The Pro Bono Wire
April 25, 2013
Preparing for a CLE program on ethical issues regarding in-house corporate pro bono that I presented recently at American International Group, Inc.** (read the story here) gave me the opportunity to review a wide range of ethics rules, opinions, practice/admissions rules, and court decisions. At PBI, ethics, as it relates to pro bono service, is one of our priorities. We have developed a pro bono ethics handbook, and we are involved, particularly for the in-house community, in changing rules that create obstacles to pro bono. Taking a deeper and broader look at the interplay of ethics rules and the current crisis in access to justice, however, brought home to me the extent to which the current framework and ethical guidelines for lawyers and judges can impinge on innovative approaches to expanding access to justice.
Today, the law is more than ever both a business and a profession. Heightened competition; lowered client demand; a misallocation of legal talent that to lawyers looks like oversupply, and to all but the wealthiest clients looks like inaccessibility; a shaky and spotty recovery from the Great Recession – all of these factors have combined to make the legal community more anxious, and consequently more protective of its economic base than ever before.
The two key elements of our identity as professionals are service to others and a willingness to rigorously regulate ourselves. The ethics rules and codes that govern our behavior, while not wholly unique, are among the strongest and most impactful of all the professions, and their purpose is both to inform the behavior of lawyers and to protect clients. Increasingly, however, those rules and codes are out of step with today’s justice system and are viewed through a lens of economic protectionism, rather than client service and protection.
As currently configured and interpreted, this can result in the creation of unnecessary obstacles to pro bono service and access to justice. Just a few examples:
*Multijurisdictional practice
In an era of unprecedented lawyer mobility, multijurisdictional clients and practice, and increased use of technology, the current state-by-state admission of lawyers seems, to many, outdated and out of touch. Commentators have noted that, while framed in the context of client protection, these rules and ethics provisions seem far more grounded in economic protectionism and focused on lessening competition for commercial clients. The fact that admission requirements in many states limit not only commercial practice but also the ability to undertake pro bono work is particularly troubling. In the in-house context, for example, the current rules in many jurisdictions are either silent on whether legal department lawyers licensed and in good standing in one state but working for their corporate client in a different state may ethically do pro bono. Some jurisdictions impose unnecessary limitations and pre-conditions, despite the fact that these lawyers typically have years of practice experience, including pro bono participation. The problem is not limited to in-house counsel. Regional, national, and global law firms may experience the same difficulties, particularly when they become involved in pro bono matters that impact more than one state. Public interest groups that focus on systemic change may experience difficulties in bringing test cases in key jurisdictions because their small cadre of lawyers is not admitted in all of those jurisdictions. Although pro hac vice is one solution to these barriers, it is a cumbersome and inefficient approach if our goal is to substantially increase pro bono service.
*Student practice rules
In today’s economy we must find viable pathways that enable law students to develop practice skills as early as possible to make them more marketable to legal employers. At the same time, the growing number of clinics and law school pro bono programs demonstrates that law students, under the right circumstances, can be effective advocates for low-income persons and community groups. In many states, however, student practice rules have been on the books for decades and have not been reviewed or evaluated to determine whether the often complex and burdensome process of enabling students to provide pro bono service could be reasonably simplified.
*Code of Judicial Conduct
At a time when the judiciary and the courts can and must be critical elements in enhancing pro bono and access to justice, varying state interpretations and Codes of Judicial Conduct, coupled with uncertainty about what is permissible, can have chilling effects on the actions of this critical sector. Some judges, for example, believe that it is not permissible for them to play a role in recruiting or acknowledging pro bono volunteers. In other jurisdictions, the bench feels reluctant to support efforts to increase funding and resources for civil legal aid. While courts in some jurisdictions are actively partnering with pro bono and public interest groups, law firms, and legal departments, those in other states are concerned that creating joint projects and initiatives is unethical, impairs their objectivity and independence, or creates the appearance of impropriety. And, as noted below, there is no clear consensus on what role judges could and should play with respect to self-represented litigants, including those who have received limited assistance from lawyers. As key players and influencers, judges must have the unambiguous capacity to undertake a wide range of activities and roles to promote and improve access to justice, particularly in light of the “justice gap” we face today.
