Pro Bono Conference October 26, 2016 Michael Kennedy The Rule Rule 6.1 Every lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should render at least 50 hours pro bono publico legal services per year. Ethics In a way, Rule 6.1 s should ends my role and this discussion. 1
Should Some of the rules are imperative, cast in terms of shall or shall not. Others, generally cast in the term may, are permissive and define areas under the rules in which the lawyer has discretion to exercise professional judgment. No disciplinary action should be taken when the lawyer chooses not to act or acts within the bounds of such discretion. The rules are thus partly obligatory and disciplinary and partly constitutive and descriptive in that they define the lawyer s role. Rules of Professional Conduct, Scope [14] It s not even 9:25 But we have about 55 minute left. And there are good reasons to have an aspirational pro bono rule within the Rules of Professional Conduct.. So, here goes nothing. But, first, let s look at that slide again. Should Some of the rules are imperative, cast in terms of shall or shall not. Others, generally cast in the term may, are permissive and define areas under the rules in which the lawyer has discretion to exercise professional judgment. No disciplinary action should be taken when the lawyer chooses not to act or acts within the bounds of such discretion. The rules are thus partly obligatory and disciplinary and partly constitutive and descriptive in that they define the lawyer s role. Rules of Professional Conduct, Scope [14] 2
Should Some of the rules are imperative, cast in terms of shall or shall not. Others, generally cast in the term may, are permissive and define areas under the rules in which the lawyer has discretion to exercise professional judgment. No disciplinary action should be taken when the lawyer chooses not to act or acts within the bounds of such discretion. The rules are thus partly obligatory and disciplinary and partly constitutive and descriptive in that they define the lawyer s role. Rules of Professional Conduct, Scope [14] Not Exactly Silent Not mandatory. However, to the extent that the Rules are descriptive and define a lawyer s role, they actually say a lot about the provision of pro bono services. Rules are Descriptive & Define A Lawyer s Role A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system, and a public citizen having special responsibility for the quality of justice. Preamble & Scope [1]. 3
Rules are Descriptive & Define A Lawyer s Role As a public citizen, a lawyer should seek improvement of... access to the legal system.... Preamble & Scope [6]. Rules are Descriptive & Define A Lawyer s Role A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes person who are not poor, cannot afford adequate legal assistance. Rules are Descriptive & Define A Lawyer s Role Therefore, all lawyers should devote professional time and resources and use civic influence to ensure equal access to our system of justice for all those who because of economic or social barriers cannot afford or secure adequate legal counsel. Preamble & Scope [6]. 4
Rules are Descriptive & Define A Lawyer s Role Lawyers play a vital role in the preservation of society. The fulfillment of this role requires an understanding by lawyers of their relationship to our legal system. The Rules of Professional Conduct, when properly applied, serve to define that relationship. Preamble & Scope [13]. The Lens With all that being said, I d like you to look at the next part of the discussion through the lens of: Mandatory Pro Bono Only Change being shall instead of should in Rule 6.1 Scenario 1 Disciplinary Counsel: I m investigating a complaint that alleges that you did not provide at least 60 of hours of pro bono legal services, as such services are defined by Rule 6.1. Does Lawyer have a defense to the allegation? 5
Scenario 1 You didn t provide at least 60 hours of pro bono legal services this year, as that term is defined by Rule 6.1. Does Lawyer have a defense? Yes. Rule 6.1 states that a lawyer should render at least 50 hours of pro bono public services per year. Scenario 2 What Say You? Lawyer alleged not to have provided at least 50 hours of pro bono services. Lawyer responds: I complied with the Rule. I provided 39 hours of legal services at a substantially reduced fee to persons of limited means. I also provided 13 hours of legal services at no fee to Vermont Free Legal Answers. Assume Lawyer s statement are true. Rule 6.1 Lawyer should (a) provide a substantial majority of the 50 hours of legal services without fee or expectation of fee to: (1) persons of limited means; or (2) charitable, religious, civic community, governmental and educational organizations in matters which are designed primarily to address the needs of persons of limited means. 6
