During law school, people often discuss going into public service work, including government work, legal aid, or pro bono opportunities. However, there is not often any discussion distinguishing the nature of the many layers of public service. When it comes to pro bono work, even attorneys practicing law for some time often fail to understand the difference between doing someone a legal favor for free versus providing pro bono services. The following are some general guidelines for new and incoming attorneys to keep in mind when trying to understand the difference between pro bono legal work and doing other kinds of free legal work.
What Is Pro Bono?
“Pro bono” is a shortened version of “pro bono publico,” which is a Latin phrase that generally means “for the public good.” The defining feature between pro bono and free legal services is the “for the public good” characterization. These are services in the legal profession that may be offered free of charge or sometimes for an “at cost” charge (like the cost of filing paperwork or travel). They are services that are usually reserved for certain qualified groups. Qualified groups may include individuals below a certain income threshold, of a particular age, or even a special status, like veterans. Pro bono services benefit individuals who are part of a group that may otherwise have a difficult time affording legal services for the needs they have.
Pro Bono Fills a Gap in Access to Legal Services
The need for pro bono services arises from a noticeable gap in access to legal services based on access to resources. According to the Justice Index survey, there are just 1.12 civil legal aid attorneys for every 10,000 people in the United States with incomes below 200 percent of the federal income poverty level (this is in comparison to 40 attorneys for every 10,000 people in the general population). Without fair access to resources, there is little guarantee that a case can be resolved fairly or in a way that promotes justice.
Pro Bono Is a Professional Responsibility
Pro bono service is not only a way to give back to an individual, group, or community, but it is also an ethical necessity on the part of the legal community. Commitment to furthering access to justice and advocating for those that would not otherwise be able to advocate for themselves in a court of law are at the core of the American justice system. If attorneys are considered the key to accessing the courts, how can we expect those who cannot normally connect with an attorney to have an opportunity to get through the doors to be heard? As the late Justice Ruth Bader Ginsburg explained, “lawyers have a license to practice law, a monopoly on certain services. But for that privilege and status, lawyers have an obligation to provide legal services to those without the wherewithal to pay, to respond to needs outside themselves, to help repair tears in their communities.”
What Is NOT Pro Bono?
As new attorneys, if you haven’t already been solicited for free legal advice or help, you probably will be soon. It can be challenging to navigate interactions with family, friends, acquaintances, and even strangers who want free legal advice. But it is essential to know that giving free legal advice to your friends who say they can’t afford an attorney does not necessarily constitute pro bono time. Nor does helping your grandmother’s friend write a will or volunteering to help the Girl Scouts sell cookies. These are circumstances that you may find yourself in out of convenience, but just because your old high school acquaintance reaches out and says they can’t afford an attorney does not mean you can—or should—count any advice or time you spend on their case toward pro bono hours.
There are important reasons these categories of help are distinct. Regardless of what kind of practice you are in, taking a free legal case rather than a pro bono case can affect your malpractice insurance. Some states offer limited malpractice insurance for attorneys taking official pro bono cases. Generally, law firms will cover legitimate pro bono work under their insurance as well, but that may not be the case for a lawyer helping advise their close friend through a divorce free of charge. Furthermore, it is assuredly unethical to claim this kind of work as pro bono time in a state where you may get continuing legal education (CLE) credit for the time you donate to appropriate pro bono cases or other kinds of benefits. Before you characterize a matter as pro bono, consider whether it falls within the “for the public good” umbrella and evaluate whether it is a matter that promotes access to justice for someone in need or is simply a favor asked by someone trying to save some money.
Why You Should Care
ABA Model Rule of Professional Conduct 6.1 guidance explains that lawyers have a responsibility to provide legal services, even to those who are unable to pay, and that all practicing attorneys should try to give at least 50 hours of pro bono services per year to people with limited means or to charitable organizations that have high need. Many states have similar guidelines, including my home State of Wyoming, which provides statistics and resources concerning the need for pro bono services within its borders in the case for why attorneys should do at least 50 hours of pro bono work per year. Some states, like New York, have adopted rules requiring bar applicants to perform at least 50 hours of pro bono services. Other states, like California, offer benefits to attorneys who contribute to their own pro bono practice program by waiving annual bar fees and reduced rates for CLE classes.
Remember—pro bono is for the benefit of those in high need in your communities. Even though your friend who reaches out for legal help through social media may seem like a charity case, that does not mean it should be considered pro bono work. The distinction is important, and there are plenty of opportunities in each state to seek out genuine pro bono cases. If you are ready to take on a pro bono case and not sure where to start, you may want to start with the US Department of Justice’s list of pro bono legal service providers or probono.net. You can also Google your state or regional name with “pro bono referral.” The need for pro bono services is high all over the United States, and starting by taking one case is the first step toward fostering a stronger community.