COURTROOM CRUSADERS: ETHICAL CONSIDERATIONS FOR PURSUING PRO BONO
CASES IN FEDERAL COURT
VOLUNTARY PRO BONO PUBLICO │ RPC 6.1
What is at the heart of this rule?
Lawyers have a professional responsibility to provide legal services to those unable to pay
Who should I be helping via pro bono?
Income eligible people and orgs; plus matters that improve the law, legal system or profession
How many hours should I be aiming for?
WA RPC 6.1 encourages lawyers to do “at least” 30 hours per year
PRO BONO APPLICATION
— Pro se plaintiffs apply for appointment of counsel to help them with their civil rights cases.
— Screening Committee may review requests, make a recommendation to the Court
— Court appoints counsel from volunteer panel
— Join the panel as an individual or firm by completing this form online
— Your qualifications will be reviewed, you’ll be notified if you’re selected
— Once on the panel, the Court can appoint you and/or your firm to a pro bono case
PRO BONO PLAN FOR THE WESTERN DISTRICT
— Amended September 8, 2023
— Sets out terms, policies, procedures for representing pro se litigants in civil rights actions in the WDWA
— Go-to document for questions and answers, including:
→ Factors considered in appointment decision
→ Providing notices to parties
→ Limited representation information
→ Expenses and costs covered and not covered
→ Process for prepayments/reimbursements
→ And more!
THE PROCESS
• NOTICE
— Attorney receives written notice from the Court of appointment along with a Case Evaluation letter from the Judge’s Chambers and select filings.
• CONFLICTS
— Run conflict check and consider capacity to take case.
•
ACCEPT OR REJECT APPOINTMENT
— Within seven days, notify Court Program Coordinator whether you accept the appointment and confirm you have checked conflicts OR that you cannot accept the appointment.
DUTY OF COMPETENCE │ RPC 1.1
A lawyer shall provide competent representation to a client
Matters handled pro bono do not lessen duty of care or corresponding regulatory duty of competence.
THE STANDARD
Competent representation requires
— legal knowledge
— skill
— thoroughness
— preparation reasonably necessary for the representation
Although rare, lawyers have been disciplined for RPC violations arising out of deficient pro bono work.
Per the ABA, substantive errors account for 46% of legal malpractice claims. Most obvious are failures to know or properly apply substantive law and failure to know a deadline.
‘Dabblers’ far more likely to fail to know/apply the law.
MEETING DUTY OF COMPETENCE│RPC 1.1
IF YOU TAKE A MATTER WITHIN YOUR AREA OF EXPERTISE
Consider taking advantage of trainings for cultural competency and humility.
Consider mentoring new lawyers.
Complete comprehensive trainings, access resources.
IF YOU TAKE A MATTER OUTSIDE OF YOUR AREA OF EXPERTISE
Get connected with mentors and/or supervisors.
Consider working in a team within or from outside your firm or organization that may complement your skill set.
AVOIDING MALPRACTICE │RPC 1.1 │
DUTY OF COMPETENCE
Treat your pro bono client like you would any billable client.
If not your area, take trainings and secure an active mentor.
Research the areas of law presented by the case to get your footing.
Actively work on the case.
If case going sideways, seek help ASAP.
DUTY OF COMMUNICATION│RPC 1.4
One of the most common disciplinary complaints filed with the bar!
In a pro bono case, like any other, an attorney must promptly and regularly communicate regarding:
Decisions or circumstances requiring client informed consent
Means by which objectives will be accomplished
The case status
Any questions the client communicates
What an attorney can and cannot do under the law and RPCs
You cannot reveal a pro bono client’s information related to your representation without informed consent from the client. Except:
To prevent reasonably certain death or substantial bodily harm.
To prevent the client from committing a crime.
To prevent, mitigate or rectify substantial injury to the financial interests or property of another that is reasonably certain to result or has resulted from the client’s commission of a crime or fraud in furtherance of which the client has used the lawyer’s services.
To secure legal advice to ensure you are complying with ethical rules.
Etc.
CONFLICTS OF INTEREST│RPC 1.7
Before agreeing to take a pro bono case, ensure you do not have any conflicts where representation of this client will be directly adverse to another.
If there is a potential conflict, assess if you reasonably believe you can provide competent and diligent representation to each affected client; the risk of limiting effective representation to either client; and get informed consent from each client before proceeding with the representation.
OTHER CONSIDERATIONS
Assessing Experience, Workload, and Preparedness
Case Assessment
— Determine what is likely involved in the case in terms of time commitment, budget, skills needed (and gained), and staffing needs.
— Be realistic and, if not sure, over-estimate.
— What are the personal and professional benefits to working this case?
Timing and Workload
— What is your current and future workload?
— How much pro bono have you done recently? Can you fit this in given billable work and other commitments?
OTHER CONSIDERATIONS
Assessing Experience, Workload, and Preparedness Continued
Experience
— Do you have the requisite experience to lead this case?
— Do you need a mentor, co-counsel, and/or additional training?
Support and Resources
— Do you have buy-in from your practice group leader or chair?
— Can you staff the case fully or do you need/want co-counsel?
— Are you able to cover costs?
— Are statutory fees awarded?
RPC 1.4 │COMMUNICATION
The importance of establishing a relationship and expectations with your client
Contact client as soon as possible after appointment.
Read pertinent court documents, if available.
— Did the client file a Complaint already? Does it need to be amended? What other documents need to be filed?
— Discuss expectations with client so you know how to proceed.
Ask yourself: are the client’s expectations reasonable?
Research the pertinent law. Consider how to explain it to them in clear, simple terms to empower them and help them set reasonable goals.
ENGAGEMENT LETTERS
RPC 1.2 + RPC 1.4 + 1.5(b)
Consider who provides engagement letter, which includes clear and limited scope of representation.
In clinic setting, no engagement letter is needed.
In direct representation, regular clientattorney relationship created; all regular representation are RPCs in play.
Co-Counsel or Join Rep Considerations
WHY YOU SHOULD DO PRO BONO
Tremendous need for legal services.
Per a 2017 Justice Gap Report, approximately 74% of low income households have a legal issue per year, civil legal aid efforts only meet 8% of the need.
Communities of color are underrepresented by lawyers.
Pro bono is powerful, and yet most attorneys do not volunteer their time and talent to pro bono work.
Unique opportunity to gain experience in civil litigation in federal court while providing a valuable community service