An engagement letter should clearly define the scope and length of the representation, so there are no concerns later about what the attorney’s role was. In the absence of some definition or limitation on the representation, it may be assumed that the representation is general or all-purpose. Suddenly, for example, a pro bono client with a child support issue expects the attorney to appear at her social security hearing as well. Specificity is key.
It is also appropriate to include specific dates or tasks in an engagement letter. For example, an engagement letter may state that the scope of the representation is the preparation of a will and last testament, or it could specify that the scope of the representation is limited to preparation for and participation in a hearing on a certain date. Indeed, if a representation continues beyond a specific event (such as with an appeal), an attorney can and should prepare a new engagement letter.
In addition, because the engagement letter is often evidence of the existence of the attorney-client relationship, it should define to whom the attorney’s duties are owed. The engagement letter should identify the client by name and capacity, whether the client is a minor child, an organization, or a collection of people.
The engagement letter can also provide information on some issues that we hope will never arise. Sometimes the temptation is to limit a pro bono engagement letter to remove language about withdrawal or termination, so as not to alarm the client into thinking that he or she will be abandoned by the attorney. However, this information is necessary for both the client’s and the attorney’s benefit. Further, the engagement letter should define the parameters of the attorney-client privilege: namely, that it is a confidential relationship between attorney and client. Where a client is referred to a law firm by an outside organization, it may also be necessary to clarify to the client that the attorney-client relationship does not extend to the outside organization (or that the organization serves as an “expert” of sorts, to preserve the privilege). Importantly for risk management purposes, the letter should also notify the client of the parameters of the privilege between the attorney and the attorney’s in-house counsel.
An engagement letter can also help protect the law firm’s ability to recover costs or attorney fees at the conclusion of the representation. Obviously, an engagement letter for a pro bono client does not include information relating to hourly rates, fees, or payment schedules. However, some attorneys simply delete all language about payment from their engagement letters for pro bono clients. This is not ideal. First, the engagement letter should address whether the pro bono client will be responsible for out-of-pocket costs, such as court reporters or court fees, or whether the attorney will undertake those expenses as part of the representation. In addition, every engagement letter for a pro bono representation should address who will recover if the court awards attorney fees or costs as a part of the litigation.
In sum, the best practice for engagement letters is to have a meeting with the client to discuss the engagement letter and walk through its terms. Attorneys should avoid counseling the client with respect to the terms but should be candid as to the content of the agreement.
Screen Potential Pro Bono Clients
Before an attorney-client relationship with a pro bono client begins, the attorney should always do a conflicts check. Attorneys are often so eager to assist a pro bono client that they overlook the possibility of a potential conflict with another client or representation. Or attorneys assume that because the pro bono representation is in a different arena from their typical practice, the likelihood of a conflict is extremely remote. Indeed, pausing a representation for a client in need sometimes seems like a waste of time, particularly if the attorney wants to dive into a much-needed representation.
However, representing a pro bono client in the face of a potential conflict could expose the attorney to claims from both the pro bono client and from the attorney’s other (potentially, revenue-generating) client that created the conflict. For example, a landlord/tenant dispute could become complicated when the landlord is represented by an insurance company whose other interests are represented by the attorney’s law firm. Attorneys who proceed even though there is a conflict of interest are harshly judged by courts and bar associations. Taking a representation without running a conflicts check is not worth the risk.
In addition to initial conflict evaluations, attorneys should also screen their clients for suitability. Indeed, some clients who turn out to be “problem clients”—bringing legal malpractice claims that may or not be warranted—reveal themselves early on.
By asking the potential client several questions, an attorney can distinguish unsuitable clients from suitable ones. For example, the attorney should ask how many attorneys have previously been involved in the matter. If an attorney is the fourth or fifth one to hear about the potential case, that is a factor to consider. Further, if the client has frequently been a party to litigation, the client may be unduly litigious. Also, attorneys should be wary of the client—pro bono or otherwise—who wants a guarantee of a specific outcome. Obviously, attorneys should never promise a specific outcome, but the clients who seek those guarantees are more likely to challenge the representation when the matter comes out differently than they had hoped.
Often, pro bono clients are referred to law firms by outside organizations that screen the clients and the matters for suitability. This typically involves a preliminary review of the facts and issues to ensure it is not a frivolous matter. The organizations that work with law firms are good at what they do, so there is little need to second-guess their analysis. For clients who come to the law firm from a cold call or an inside referral, additional screening is likely necessary—just as it would be for a paying client.
Always Supervise Associates
Associates often want to work on pro bono cases to improve their skills and gain experience. Pro bono representations are excellent for this purpose, in addition to the other charitable and ethical reasons for doing pro bono work. However, it is crucial that every law firm associate working on a pro bono matter has the supervision and approval of a law firm partner.
From a risk-management perspective, an associate can expose the law firm to a malpractice claim for errors or omissions committed during the representation. Thus, for the same reasons that supervision is important in paid matters, a partner should be involved at every step of pro bono representations. This is not to say, though, that a partner must do all the heavy lifting. Indeed, associates often serve as “lead counsel” in pro bono matters. Whenever that happens, a partner must also be on board in a supervisory capacity to ensure that deadlines are being docketed, the client is being served, and the high standard to which the firm holds its attorneys on billable matters is also being met.
Other excellent resources for attorneys working on pro bono matters are outside organizations that have significant experience in representing underprivileged or underserved clients. These organizations, which often refer clients to law firms, will have helpful advice on strategy and procedure. While these organizations provide a meaningful service, they are not legal counsel to the client or affiliated with the law firm; thus, they cannot and should not take the place of a partner supervising an associate on a pro bono representation.
Clearly End the Attorney-Client Relationship
Closing the attorney-client relationship is just as critical a step as beginning the relationship. Many times, the representation concludes organically and the attorney sends a closing letter. Other times, the relationship must come to an end when the attorney is forced to withdraw. Rule 1.16 of the ABA’s Model Rules of Professional Conduct details the circumstances under which an attorney must withdraw from a relationship and those circumstances in which an attorney may withdraw. Local rules will also govern the mechanics for withdrawing, sometimes requiring approval from a government body. An attorney seeking to withdraw from a pro bono representation must follow all the same steps and requirements as an attorney withdrawing from a billable representation.
When the attorney-client relationship ends—whether naturally or by withdrawal—the attorney should send a closing letter. As discussed above, the scope of an attorney-client relationship can be clearly defined in the engagement letter. Once the representation ends, the best practice is to send the client a closing letter, alerting him that the matter has ended and that the attorney no longer represents his interests as of a certain date. The termination date may be matter-specific (such as a hearing or an execution of a document) or may simply be the date of the closing letter.
Properly ending the relationship is important for both the client and the attorney. For the client, it provides closure to the representation. For the attorney, it moves the client from being a “current” client to a “former” client (a critical distinction for conflict of interest analysis). It may affect the tolling of any malpractice statute of limitations in the face of an ongoing error, and it ends the attorney’s ongoing obligations and duties to the client. Where there is any ambiguity as to whether an attorney-client relationship is continuing or terminated, most courts and juries will side with the client to whom the duty is owed.
These tips provide some framework for the representation of a pro bono client. Taking on such representations brings significant rewards. These steps will help ensure that attorneys who begin pro bono representations do not face an unnecessary malpractice claim as a result.
Keywords: woman advocate, litigation, pro bono, risk management, engagement letter, attorney-client relationship, attorney malpractice, professional conduct