English
Русский
Magyar3.1 Introduction
3.2 Pro Bono Commitment of the Firm, and Attorney Goals/Expectations
3.3 Definition of Pro Bono
3.3.1 What is the difference between corporate social responsibility and pro bono legal services?
3.3.2 Can participation in educational programs be considered pro bono work?
3.3.3 Can service as a member of an NGO’s Board of Directors be considered pro bono work?
3.4 Administration of the Pro Bono Program
3.5 Financial Considerations for Establishing a Pro Bono Program1
3.5.1 If a firm’s pro bono program has a budget, what is the best way to structure it?
3.5.2 Is it ever appropriate to charge a fee to a pro bono client?
3.5.3 Allocation of Expenses
3.5.4 What are the tax implications (benefits and liabilities) associated with pro bono work?
3.6 Procedures for Pro Bono Matters
3.6.1 Opening of New Pro Bono Matters
3.6.2 Supervision, Oversight, and Possible Evolution of a Pro Bono Matter
3.6.3 Standard of Services
3.6.4 Record of Hours
3.6.5 Multiple Clients
3.6.6 Completion of a Pro Bono Matter
3.6.7 Evaluation
An important aspect of a pro bono program is the development of a pro bono policy manual. Although pro bono manuals differ in their depth and range, the manual generally serves four functions.
1. The manual defines pro bono and what types of pro bono matters the firm or its lawyers may undertake.
2. The manual articulates the firm’s pro bono commitment.
3. It defines those who are responsible for the administration of the firm’s pro bono program.
4. Finally, the manual sets forth, at a minimum, the high-level procedures to be followed in connection with the pro bono program. (There may be a considerably more detailed pro bono policy and procedures document, which may also be a part of the firm’s overall policies and procedures.).
The firm must first decide who will draft and approve the initial pro bono manual. Because the pro bono manual establishes the firm’s official position with respect to pro bono, it is advisable that the first three aspects of the manual described in the preceding paragraph be approved by the firm’s executive or managing partner and discussed with the firm’s partners. The pro bono chair or committee should also participate in this process, as well as in the consideration of the detailed pro bono policies and procedures. Often, the drafting will be largely or entirely undertaken by the pro bono coordinator (if any) (see Section 2.3.3(b)).
Annex A provides a sample pro bono manual (a “Model Pro Bono Manual”), which contains standard clauses often used in manuals at large firms in the United States. The Model Pro Bono Manual is written in such a manner that it can be easily adapted by any firm.
3.2 Pro Bono Commitment of the Firm, and Attorney Goals/Expectations
The introductory section of the pro bono manual articulates the firm’s commitment to pro bono. In particular, it contains a declaration that the firm supports and encourages its attorneys’ participation in pro bono work.
This section normally contains specific pro bono goals or expectations adopted by the firm. Goals can include an annual minimum number of pro bono hours per attorney or for the firm as a whole, a pro bono percentage of attorney billable hours, and/or a percentage or number of attorneys who will undertake at least a particular number of pro bono hours each.
Attorneys are not the only people at law firms who can provide pro bono services. Paralegals, clerks, secretaries, summer associates and administrative personnel also make valuable contributions, and are often enthusiastic about participating in pro bono matters.
This section of the pro bono manual defines what kind of services and types of legal issues the firm will consider “pro bono” and what categories of clients will qualify for pro bono assistance.
Some firms, for internal purposes, will label some matters as “pro bono” that do not come under the generally accepted definition used by the Pro Bono Institute and the American Lawyer. Others will do free legal work regardless of whether or not it fits under the generally accepted definition. Where this occurs, the firm should clearly delineate in the manual the “pro bono” work that comes within the generally accepted definition and, if it does sometimes permit additional work to be done for free, should make it clear that such work will not be reported externally as being “pro bono,” even if for some purposes it may be internally referred to as “pro bono”. For the purposes of this Guide, we will refer only to “pro bono” as defined by the Pro Bono Institute and the American Lawyer, or that is defined less broadly than their definition.
