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February 14, 2017

The Justice Gap and Pro Bono Legal

James D. Abrams and Ann Hancock – February 14, 2017

While "White Collar Crime," the theme of this quarter's newsletter, is not an issue that generally faces most indigent or low-income families and individuals, the obligation to support pro bono service extends to all attorneys, including white collar litigators.

Personal values and perceptions regarding social need necessarily inform one's approach to pro bono work. Set forth below is a framework for navigating your personal decisions about providing pro bono legal services, exploring the different types of pro bono services, the measurable need in the legal community for pro bono assistance, and the various ways in which you can provide pro bono services that will be most compatible with your existing obligations.

Pro Bono Legal Services Defined
In March 2013, the ABA Standing Committee on Pro Bono and Public Service (Standing Committee) published a report that categorized pro bono work as follows:

Category 1 pro bono is defined as direct legal representation provided to persons of limited means or organizations that support the needs of persons of limited means for which no compensation was received or expected.

Category 2 pro bono is defined as any other law-related service provided for a reduced fee or no cost (without expectation of fee) to any type of client, not including activities performed to develop a paying client or anything that is part of paying job responsibilities.

ABA Standing Committee on Pro Bono and Public Service, Supporting Justice III, A Report on the Pro Bono Work of America's Lawyers (Mar. 2013) (the Report).

While Category 1 pro bono services are limited to "persons of limited means" or the organizations that support them, Category 2 pro bono services are not restricted to clients who are "of limited means." Based on the Standing Committee's definition, reduced fee or no cost services may be provided to any client, regardless of the client's means, yet still qualify as pro bono service.

Although Category 2 services are widely acknowledged as pro bono work in the legal community, the ABA Model Rules of Professional Conduct (Model Rules) take a narrower approach to defining pro bono service. Rule 6.1 of the Model Rules (Rule 6.1) states in relevant part that "a lawyer should aspire to render at least 50 hours of pro bono legal services each year to poor persons; and contribute financially to organizations the provide legal services to poor persons." Model Rules of Prof'l Conduct r. 6.1 (Am. Bar Ass'n 2004) (emphasis added).

Although Rule 6.1's description of pro bono legal services most closely aligns with Category 1 above—and most states' rules of professional conduct mirror Rule 6.1—attorneys should not be discouraged from providing the types of services described in Category 2. That being said, this article will focus on the specific types of services that fall within Category 1, and offer attorneys information on how to get involved.

Pro Bono Legal Services by the Numbers
The ABA Standing Committee, in conducting surveys related to the Report, discovered that 36 percent of the survey respondents reported providing at least 50 hours of services and only 20 percent reported not having done any pro bono work at all. (Report at vi, vii.) Moreover, 72 percent of the respondents who provided services provided Category 1 services to persons of limited means. At first glance, the Report appears promising. Statistics published by various other players in the pro bono field, however, suggest a significant unfilled need for pro bono legal services.

Legal Services Corporation Highlights Need for More Pro Bono Service
Legal Services Corporation (LSC) is the largest funder of civil legal services in the United States. Alan W. Houseman, Civil Legal Aid in the United States: An Update for 2015 (Dec. 2015) (Houseman Report). In the 2015 LSC Annual Report, LSC reported that 62.5 million Americans are eligible for legal assistance. Legal Services Corp., Annual Report 2015 (2015). Yet, over half of those eligible are denied legal services because of lack of resources. LSC explained that state studies consistently show that 80 percent of the legal needs of those who cannot afford to pay for legal services are not met.

LSC's funding for needed legal services has declined to $385 million in 2016, from its high of $420 million in 2010. (Houseman Report at 3.) LSC explains that the balance of the funding for pro bono legal services comes from states and IOLTA (interest on lawyers' trust accounts) programs. LSC points out that IOLTA has continued to decline sharply during the period from 2008 to the present as a result of low interest rates.

LSC's statics demonstrate the clear, unmet need for legal services in this country. LSC estimates there is only one legal aid attorney for every 6,415 low-income persons in the United States, while there is one attorney for each 429 persons in the general population. This means that a member of the general population has approximately 1500 percent more access to legal representation than a low-income person. The obvious conclusion is that the existing volunteer base of pro bono attorneys, while invaluable, is simply not enough to satisfy the profound need that exists.

The Delivery of Pro Bono Legal Services
While the generalized LSC data suggests that 60.2 percent of pro bono services provided were via counsel and advice, and 16.2 percent were limited to brief service, i.e., legal representation that is directed only to certain aspects of a legal matter, see ABA Standing Committee on Legal Aid and Indigent Defendants, Standards for the Provision of Civil Legal Aid, Standard 3.4-2 (Aug. 2006),  there is an absence of reliable data regarding the specific types of services within each general category. For purposes of this article, and based upon our experiences, three types of pro bono services are readily identifiable: brief advice clinics, limited representation and high impact cases. We've found that the most fulfilling and stress-free pro bono work is done by limited representation in brief advice clinics. Such clinics typically are offered once or twice per month, at locations convenient to those in need, for example, in churches or community centers. Based on our experiences, the legal issues most frequently presented at such clinics include family law matters, landlord-tenant issues and consumer credit issues.

