Not too long ago, I accepted a pro bono case in which I agreed to represent a woman who was seeking a domestic abuse order for protection. I accepted the representation on a Friday and the hearing was set for the following Monday. I was unable to reach her over the weekend, so I planned to meet her on the morning of the hearing. When I arrived at the courthouse, I looked throughout the waiting area and saw a woman sitting alone in a conference room. Guessing it might be my client, I knocked on the door and entered the room. I asked her name and told her that I would be her lawyer. She immediately burst into tears. She then apologized and said that she thought I was going to tell her that I represented her abuser. We prepared for the hearing and I was able to help her get the relief she and her children needed. She thanked me for being her lawyer. I walked out of the courthouse that morning with a renewed understanding of the impact that a lawyer can make on someone vulnerable, scared and poor. She did not thank me because I was a particularly capable lawyer, or even because I was able to help her. She thanked me because I showed up.
This will be the first of two articles I will write on pro bono representation. In this article, I will examine pro bono representation as a matter of professionalism. I will leave the specific common ethical issues which arise in pro bono matters for the second article.
"Every lawyershall provide legal services to those unable to pay."
The unedited version of Model Rule 6.1 reminds lawyers of their "professional responsibility" to provide pro bono legal services. See Model Rules of Prof'l Conduct R. 6.1. The edits are simply my own wishful thinking, though most would not subscribe to the notion that lawyers should be forced to perform work in which they are neither competent, committed, nor interested. See Note, Amended Rule 6.1: Another Move Towards Mandatory Pro Bono? Is That What We Want?, 7 Geo. J. Legal Ethics 1139 (1994). In most states, pro bono representation remains an aspiration or goal – which makes it a matter of professional self-awareness and behavior, rather than a matter of ethics. See http://www.americanbar.org/groups/probono_public_service/policy/state_ethics_rules.html.
Lawyers don't seem to have a great deal of trouble with a conceptual understanding and acceptance of the responsibility of the profession to do free work for the poor. The difficulty is translating that understanding into a specific undertaking of pro bono work in a lawyer's everyday practice. We can rationalize our inaction in hundreds of ways. We have commitments to our clients, our practices, our families and our own individual wants and needs. The Comments to Model Rule 6.1 tell us that "[e]very lawyer, regardless of professional prominence or professional work load, has a responsibility to provide legal services to those unable to pay and personal involvement in the problems of the disadvantaged can be one of the most rewarding experiences in the life of a lawyer." Model Rules of Prof'l Conduct 6.1 cmt. 1. We are all each other's peers in the estimation of this rule, no matter how famous or how busy. We likely exaggerate the impact that taking on apro bono case will have on any of our commitments and we likely underestimate the impact that taking a pro bono case will have on the pro bono client, the way we think about our role in the profession and about ourselves.
As lawyers, we are in a rather unique position because we have an exclusive license to do what we do. Some other do-gooder can't just decide one day that she is going to represent an indigent client. Accordingly, the field of potential representation is limited to "us." Unfortunately, the number of "us" who do pro bono work is not great, so the field is further limited. See Deborah L. Rhode, Cultures of Commitment: Pro Bono For Lawyers and Law Students, 67 Fordham L. Rev. 2415 (1999). Although there are public defenders, poverty law centers, law students in clinics and others who partially fulfill the legal representation needs of the poor, the profession is left to fill the gap. We aspire to do pro bono work, not because it is the right thing to do, or because it makes us feel good, or because the need is so great, but because it is part of the calling of our profession. It is our job. We have been given a unique and exclusive license to provide legal advice and representation. No one else can do what we do. Therefore, it is up to "us" to figure out how to solve the problem of the unrepresented poor.
Part of the pro bono professionalism struggle has to do with getting a grasp on several things which will help us recognize our obligation and our place in it.