A firm’s concept of pro bono legal services may include free legal services provided to the poor or to nongovernmental institutions (NGOs) that primarily benefit the poor. It may also include legal services that are provided in matters of public interest (such as civil rights matters that would not likely be brought in the absence of free counsel) and in matters on behalf of marginalized populations. It may also include free legal services to NGOs that do not primarily benefit the poor, but are so relatively small that they cannot afford counsel.
Furthermore, so that the firm’s attorneys have a high level of understanding of the scope of pro bono, firms should not only define what they will consider to be pro bono services, but also what activities will not be considered pro bono. For example, pro bono should not include providing legal services at reduced fees. Nor should it include non-law-related assistance, lecturing, publishing books or articles on subjects not specifically directed at legal issues that come within the pro bono definition, or providing free legal services to friends and family (at least if they are not poor). Many of these activities are desirable and represent contributions to the community, but should not be categorized as pro bono work.
3.3.1 What is the difference between corporate social responsibility and pro bono legal services?
It is important to keep the definition of “pro bono” in mind. Without a full and deep understanding of what pro bono actually entails, a law firm will not be able to institutionalize the kind of pro bono program that will enable it to meet its pro bono goals in a meaningful way.
To begin, pro bono is a professional obligation, one that stems from the nature of the attorney’s role in society, and the privileged position attorneys occupy in terms of providing access to justice. It is a particularly important obligation in addressing the expanding gaps that preclude the neediest in society, and the nonprofits that provide them with services, from securing paid counsel. The importance of the obligation also is great where public interest matters would not otherwise have access to legal advocacy were it not for pro bono lawyers.
Pro bono legal work – while crucial for the reasons just stated – is different from non-legal volunteer work and other forms of charity. This difference arises from the facts that pro bono legal work (a) helps to fill the gap between the legal needs of the most disadvantaged in society and their ability to find counsel, and (b) helps to address other access-to-justice gaps (such as when nonprofits or public interest groups cannot afford counsel. It is crucial to keep pro bono legal work completely separate from volunteering and other forms of charity in establishing the firm’s pro bono structure (even if the same person may, for example, coordinate pro bono legal work and volunteer activities). The only circumstance in which charity and pro bono work may coexist in a structural way is for budgeting.
Business trends and globalization have spurred an ever-increasing interest in “corporate social responsibility.” Corporate social responsibility is a form of corporate self-regulation by which businesses embrace responsibility for the impact of their activities on stakeholders and other members of the public sphere. Clients and consumers are increasingly placing demands on corporations and professionals to maintain responsible practices that benefit not only the consumers but also employees, the environment, and society as a whole. Because corporate clients often seek a law firm that is “socially responsible,” the concepts of (a) corporate social responsibility in a legal environment and (b) pro bono legal services can create confusion. An additional factor, in some instances, is that a corporate client may take into account a law firm’s pro bono program in determining the extent to which they think the law firm is “socially responsible.”
There should remain, within each law firm, a clear distinction between charitable contributions, volunteerism, socially responsible business practices, and pro bono legal services. Charitable contributions are the easiest of the first three of these to distinguish from pro bono, in that they consist of direct financial contributions to charitable organizations, nonprofits, civic organizations, churches, or other entities. While some of these financial donations may contribute to or assist these organizations in the provision of services (sometimes, including or entirely consisting of legal services) to poor or marginalized individuals, groups or communities, the donations themselves do not qualify as pro bono work. Furthermore, an attorney or law firm does not meet its pro bono commitment by making financial contributions to these organizations, regardless of the organizations’ beneficiaries and ultimate purposes. It should be noted, however, that, as pointed out in section 4.2.1 below, law firms should plan on making financial contributions to organizations that are sources of (and often have further involvement in) pro bono matters.
Community service, or volunteerism, is also distinguishable from pro bono legal services. Community service includes collecting items for persons in need or providing social (and not legal) services to these same people. This includes, but is not limited to, food, clothing or blood drives (or any type of tangible resource collection for the disadvantaged); painting a school; cleaning debris from a park, etc.
