The woman who sat across the desk from me was crying softly, and her shoulders sagged with exhaustion. She had the law on her side but faced an adversary who was not going to give an inch without a fight. And a series of bad decisions and some bad luck had left her without the resources needed to carry on a fight that meant everything to her.
I can’t count the number of times that I heard that plaintive refrain when I was in private practice, and I’m sure you’ve heard it—and still hear it—from potential clients who have serious legal problems but, unfortunately, have insufficient income or savings to afford the legal services they need to protect their property or fully enjoy their rights.
Fortunately, you can adopt several strategies to resolve the stress that such a potential client presents—without wrecking your own financial situation.
CONSIDER LIMITED SCOPE REPRESENTATION
While I’m not sure that rule changes are truly necessary, a growing number of jurisdictions are amending their rules of professional conduct or other lawyer regulations to allow limited scope representation, offering both you and potential clients who can’t pay your full fee a win-win opportunity to find a new way to work together.
Limited scope representation involves breaking down a given matter into discrete issues or tasks, allocating responsibility for each issue or task to either the attorney or the client, and documenting in writing the client’s understanding and acceptance of the agreed upon division of responsibilities. Any changes to this agreement as the matter moves forward should also be committed to a writing signed by the client. (For sample risk management materials for limited scope representation, see www.alabar.org/media/03272012_LimitedScopeRepresentationRules.cfm. From a best practices perspective, each of these steps should be taken in full scope representation, too.)
Then, when accepting a matter for limited scope representation, be sure to set out a fee for each discrete issue, and make sure you are paid up front. Properly structuring the tasks and your fee agreement and getting the work done promptly will help you stay in a position to withdraw from the matter if necessary, and without prejudice to the client.
For more information about limited scope representation and how to make it work for you, consult Limited Scope Legal Services: Unbundling and the Self-Help Client, by Stephanie L. Kimbro, and published by the LPM Section.
ACTIVELY MANAGE YOUR PRO BONO WORK
Many lawyers justify lax client screening and credit policies in the name of pro bono work. When they charge off a large unpaid balance as uncollectible, they tell themselves, “Well, at least I’ve done my share of pro bono for this year.” But the truth is they really haven’t done anything to provide access to the legal system for poor peopleif all they have done is work for no pay for a client who can afford to pay but won’t. The decision to do pro bono work should always be made in advance, not after the fact.
Investigate and consider signing up for your state or local bar association’s pro bono program. Many bar associations have set up programs to provide access to justice for the poor while more evenly distributing the load of pro bono work among all the associations’ lawyers. These programs, often in conjunction with Legal Services Corporation or local legal aid societies, usually prescreen applicants seeking free or low-cost legal services before they are assigned to a volunteer lawyer. This way you don’t have to worry about giving your services to someone who really can afford them.
Program requirements are usually simple. Volunteer lawyers are often able to specify the areas of law in which they will accept pro bono cases and the number of cases they are willing to handle over a given period of time. Reporting requirements normally involve infrequent status reports and a short report of outcome, and the number of volunteer hours provided when the matter is concluded. Contested cases are often screened out or sent to other organizations, and pro bono programs can often provide those seeking legal help with social services that can meet their needs as well or better than an attorney could.
But even if you do participate in your bar association’s pro bono program, you will find, from time to time, that there are some additional pro bono cases that you should take. These are the cases that offer an opportunity to learn—or make—new law. And time spent on people or causes that matter to you can be extremely satisfying as long as you can find a way to do it without breaking the bank. That’s why it’s important to develop policies and procedures for handling those who seek your services but cannot pay for them.
In Welcome to Reality: A New Lawyer’s Guide to Success, Paul McLaughlin sets out several tips for better management of pro bono work. They fall into broad categories, and from them I’ve formulated the following general policies:
- At the beginning of each year, establish the number of pro bono files and the number of pro bono hours you are willing to take on during that year, write them down, and do not exceed the number of hours unless it’s necessary to finish out the last case.
- Keep a written list of your pro bono cases and a running total of your pro bono hours within easy reach and refer to this information before you consider opening a new pro bono file.
- Carefully assess the pro bono cases you consider taking, selecting clients who will be a pleasure—rather than a pain—to work with, and then take steps to carefully manage communications and expectations. Clients who don’t have to pay often won’t hesitate to ask for the moon and will complain if they only get the stars.
If you follow these procedures with clients who can’t afford to pay, you will have a framework within which to decide whether or not to take a case. If you don’t take it, you will be able to have a clear conscience as you explain that, like many lawyers, each year you take on a number of cases at no charge or at reduced rates, but you have no openings on your list right now, so you are simply not in a position to help.