Is It Risky to Agree to Do Pro Bono Work?

If you're hesitant to do pro bono work based upon a belief that this type of work is risky, I'm here to say "not necessarily!" 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. This means the risks that come with pro bono work are the same as the risks that come with providing legal services to a paying client. Most of the risks associated with providing pro bono services are risks that you have a great deal of control over.

For example, if you are being encouraged to embrace pro bono work as a way to broaden your skill set or to learn a new practice area, why not go for it? As a risk manager, I have no problem with this. Wanting to learn a new practice area in this fashion can be a real benefit as long as you are responsible in how you go about it. Consider Comment [2] to ABA Model Rule 1.1 which states:

[2] A lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar. A newly admitted lawyer can be as competent as a practitioner with long experience. Some important legal skills, such as the analysis of precedent, the evaluation of evidence and legal drafting, are required in all legal problems. Perhaps 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. A lawyer can provide adequate representation in a wholly novel field through necessary study. Competent representation can also be provided through the association of a lawyer of established competence in the field in question.

Therefore, just as you should never dabble in an unfamiliar practice area with a paying client, you should never do so 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. Sometimes the necessary time commitment alone is reason enough to require that you say no. Yes, this may mean there will be times where a potential pro bono client may be left with an unmet need; but remember the 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 practice areas you are more comfortable with.

Another risk with pro bono work can be the temptation to take shortcuts on and/or neglect pro bono matters simply because these clients are non-paying clients. It’s important to note that the Rules of Professional Conduct make no distinction between paying and nonpaying clients; so, resist that temptation at all costs, particularly as it relates to client communication, diligence, and file documentation. A rationalization that the standard of care should be a lower because the work is pro bono 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.

Again, think about what our ethical rules require. To remain in compliance with Model Rule 1.4, you are to keep your pro bono clients reasonably informed about the status of their matters; promptly comply with reasonable requests for information; and most important in my mind, explain a matter to the extent reasonably necessary to permit them to make informed decisions.

Next, keep in mind the warning found in Comment [3] to ABA Model Rule 1.3 Diligence which states:

[3] Perhaps no professional shortcoming is more widely resented than procrastination. A client's interests often can be adversely affected by the passage of time or the change of conditions; in extreme instances, as when a lawyer overlooks a statute of limitations, the client's legal position may be destroyed. Even when the client's interests are not affected in substance, however, unreasonable delay can cause a client needless anxiety and undermine confidence in the lawyer's trustworthiness.

I say this because reputational harm isn’t limited to paying client situations only.

And finally, always thoroughly document the scope of your representation, to include what you are not going to be responsible for if any limitations are to be placed on your scope of representation. Make sure you create and maintain a complete record of the advice being given and the decision-making process throughout the course of representation.

Of course, there is always the liability risk. When it comes to pro bono matters, some lawyers refuse to ever take on such a matter out of a fear 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. You are going to be covered for the work you do on behalf of clients of the named insured, which is your firm. If your pro bono client is a client of your 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.

Yes, a potential problem could arise if you 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 situation because any such clients would not be clients of the named insured. They would be clients of another entity.

If you are considering providing pro bono services under the auspices of another entity, however, simply ask a few questions. Many of these other entities will have a policy in place that covers all volunteer lawyers for any 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. If not, 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.

In sum, try not to allow any excuses or assumptions to get in the way of allowing you to give back professionally. The next time you’re asked to take on a pro bono matter, hopefully what I have shared here will help you feel more comfortable responding with a “Sure, I’d be happy to.” After all, you are simply being asked to do what you are always being asked to do, practice law. You got this.