Ethical Considerations for Pro Bono Representation
One of the most rewarding aspects of an attorney’s job is providing pro bono services to those in need.[1] Though not required, lawyers are encouraged to provide pro bono legal services during their legal careers.[2] Pro bono work is also a great way for new attorneys to gain experience, develop new skills, and handle their own cases from start to finish.
Just as they would for any legal representation, an attorney should understand and consider the ethical issues that may arise in a pro bono representation.
The Rules of Professional Conduct apply equally in a pro bono setting. The California Supreme Court aptly stated that “[a]n attorney’s standard of professional conduct to a pro bono client should be no different from his or her responsibility to any other client. If an attorney lacks the time and resources to pursue a client’s case with reasonable diligence, he or she is obliged to decline [the] representation, regardless of whether the attorney is paid or performs services pro bono.” (Segal v. State Bar (1988) 44 Cal.3d 1077, 1084, internal citation omitted.)
The same applies for the duty of competence. An attorney must provide legal services to pro bono clients with the “(i) learning and skill, and (ii) mental, emotional, and physical ability reasonably necessary for the performance of such service,” or become competent by acquiring the learning and skill necessary for the representation. (Rules Prof. Conduct, rules 1.1(b) and (c).) Whether a client is pro bono or paying, the duty to communicate and the duty of confidentiality are the same. (Rules Prof. Conduct, rules 1.4, 1.6; Bus. & Prof. Code, § 6068(e)(1).)
Conflicts of interest do not disappear in a pro bono representation. Just as they would for any other legal representation, an attorney should run a conflicts check before accepting any pro bono representation, and must avoid conflicts with any present or past clients or obtain an affected client’s informed written consent.[3]
A common question that comes up regarding pro bono representations is whether an attorney should have a written fee agreement for a pro bono client.[4] The answer is “yes,” and a fee agreement for a pro bono representation should clearly address the scope of the representation, especially if the attorney will only provide representation on a limited basis.
The fee agreement should also set out how costs will be handled[5] and whether the attorney may retain fees if awarded by statute or contract. Moreover, if an attorney is providing pro bono services without legal malpractice insurance and the legal representation exceeds four hours, the attorney must advise the pro bono client of this in writing upon retention, preferably in the fee agreement. (Rules Prof. Conduct, rule 1.4.2.)
Put simply, an attorney’s ethical obligations are the same for a pro bono client as a paying client. An attorney providing pro bono representation will do well to keep that in mind.
[1] Providing free legal services to friends, relatives, a client who can no longer pay for legal services, or anyone else who is not indigent does not constitute pro bono work.
[2] Comment [5] to Rule 1.0 of the California Rules of Professional Conduct provides that 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” and encourages lawyers to provide 50 hours of pro bono activity annually “to ensure equal access to the system of justice for those who because of economic or social barriers cannot afford or secure adequate legal counsel.” Business and Professions Code section 6068(h) also provides that an attorney has a duty “[n]ever to reject, for any consideration personal to himself or herself, the cause of the defenseless or the oppressed.”
[3] See Rules Prof. Conduct, rule 1.7. Additionally, Rule 1.9 prohibits an attorney from representing a new client in “the same or a substantially related matter” without providing a former client informed written consent if the attorney previously represented a former client with interests adverse to the new client. However, if an attorney provides “short-term limited legal services to a client” on a pro bono basis through “a program sponsored by a court, government agency, bar association, law school, or nonprofit organization … without expectation by either the lawyer or the client that the lawyer will provide continuing representation in the matter,” Rules 1.7 and 1.9 apply only if the attorney actually knows the representation involves a conflict of interest. (Rules Prof. Conduct, rule 6.5(a)(1.).)
[4] Attorneys must have written engagement agreements if it is reasonably foreseeable that the total expense to the client will exceed $1,000. (Bus. & Prof. Code, § 6148.)
[5] Pro bono attorneys can often seek a waiver of costs from the court but an agreement should specify who (the attorney or the client) will cover reasonable court costs in the event the waiver is denied.