*Unbundled Service
Client demands for more control and empowerment and cost concerns, as well as the flood of self-represented litigants, have driven a move toward permitting lawyers to provide discrete, unbundled assistance to clients at all economic levels, but particularly those with limited financial resources. Courts in many jurisdictions have embraced this development and worked with the legal profession to make the courts more welcoming to pro separties and those who seek limited assistance and guidance, as opposed to full representation, from lawyers. In other jurisdictions, however, the ethics rules have not kept pace, in part because of concerns that unbundled service is not in the economic interest of lawyers, an incorrect assumption. Not all clients want or can afford full-service representation, but those informed choices are not respected in a number of jurisdictions.
*Conflict of interest
Avoiding conflicts of interest is an essential element of ethical legal practice. However, over-defining conflicts has a devastating impact on pro bono capacity. The problem in the current environment arises in three contexts. First, there is a continuing trend in adversarial situations to assert conflicts of interest as a means of disqualifying opposing counsel. This use of conflicts as a litigation tactic can have a chilling effect on pro bono service because lawyers may limit their pro bono service due to concerns that it will impair their ability to undertake paying client work. A related issue is the overly broad definition of business/positional conflicts that, again, leads law firms to restrict the type of pro bono matters they are willing to handle. The Model Rules definition of positional conflicts is actually quite narrow, but there has been very limited guidance and clarification of that fact. Finally, in a legal economy where “large firm” may mean an institution with more than 4,000 lawyers in dozens of jurisdictions, we need to reassess the rules regarding “imputed disqualification” – the concept that all lawyers in a firm (or legal department or public interest organization) are presumed to have the same knowledge and therefore are all in a conflicts situation if any one lawyer in the firm is. We must ensure an approach to this issue that protects clients and client confidences while not unduly limiting pro bono due to a presumption that, in large legal institutions, is simply unrealistic and unwarranted.
*Attorneys’ fees awards
PBI strongly encourages law firms to seek awards of costs and attorneys’ fees when they prevail in pro bono matters where such awards are available. We also encourage them, whenever feasible, to donate those fees. We do so because of the “private attorney general” concept that underlies the practice of awarding fees and costs – in bringing these matters, pro bono lawyers are benefitting the public by deterring and ending unlawful contact. In recent months, some judges, concerned particularly about the financial crises faced by government entities, have determined that pro bono counsel are not entitled to attorneys’ fees. This is a troubling development for many reasons. First, it will make significant and time-consuming pro bono matters more difficult to place at a time when the capacity of public interest groups to handle those matters on their own is quite limited. Second, it will result in fewer financial resources for key public interest groups, since a number of groups focused on systemic litigation rely on donations of attorneys’ fees in pro bono matters. Finally, and most troubling, it will remove an important tool and deterrent from major litigation and create an unequal playing field for low-income and disadvantaged plaintiffs.
Conclusion
These issues are, in many respects, only the tip of the iceberg. Current ethics rules, opinions, and court decisions have a dampening effect on a range of innovations and initiatives that can improve access to justice. The use of technology by legal aid and pro bono lawyers; increased use of non-lawyers; taking full advantage of the baby boomer legal generation’s interest in pro bono as they transition out of full-time commercial practice; and incentivizing pro bono service by offering CLE credit for experiential learning in pro bono matters are strategies that can be employed to help close the justice gap.
In these and other areas, our ethics framework has not kept pace. It is time for the legal profession to take a long, hard look at that framework through the lens of access to justice, to clarify and unify, to the extent possible, approaches that protect clients and also enhance access and pro bono service. If we don’t do so, the pressures of the current crisis may be addressed instead by external forces, such as government entities, at the cost of our profession’s monopoly on service, independence, and autonomy in regulation.
**denotes a Signatory to the Corporate Pro Bono ChallengeSM