Pro Bono Ambushes: Balancing Client Needs With Risk Management

Pro bono work is a vital aspect of the legal profession’s commitment to equal access to justice, often providing critical legal services to individuals who cannot otherwise afford representation. While pro bono work offers significant professional and societal benefits, it presents several ethical dilemmas for attorneys and law firms.

These challenges center on resource allocation, maintaining competence, and managing expectations, all of which must be navigated in accordance with the applicable Rules of Professional Conduct.

1. Resource Allocation and Prioritization

One of the fundamental ethical dilemmas in pro bono work is balancing limited resources between paying clients and pro bono obligations. Model Rule 1.3 (Diligence) requires a lawyer act with reasonable diligence and promptness in representing a client. This applies equally to pro bono clients, meaning that lawyers cannot prioritize paying clients over pro bono clients when it comes to the quality and timeliness of legal services. This can often be a difficult allegation to defend against as attorneys often juggle dozens (sometimes even hundreds) of client matters, and affirmatively demonstrating diligence is often not feasible.

Lawyers often face challenges in resource allocation when their pro bono caseload is high. Rule 6.1 (Voluntary Pro Bono Publico Service) encourages lawyers to aspire to provide at least 50 hours of pro bono legal services per year and some jurisdictions expect even more. However, the Model Rules also caution lawyers to avoid overcommitment, which could lead to inadequate representation. If a lawyer takes on too many or overly complex pro bono cases, they may run afoul of Rule 1.3 if they cannot provide timely or competent service to all clients.

2. Competency and Standard of Care

Another major concern in pro bono work is ensuring competency, as required by Rule 1.1 (Competence). Pro bono cases often involve issues outside a lawyer's regular practice area, which can lead to concerns about the lawyer’s ability to competently represent their clients. The ethical obligation under Rule 1.1 requires a lawyer to possess the legal knowledge, skill, thoroughness, and preparation necessary for the representation, regardless of whether the client is paying or the service is offered pro bono.

If a lawyer takes on a case in an unfamiliar area of law without obtaining the necessary training or support, they risk providing substandard representation, violating Rule 1.1 and potentially generating a legal malpractice claim. To mitigate this risk, lawyers can either seek additional training or collaborate with more experienced colleagues, ensuring they uphold their duty of competence. Volunteering with a pro bono organization (especially one with their own insurance) is a great way to safely satisfy Rule 6.1.

Additionally, Rule 1.3 (Diligence) requires attorneys to pursue matters on behalf of clients with diligent zeal, which means that even in a pro bono setting, a lawyer cannot deliver less effort simply because the client is not paying. The challenge lies in balancing time and attention across paying and non-paying clients, ensuring equal diligence in all cases. One way to document this is to credit lawyers for their pro bono work or otherwise encourage them to record their time on pro bono matters.

3. Managing Expectations and Client Communication

Pro bono clients, especially those in precarious situations, may have heightened expectations about the outcomes of their legal matters. Attorneys must navigate this with careful communication, as required by Rule 1.4 (Communication), which mandates that lawyers keep clients reasonably informed about the status of their case and explain matters in a way that enables clients to make informed decisions.

The ethical risks arises when a lawyer, fails to properly manage a client’s expectations or fails to communicate potential limitations in the case or the attorney's own capacity to handle it. Rule 1.4 obliges attorneys to set realistic expectations from the outset, regularly updating pro bono clients about the case’s progress and challenges. Failure to properly manage expectations can result in frustration for clients and potential complaints of inadequate representation, even if the lawyer's intentions were altruistic. An excellent litmus test is to compare the quantity and quality of client reporting - a pro bono client's correspondence file should look as robust as a paying client's.

4. Supervision and Delegation

A simple reality, law firms often delegate pro bono matters to less experienced attorneys, paralegals, or even interns. While this can provide valuable experience, it raises concerns regarding adequate supervision under Rule 5.1 (Supervisory Lawyers) and Rule 5.3 (Nonlawyer Assistance). Supervising attorneys must ensure that the representation meets professional standards, and they are ultimately responsible for any errors or ethical violations that occur under their watch.

In pro bono work, supervision becomes particularly important when cases are handled by junior attorneys or nonlawyers, as a failure in oversight could lead to breaches of competency, diligence, or client communication standards.

While pro bono work is an ethical obligation of the legal profession, it presents unique challenges related to resource allocation, maintaining competence, and managing client expectations. By adhering to the Rules of Professional Conduct, particularly Rules 1.1, 1.3, 1.4, 5.1, and 6.1, attorneys can mitigate risks and ensure that their pro bono clients receive the same standard of care as paying clients.

Managing these risks effectively ensures that the lawyer’s ethical duty to serve the public interest through pro bono work does not conflict with their duty to maintain professional standards in all representations. Your best risk management approach - write a sizeable check to a pro bono legal services organization, second best: volunteer there under their supervision (and malpractice insurance coverage).

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