Additional Duties to the Court - July 13

Question 1

What are pro bono publico legal services? (Q)

Answer 1

Pro bono publico legal services are free or reduced-cost legal services, which may include services to individuals of limited means and services to civic or charitable groups. Pro bono publico translates to “for the public good” and is usually abbreviated to simply pro bono.

Question 2

Under the Model Rules of Professional Conduct (MRPC), should a lawyer aspire to spend 50 hours per year rendering pro bono legal services? (Q)

Answer 2

Yes. Under the MRPC, a lawyer should aspire to provide 50 hours of pro bono legal services per year. However, each state may set a higher or lower number of hours of pro bono service, depending upon local needs and conditions.

Question 3

Should a lawyer provide the substantial majority of her annual pro bono services by serving, without a fee or expectation of a fee, either individuals of limited means or organizations that serve those individuals? (Q)

Answer 3

Yes. A lawyer should provide the substantial majority of her annual pro bono services by serving, without a fee or expectation of a fee, either individuals of limited means or organizations that serve the needs of those individuals. The individuals served may be (1) those who formally qualify for low-income legal-assistance programs or (2) those who do not qualify for free services based on income but who nonetheless cannot afford legal counsel.

Question 4

If a lawyer is awarded statutory attorney’s fees in connection with pro bono litigation, does the lawyer’s work nonetheless qualify as pro bono work? (Q)

Answer 4

Yes. If a lawyer is awarded statutory attorney’s fees in connection with pro bono litigation, the lawyer’s work nonetheless qualifies as pro bono work. However, lawyers who receive these fees are encouraged to donate a suitable portion to organizations that assist individuals of limited means.

Question 5

While providing a substantial majority of his pro bono services to individuals of limited means or related organizations, should a lawyer provide any additional pro bono services to religious, civic, or charitable groups; to individuals of limited means based on a reduced fee; or to activities or organizations dedicated to improving the legal system? (Q)

Answer 5

Yes. Although a lawyer should provide the majority of his pro bono services as free services to persons of limited means, the lawyer should provide any additional pro bono services to:

religious, civic, or charitable groups, especially those that cannot afford standard legal fees;

individuals of limited means based on a reduced fee; or

activities or organizations dedicated to improving the law, the legal system, or the legal profession.

Question 6

If a lawyer is unable to contribute pro bono services for a period of time, may the lawyer satisfy his pro bono responsibilities by making monetary donations to organizations that provide legal services to individuals of limited means? (Q)

Answer 6

Yes. If a lawyer is unable to contribute pro bono services for a period of time, the lawyer may satisfy his pro bono responsibilities by making monetary donations to organizations that provide legal services to individuals of limited means. The amount of the donations should be reasonably equivalent to the dollar value of the hours of service that the lawyer would otherwise provide.

Question 7

In addition to providing annual pro bono services, should a lawyer contribute financially to organizations that provide legal services to individuals of limited means? (Q)

Answer 7

Yes. In addition to providing annual pro bono services, a lawyer should make voluntary financial contributions to organizations that provide legal services to individuals of limited means. This ethical guidance recognizes that lawyers’ individual pro bono service hours might not be sufficient to meet the needs of individuals with limited means and therefore encourages additional support to governmental and private programs established to provide legal services to those individuals.

Question 8

Under the MRPC, is a lawyer subject to professional discipline for failing to fulfill her responsibility to provide pro bono services? (Q)

Answer 8

No. Under the MRPC, a lawyer is not subject to professional discipline for failing to fulfill her responsibility to provide pro bono services. The MRPC rules on pro bono service are recommended guidelines, not strict professional obligations.

Question 9

Is a client-lawyer relationship formed if a court appoints a lawyer to represent a client? (Q)

Answer 9

Yes. A client-lawyer relationship is formed if a court appoints a lawyer to represent a client. This is true even if neither the lawyer nor the client sought the appointment. A lawyer has the same professional duties and obligations toward an appointed client as toward any other client.

Question 10

In general, may a lawyer decline or otherwise avoid a court-appointed representation without good cause for being excused? (Q)

Answer 10

No. In general, a lawyer may not attempt to avoid a court-appointed representation. Instead, lawyers have a responsibility to take on pro bono cases, which may include representing indigent or unpopular clients. However, a lawyer may decline a court appointment if she can show good cause why she should not be appointed. Good cause might exist if:

the representation would likely require the lawyer to violate the rules of professional conduct,

the representation would likely place an unreasonable financial burden on the lawyer, or

the client or the client’s goals are so repugnant to the lawyer that the lawyer’s relationship with or ability to represent the client will likely be impaired.

Question 11

An activist painted graffiti on some downtown buildings to protest the city’s decision to put fluoride in the water system. The activist was arrested. The activist was indigent, and the local court appointed a lawyer to represent the activist pro bono. The lawyer believed strongly in the benefits of fluoridated water and viewed the activist as an eccentric person whose protests posed a danger to public health. Nevertheless, the lawyer knew that despite his own opinions about the matter, he could provide a competent defense to the activist.

