May 28, 2019 Pro Bono

Revisiting Idealism

By David Godfrey

Why Do We Do This?

I vividly remember the first couple weeks of law school and the reality of the work load. I recall wondering out loud, “What have I gotten myself into, and why am I doing this?” I pondered those questions for a day or two and wrote my answers on a green 3x5 index card that became my mission statement for law school. I pinned it to the wall above my desk at home. Anytime I felt overwhelmed, I would look at that card and be reminded why I wanted to become a lawyer. My answers were idealistic and aspirational. After law school the reality of earning a living kicked in. At times I have been able to fulfill my idealistic mission, but always under the restriction of doing work that someone would pay me for. Even my work in legal aid was limited by what funding would allow us to do, not always by making the greatest difference for my clients. 

Many aspiring lawyers dream of making the world a better place. We yearn to represent those who have limited access to the system, to defend the rights of others, to improve our communities, to assert the rights of others, or to change the laws and systems to make the world a better place. Throughout our working lives we have done what we can, but for most of us, earning a living had to come first. As I approach the point in life that I won’t need to earn a living, I am thinking about what I want to do next. I am starting to revisit the idealism that helped me persevere through law school. I am starting to think about why I went to law school, took the bar, and what can I do now that I don’t need to do what people are willing to pay me to do. I am starting to revisit my answers on that green 3x5 index card.

Pro bono is an opportunity for rebirth of the idealistic dreams I had as a law student: being free to take on clients who otherwise do not have access to the legal system, assuring that their rights are protected, and allowing them an opportunity to be heard. I can do what I dreamt of doing; I can make the world a better and fairer place for everyone. The next phase in my life is a rebirth of idealism.

Pro Bono

Rule 6.1 of the Model Rules of Professional Conduct indicates that all attorneys are obligated to provide pro bono legal assistance. Pro bono legal assistance is work done without expectation of being paid or at a drastically reduced cost for clients with limited or no ability to pay. The spectrum of need for pro bono legal help is nearly as broad as the spectrum of legal practice. In nearly any field of the law, there opportunities to make a difference.  

Emeritus Pro Bono Practice Rules

When no longer practicing law for a living, many attorneys enter inactive, retired, or senior status, reducing the burden of bar dues or license fees and ongoing continuing education requirements. Most states offer a third option of “Emeritus” or “pro bono status” that lessens the burden to maintain a license for attorneys who agree to do pro bono work only. These rules vary from state to state; some states require minimum age or number of years of practice while other states cover nearly any attorney who agrees to limit practice to pro bono. An increasing number of states include attorneys licensed in other states who agree to do pro bono work only. Most require that the pro bono work be done through a qualified legal services organization or pro bono program. Many of the rules require the host organization to provide malpractice coverage. The ABA publishes a listing of these rules at https://www.americanbar.org/content/dam/aba/administrative/law_aging/2018-emeritus-probono-practice-rules.pdf.[1] 

For many lawyers the “emeritus” or “Pro Bono practice” rules reduce the burden of licensure and open the door to pursuing the idealistic dreams of making society a better place. The rules allow the attorney to provide pro bono legal assistance and reduce or waive annual licensing costs—some even reduce or waive CLE burden. The modern trend is for the rules to address malpractice or liability insurance provision by the host agency.

The rules define who is eligible. Generally, the target of the rules are attorneys who are retired or inactive. Some rules are limited to attorneys licensed in that jurisdiction, other states welcome participation by attorney in good standing licensed in any state. Some rules define a qualified attorney based on age, or number of years of practice, or a combination of the two. Other rules include any licensed attorney who is retired or inactive and agrees to limit practice to pro bono only.

Many of the rules limit participation to working with recognized legal aid programs. This assures that the clients have been screened for economic need and that the legal issue is one the program believes is important. Some states narrowly define a qualified legal aid or pro bono program, others are very flexible in recognizing any non-profit legal aid or pro bono program as a qualified provider. In states that have a narrower definition of a qualified legal service provider the options may be more limited. Civil legal aid programs who receive funding from Legal Services Corporation (LSC.Gov) limit the scope to assistance on issues they have determined to be the most pressing issues for their clients. This might mean that the issue the lawyer most wants to work on is one for which the program does not provide services. If the state is flexible in recognizing a qualified provider, non-profit groups focused on specific issues may be able to host the Emeritus attorney. For example, if the attorney wants to litigate tort reform, an LSC-funded legal aid program would likely be unable to host that work as being outside of priority. But, a non-profit dedicated to that issue would be able to host this work.

