Unpunished Good Deeds: Pro Bono Considerations

Posted by

Pro bono work is an important, and often fulfilling, aspect of an attorney’s practice. For those in financial hardship, the pro bono attorney may spell the difference between hope and disaster. However, some attorneys may hesitate to take on a pro bono assignment because they are wary of the potential for malpractice exposure. Indeed, one report found about half of all attorneys surveyed identified lack of malpractice coverage as a factor discouraging participation. This and other concerns are warranted. While pro bono work is to be encouraged in the appropriate circumstance, there are risk factors to consider before doing so.

Don’t dabble. Although some encourage pro bono assignments as an opportunity to expand horizons, this may open the door to attorneys acting outside of their comfort zone and putting themselves and the pro bono client at risk. Just as a lawyer should never dabble in an unfamiliar practice area with a paying client, so too should it never happen with a pro bono client. Seek guidance. Get educated or the attorney’s good intentions may turn to malpractice. In some cases this may mean that there will be times where the potential pro bono client will be best served by saying “no.” If you are not up to the task, take a pass and look to provide assistance to someone who needs help in the areas that you are most comfortable.

There are also insurance considerations. Some attorneys may reject pro bono assignments fearing that their malpractice insurance will not apply. This is a legitimate concern that may come down to the specific policy in play. Most attorneys are covered for work performed within the scope of their employment with the insured (usually their law firm) on behalf of clients. If the pro bono client is a client of the firm, and documented as such, there shouldn’t be an issue. When in doubt, check with your broker befor accepting an assignment.

Some organized pro bono programs attempt to “match” attorneys with assignments those attorneys are competent to handle, and may also limit the scope of representation, offer mentoring and skills training, and even extend malpractice coverage to volunteer attorneys to the extent tort reform legislation does not already provide a shield. Coverage for pro bono work often depends on your jurisdiction.

In any case, consider the fact that malpractice suits against volunteer attorneys are reportedly uncommon, judgments rarer, and significant financial consequences even more atypical. With that in mind, consider the following precautions:

  • Equal treatment. All clients, paying or pro bono, should be treated equally, and the Rules of Professional Conduct recognize this. Make sure you follow basics of file documentation and routine office procedures, including conflict checks for all matters.
  • Know your strengths. The duty of competent representation remains the same in the pro bono arena. Think twice before taking a pro bono case in an area of law with which you are unfamiliar. In some cases, the potential client will be best served by saying “no”, so that she can connect with another attorney more proficient in the particular at issue.
  • Reach out. ABA Standards recommend that volunteers receive training opportunities and support services. Organized pro bono programs typically provide training, supervision, and mentoring, and sometimes even technical and research support. Use this network.
  • Limit the scope. Implement an up-front agreement with the client, limiting the scope of your representation to those matters you have time and/or competence to handle. Limited representation can be vital, especially when a seemingly simple pro bono case turns into something more complicated as the facts develop.
  • Don’t be afraid to ask questions. If you have any uncertainty about if, and how, you will be covered for involvement in a pro bono matter, check with your firm’s insurance carrier and/or the insurance carrier of the referring pro bono agency.