Must the lawyer accept the appointment? (Q)

Answer 11

Yes. The lawyer must accept the appointment. All lawyers have a responsibility to provide pro bono services, and this responsibility may entail taking on unpopular matters or clients. Lawyers may not seek to avoid court appointments without good cause. If a client or cause is so repugnant to a lawyer that the lawyer is unable to provide competent representation, the lawyer may decline the representation—but a lawyer often must overlook his own opinions when representing a client.

Here, the lawyer believed the activist was eccentric and had harmful ideas. However, the lawyer also believed that he could put his misgivings aside and provide competent representation. Thus, the lawyer must accept the appointment, however distasteful he may find the client’s cause.

Question 12

What is a legal-services organization? (Q)

Answer 12

A legal-services organization is an organization that provides free or low-cost legal services to individuals who could not otherwise afford legal representation. Legal-services organizations are commonly or generically referred to as legal aid. These organizations are typically nonprofits established for civic or charitable purposes. A legal-services organization may choose to provide general services to a particular population, such as the homeless, or to provide services in connection with particular causes, such as voting rights or child welfare.

Question 13

May a lawyer simultaneously practice law in a law firm and serve as a director, officer, or member of a legal-services organization, even if the organization serves persons whose interests are adverse to the lawyer’s clients? (Q)

Answer 13

Yes. A lawyer may simultaneously engage in private practice at a law firm and serve as a director, officer, or member of a legal-services organization. This is permissible even if the legal-services organization serves individuals whose interests are adverse to the lawyer’s clients.

However, the lawyer must not knowingly participate in a decision or action of the organization if the decision or action:

would violate the lawyer’s obligations regarding conflicts of interest or

might adversely affect the organization’s representation of a client whose interests are adverse to one of the lawyer’s clients.

Question 14

A lawyer served on the board of a legal-services organization that represented indigent clients. In private practice at her law firm, the lawyer regularly represented a city. The legal-services organization was considering suing the city for failing to provide enough warming stations for homeless residents. At a board meeting, the lawyer strongly objected to the suggestion that the legal-services organization should file suit against the city on behalf of its homeless residents.

Has the lawyer engaged in professional misconduct? (Q)

Answer 14

Yes. The lawyer has engaged in professional misconduct. A lawyer may hold both a position in private practice and a position with a legal-services organization, even if the organization serves clients whose interests are adverse to a client of the lawyer. However, the lawyer must not knowingly participate in decisions or actions that would raise a conflict of interest or have an adverse effect on the representation of a client of the organization.

Here, the lawyer represented the city in private practice, and the organization represented the homeless, whose interests were directly adverse to the city in this dispute. The organization’s decision not to sue the city could have a materially adverse effect on the homeless. The lawyer knew of this conflict, yet she used her position to argue against suing the city. Thus, the lawyer engaged in professional misconduct.

Question 15

If a lawyer is a director, officer, or member of a legal-services organization, does the lawyer automatically have a client-lawyer relationship with the individuals whom the organization serves? (Q)

Answer 15

No. A lawyer who is a director, officer, or member of a legal-services organization does not for that reason alone have a client-lawyer relationship with the individuals whom the organization serves. A contrary rule would deter lawyers from serving in legal-services organizations. However, a lawyer must be alert to potential conflicts of interest that may arise, and the organization will benefit from written policies to ensure that the organization’s services are not affected by any conflicting interests of its members.

Question 16

If a lawyer participates in a nonprofit or court-sponsored program that renders short-term, limited legal services to clients without the expectation of ongoing representation, is the lawyer subject to the normal rules governing conflicts of interest? (Q)

Answer 16

No. If a lawyer participates in a nonprofit or court-sponsored program to render short-term, limited services without expectation of an ongoing representation, e.g., a legal-advice hotline or a walk-in consultation day, the lawyer is not subject to the normal rules governing conflicts of interest, as the lawyer will not have time to screen for conflicts. Thus, in this type of representation:

the lawyer is not subject to the general conflict-of-interest rules for current clients or the rule prohibiting adverse representation against former clients, unless the lawyer knows of the conflict; and

the lawyer is not disqualified merely because another member of the lawyer’s firm is disqualified, unless the lawyer knows of the other lawyer’s disqualification.
In other words, the lawyer will be disqualified only if the lawyer knows about the conflict at the time of the short-term representation.