Scenario 2 Lawyer provided 39 of 52 hours at a substantially reduced fee to persons of limited means. That s admirable and great. But the substantially reduced fee takes it out of Rule 6.1(a), puts it into Rule 6.1(b), and means that substantial majority of the 50 hours didn t occur in activities authorized by 6.1(a). Query The words limited means appear in Rule 6.1(a)(1), 6.1(a)(2), and 6.1(b)(2). And again in the final sentence of Rule 6.1. What s it mean? Any thoughts? Limited Means? Comment [1] Every lawyer... 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. Does that answer it? 7
Comment [3] to the Rescue? Persons eligible for legal services under paragraphs (a)(1) and (2) are those who qualify for participation in programs funded by the Legal Services Corporation and those who incomes and financial resources are slightly above the guidelines used by such organizations but nevertheless cannot afford counsel. Confession: I don t know those income guidelines. Even if I did, is the definition of limited means too strict? Scenario 3 Again, Lawyer alleged not to have provided at least 50 hours of pro bono services. Replies: yes I did. I have about 65 hours into Client s post-judgment divorce issues. Client stopped paying about ¾ of the way thru the divorce and still has an outstanding bill. I figured Client might do me right this time, so that s why I agreed to help out. But I m not surprised that it didn t happen. Assume the hours are accurate. INTENT MATTERS 6.1(a): In fulfilling this responsibility the lawyer should provide a substantial majority of the 50 hours of legal services without fee or expectation of fee. Do not make an argument But Mike, it s in the disjunctive without fee, or, expectation of fee and I provided it without a fee. 8
INTENT MATTERS Comment [4] Because service must be provided without fee or expectation of fee, the intent of the lawyer to render free legal services is essential for the work performed to fall within the meaning of paragraphs (a)(1) and (2). INTENT MATTERS Comment [4] Accordingly, services rendered cannot be considered pro bono if an anticipated fee is uncollected.... INTENT MATTERS Comment [4] There s an exception to the last statement. Do you know what it is? 9
Exception Comment [4] Accordingly, services rendered cannot be considered pro bono if an anticipated fee is uncollected, but the award of statutory attorney s fees in a case originally accepted as pro bono would not disqualify such services from inclusion under this section. Lawyers who do receive fees in such cases are encouraged to contribute an appropriate portion of such fees to organizations or projects that benefit persons of limited means. Scenario 4 Lawyer alleged not to have provided 50 hours of pro bono services. Response: I m a government attorney. The rule doesn t apply to me. What say you? Government Attorneys Nothing in Rule 6.1 exempts government attorneys, or any other type of attorney. Comment [1]: Every lawyer, regardless of professional prominence or professional workload, has a responsibility to provide legal services to those unable to pay... 10
Government Attorneys Comment [5]: Constitutional, statutory, or regulatory restrictions may prohibit or impede government or public sector lawyers and judges from performing the pro bono services outlined in paragraphs (a)(1) and (2). Accordingly, where those restrictions apply, government and public sector lawyers and judges may fulfill their pro bono responsibility by performing services outlined in paragraph(b). Rule 6.1(b) Delivery of services at no fee or substantially reduced fee to: Individuals, groups, or organizations seeking to secure or protect civil rights, civil liberties, or public rights; or, Charitable, religious, civic, community, governmental, and educational organizations in matters in furtherance of their organizational purposes, where payment of standard legal fees would significantly deplete the organization s economic resources or would otherwise be inappropriate Delivery of legal services at a substantially reduced fee to persons of limited means; or, Participation in activities for improving the law, the legal system or legal profession. 6.1 Other thoughts Comment [9] Might be times when it is not feasible for a lawyer to engage in pro bono services. If so, may discharge responsibility by providing financial support to organizations providing free legal services to people of limited means. Support should be reasonably equivalent to value of services that would have been provided. At times, firms may aggregate hours & satisfy collectively. 11
6.1 Other thoughts Comment [10] Even all the pro bono programs aren t enough, so the government & profession have instituted additional programs to meet the need. Every lawyer should financially support such programs, in addition to either providing direct pro bono services or making financial contributions when pro bono service is not feasible. 6.1 Other thoughts Comment [11] Law firms should act reasonably to enable and encourage all lawyers in the firm to provide the pro bono legal services called for by this rule. See, Rule 1.0(c): Firm defined as lawyer or lawyers in... employed in a legal services organization or the legal department of a corporation or other organization. Rule 1.13 makes it clear that a government agency is an organization. Beyond Rule 6.1 What other rules apply when a lawyer is providing pro bono services? 12
