JULY 2019 | AROUND THE ABA

Primer on emeritus attorney rules

Whether you are at the end of your law practice career or wanting to fulfill a goal of why you went to law school in the first place – such as to help those in need – retired or inactive attorneys can do pro bono work under a relatively new program rule that’s designed to make it easier for people without a lot of resources to get access to justice.

Emeritus Pro Bono Practice Rules, according to David Godfrey, senior attorney for the ABA Commission on Law and Aging, lessen some of the licensing burden for retired or inactive attorneys who agree to limit their practice to pro bono-only cases in exchange for bar dues or other obligation. The goal of the rules is to encourage pro bono work by attorneys who might otherwise be discouraged by the burden of maintaining a law license for their volunteer work. Godfrey was one of the presenters on the ABA webinar, “How to Navigate Emeritus Pro Bono Practice Rules.” He was joined by Christa Gantz, director of Access to Legal Services, Virginia State Bar in Richmond; and George T. “Buck” Lewis, chair of the ABA Standing Committee on Pro Bono and Public Service and a shareholder with Baker Donelson in Memphis. Tali Albukerk, national administrator of ABA Free Legal Answers, moderated the program, which was co-sponsored by ABACLE.

The emeritus program creates a pool of qualified volunteer attorneys to provide services to those in need. According to Godfrey, 44 states have active Emeritus Pro Bono Rules. He said there are emeritus status for law firm members, judges and law faculty. In addition, there are a handful of states granting emeritus status that wave licensing based on age or number of years of practice without mentioning pro bono commitment.

“These rules are important because there is a huge need for legal assistance,” Godfrey said. He pointed to a 2017 study by the Legal Services Corporation that found that 86% of the civil legal problems reported by low-income Americans received inadequate or no legal help, and that about 50% of people who approached LSC-funded legal aid organizations in 2005 and 2009 for help did not receive it because of insufficient resources.

Some fast facts about the Emeritus Pro Bono Rules:

  • The rules started with age restrictions, but the trend today is toward no age restrictions, Godfrey said, as states recognize that attorneys may need to withdraw from earning a living through the practice of law at any age. Currently there are six states that have some type of age requirement for at least some emeritus pro bono volunteers, and they range from 55 to 70 years of age.
  • More states look at the number of years of practice, to ensure that the pro bono practice attorneys are experienced.  Currently, 16 states have a rule on this, ranging from 5 years to 25 years of experience, and some of those states require that the active practice of law years be relatively recent.
  • All the laws are based on the license status available in your state. Most states have active and retired; some have special status for inactive attorneys, in-house or corporate counsels, judges and law professors. The category you fall into is tied to the license status available in that state.
  • About 22 of the 44 states allow attorneys licensed in other states to practice under the rules. The rules generally require a lawyer be in good standing, meaning there is no recent disciplinary history in any state where the person is licensed.
  • 41 of the 44 states require that services be provided through a qualified legal service provider. The definition of qualified legal service/pro bono program varies from state to state: some allow any nonprofit, some require they be publicly funded and others require the host program apply and be approved.
  • Some states require the host agency provide oversight and supervision. Nineteen of the states require direct supervision; one state says adequate supervision and there is no mention for the others. It is helpful if the host agency can provide substantive expertise, office space, email, phone and other technology.
  • 18 states specifically mention the need for malpractice liability insurance; the mention varies from having to disclose whether it exists to it being a requirement provided by the legal aid or the pro bono practice program.
  • The attorney licensing rules are created at the state level and they are made or amended like any other licensing rule. They are not a part of the ABA Model Rules of Professional Conduct and there is no standardized form or template for the rules.

A summary of the existing rules can be found at ABA Law and Aging Emeritus Pro Bono.

Gantz talked about the success of Virginia’s emeritus program, which was created in August 2004. “Early on, significant restrictions on the attorneys discouraged participation and some even dropped out,” Gantz said. “Very few lawyers applied for emeritus status and some years we had no one signed up.” But after revisions and amendments to the program adopted by the state supreme court in December 2017, the program has grown from one attorney to 11.  

The pro bono effort is also bolstered by ABA Free Legal Answers, an online program through which attorneys can provide free legal advice from the comfort of their own home with short-term commitment and malpractice coverage provided. Interested attorneys can sign up at www.abafreelegalanswers.org  or through your state’s Free Legal Answers, if it has one.

Free Legal Answers has more than 5,900 volunteer attorneys registered through the national and various state programs. “Any licensed attorney can answer questions, not just emeritus attorneys,’’ Lewis said. “The lawyers love this because they can do pro bono while they are sitting at home with their kids, or in an airport. It’s a convenient way to do pro bono work.” 

How to Navigate Emeritus Pro Bono Practice Rules” is available on demand, available at no cost to ABA members.