The
Rules and Pro Bono
by Patrick Burns
Lawyers
have a virtual monopoly on access to the legal system. Because of this, the profession has long been
understood to bear a corresponding obligation to help the disadvantaged
in need of legal services. The
fact that lawyers recognize the need to volunteer their efforts —
and have consistently acknowledged this obligation as arising from
the license to practice law — is an important part of what distinguishes
the practice of law as a profession.
Pro
Bono Expectations
The roots of voluntary
pro bono go deep. In the early
19th century David Hoffman framed a code of professional ethics for
lawyers commonly referred to as Hoffman’s 50 Resolutions. Resolution 18 expressed a pro bono obligation:
To my clients
I will be faithful; and in their causes zealous and industrious. Those who can afford to compensate me must do
so; but I shall never close my ear or heart because my client’s means
are low. Those who have none, and who have just causes,
are of all others the best entitled to sue or be defended; and they
shall receive a due portion of my services, cheerfully given.
The American Bar Association
weighed in on the issue of pro bono work in 1908 when it adopted its
Canons of Ethics. Canon 12
carried forward the idea that lawyers ought to provide legal services
to those who cannot afford them, providing in part:
A client’s ability
to pay cannot justify a charge in excess of the value of the service,
though his poverty may require a less charge, or even none at all. … In
fixing fees it should never be forgotten that the profession is a
branch of the administration of justice and not a mere money-getting
trade.
In the November 1938
edition of Hennepin Lawyer, then-HCBA president John C. Benson announced:
The call will
soon go out for volunteers who will be willing to render legal services
for a non-compensatory fee in order that it may be said of this community
that whoever has a just cause will have that cause adequately reviewed
and handled even though he may not be able to pay his attorney more
than a fraction of the value of the service. …
When the call comes, let us have a response which will make
each of us proud to say that our association is doing a work which
has gone far in educating the public to understand the lawyer’s appreciation
of his professional and social obligations.
The Code of Professional
Responsibility, adopted by the ABA in 1969 and in Minnesota in 1970,
addressed pro bono services in the nonmandatory Ethical Considerations,
significantly expanding on the philosophy underlying the pro bono
obligation. Ethical Consideration
2-25, recognizing the changing times and the increasing pressures
on lawyers to produce billable hours, still encouraged service to
the disadvantaged. It provided, in part:
The basic responsibility
for providing legal services for those unable to pay ultimately rests
upon the individual lawyer, and personal involvement in the problems
of the disadvantaged can be one of the most rewarding experiences
in the life of a lawyer. Every
lawyer, regardless of professional prominence or professional workload,
should find time to participate in serving the disadvantaged.
The rendition of free legal services to those unable to pay
reasonable fees continues to be an obligation of each lawyer, but
the efforts of individual lawyers are often not enough to meet the
need. … Every lawyer should support all proper efforts
to meet this need for legal services.
Current Rule 6.1, Minnesota
Rules of Professional Conduct (MRPC), recognizes the responsibility
of all lawyers to render pro bono services.
The rule establishes an aspirational goal of 50 hours of pro
bono per year, sets forth a definition of what kinds of service may
be rendered in fulfilling the aspirational goal, and encourages financial
contributions to organizations providing legal services to persons
of limited means. The Comment to this rule emphasizes the voluntary
nature of its obligations, providing that “the responsibility set
forth in this rule is not intended to be enforced through disciplinary
process.”
The Preamble to the
MRPC provides that lawyers, as members of the legal profession, have
a special responsibility for the quality of justice.
It provides:
A lawyer should
be mindful 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.
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 and social barriers
cannot afford or secure adequate legal counsel.
The Supreme Court’s
Professionalism Aspirations, adopted in 2001, also urge lawyers to
dedicate and commit themselves to equal access to the legal system.
Enabling
Pro Bono
Recent amendments to
the MRPC have made it easier to provide pro bono services without
impediment. Rule 6.5, MRPC,
has eased slightly the imputation of conflicts of interest so as to
permit lawyers to render short-term limited legal services to pro
bono clients without fear that so doing will inadvertently disqualify
the lawyer’s partners or associates from a representation adverse
to the pro bono client.