After considering the professional exclusivity that I just discussed, you must read Model Rule 6.1, or your state's corollary rule and reflect on the categories of representation which fulfill the aspirational goals articulated in the rule. The breadth of the Model Rule was likely designed to cast the widest possible net. It is unlikely that a lawyer could finish reading the rule and not be heartened by the wealth of opportunities which satisfy it. You can provide legal services to persons of limited means. Model Rule 6.1(a)(1). You can provide legal services to charitable, religious, civic, community, governmental and educational organizations in matters which are designed primarily to address the needs of persons of limited means. Model Rule 6.1(a)(2). Your skill set, interest or expertise are reflected in the rule somewhere.
Next, you must gain an appreciation of the scope of the problem. You can learn this empirically, by reviewing the annual reports of the courts in your state, or anecdotally, by talking to a judge about the need for representation that she sees every day in her courtroom. Statistics and stories provide the window through which you can see your opportunity. Taking yourself from understanding to action can only occur if you take a professional interest in the need for your help and gain an awareness of the critical nature of the need.
Once you have understood the professional obligations and the need, you must use your lawyerly creativity and imagination to begin thinking of the theoretical ways you could meet your professional obligation to do pro bono work. The sky (capped only by the cloudy ceiling of your competency) is the limit. You can be immediately competent to do what you do every day for free. On the other hand, you can learn competency to do something that you have not done since law school, or train yourself to be competent to meet your lost calling. If you are a trial lawyer, learn to advise a non-profit board. If you are a medical malpractice lawyer, learn immigration law. If you are an insurance coverage lawyer, represent kids in juvenile proceedings. Sometimes, we forget about the breadth of our education and how it has prepared us to do many things. We were trained to do so much in law school and like riding a bike, it often comes back to us as we reckon with the substantive and procedural issues in pro bono practice.You were trained to be a quick study and have the ability to work with the facts you have, within the applicable law. You were also trained to dig deeply into the substance when time permits. There are countless local and national organizations which would be happy to provide you with the training you need to begin undertaking pro bono representation. Your local bar association undoubtedly has a section or committee which promotes pro bono representation and connects lawyers with organizations which need their help and will train you to attain competence to meet the needs of its clients. A few of these are listed by DRI at https://www.dri.org/About/Cares, though your local bar association remains the most helpful resource. Oftentimes, the same pro bono group which trains you will provide you with cases. Unlike your daily practice, you will never, ever, struggle to find clients.
When you have selected your interest area, and developed competency (at least through training, because the experience will come),it is time to step over the threshold. There is nothing particularly transformative about the process of getting to the point of pro bonorepresentation. The transformation will only take place when you have done the work. As a professional, you will need to treat the case as you would any other representation for which you are paid. You will need to run a conflicts check, you will need to prepare and discuss a letter of representation with your client and clearly outline the scope of your representation. You will need to open up a file, investigate the case, meet with your client, collect evidence, and prepare for the trial or hearing (or prepare the will, or the articles of incorporation, or whatever it is that you have been retained to do). Just as you would not handle a client who paid you $150 per hour differently than one who paid you $350 per hour, the client who pays nothing is entitled to nothing but your focused attention and most outstanding representation. In fact, the financial, emotional and psychological vulnerability of your client will likely lead you to work that much harder to achieve your client's goals.
Professionals see pro bono representation as an entitlement of their position as lawyers, rather than a burdensome obligation borne by guilt. Professionals don't require a rule or regulation to understand what it means to be a lawyer. Professionals understand that pro bono is an integral part of being a lawyer. As Justice Anthony Kennedy observed:
Lawyers, like all those who practice a profession, have obligations to their calling which exceed their obligations to the State. Lawyers also have obligations by virtue of their special status as officers of the court. Accepting a court's request to represent the indigent is one of those traditional obligations. Our judgment here does not suggest otherwise. To the contrary, it is precisely because our duties go beyond what the law demands that ours remains a noble profession.
Read the rule. Turn an aspiration into action. Get trained. Get a client. Show up.
Thomas A. Gilligan, Jr., is a shareholder with Murnane Brandt in St. Paul, Minnesota. Mr. Gilligan's trial and appellate practice focuses on product liability, employment and personal injury litigation in Minnesota and Wisconsin. Mr. Gilligan serves as publications chair for DRI's Lawyers' Professionalism and Ethics Committee and is a former investigator for the Ramsey County District Ethics Committee.