Demystifying Pro Bono Ethical Concerns, 0917 COBJ, Vol. 46, No. 8 Pg. 25
| Author | ALISON DANIELS AND TROY R ACKHAM, J. |
August, 2017
ACCESS TO JUSTICE
ALISON DANIELS AND TROY R ACKHAM, J.
The Access to Justice Series explores the access to justice gap in Colorado, discusses strides that have been made in closing this gap, and encourages further innovation in this arena.
Far too many individuals who have legal problems cannot afford assistance from a lawyer. In 2008, the Colorado Access to Justice Commission (Commission) explained that “Colorado faces a serious crisis in civil legal representation of the indigent. Many Coloradans who need legal assistance to secure and maintain healthcare, housing, custody, or other necessities do not receive help because there are too few lawyers at Colorado Legal Services, Colorado’s statewide legal aid program.”1 Six years later, the Commission found the situation had not improved significantly.[2] It made several recommendations, including taking “[a]dditional measures to encourage law firms, solo practitioners, government legal offices, and in-house counsel to provide, or expand their provision of, pro bono services.”3
This problem is not limited to Colorado. The American Bar Association (ABA) has noted that “in some jurisdictions, more than eighty percent of litigants in poverty are unrepresented in matters involving basic life needs. . . .”4 The ABA recommended, among other approaches, that “[l]egal aid and pro bono efforts must be expanded, fully-funded, and better-promoted” across the country.5
One of the barriers to expanding pro bono service is that many lawyers have concerns about the ethical risks and ramifications involved in providing such representation. This article aims to alleviate some of those concerns. While it is true that lawyers owe many obligations under the Colorado Rules of Professional Conduct (the Rules), the Rules actually encourage pro bono representation and should be viewed as a resource rather than a barrier to such representation.
The Three Cs of Pro Bono Work
The concerns lawyers have about pro bono representation generally fall into one of three categories: competence, conflicts, and communication. However, a close examination of the Rules reveals there are sufficient safeguards in place to alleviate each of these areas of concern.
Competence
It is a lawyer’s ethical duty to provide a client competent representation. “Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”6 In daily practice, most lawyers take careful measures to abide by this ethical standard. Often, however, the pro bono work that is needed is not in the field in which an interested attorney has expertise. In such cases, a lawyer should look to the Rules for guidance.
The Rules recognize and embrace the basic analytical training that lawyers undergo to become lawyers. A Rule comment notes that “[p]erhaps the most fundamental legal skill consists of determining what kind of legal problems a situation may involve, a skill that necessarily transcends any particular specialized knowledge.”[7] This comment acknowledges that many times a lawyer’s best skill is to sit and listen to a potential client and help the person identify the most important or time-sensitive matters she may be facing.8 In this situation, subject matter expertise is not paramount.
In more substantive situations, the Rules provide guidance on factors to consider in evaluating competency, including:
■ the complexity of the matter;
■ the lawyer’s experience generally and in the subject matter;
■ the lawyer’s training;
■ the possibility for preparation and study; and
■ whether the lawyer can consult or associate with a lawyer who has subject matter expertise.9
Further, the Rules indicate that subject matter expertise is not usually required, noting that “[i]n many instances, the required proficiency is that of a general practitioner.”10 With these guidelines in mind, a well-trained lawyer can use his most basic analytical skills to ethically undertake many pro bono activities.
Conflicts
Another concern is the danger of conflicts. Although conflicts of interest can cause trepidation on the part of even the most eager prospective pro bono lawyer, again the Rules provide appropriate safeguards.
In addition to a duty to avoid any current conflicts of interest, lawyers owe an ethical duty to former clients they or their law firm have served.11 Essentially, the Rules protect against a lawyer obtaining confidential factual information in the course of representation and then using that same information to the disadvantage of another client.12 This concept creates apprehension for lawyers who worry that even consulting with a...
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