Rule 6.5 applies only
in those situations where the services are rendered under the auspices
of a program offering pro bono legal services and where there is no
expectation by either the client or the lawyer that the lawyer will
provide continuing representation.
The types of programs contemplated by the rule include legal-advice
hotlines, advice-only clinics and pro se counseling programs.
The rule provides that
the lawyer may not meet with the pro bono client if the lawyer knows
that either the lawyer or anyone else in the lawyer’s firm either
currently represents someone with interests adverse to the pro bono
client or previously represented someone whose interests are now adverse
to the pro bono client in the same or a substantially related matter.
The lawyer who meets
with the pro bono client will be disqualified from subsequently undertaking
the representation of someone adverse to that client in the same or
substantially related matters. Ordinarily,
this disqualification would be imputed to other members of the lawyer’s
firm pursuant to the operation of Rule 1.10, MRPC.
However, Rule 6.5 provides that the lawyer’s meeting with the
pro bono client will not disqualify the lawyer’s partners or associates
from representing or continuing to represent someone adverse to the
pro bono client. Any information
obtained from the pro bono client must, in any event, be held confidential.
Rule 5.4, MRPC, was
recently amended to permit and promote pro bono services in matters
where court-awarded fees may be available.
Rule 5.4(a), MRPC, with certain exceptions, prohibits the sharing
of legal fees with nonlawyers. Rule
7.2(b), MRPC, prohibits lawyers from giving anything of value to a
person for recommending the lawyer’s services.
Taken together, these rules were previously understood by some
to prohibit lawyers from asking for court awards of attorneys fees
if those fees were to be given to the legal services or pro bono organization
that employed or recommended the lawyer.
On October 1, 2005, Rule 5.4 was amended to permit the sharing
of legal fees with legal services and pro bono organizations.
The rule provides that, upon full disclosure and court approval,
a lawyer may share court-awarded legal fees with a nonprofit organization
that employed, retained, or recommended employment of the lawyer in
the matter.
Further changes to the
MRPC to promote the provision of legal services to the poor are in
the works. The MSBA will soon
be petitioning the Supreme Court, requesting an amendment to Rule
1.15, MRPC, for the purposes of promoting legal services to the poor.
Most lawyers holding client or third party funds in trust hold
those funds in pooled IOLTA (Interest on Lawyers Trust Accounts) accounts. The interest earned on those accounts is paid
to the Lawyers Trust Account Board (LTAB).
LTAB, in turn, uses those funds to provide grants to legal
services and pro bono organizations.
Financial institutions have, however, varied dramatically in
the amounts of interest paid on IOLTA accounts.
One bank currently pays only .001 percent interest on such
accounts, as shown in that bank’s reports to the LTAB.
This amounts to one cent per year for every $1,000 on deposit.
In order to increase
funding for legal services to the poor, the MSBA will be asking the
Court to adopt changes to Rule 1.15 that would require comparability
of interest rates or dividends between IOLTA accounts and similar
accounts. To comply with the amended rules, an IOLTA account
would need to earn no less than the interest rate or dividend generally
available on comparable accounts at the same institution when the
IOLTA account meets or exceeds the same minimum balance or other account
eligibility requirements. As
an alternative, the proposed amendments would permit holding IOLTA
funds in an account on which a bank would pay a “safe harbor” rate
equivalent to 80 percent of the Federal Funds Target Rate.
The proposed amendments would also allow IOLTA funds to be
held in money market accounts and in sweep accounts and open-end money-market
funds invested in or fully collateralized with U.S. Government securities.
We anticipate that these amendments, if adopted, will raise
significant new funds for use in meeting the needs of those who face
serious legal problems but cannot afford the services of a lawyer.
PATRICK
BURNS is first assistant director of the Office of Lawyers Professional
Responsibility, where he has served for the past 18 years. In his spare time he is an active volunteer
lawyer and formerly chaired the Volunteer Lawyers Network.
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