There is a general tendency for attorneys to avoid service in these clinics for fear that they will be recruited to provide advice in areas of the law with which they are not intimately familiar. Our experience suggests that these concerns are unfounded. Many individuals who seek advice at these clinics are primarily in need of assistance in navigating life issues with legal underpinnings of a more generalized nature and they are empowered by a limited knowledge of the otherwise unfamiliar and daunting realm of the law. Regardless of your areas of focus, you are unquestionably qualified to provide advice in these areas, especially after going through whatever issue-specific training is provided by the relevant direct service organization.

Beyond "advice clinics," limited representation can be extremely helpful and efficient if it is permitted by your state's rules of professional conduct. For example, in Ohio, lawyers may limit the scope of their representation if the limitation is reasonable under the circumstances and communicated to the client in writing. Ohio Prof. Cond. R. 1.2(c) (2016). In the context of landlord/tenant matters, a lawyer in Ohio can represent the client in a "forcible entry and detainer" action without continuing the representation for the typical second cause of action that would follow: for breach of the lease.

The benefit of limited representation pro bono work is that the attorney does not get locked in to lengthy representation that interferes with the attorney's ability to earn a living, or otherwise disrupt the attorney's obligations in a firm setting. The attorney still can help the client avoid or mitigate what otherwise would be a potentially devastating outcome for the client and his/her family.

The most time-consuming pro bono representation is legal work on high impact cases. High impact cases are those generally dealing with important social issues, and they often involve teams of many members. High impact cases secure rights for the disenfranchised and those against whom discrimination creates roadblocks to remedies. High impact pro bono work is not for the faint of heart: the cases often deal with emotionally loaded issues and last for many years. For example, the Legal Aid Society of Columbus, Ohio, with the assistance of private practice counsel, filed a lawsuit seeking injunctive relief that resulted in the reinstatement of benefits for over 154,000 Ohio Medicaid recipients who were denied coverage because the Ohio Department of Medicaid had a flawed renewal process that resulted in the denial of benefits to the recipients. After a federal district court judge granted temporary injunctive relief for the plaintiffs, the state settled the case restoring benefits to all who improperly had been denied benefits.

These examples illustrate the range of options available. You must elect to pursue the opportunity that most aligns with your varied needs.

Lawyer Objections to and Benefits from Pro Bono Representation
The Model Rules provide that "[a] lawyer shall provide competent representation to a client [and competent] representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation." Model Rules of Prof'l Conduct R. 1.1(Am. Bar Ass'n 2004). In our experience, this rule is the biggest source of the concern of lawyers to represent pro bono clients—not that the rule is improper; rather, that the key legal issues facing indigent clients are outside of the lawyer's legal knowledge, or "comfort zone." For example, some attorneys avoid representing pro bono clients in domestic or criminal matters, simply because they feel they do not have adequate training, and justify non-participation on this basis. However, in brief advice or limited representation circumstances, this objection is overcome by the lawyer attending what is, commonly, free continuing legal education on the appropriate subject matter. Thus, the lawyer is provided with the necessary skills and is credited with CLE hours. Indeed, some states provide CLE credit for pro bono representation in an effort to encourage lawyers to participate and overcome concerns about lack of expertise.

Lawyers also object to pro bono representation because of the uncertainty of the time commitment related to the representation. This uncertainty is limited when participating in brief advice clinics (many of which take place outside of normal working hours) or limited representation matters, or identifying alternative options that work for the particular lawyer's schedule, such as providing mentoring to local legal aid attorneys. The simple fact is that providing pro bono legal services can be structured to meet the requirements of the lawyer providing the services. To encourage participation in pro bono matters, many law firms permit lawyers to count the time spent on pro bono work toward the lawyer's billing obligations, eliminating concerns about time commitments.

There is little doubt that trial work continues to decline, which further justifies participation in pro bono services. See Patricia Lee Refo, The Vanishing Trial, 30 J. Sec. Litig. A.B.A., no. 2, 2004 at 2–4. As this happens, pro bono legal work becomes even more valuable to the attorney who provides it. Pro bono representation gives lawyers an opportunity to hone their trial, problem-solving, negotiating and other skills required of a competent lawyer. The opportunity to appear in court or otherwise engage is particularly beneficial to younger lawyers, as it builds their confidence and competency.

Giving Back
A huge unmet need for pro bono legal services in the United States continues to exist. As lawyers, we are extremely fortunate to be able to practice in the various jurisdictions in which we are licensed, and to possess the know-how, problem-solving skills and insight that many indigent individuals lack. Our good fortune should come at a price. That price can be paid by lawyers providing pro bono legal services.

The only challenge in providing these services is overcoming our own trepidations and misconceptions about what will be required of us. Providing pro bono legal services will inevitably prove fulfilling, both personally and professionally. Find something that works for you, and make a difference.

James D. Abrams and Ann Hancock – February 14, 2017