reports/probono/index.shtml)].

According to the report, which studied the provision of pro bono legal services statewide in 2002, fewer than half of New York State’s attorneys (only 46 percent) had performed any pro bono work for the poor. This was a slightly lower percentage than the percentage in 1997, the last time a survey was previously performed. [Id. at III.] According to the survey, the percentage of lawyers who met the 20 hours goal was even lower — only 27 percent. [Id.]

The report and its findings are obviously no longer fresh news. And although no updated New York-based survey figures are available today, there is some reason to think that the next time survey results are available, the numbers will have improved. [See, e.g., Mark O’Brien, “New Software Speeds Pro Bono Work,” Law Technology News (April 22, 2008), noting that “[p]ro bono hours among the Am Law 100 increased 58 percent from 2001 to 2006”].

New York, in particular, has seen a number of developments, particularly in the ethics and professional responsibility context, that have made it easier for lawyers to engage in pro bono practice. In this article, I will run through some of those recent developments, and then discuss some reasons why attorneys should do (or should do more) pro bono work—reasons above and beyond the obvious incentive that it is the right thing to do.

Ethics Developments Relating to Pro Bono Work

Law firms cite conflicts of interest as one of the biggest hurdles to expanding their pro bono practices. From their perspective, the disincentive is not only the opportunity-cost of devoting attorney time and resources to unpaid matters, but also the risk of inadvertently precluding future income-generating matters. Just because a client cannot pay for legal services does not mean that he cannot have differing interests from an existing or potential client of the firm. One easy-to-envision scenario would confront a lawyer whose law firm represents a number of banks and financial institutions, if he were asked to represent a small debtor seeking bankruptcy advice on a pro bono basis. If the clients of the law firm happened to include creditors of the pro bono client, a conflict or potential conflict under DR 5-105 or DR 5-108 might arise, leading the firm to conclude that it could not, or should not, take on an otherwise proper and appropriate pro bono representation.

Situations like this were the subject of an opinion by the Professional and Judicial Ethics Committee of the New York City Bar Association (Committee) in early 2005. The Committee was asked to opine on the appropriateness of two bar-sponsored programs that would provide volunteer lawyers to small debtors in Chapter 7 bankruptcy proceedings. [NYC Bar Op. 2005-1.] The two programs were not quite identical — in one the lawyer would assist the pro bono client only to the point of commencing a Chapter 7 proceeding (a limited representation that the Committee found to be appropriate), while in the other program, the volunteer lawyer would remain as counsel throughout the Chapter 7 proceeding.

Analyzing the conflict of interest issues under DR 5-105, the Committee concluded that because of the specific statutorily-driven process through which a Chapter 7 bankruptcy proceeds, there would normally not be sufficient adversity between parties to rise to the level of a conflict-of-interest, at least until the point at which a law firm’s creditor-client would be required to file objections to the Chapter 7 proceedings brought by the firm’s pro-bono debtor-client. [Id.] The Committee asserted a number of caveats to this conclusion, stating that the level of adversity (and, therefore, the analysis) might be different if, among other things, the materiality of the debtor’s debt to the client were high, or if the pro bono client were already involved in collection litigation with the financial institution client. [Id.]

Ultimately, the Committee concluded that lawyers should, in the initial interview with the pro bono client, ask a series of questions to help draw out the facts. If present, some facts could raise the level of adversity with the financial institution client to the point that would confirm that a conflict existed. [Id.] The Committee also recommended that, particularly in a proceeding in which the lawyer would assist throughout the entire process, the lawyer should advise the pro bono client that she might need to withdraw if a conflict with another client arose during the course of the Chapter 7 proceeding. The Committee stated:

…we believe that it would be the better practice to advise the debtor-client at the outset of the representation of the possibility that a conflict might arise that would require the lawyer to withdraw.

In fact, such advice might be affirmatively required if in the particular circumstances it appears likely to the lawyer that direct adversity will arise between the debtor and one or more creditors. [Id.]

Although carefully tailored to a precise program based on a specific statutory framework, New York City Bar opinion 2005-1 suggested the possibility that, under appropriate circumstances, a lawyer could engage in some pro bono work on behalf of a client that had potential adversity to a current client. But the opinion apparently did not give sufficient com-fort to lawyers concerned about the conflicts inherent in these arrangements, because the opinion was so narrowly focused. Almost three years later, in late 2007, the Appellate Divisions amended the New York Code of Professional Responsibility to promulgate a new Disciplinary Rule [DR 5-101-a (22 NYCRR 1200.20-a)], titled “Participation in Limited Pro Bono Legal Service Programs.” This rule on its face creates safe harbors for lawyers engaging in a variety of short-term, limited-scope pro bono representations.

Although I will briefly discuss the text of the new rule below, I should note at the outset that, as of this writing, research has revealed no ethics committee opinion or court decision interpreting this rule. For a detailed discussion of the rule and the circumstances of its creation, however, readers may wish to review the article by Hon. Juanita Bing Newton, Barbara Mule and Susan W. Kaufman, “New Rules Help Self-Represented Litigants,” New York Law Journal, at 2, col. 3 (June 26, 2008).

