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August 24, 2018 Articles

Young Lawyers: Why You Should Take a Pro Bono Appeal

Pro bono appeals are often overlooked as a way to give back to the community, but are worth considering for a number of reasons.

By Lara Escobio O'Donnell

As authors in this journal have previously noted, pro bono work is a great way for lawyers to gain experience and to give back to the community. Pro bono appeals programs are often overlooked in this regard. However, such appeals are worth considering for a number of reasons. They provide lawyers—especially younger lawyers in private practice—with experience they would not otherwise receive. Even in jurisdictions that require a certain level of experience or supervision by a more experienced attorney, less experienced attorneys are still generally permitted to handle all aspects of the case, including researching and writing briefs and presenting oral argument.

Courts make particular efforts to grant, or in some cases even guarantee, oral argument in a pro bono appeal. For instance, the Ninth Circuit Court of Appeals’ pro bono program has been established since 1993, having grown from about 12 cases per year to 160. The Ninth Circuit notes in its Pro Bono Program handbook that, with the exception of appointments that are for mediation purposes only or as amicus curiae, the court has committed to hearing oral argument in all cases in which pro bono counsel is appointed through the program. See Ninth Circuit Pro Bono Program, handbook at 7 (citing 9th Cir. Gen. Order 3.8). The Second Circuit has adopted a pro bono plan for pro se appellants with meritorious or complex appeals who are ineligible for representation under the Criminal Justice Act, 18 U.S.C. § 3006A, and to assist the court in processing pro se civil appeals. See Second Circuit Pro Bono Counsel Plan. The plan provides pro bono counsel to pro se litigants in civil appeals in which briefing and oral argument by counsel would benefit the court’s review. Similarly, the Arizona Court of Appeals recently launched a pro bono representation program allowing the court to appoint pro bono counsel to pro se parties in selected civil and juvenile appeals identified by the court, in which briefing and argument by pro bono counsel would benefit the court. See Administrative Order No. 2014-1 (Dec. 5, 2014). The opportunity for oral argument is a compelling reason to take on a pro bono appeal from a professional development standpoint, as oral argument is not otherwise guaranteed.

Most jurisdictions, through courts, bar associations, and other legal aid programs, offer opportunities for lawyers to handle pro bono appeals. Courts generally assign appeals through an application or appointment process that favors more experienced attorneys. However, even programs with minimum experience requirements often permit less experienced attorneys to handle pro bono appeals with appropriate mentorship. The Second Circuit’s program, for example, appoints attorneys to a pro bono panel to serve for a term of no more than three years. The Second Circuit permits associate attorneys or students not appointed under the plan to present oral argument with permission of the court. Federal courts also participate in the Criminal Justice Act, 18 U.S.C. § 3006A. The assignment of these appeals is also accomplished through a panel appointment process. See, e.g., Sixth Circuit Criminal Justice Act Plan; Third Circuit Criminal Justice Act and Appointed Counsel InformationEleventh Circuit Court of Appeals Criminal Justice Act Information.

Other state courts and bars have similar programs, most often consisting of a network of volunteer attorneys to whom cases are referred or sometimes matching clients with volunteer attorneys on a case by case basis. See, e.g.Oregon State Bar Appellate Pro Bono ProgramSupreme Court of Texas Pro Bono ProgramTennessee Appellate Pro Bono Program; Indiana Appellate Pro Bono Project. The ABA Standing Committee on Pro Bono & Public Service provides a directory of pro bono programs in the United States to help attorneys locate specific pro bono opportunities. See Directory of Pro Bono Programs; see also National Pro Bono Opportunities Guide; Court Based Pro Bono Programs. Often such programs allow attorneys to specifically request appellate work.

Although pro bono appeals can be time consuming, they are typically easier to budget and schedule. When you take on a case at the appellate level, it has been litigated below and has an established record. It does not present the same kinds of unknown factors, such as the extent and nature of the pleadings, extent and nature of discovery, whether the case will be litigated through trial, and other factors that can vary dramatically between cases at the trial level but are not always immediately apparent upon agreeing to take a case. For example, you could accept a pro bono appointment at the trial level in a case that has been briefed through summary judgment and find that discovery needs to be reopened or that the complaint should be amended. On appeal, many, if not the most salient, legal issues in the case have been identified, briefed, and ruled upon in the court below.

Appeals tend to be more predictable in terms of budgeting time and committing other resources to the case. This is an important consideration, as a recent ABA study shows attorneys rarely spent fewer hours on pro bono than they expected. See ABA Standing Comm. on Pro Bono & Pub. Serv., Supporting Justice III: A Report on the Pro Bono Work of America’s Lawyers 19 (Mar. 2013). The study also shows that the primary reason attorneys decline pro bono opportunities is not having enough time to devote to the case. See id. at 24. Pro bono appellate programs are helpful in this regard and frequently limit the scope of appointment. For example, in the Second and Ninth Circuits, the appointment includes handling of the appeal and drafting a petition for rehearing when requested by the client, but it does not include the filing of a petition for certiorari in the Supreme Court or any other proceedings unless requested by the court. To encourage attorneys to accept pro bono appointments, many programs also reimburse certain expenses associated with the case.

In addition to providing an opportunity for professional development, pro bono appellate work can be extremely gratifying. Attorneys who have provided pro bono services report high levels of satisfaction with the experience. See id. at 19–20. Nearly all attorneys surveyed by the ABA believed that their pro bono work made a difference in improving progress toward equal justice under the law. See id. at 22.

Courts are also grateful for the support that attorneys provide in taking on pro bono representations and often acknowledge these contributions in court, or through honor rolls published by the courts. See, e.g.Third Circuit Court of Appeals, Acknowledgement of Pro Bono Counsel in 2014Colorado Supreme Court Pro Bono Commitment Recognition. A recent opinion by the ABA Standing Committee on Ethics and Professional Responsibility clarifies that judges may urge lawyers to satisfy their professional obligation to perform pro bono work. See ABA Comm. on Ethics & Prof’l Responsibility, Formal Op. 470 (May 20, 2015). It is, after all, the professional responsibility of attorneys to provide pro bono services.See ABA Model Rule 6.1.

Pro bono appeals are real cases involving real appellate work. Appellate practice can be a challenging area to pursue, and pro bono work provides an opportunity for attorneys to gain substantial appellate experience consistent with developing their practice.

Keywords: litigation, appellate practice, pro bono, professional development

Lara Escobio O'Donnell is an associate with Berger Singerman LLP in Miami, Florida.

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