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Law Practice Today

December 2022

We Choose Pro Bono . . . Because it is Hard

Jason H Long


  • When we undertake a pro bono client, we do so with the same assurances that we will adhere to those ethics rules as we do with any other clients.
We Choose Pro Bono . . . Because it is Hard Zrnic

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I drafted a will for a pleasant older woman years ago (when I was a baby lawyer).  She paid her modest bill, and I closed the file and did not think another thing about it. In March of this year, I was contacted by the woman’s daughter.  Her mother had long since passed and the family probated the estate, without my assistance. However, this woman recently received a notice from the state department of unclaimed property informing her there was still a sizeable asset in her mother’s name. The daughter did not know what to do with this information or where to turn. She found my name on the will and asked if I could help. She did not have money for a lawyer and the extra income would be a great help to her and her family (they had no immediate need for the funds, but there were always rainy days coming).

Maybe it was the soft spot in my heart or my fondness for her mother who had hired and trusted a newbie lawyer to handle her will, but I offered to handle the matter for the daughter pro bono. While I haven’t drafted a will in years, and I had never done much actual probate work, I was convinced this was a relatively simple task of petitioning to reopen the estate, making a claim for the assets, distributing them to the two beneficiaries, and then closing the estate again. It seemed to be a fairly straightforward process, and I knew that handling the matter pro bono for this woman in need was the right thing to do.

My new client was appropriately appreciative. She poured effusive thanks upon me. I got that warm feeling that comes when you know you are helping another in need, and I felt pride that I could put training and skills to use to help her. It was a good day. Then, the problems started.

It was apparent from the beginning that this project was going to require some small level of research and investigation. I put the new file on the corner of my desk and promised myself I would get to it as soon as I finished compiling discovery for a fee-paying client that was due in two days. The two days passed and a few more fires flared up that required my immediate attention. Then, a close partner in my firm took a position with another firm and my world was further upended. The new firm needed additional attorneys to handle work that was being brought over, and I, too, made the move to the new firm. The next several weeks involved wrapping up critical matters for my old firm, preparing for the transfer of cases to my new firm, my first bout with COVID, and all of the attendant issues that come up both in the regular course practice and when making a significant move.

Once at my new firm, I was inundated with learning new procedures, getting up to speed on files pushed in my direction and running around from crisis to crisis, staying just one step ahead of the demands being made. A second bout of COVID followed and the work continued to pile up. Days turned into weeks and weeks turned into months. Through it all, the slender file of my pro bono client stayed on the corner of my desk, untouched. There was no filing deadline and nothing to demand I take immediate action. My client called me a couple of times and when I embarrassingly explained I had taken no action so far, she was understanding and still thankful that I was willing to handle it in the first place. In short, there was absolutely no pressure to get anything done.

Then, I got the call a couple of weeks ago. It was my client. She was crying. Another legal issue had popped up and suddenly she was looking at a bill of several thousand dollars. She did not have that kind of money and was hoping she could get the funds from her mother’s estate to pay off the debt if necessary. Her rainy day had come. I cannot explain the sinking feeling in my stomach listening to this woman work through all of her anxiety, knowing that if I had taken some simple actions earlier it could all have been avoided. Needless to say, that prompted me to action. I am pleased to say things are now on track and I expect to get the funds shortly for my client. Nonetheless, I will never forgive myself for putting her through a very stressful situation, unnecessarily.

It is surprisingly easy to get into the situation I did with my client. As lawyers, we know the value and importance of doing pro bono work. It is an obligation we owe for having the privilege to practice.  Indeed, it is woven into the fabric of our ethics rules. The ABA Model Rule 6.1 states that “Every lawyer has a professional responsibility to provide legal services to those unable to pay.” It further sets an aspirational goal of 50 hours per year. But even above our obligations as lawyers, there are really good reasons to do pro bono work. It is an altruistic action which in part justifies the work we do and brings a certain amount of pride and good feeling to be able to help others. It is an opportunity to learn and do work outside of our traditional comfort zone, making us better overall lawyers. It reinforces faith in our system of justice and respect for the rule of law. There are countless reasons why pro bono work is important and necessary for our profession.

And yet, there are just as many reasons why it is easy to neglect or procrastinate doing such work.  For those of us still living subject to the billable hour, we have a limited quantity of our only valued commodity, time. Whether a new associate or senior partner, we are all subject to immense pressure to preserve that commodity, and only trade it for something of tangible value. Like my case above, pro bono work often takes us out of our comfort zone. That fear of uncertainty can paralyze us to inaction.  Fair or not, there is a certain sense that people should be happy with any pro bono work we do and therefore it can take a back seat to other matters. In short, for every reason there is to take a pro bono case, there is a reason to subjugate it to other, fee-paying work.

Of course, we can’t do that. Ethics rules apply with equal vigor whether or not a client is paying a fee.  When we undertake to represent a pro bono client, we do so with the same assurances that we will adhere to those ethics rules as we do with any other clients. That means, among other things, that we must act with competence (MRPC 1.1) and diligence (MRPC 1.3) and we must communicate with clients concerning representation, including keeping them reasonably informed (MPRC 1.4). Once we undertake representation, it is our obligation to serve pro bono clients just as we would any other.

I have to remind myself of that obligation every time I take a pro bono case. In truth, the knowledge that I cannot cut corners in pro bono representation makes it more meaningful and causes me to value the work more. It reminds me of the famous quote from John F. Kennedy: “We choose to go to the moon . . ., not because [it is] easy, but because [it is] hard . . . because that challenge is one that we are willing to accept, one we are unwilling to postpone, and one which we intend to win.”  In my mind, access to justice for all in our society is at least as worthy a goal as going to the moon.