Some of the rules specifically address continuing legal education (CLE) for lawyers working under the rules. While some rules reduce or waive CLE requirements, other rules require specific CLE, and some rules require the host organization to provide CLE.

Many of the rules address supervision or oversight. Some states require supervision or oversight of all pro bono attorneys working under the rules, other states only require this for attorneys licensed in other states and not in the state in which the work is being done. These provisions are aimed at providing support and back-up for the pro bono attorney and at protecting the public.         

Some law firms and other employers are encouraging experienced attorneys to pursue pro bono or unpaid public interest work by providing technical support, office space, paralegal support, access to research services, and maybe most important, continuing malpractice coverage. Some do this as a phased retirement option, others as a sabbatical-type program.

Emeritus Rules Are Not the Only Answer

Being a lawyer is a core part of the identity for many attorneys, and paying annual bar dues and completing CLE are a low price to pay to continue to be a member of the profession. A lot of attorneys remain active members of the bar until they die. While active members of the bar, they can do any legal work that they feel competent to do, and many become active community volunteers. Community volunteering may or may not include practicing law.

Attorneys are frequently sought as board members of non-profit organizations. Boards benefit from the knowledge and connections of attorneys. The skills of navigating bureaucracy and compliance with regulations developed over a lifetime of practice add real value to attorneys as board members.

Some attorneys enjoy mentoring and training. This may not involve the active practice of law, but it leverages the expertise of the experienced attorney to develop community and business leaders. This work may not fit neatly into the definitions of emeritus or pro bono practice, but it may equally benefit the community and help the lawyer reconnect with what inspired them to go to law school.

A dream of improving society through politics draws many to the law. Reaching the point of no longer needing to earn a living, empowers many attorneys to become politically active. Some run for elected office, many more become advisors and activists on issues they hold dear. Providing guidance to law and policy makers helps to shape laws that not only reflect the views of the attorney, but also are more likely to stand up to challenge.

Some attorneys want to do work that qualified legal aid providers in their state do not. This may mean that the Emeritus Pro Bono Practice rules don’t cover what they want to do, and the only option may be to remain licensed to practice law. Malpractice insurance may be required, and even if it is not, it protects both the attorney and the client should something go wrong. In most areas there are insurance companies that specialize in lower cost malpractice liability insurance for qualified non-profit legal service providers.[2]

International work attracts many experienced attorneys. This may be business development work, providing advice on development of courts, laws, due-process, or overseeing elections. This work is not the practice of law in the state which the person is licensed. The opportunity to travel and make a difference around the globe is very appealing to many attorneys.  

Ray Kroc, who franchised McDonald’s said, “As long as you are green, you are growing; when you are ripe, you start to rot.”[3] Pursing idealism is an opportunity to keep growing, to learn new things, and to apply knowledge in new ways. The singer Marc Anthony is quoted as saying, “If you love what you do, you’ll never work a day in your life.” Engage in your idealism, and you will progress from working to doing what you love.

To Do It, Plan for It

Idealism comes from inside. If we wait for pro bono to come to us, we may never hear the phone ring or receive the email. Think about what excites you and about how you can apply your lifetime of knowledge and skills to bringing about the idealism of your dreams. Seek out hosts and opportunities. Opportunities take time to develop; start planning before you leave the office for the last time. In fact, planning may result in you setting an end date on working for a living.

[1] This chart contains summaries of the rules, always check with the state regulatory agencies for specifics or clarifications.
[2] Some pro bono volunteers make a cash donation of the premium to the non-profit they volunteer for.
[3] https://www.brainyquote.com/quotes/ray_kroc_130750

Author

David Godfrey
Washington, D.C.

David Godfrey is the Senior Attorney for the ABA Commission on Law and Aging.