By way of asking this question, I am hoping to capture the attention of those who are hesitant to ever agree to do pro bono work based upon a belief that the answer is yes. Truth be told, the correct answer to this one is actually “it depends.” To understand why, start by trying not to buy into the view that pro bono work is somehow different than work done for paying clients. It isn’t. A client is a client regardless of whether money is changing hands. I share all this to underscore that the risks of doing pro bono work are going to be the same as the risks that come with any other legal work that you do. The answer of “it depends” hopefully now makes a little more sense because the associated risks are in your control.
Some lawyers are encouraged to embrace pro bono work as a way to expand their horizons, a way to learn a new practice area and that’s fine. I have no problem with wanting to learn a new practice area as long as you are responsible in how you go about it. Just as a lawyer should never dabble in an unfamiliar practice area with a paying client, it should also never happen with a pro bono client. When navigating in unfamiliar waters have a map! Seek guidance. Get educated. Steps such as consulting with a trusted colleague or researching the law become mandatory and if that can’t happen, stop. Yes, this may mean that there will be times where the potential pro bono client will be best served by saying no; but remember the old adage “First, do no harm.” If you are not up to the task, take a pass and look to provide assistance to someone who needs help in the arenas you are comfortable practicing in.
A very real risk with pro bono work is the temptation to take shortcuts with these clients simply because they are non-paying clients. Resist this temptation. The basics still need to be documented particularly with things like scope of representation and the decision making process, to include the advice that was shared and why. Stop and think about this for a moment. The Rules of Professional Conduct make no distinction between paying and nonpaying clients. An argument that the standard of care should be a lower because the work was being done for free isn’t going to cut it in the world of malpractice or attorney discipline because the money issue simply isn’t a factor when it comes to professional accountability.
Now, not only should the basics of file documentation be followed through on but all of your normal office practices and procedures should be followed when providing pro bono services. For example, many attorneys routinely screen potential new clients in addition to running a conflict check at first contact with all paying clients. Don’t bypass these effective and necessary procedures with potential pro bono clients. While we all know that sometimes paying clients can turn out to be problem clients, why do some attorneys fail to recognize that the same is going to be true with certain non-paying clients? Of course it is. Stay with your tried and true procedures and remember that there is no rule that says you must take on every potential client that comes your way. Sometimes saying no is the best decision.
Finally, there are those who avoid taking on any pro bono matters fearing that their malpractice insurance will not cover that work. While a legitimate concern, this fear can be addressed and alleviated. Start by asking if your existing coverage is in play? It may or may not be. Lawyers are covered for the work they do on behalf of clients of the named insured which is their firm. If the pro bono client is a client of the firm, and documented as such, there shouldn’t be an issue. That said, if you need additional reassurance make that quick call to your insurance carrier and see what they say.
A potential problem could arise if an attorney were to provide pro bono services under the auspices of another entity such as a legal clinic. Certain malpractice policies would not provide coverage in this circumstance because this client would not be a client of the named insured (the firm) and other policies would. If considering providing pro bono services in situations like this simply ask a few questions. Many of these other entities will actually have a policy in place that covers the volunteer attorneys for the work they do on behalf of that entity’s clients. For those entities that don’t have their own coverage, call your carrier and clarify whether your coverage will extend to your specific situation and then make an informed decision. The solution may be as simple as providing the work through your firm as opposed to under the auspices of an outside entity or program. In other words, make the pro bono client a firm client instead of having them be the other entity’s client.
My intention with this article is not to present a pro or con position on the high calling of providing services pro bono. I simply wish to shed a little light on the excuses that sometimes get in the way of allowing attorneys to give back professionally. Nothing in life is risk free; but risk can be managed. So the next time you’re asked to help out on a pro bono matter, perhaps what has been shared here will help you feel more comfortable saying “Sure, I’d be happy to.” After all, you are a lawyer being asked to do what you are always being asked to do which is practice law. Go ahead and have at it.