Monday, October 25, 2010

A New Pledge - To Strengthen Pro Bono Legal Assistance (Part 4 of 4)

(October 24-30, 2010, is “Celebrate Pro Bono Week” in the United States and Canada and November 8-12, 2010, is “National Pro Bono Week” in the United Kingdom. This is the first of a 4-part series illustrating the need, the challenges and the priceless rewards for volunteer legal professionals. For more information about these events, go to this site for the U.S. and this one for the U.K.)

In the first three parts of this series of posts commemorating Pro Bono Week 2010, I described the extent of the unmet civil legal needs (Part 1) of low-income families in the U.S., the need for a stronger public+private partnership (Part 2) to address that need, and ways that you and your peers can help (Part 3).

This final post lays out a type of wish list of actions that can help private lawyers help more often and includes a new video (at the end). But first, let me tell you about one case I will never forget.

A Client Story

Some years ago, I took the application for legal aid from a couple of elderly women. They were the pastor and a decon of a small, poor, inner-city church located in a very low-income part of town and they had a bunch of documents with them. As I looked through their documents, I saw right away that the church had been sued by a carpet business to collect on its unpaid invoice and establish a lien on the church's only asset: its building and a half-acre of land.

The women looked at me and choked back tears. "We never ordered or received any carpet!" they said. It struck my inner-most sense of justice and I accepted their case on the spot.

When I contacted the business owner, his response made me even more determined. "So what?" he replied when I pointed out that no carpet was delivered or installed. "I got a contract and they owe me for the whole amount."

Well, he didn't have a contract; he had a quote that the minister never accepted. In a nutshell, a carefully drafted answer with counterclaims drove him into bankruptcy court and a quick and easy Adversary Proceeding not only declared his claims for a lien and debt invalid, but also that the church's fraud claims would not be discharged by his bankruptcy. And with that, it was over.

I thought that the result was deeply satisfying. In this case, I helped prevent a gross injustice and hopefully convinced this businessman to never try that again. I wrote a nice letter to the minister to explain the result and that they had nothing to worry about.

A few days later, the front desk called to tell me that the two women were in the lobby asking to see their lawyer. I was worried that they had another problem or didn't understand the outcome of their case. But when I got to the lobby, all I got were hugs, tears and thanks. "You saved our church!" they said. "You were the answer to our prayers." Those hugs and words were more valuable than any fee I had ever collected.

What We Need Now

Growing the ranks of volunteers and increasing donations to help fund pro bono programs will go a long way. We also need changes in our ethics rules and pro bono programs.

The American Bar Association added Rule 6.5, “Nonprofit and Court-Annexed Limited Legal Services Programs” to its Model Rules of Professional Conduct in 2002. That rule attempted for the first time to carve out a limited exception to some of the conflict of interest rules. The exception only applies when a lawyer:
>>>>>a. participates in a qualified “limited assistance” event,
>>>>>b. with no expectation of continuing representation in the matter presented,
>>>>>c. does not personally know of a conflict of interest with the person helped at the event, and
>>>>>d. does not personally know that another lawyer in his or her firm would have a conflict of interest with the person helped at the event.

In the wake of recent major hurricanes in the U.S., scores of prospective volunteer lawyers have shied away from providing legal assistance to disaster victims in large part because they were concerned about inadvertently violating applicable ethics rules or causing an imputed conflict of interest that hurt their firms. Another cause for hesitation to prospective pro bono volunteers, especially in areas near a state border, is the worry about inadvertently violating another state’s “unauthorized practice of law” restrictions.

Well-meaning lawyers need protection from these worries. Some pro bono programs have set up “anonymous” call centers and other systems for assisting people without the lawyer and client knowing the other’s names or the names of the parties involved, but some would argue that even that is not safe, as enough facts can often be inferred from the conversation to trigger a potential conflict of interest or disqualification.

The rules should clearly exempt from discipline any lawyer who:
 Provides:
>>>>>i. free, short-term legal assistance
>>>>>ii. in a setting where complete conflict of interest checking is not feasible,
>>>>>iii. has no plan to ever receive compensation for the work,
>>>>>iv. does not allow confidential information from the assistance to be accessed by anyone at his or her firm, and
>>>>>v. has no personal knowledge that he or anyone else in his firm would have a conflict of interest with the client being helped at the event.
 Provides only general assessment and guidance in urgent situations regarding matters involving state laws where he is not licensed, with appropriate admonitions that the client seek other guidance from a lawyer duly licensed in the other state.
 Provides limited, “unbundled” assistance to self-represented litigants, such as coaching before a hearing, reviewing proposed orders, or explaining court rules.
 Provides free limited answers to general legal questions in online forums (as long as he includes appropriate disclaimers).

Rules regulating the legal profession in each state should also clarify what information court personnel and other nonlawyers can provide, such as general procedural guidance, preprinted legal information and how to obtain legal assistance or report lawyer misfeasance to the governing body.

The ABA Ethics 20/20 commission is now reviewing the 2002 Model Rules and issues unaddressed in them. Hopefully, they will come up with more protections and the states will adopt them quickly.

Pro Bono Programs.
Lawyers today are more culturally diverse in many ways than ever before. And “culture” means a lot of things in addition to race, religion, national origin, gender and sexual orientation:

Urban, suburban or rural
Large, medium, small or solo firm
Specialist or generalist
High, medium, low or non-existent technological skills
Heavy, light or zero bar association involvement
These differences make our profession richer and stronger, but give Pro bono program directors challenges:
-> As more lawyers are concentrated in urban areas, fewer are available to provide significant pro bono assistance in rural areas.
-> Some lawyers only communicate by mobile phone and text messages, while others prefer email, faxes or messages left with their secretaries.
-> Younger lawyers tend to work easily with web-based systems, while more-experienced lawyers prefer to deliver aid in person.
-> Lawyers move from firm to firm more frequently, often forgetting to let their pro bono coordinators know of the change.
-> Clients with pre-paid mobile phones can change phone numbers faster than their addresses, yet busy volunteers do not have a lot of time to chase after them to complete a matter.

These and other challenges require program updates in many places to keep attracting new volunteers while retaining valued long-timers. Some pro bono program directors will need to use more online and electronic tools to help busy lawyers volunteer, deliver legal assistance, obtain mentoring support, and report on their results, even as some long-time volunteers still require a phone call to sell them on a new pro bono case. Even more, these tools can be used to connect rural clients with urban lawyers in many types of cases.

Others will have to expand “assisted pro se” projects in ways that require fewer volunteers or incorporate nonlawyers who can deliver legal information and pre-printed guidance. [1]

"Do It Anyway"

But do not let these gaps dissuade you from getting involved. Pro bono programs have existed successfully for many decades and their dedicated staff can accommodate almost every volunteer’s needs who regularly takes cases for them.

It is Celebrate Pro Bono Week. Take an extra case as part of the festivities!


[1] The Texas Office of Courts Administration recently produced informative guidelines [pdf here] for court personnel so they can know where the line is between "legal information" and "legal advice." It is a useful model and has apparently been well received by court personnel across the state.


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kbladow said...

Lewis - What a terrific series of posts. Thank you so much for blogging about the National Pro Bono Celebration. - K

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