Community service is valuable for the betterment of society, and can also serve to solidify and build relationships with clients and the wider population. Volunteer service allows for open collaboration between lawyers and other members of the community, without the level of formalization and specialization necessary for pro bono legal work. It can also be an extremely rewarding team-building exercise. Therefore, while it cannot be considered pro bono legal work, volunteer community service remains a valuable experience for lawyers and firms.
Environmental efforts on behalf of a law firm—for example, paper, cell phone or plastic recycling programs –are also not pro bono work.
3.3.2 Can participation in educational programs be considered pro bono work?
It depends. Law firms disagree as to whether particular kinds of such activities should be counted toward an attorney’s pro bono hours. In determining whether a particular project should be considered pro bono, it is helpful for a law firm to keep in mind both the purpose of the project and the necessity of legal skills for completing the project. The greater the need for legal skills in order to successfully accomplish the project’s goals, the more likely it will be that the project should be considered pro bono.
A useful example can be found in juxtaposing high school student mentoring and educational programs that train lawyers to handle certain cases that fall within the definition of pro bono. The former—mentoring or tutoring students—should not be considered pro bono work because it does not involve the delivery of legal services. When legal skills or knowledge are not required, the project should be considered volunteerism.
3.3.3 Can service as a member of an NGO’s Board of Directors be considered pro bono work?
While board service is not generally considered pro bono work, it is an important aspect of generating a pro bono culture and (if the NGO is a clearinghouse) cementing a clearinghouse’s vital role in the pro bono chain. It is very important for a lawyer who is a board member of an NGO to make it clear when (if ever) he or she is acting in the capacity of a lawyer for the NGO. Some law firms do not ever permit legal work to be done for an NGO whose board of directors includes a lawyer from the firm. Ethical considerations should be taken into account, in light of the particular circumstances, by those law firms that do permit legal work to be done for such an NGO.
3.4 Administration of the Pro Bono Program
This section of the pro bono manual establishes who will administer the firm’s pro bono program, outlining the responsibilities of the various program roles of, as applicable, the pro bono coordinator, pro bono chair, and pro bono committee. The administration of the program includes the general coordination of pro bono projects and management of the pro bono program, and is usually the responsibility of the pro bono coordinator or committee. For general descriptions of the positions, qualifications, and duties of the pro bono coordinator and the pro bono chair or committee, see Section II of this Guide.
3.5 Financial Considerations for Establishing a Pro Bono Program1
3.5.1 If a firm’s pro bono program has a budget, what is the best way to structure it?
There are costs and expenses associated with all pro bono programs. These include both internal and external costs. Internal costs are such routine course of business expenses as photocopying, phone calls, postage, transportation, and messenger services. External costs include non-routine, out-of-pocket expenses, such as filing fees and fees for experts and investigators. Firms may have different policies on how to allocate such costs as between the law firm and the pro bono client, which will be discussed later.
Regardless of what a firm’s policy is, establishing a pro bono budget for costs and expenses is considered by many firms to be a crucial aspect of the institutionalization of pro bono, and the development of a sustainable internal pro bono program. Firms that adopt pro bono budgets believe that doing so makes possible a smoother transition into a fully integrated pro bono practice. (It should be noted, however, that some firms with successful pro bono programs do not adopt pro bono budgets, believing that this enables the pro bono program to have greater flexibility.)
A clear policy regarding a pro bono budget can send a message about the firm’s pro bono commitment that can be important for the development of a firm-wide pro bono culture. Although the budget may be used to guide the extent of involvement, it should not be used to preclude the firm’s involvement in complex pro bono matters, particularly those that have potential for a significant positive, social impact, and which the firm could otherwise afford to undertake.
Additionally, a pro bono budget can enable associates to understand the firm’s expectations regarding pro bono, and may permit a more complete evaluation of the firm’s pro bono program in a way that allows for yearly expansion and continued sustainability.
As is the case with most administrative and managerial matters, budgeting for pro bono is handled somewhat differently at every firm that has a pro bono budget, and is tailored to meet the needs and goals of the individual firm. All aspects regarding the development of an internal pro bono program at a law firm—including the budget (unless firm management decides not to have such a budget)—should be modeled in a way that not only fits the firm’s “corporate culture” but also enables the most efficient use of resources and a fully integrated pro bono practice.