Question 17

If a lawyer participates in a nonprofit or court-sponsored program that renders short-term, limited legal services to clients without the expectation of ongoing representation, will the lawyer’s representation of the client trigger the conflict-of-interest rules regarding other lawyers within a law firm? (Q)

Answer 17

No. If a lawyer participates in a nonprofit or court-sponsored program to render short-term, limited services without expectation of an ongoing representation, e.g., a legal-advice hotline or a walk-in consultation day, this will not trigger the conflict-of-interest rules regarding other lawyers within a law firm because the representation is not considered substantial enough to raise a significant risk of conflict with the firm’s other clients. Thus, the firm will not be disqualified from representing a client who is adverse to the lawyer’s short-term client, nor will the lawyer’s participation be imputed to the other lawyers in the firm for conflicts purposes.

The only exception to this rule is if the lawyer knows that another lawyer within the firm would be disqualified from representing the short-term client. In that case, the lawyer may not undertake the short-term representation.

Question 18

If a lawyer serves as a director, officer, or member of an organization that seeks to reform the law or the administration of the law, does the lawyer have a client-lawyer relationship with the organization? (Q)

Answer 18

No. A lawyer who serves as a director, officer, or member of an organization that seeks to reform the law or the administration of the law does not have a client-lawyer relationship with the organization. A contrary rule would needlessly create conflicts of interest that would deter lawyers from serving in these kinds of organizations.

Question 19

May a lawyer serve as a director, officer, or member of an organization that seeks to reform the law or the administration of the law, even if the organization’s work might affect the interests of the lawyer’s clients? (Q)

Answer 19

Yes. A lawyer may serve as a director, officer, or member of an organization that seeks to reform the law or the administration of the law, even if the organization’s work might affect the interests of the lawyer’s clients. However, if the lawyer knows that a client may benefit from a decision in which the lawyer participates, the lawyer must disclose that benefit. In doing so, the lawyer is not required to identify the client.

Question 20

May a lawyer or law firm accept a government legal engagement or an appointment by a judge if the lawyer or law firm has made or solicited political contributions for the purpose of obtaining that type of engagement or appointment? (Q)

Answer 20

No. A lawyer or law firm may not accept a government legal engagement or an appointment by a judge if the lawyer or law firm has made or solicited political contributions for the purpose of obtaining or being considered for that type of engagement or appointment. Although lawyers may participate fully in the political process, the exchange of contributions for appointments, or the appearance of such an exchange, undermines the integrity of the legal profession.

Question 21

For purposes of the rule against accepting engagements or appointments in connection with political contributions, do uncompensated services qualify as contributions? (Q)

Answer 21

No. For purposes of the rule against accepting engagements or appointments in connection with political contributions, uncompensated services do not qualify as contributions. Thus, a lawyer may serve as a campaign volunteer or render other unpaid political services without violating this rule.

Question 22

For purposes of the rule against accepting engagements or appointments in connection with political contributions, must a lawyer or law firm reject every type of engagement or appointment by a judge? (Q)

Answer 22

No. For purposes of the rule against accepting engagements or appointments in connection with political contributions, a lawyer or law firm is not required to reject every type of engagement or appointment by a judge. The prohibition does not apply to engagements or appointments made:

to perform uncompensated activities or services;

after a merit-based process, independent of political contributions and based on expertise, experience and cost; or

in rotation from a list compiled without reference to political contributions.

These types of engagements or appointments do not carry the same risks of impropriety or the appearance of impropriety as those made on some other basis.

Question 23

May a lawyer state or imply that the lawyer has the ability to influence a government agency or official to achieve results through illegal or unethical means? (Q)

Answer 23

No. A lawyer may not state or imply that the lawyer has the ability to influence a government agency or official to achieve results through means that violate the law or the rules of professional conduct. These statements or implications constitute professional misconduct and may subject the lawyer to professional discipline.

Question 24

A lawyer was seeking to be hired by a real-estate developer who was attempting to obtain permits from the city council to build a downtown highrise. The lawyer told the developer that he had previously represented a member of the city council who would be voting on the permits. The lawyer explained that he “knew some secrets” about the councilmember and said that the councilmember would therefore be “open to suggestions” from the lawyer. The developer then hired the lawyer to represent him in the permitting process.

Has the lawyer committed professional misconduct? (Q)

Answer 24

Yes. The lawyer has committed professional misconduct. It is misconduct for a lawyer to state or imply that he can improperly influence a government official or that he can achieve results by violating the rules of professional conduct or the law. Additionally, the rules of professional conduct prohibit a lawyer from using information related to the representation of a former client against that former client.

Here, the lawyer implied that he could effectively blackmail the councilmember to vote for the developer’s permits. Not only is this likely illegal, but it also violates the rules of professional conduct to use information relating to the representation of a former client against that client. Thus, the lawyer has committed professional misconduct by implying that he can influence the councilmember either through illegal action or through action that would violate the ethical rules.

Question 25

May a lawyer knowingly assist a judge or other judicial officer in violating the law or the rules of judicial conduct? (Q)

Answer 25

No. A lawyer may not knowingly assist a judge or other judicial officer in violating the law or the rules of judicial conduct. Any assistance of this nature constitutes professional misconduct and may subject the lawyer to professional discipline.