As adopted, DR 5-101-a focuses on “short-term limited legal services,” i.e., those that include “providing legal advice or representation free of charge” as part of a program sponsored by a court, government agency, bar association or not-for-profit legal services organization, “with no expectation that the assistance will continue beyond what is necessary to complete an initial consultation, representation or court appearance.” DR 5-101-a(A), (D). Examples that come to mind would include walk-in legal clinics, where volunteer lawyers provide legal advice without an expectation of a continued representation, or lawyer-for-a-day programs in which volunteer lawyers may represent clients for purposes of a single hearing and any subsequent documentation resulting from that hearing.

When providing these services, lawyers need not comply with the conflicts of interest rules contained in DR 5-101, DR 5-105 and DR 5-108 unless either “the lawyer has actual knowledge at the time of commencement of representation that the representation of a client involves a conflict of interest” [DR 5-101-a[A][1], or “another lawyer associated with the lawyer in a law firm is affected by those sections” [DR 5-101-a[A][2]].

The rule also contains a few important caveats. First, the lawyer must obtain the client’s consent to the limited scope of representation contemplated by the rule. DR 5-101-a(D). Second, the scope of the representation, as one might expect, is still subject to the confidentiality provisions contained in DR 4-101. [DR 5-101-a(D).] Put differently, the attorney must protect the client’s confidences and secrets (in the absence of one of DR 4-101’s exceptions), notwithstanding that the representation involves a pro bono client with a limited engagement. Finally, the rule notes two ways in which its safe harbors can disappear (and the attorney would need to withdraw) i.e., either (1) if “the court before which the representation is pending determines that a conflict of interest exists” or, (2) during the representation, “the attorney providing the services becomes aware of a conflict precluding continued representation.” [DR 5-101-a(E).]

In the absence of formal interpretation of this rule by courts or ethics committees, there are limits on what can be meaningfully said here and now. But a couple of observations are in order. First, on its face, the rule appears to avoid one of the most difficult logistical issues for a lawyer seeking to work in a bar association’s volunteer legal-assistance or helpline programs (or similar court-annexed programs): running a “conflicts check” against the lawyer’s office’s records at the outset before taking on the representation. Either the lawyer has actual knowledge of a conflict faced by him or one of his colleagues, or he does not. Although the rule does require vigilance against a conflict that he may become aware of later [DR 5-105-a[E]], the need to “clear conflicts” and delay the representation at the outset is at least relieved. Second, lawyers should be careful to issue the same type of warning to their pro bono clients about the possible need to withdraw if conflicts later develop even during the limited representation. [Id.] Here, the guidance in New York City Bar Opinion 2005-1 will be useful.

The New York City Bar Association’s Professional and Judicial Ethics Committee has taken one additional step in clarifying the ethical duties and responsibilities of attorneys engaging in certain types of pro bono work. This June, in connection with the anticipated increase in disputes relating to subprime mortgages, the Committee rendered an informal opinion, analyzing a pro bono program to be jointly administered by the City Bar Justice Center and the Federal Reserve Bank, and setting forth a mechanism enabling attorneys to undertake such matters pro bono on behalf of individual mortgagors, even when the financial institution involved is a client of their law firm. [See http://abcny.org/pdf/report/June_12_mortgage_Foreclosure_op.pdf, hereafter “informal opinion”].

As a starting point, the Committee concluded that if the law firm’s representation of the financial institution substantially relates to the mortgage taken out by the pro bono client, an attorney from the firm can not undertake the representation at all. [Informal Opinion at 3-4.] If the matters are not substantially related, however, the Committee opined that both clients could consent to the pro bono representation under certain conditions.

First, the pro bono client must consent to a representation limited to counseling and negotiating with the relevant financial institution and (if appropriate) representing the client in bankruptcy proceedings. Second, the specific attorneys undertaking the pro bono representation adverse to their firm’s institutional client must not personally represent that institution in a matter during the course of the pro bono representation. Third, if the question of whether the two matters are substantially related is a close call, the law firm should consider erecting an ethical screen between the attorneys who represent the financial institution and those who represent the pro bono client. Fourth, both the financial institution and the pro bono client should be advised by independent counsel regarding whether to consent to the arrangement. [Informal Opinion at 2-5.]

The Committee expressly noted that the financial institution may rely on advice of its own in-house counsel, who could serve as independent counsel in the matter. Under the structure of this particular project, the Committee found that the pro bono client may rely on advice of the director of this particular pro bono project in determining whether to consent. (The Committee noted that the director is “a lawyer commit-ted to representing pro bono clients” and that the director can be disinterested because there is a “second group of law firms that do not have financial institutions as clients” available to undertake the representation.) [Id. at 5.]

In all of these ways — New York City Bar Opinion 2005-1, DR 5-101-a, and the informal opinion on subprime mortgage representations — leaders in the legal profession have sought to prevent the conflicts rules from serving as an unnecessarily high barrier to pro bono service.

