Addressing the challenge of pro bono legal service

As you may recall from my previous column, I proudly serve as Chair of the Bench and Bar Section Council of the Illinois State Bar Association for the 2017-2018 bar year. In my last Chair’s Column, entitled, “The Challenge of Pro Bono Legal Services,” I reported on our Council’s discussion about the many impediments to doing pro bono work, which have resulted in only approximately one-third of the lawyers in Illinois actually performing pro bono work, according to the Attorney Registration and Disciplinary Commission. These challenges included: (a) the expense of performing pro bono matters at the cost of billable work; (b) time constraints in doing non-billable, pro bono work in the face of minimum billable hour requirements; (c) the concerns of many lawyers that they do not have the expertise in the subject areas in which pro bono work is often needed, such as immigration and domestic relations; and (d) the failure to inform lawyers of various pro bono opportunities.

After discussing the many challenges to pro bono service, the Council members debated a number of possible solutions to these obstacles. The Council briefly addressed and dismissed the idea of making pro bono work mandatory for all Illinois lawyers. The Council concluded that the Illinois Supreme Court should not mandate lawyers to “do good” and that forcing a lawyer to help a client who he or she does not wish to assist is a bad idea. One Council member reminded the group that involuntary servitude was abolished in the 13th Amendment to the U.S. Constitution and another pointed out that there is no state jurisdiction in the U.S. which requires attorneys to perform pro bono work.

Many courts, however, have required attorneys who wish to serve on compensated, court-appointed panels or as a court-appointed Guardian Ad Litem, to handle a certain number of cases on a pro bono basis before they are eligible for such paid assignments. This wisely serves the dual purpose of providing pro bono services to litigants who cannot afford to pay a lawyer while giving attorneys the experience they need be effective in these roles.

Likewise, the federal trial bar requires its lawyer members to handle pro bono cases assigned to them by federal judges from time to time as a condition of membership in the trial bar. And many of the judges on our Council observed that they have often asked attorneys to serve as a “friend of the court” to litigants who cannot afford lawyers. The judges reported that no lawyers have ever turned down their requests. Perhaps judges need to make such requests more frequently.

Another important tool discussed by the Council in encouraging pro bono representation is the modification to the Illinois Rules of Professional Conduct (“RPC”) and the Illinois Supreme Court Rules to allow for limited scope representation. Effective July 1, 2013, RPC 1.2(c) has provided that a “lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.” Comment 6 to RPC 1.2(c) elaborates that limited scope representation “may be appropriate because the client has limited objectives for the representation” and that the terms of the limited representation “may exclude specific means that might otherwise be used to accomplish the client’s objectives.” Thus, limited scope representation may enable lawyers to perform pro bono work in reduced amount of time on a circumscribed aspect of a case to alleviate the lawyers’ concerns about the cost of providing free services at the expense of billable work. Council members noted an increased need for judicial education on limited scope representation.

Further, Comment 7 to RPC 1.2(c) states that “[a]lthough an agreement for a limited representation does not exempt a lawyer from the duty to provide competent representation, the limitation is a factor to be considered when determining the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Accordingly, limited scope representation may serve to address the concerns of many lawyers that they do not have the expertise needed to perform pro bono work in certain subject areas.

Another possibility discussed by the Council was for bar associations, including the ISBA, to serve as a “clearinghouse” of sorts, wherein legal aid agencies could advise the bar associations of their specific needs for pro bono counsel, and the bar associations could then notify their members of the various pro bono opportunities. This would address the problem identified by Council members that many attorneys are unaware of pro bono opportunities. Additionally, Council members opined that bar associations could incentivize their members to perform pro bono work by offering free continuing legal education training seminars to those who agree to undertake pro bono representation.

There are no simple solutions to the challenges of performing pro bono work, but I hope that some of the ideas presented in this column will enable lawyers to increase the delivery of legal services directly to persons of limited means, which is an important responsibility of the legal profession. 