Beyond 6.1 The Rules of Professional Conduct apply. All of them. So many, that it s unreadable. The Rules Rule 1.1 Competence Rule 1.3 Diligence & promptness Rule 1.4 Communication Rule 1.14 Client Under a Disability Rule 1.15 Safekeeping Property Rule 1.15A Trust Accounting Rule 3.3 Candor to Tribunal Rule 4.4 Fairness to Opposing Party Rule 4.1 Candor to Others Rule 4.2 Communication with Represented Person Rule 4.3 Dealing with the Unrepresented Person Rule 4.4 Rights of Third Persons Rule 4.5 Threatening Criminal Prosecution Rule 5.1 Responsibilities of Supervising Attorneys Rule 5.3 Responsibilities Regarding Nonlawyer Assistants Rule 5.4 Professional Independence of a Lawyer Rule 8.3 Mandatory Reporting Rule 8.4 - Misconduct What about conflicts? Do the conflicts rules apply? 13
Do the Conflicts Rules Apply? A. No. B. Yes, with some exceptions. C. Yes, but they are relaxed in certain circumstances. Do the Conflicts Rules Apply? C. Yes, but they are relaxed in certain circumstances. Conflicts & Pro Bono When are the conflicts rules relaxed? 14
Conflicts & Pro Bono The conflicts rules are relaxed in situations covered by Rule 6.5. More specifically, the conflicts rules are relaxed when a lawyer: Provides short-term limited legal services Under the auspices of a program sponsored by a nonprofit or court Without expectation by lawyer or client that the lawyer will provide continuing legal representation Conflicts & Pro Bono Why do I say the conflicts rules are relaxed as opposed to saying there are some situations in which they don t apply? In other words, what s the key factor, besides those outlined in the previous slide? Conflicts & Pro Bono Rules 1.7 and 1.9 apply, but only when a lawyer knows: that the representation of the client involves a conflict of interest; or, that another lawyer in the law firm is disqualified by a conflict. ACTUAL KNOWLEDGE vs. NEGLIGENT CONFLICT CHECK 15
REMEMBER!! The conflicts rules are relaxed in situations covered by Rule 6.5. More specifically, the conflicts rules are relaxed when a lawyer: Provides short-term limited legal services Under the auspices of a program sponsored by a nonprofit or court Without expectation by lawyer or client that the lawyer will provide continuing legal representation Taking a case on your own, conflicts rule will still apply, even if you aren t charging a fee. Conflicts & Pro Bono Comment [5]: If, after commencing a short-term limited representation in accordance with this rule, a lawyer undertakes to represent the client in the matter on an ongoing basis, Rules 1.7, 1.9(a), and 1.10 become applicable. It s Almost Halloween GHOSTWRITING 16
ABA Formal Opinion 07-446 Client engages lawyer for limited purpose of drafting or reviewing a document that the client will file as a self-represented litigant. Issue: Do the rules at any point require a lawyer so engaged to disclose, or ensure disclosure of, the fact or extent of such assistance to the tribunal or to adverse parties? Non-Issue: Limited Representation. Clearly allowed By Rule 1.2(c). Arguments for Yes. Reasons to require disclosure: Misleading to court and adverse party Allows lawyer to escape consequences of frivolous pleading Courts give special treatment to SRLs & hold them to less stringent standards. This isn t fair if, in fact, it s not a SRLs pleading. Notes that some States compromised by requiring disclosure of assistance, but without requiring identification of the lawyer ABA Answer is No. A lawyer may provide legal assistance to litigants appearing before tribunals pro se and help them prepare written submissions without disclosing or ensuring the disclosure of the nature or extent of such assistance. 17
ABA Responds to Arguments for Yes. Misleading to Courts & Adverse Parties. Not misleading at all. No affirmative statement by lawyer. So, absent an affirmative statement by the client, upon advice of lawyer, that no lawyer helped me, it s not dishonest or misleading. ABA Responds to Arguments for Yes. Lawyer Escapes Consequences for Frivolous Pleadings Such rules apply only if a lawyer signs the pleading and thereby makes an affirmative statement to the tribunal concerning the matter. Where a pro se litigant is assisted, no such duty is assumed. ABA Responds to Arguments for Yes. Misleads Courts Into Giving Special Treatment to SRL Not true. Indeed, many authorities studying ghostwriting in this context have concluded that if the undisclosed lawyer has provided effective assistance, the fact that a lawyer was involved will be evident to the tribunal. If the assistance has been ineffective, the pro se litigant will not have secured an unfair advantage. 18