Reasons, or More Reasons, to Do Pro Bono

Having just outlined the ways in which the ethics rules have been changed or interpreted to facilitate pro bono practice, I thought it would also make sense, from a professional responsibility standpoint, to address briefly some of the reasons why you should do pro bono work, especially when know you can do it.

Along with the many opportunities and privileges open to lawyers, comes great responsibility. Many choose to do pro bono for the simple reason that it is the correct thing to do, to use their legal skills and training to help those in need. Perhaps that is all the incentive you need to justify spending a few more hours at the office a week. But let me give you four other reasons why you may want to consider doing (or doing more) pro bono work.

First, pro bono work can be a great training tool. One serious complaint from young and even mid-level lawyers, particularly those at large firms, is that though they are offered great training opportunities, they are not the ones typically being called upon to take depositions, negotiate agreements, or appear in court. Voila! Enter the pro bono world. Given the right pro bono assignment, any or all of those opportunities may fall to you, and you alone. Speaking from my own personal experience, I had the pleasure of arguing two different criminal appeals to the Appellate Division, First Department on a pro bono basis, and being counsel of record to the New York Court of Appeals on another. Although I did not win any of those appeals, that was not the point. The chance I had to learn and grow from those pro bono opportunities lead me to remember those matters, and the lessons I learned from them, far better than any of the billable work I did. I suspect you may find a similar result.

Second, engaging in pro bono work can give you a measure of control over what you’re working on, and how you’re working on it. By picking matters that you are interested in, you can assist yourself in gaining subject matter expertise that will help you change or develop your practice, or fast-track your experience level in an area that might give you opportunities faster than you might otherwise receive them. A lawyer, for example, eager to work on trial teams, could aid her cause by starting out with pro bono matters involving administrative hearings, where testimony is taken, and the need for skillful direct and cross-examination is important.

Third, work on pro bono practice can be a great morale booster. All attorneys, inevitably, have bad days in the office — it’s just a reality. The stress level can be high, especially when there are personality clashes with other lawyers and clients. The nature of the work can be problematic, particularly during long periods of document review. And, of course, deadlines, particularly multiple ones in close proximity, are the inevitable burden of being a lawyer. Each of these occurrences prevents you from saying truthfully that you enjoy your job. Yet, even in the midst of dealing with all of those potential drains on your morale, the positive feeling resulting from taking on and handling a pro bono matter, particularly one that falls within your area of interest, can go a long way to undoing some of those rough days. I am confident that many current and former private practitioners, looking back on their time at a law firm, would concur.

Fourth, and finally, pro bono work can build up and develop client interaction, an area that is difficult to strengthen in law school or in the early stages of a practitioner’s career. Depending on the matter, pro bono assignments can give lawyers the opportunity to work with clients one-on-one, and build up their communication and listening skills. One attribute that separates a good lawyer from a great lawyer is the ability to be left alone in a room with a client or client representative and carry on a helpful conversation. And that helpful conversation does not mean a time-passer like how the Mets or Yankees did the previous night, or what the current weather report is. The abilities to draw out and listen to client wants and needs, and to respond and counsel appropriately to client concerns and worries, are skills that will attract the attention of more senior lawyers, and more importantly, the firms’ clients, in a positive way. By its very nature, pro bono work can force you to focus on and improve these skills more readily, perhaps, than common types of billable work.

To my mind, any of these reasons alone is enough to provide a sound motive for increasing one’s commitment to pro bono work. Under the recent changes to, and interpretation of, the ethics rules that I’ve described, I hope you and your colleagues will seek out new pro bono matters, whatever your current position. If you want to take a first step in finding a pro bono matter, or if you’re simply looking for further information, one of many helpful resources can be found on the New York State Unified Court System’s website at http://www.nycourts.gov/attorneys/probono/index.shtml.

Jeremy R. Feinberg is the Statewide Special Counsel for Ethics for the New York Unified Court System. He would like to thank his colleagues Laura Smith and John Ritchie for their insight and suggestions that immeasurably improved this article. The views expressed in this article are those of the author only and are not those of the Office of Court Administration or Unified Court System.

DISCLAIMER: This article provides general coverage of its subject area and is presented to the reader for informational purposes only with the understanding that the laws governing legal ethics and professional responsibility are always changing. The information in this article is not a substitute for legal advice and may not be suitable in a particular situation. Consult your attorney for legal advice. New York Legal Ethics Reporter provides this article with the understanding that neither New York Legal Ethics Reporter LLC, nor Frankfurt Kurnit Klein & Selz, nor Hofstra University, nor their representatives, nor any of the authors are engaged herein in rendering legal advice. New York Legal Ethics Reporter LLC, Frankfurt Kurnit Klein & Selz, Hofstra University, their representatives, and the authors shall not be liable for any damages resulting from any error, inaccuracy, or omission.

Jeremy R Feinberg Pro Bono Work