Volume 20, Number 3
No Good Deed Goes Unpunished: Rewards and Risks of Pro Bono
By Ann Massie Nelson
Ann Massie Nelson is a regular contributor to Wisconsin Lawyer magazine and communications director at Wisconsin Lawyers Mutual Insurance Company in Madison. She can be reached at firstname.lastname@example.org.
Concern about legal malpractice claims should not tie the hands of lawyers who want to give their time and professional talent to pro bono legal service. The merits-equal access to justice, goodwill for the profession, and the volunteer's personal satisfaction-far outweigh the potential risk. Even though the financial risk may be nominal, the time and emotional expense necessary to resolve a legal malpractice claim can be enormous. The fact that the client was a nonpaying one to begin with simply rubs salt in the wound.
Four fundamental strategies for managing risk apply in legal representation: You can share, modify, retain, or avoid risk.
Purchasing insurance is the traditional method for sharing risk. Lawyers' professional liability insurance policies generally do not differentiate between pro bono and paid professional services.
For the private practitioner, "professional services" typically is defined as service you perform for clients in your capacity as a lawyer, mediator, notary public, administrator, conservator, executor, guardian, trustee, receiver, or in similar fiduciary capacity, provided such services are connected with and incidental to your profession as a lawyer.
"This broad definition does not distinguish between professional services provided for a fee or on a pro bono basis," says Cecilia Bergstrom, president of Professional Insurance Resources, Ltd., a division of Attorneys Liability Protection Society (ALPS). "Most of the malpractice policies for attorneys in private practice provide adequate coverage for volunteer legal activities."
If you are retired from private practice or work for a corporation or government, you probably do not have professional liability insurance for your pro bono activities. The most practical way to protect your financial security is to volunteer with a legal services agency that insures volunteers for professional liability. Legal services agencies that receive federal funding normally provide professional liability insurance to volunteer lawyers.
If you are not insured, you could purchase a professional liability insurance policy. Check with your local or state bar association or the National Legal Aid and Defender Association for referral sources. Be aware, however, that few insurance policies are written exclusively for pro bono legal work. (See the sidebars "Which Insurance Covers What Risk," page 12, and "Q&A about E&O," page 13, for more information about different types of insurance and the protection they provide.)
Problems arise in pro bono representation when lawyers work outside their areas of expertise, take on more work than they can reasonably handle, or fail to follow through on promises.
The altruistic-yet-prudent lawyer should consider volunteering through a pro bono legal services program. Bergstrom says most pro bono programs have well-established screening procedures to assess merit and client financial eligibility and to match the attorney's experience with the client's needs. "Pro bono programs often provide their volunteer lawyers with free training or mentoring, particularly for high-demand areas of practice, such as family law, landlord-tenant [interactions,] and employment issues," Bergstrom says. "They strive to provide as much technical support and useful substantive legal information as possible. This training may reduce the risk of a claim."
You can modify or reduce your risk of legal malpractice by employing basic risk management techniques:
- Review each situation for possible conflicts of interest. You don't want to disqualify yourself or your firm from ongoing representation of other clients.
- Open a file for each pro bono client. Enter important dates in your firm's calendar and tickler system.
- Write letters of engagement. Document the scope of your representation, any special circumstances, and your and your client's expectations.
- Communicate regularly with clients, even when there is no news to report. Return phone calls promptly.
- Manage your time wisely. Allow yourself adequate time to meet deadlines.
- Know when to ask for help. Lawyers who dabble in unfamiliar areas of practice are far more likely to receive a malpractice claim. Volunteer work may be an opportunity for you to broaden your repertoire, but your pro bono clients should not be harmed by your inexperience.
- Acknowledge that pro bono clients-like paying clients-don't always follow your advice. Write a letter documenting your recommendations and, if appropriate, graciously excuse yourself from future representation.
Should everything go wrong and you are to blame (or have the deepest pockets), could you afford to defend and pay a malpractice claim?
You may determine that the risk of a malpractice claim arising from pro bono representation is one you are willing to bear. Risk is a factor of frequency and severity, i.e., how often and how much. Look at the number and the financial value of pro bono cases you take and determine if you can afford to retain the risk.
Just say no to pro bono service and you can avoid this malpractice risk altogether. Forgoing the risk also means forgoing the rewards, including a sense of personal and career satisfaction. Furthermore, lawyers who sidestep pro bono service requirements in some jurisdictions could face disciplinary measures.
Many lawyers believe that giving low-income and disadvantaged persons equal access to justice is part of their calling, a basic tenet of professionalism. Public service is the interest paid on their debt to the society that created the law and institutions they value.
In a keynote address given at the American Bar Association Equal Justice Conference, Gene Nichol, dean of the University of North Carolina Law School, told lawyers, "we refuse to believe the charge of equal justice is beyond us, beyond our capacities, or beyond our desires. Because if we reject that, we reject our best selves."