ABA Responds to Arguments for Yes. Misleads Courts Into Giving Special Treatment to SRL Not true. Indeed, many authorities studying ghostwriting in this context have concluded that if the undisclosed lawyer has provided effective assistance, the fact that a lawyer was involved will be evident to the tribunal. If the assistance has been ineffective, the pro se litigant will not have secured an unfair advantage. ABA Responds to Arguments for Yes. Misleads Courts Into Giving Special Treatment to SRL As stated by one commentator: Practically speaking ghostwriting is obvious from the face of the legal papers, a fact that prompts objections to ghostwriting in the first place. Thus, where the court sees the higher quality of the pleadings, there is no reason to apply any liberality in construction because liberality is, by definition, only necessary where pleadings are obscure. If the pleading can be clearly understood, but an essential fact or element is missing, neither an attorney-drafted nor a pro se-drafted complaint should survive the motion. A court that refuses to dismiss or enter summary judgment against a non-ghostwritten pro se pleading that lacks essential facts or elements commits reversible error in the same manner as if it refuses to deny such dispositive motions against an attorneydrafted complaint. Other Considerations Are you limited to areas of law in which you re competent? Coaching are you allowed to coach a client who intends to proceed pro se? Ghostwriting ethical or not? Can you pay fees, costs, expenses for the client? If so, are there any limits? What do you do if you learn that the client has misrepresented income status? What about the client who isn t competent? 19
Pro Se Litigants All rules apply Keep in mind 4.2 & 4.3 And duty of loyalty required by 1.1 and 1.3 UP = unrepresented litigants Basics of Rule 4.3 In dealing on behalf of a client with a person Party, witness, or neither who is not represented by counsel no knowledge requirement. Applies unless you know person is represented. Rule 4.3 Imposes 3 Duties 1. Lawyer shall not state or imply that Lawyer is disinterested. 2. If Lawyer knows or reasonably should know that UP misunderstands Lawyer s role, Lawyer must clear up the misunderstanding. 3. If reasonable probability that UP s interests conflict with client s, no legal advice other than advice to seek counsel. 20
Rule 4.3 - Comment 1 Might not be enough simply to say I m Mike s lawyer. Where necessary, lawyer must explain that unrepresented person s interests are adverse to lawyer s client s interests Line seems to be: do not foster feeling of this lawyer is on my side. Or, if you realized you ve fostered that feeling, clarify it. Rule 4.3 Disinterest & Social Media General consensus is that a friend request, absent name, role, and true purpose of request falsely implies disinterest and violates the rule. How do I know UP is confused? What do you think I should do? What will happen if I do? I don t understand who you re trying help Accompanying UP to a police interview when your client is also a suspect 21
Rule 4.3 Comment 2 Rule does not prohibit lawyer from negotiating terms of a transaction or settling dispute Lawyer may State terms upon which client will settle Prepare documents for unrepresented s signature Explain Lawyer s view of meaning of document Explain Lawyer s view of underlying legal obligations What constitutes advice? Probably depends on experience & sophistication of the UP Will definitely be viewed from perspective of what UP reasonably heard and understood, not what you meant or thought that you said Sort of Represented ABA Formal Opinion 472 Communication with Person Receiving Limited Scope Legal Representation 22
Don t Bury Your Head Although Rule 4.2 does not require a lawyer to ask a person if he or she is represented by counsel before communicating with that person about the subject of the representation a lawyer s knowledge that the person has obtained assistance from another lawyer may be inferred from circumstances. When in doubt, ask. If the lawyer has reason to believe that an unrepresented person on the opposing side has received limited-scope legal services, the lawyer should begin the communication with that person by asking whether that person is or was represented by counsel for any portion of the matter You might have to stop. If the person states that he or she is or was represented by counsel in any part of a matter, and does not articulate either that the representation has concluded or that the issue to be discussed is clearly outside the scope of the limited-scope representation, the lawyer requesting information should contact the lawyer providing limited-scope services to identify the issues on which the inquiring lawyer may not communicate directly with the person receiving limited scope services. 23
At the very least, identify which rule applies The lawyer must comply with Rule 4.2 and communicate with the person s counsel when the communication concerns an issue, decision, or action for which the person is represented. Under Rule 4.3, however, the lawyer may communicate directly with the person on aspects of the matter for which no representation exists 24