Law firms need not “reinvent the wheel” when it comes to establishing a pro bono practice. Instead, law firms can rely on well-established firm policies and procedures for the pro bono realm. In other words, to ensure that pro bono is an integral part of the law firm, law firms should strive to make the administrative aspects of pro bono as integrated as possible within an already existing infrastructure. Using established mechanisms enables law firms to more effectively handle pro bono matters, streamlining the ease of process. Well-integrated structures make pro bono more user friendly for the firm’s attorneys, and ensure high-quality legal services to all firm clients.
While there are many different ways to structure a pro bono budget, a few of the most commonly utilized options are described below:
(a) Option 1: Separate Pro Bono and Charitable Contribution Budgets: To avoid confusion, or simply because it more closely fits the law firm’s business model and institutional structure, some law firms prefer keeping pro bono and charitable contributions separate for all purposes, including budget management. Because allocations for pro bono work and charitable contributions at these firms are discrete, the firm’s annual charitable contributions will neither increase nor decrease the amount that can be spent on pro bono and vice versa. Similar to what is described above, law firms who opt for this choice should distinguish between financial contributions and the provision of free legal services.
(b) Option 2: Expand the Charitable Contribution Budget: Another possible option for establishing a pro bono budget is for the firm to expand its annual charitable contribution budget (if it has one) and include its pro bono practice under this larger umbrella. Many law firms have historically allocated an annual budget for charitable contributions to social or civic organizations. Once such a law firm considers incorporating pro bono as one of the firm’s practice areas, it will often choose to combine the budget for charitable contributions with the costs associated with pro bono work. Thus, any costs associated with the delivery of free legal services will essentially come from the same source as the firm’s charitable contributions. This means that—unless the firm also increases its overall budget once it incorporates pro bono work—the implementation of a formal pro bono program could mean a decrease in the firm’s annual charitable contributions.
Firms that maintain a budget for charitable contributions will often assign a committee to handle all requests for charitable disbursements (the “Charitable Contributions Committee”). When this is done, the Charitable Contributions Committee develops the procedures whereby firm partners can request disbursements for financial contributions to their preferred charities. The Charitable Contributions Committee can be expanded to make the same determinations with respect to pro bono work. If feasible, the firm may also designate a new committee to handle the pro bono budget (the “Pro Bono Budget Committee”), using the same or similar procedures as those used by the Charitable Contributions Committee. In some cases, the Pro Bono Committee carries out budgetary functions, and a separate Pro Bono Budget Committee is not established.
In practice, the committee structure could work as follows: a partner wishing to fund the expenses for a new pro bono project or case can approach either the expanded Charitable Contributions Committee or the Pro Bono Budget Committee as he/she would when requesting a charitable disbursement, and the committee would make a determination with respect to granting, denying, or adjusting the amount requested for the pro bono project or case. If the pro bono project or case later incurs unexpected costs, the same committee will determine whether the firm will cover the additional costs, whether the client will be responsible for these expenses, or how else the firm may handle these unanticipated expenses. Clients’ responsibility for expenses associated with their pro bono representation will be discussed in Section 3.5.2.
Even when law firms choose to combine their budgets for charitable contributions and pro bono work, it is important to note that when it comes to defining the concept of pro bono and what qualifies as appropriate pro bono work, there is and should be a clear distinction between financial contributions and the provision of free legal services. In short, pro bono work is not charity but rather a professional obligation; charitable contributions are not considered pro bono work, regardless of the budgetary structure.
(c) Other Budget Considerations: Distinguishing between Routine and Non-Routine Expenses: Firms should be aware of the types of internal expenses involved in maintaining a pro bono program. Because these costs are expected and necessary to providing high quality legal services, many law firms do not require prior approval for these expenses. It would be an administrative burden to obtain approval for each of these kinds of expenses. Because these costs tend to be predictable, law firms tend to refer to them as “routine” costs and many law firms allocate a fixed annual amount to such routine expenses. As described above, a committee will often determine what this amount will be every year and which pro bono projects or cases will benefit from a disbursement under this budget.
External costs, on the other hand, are costs that are not routine and therefore at most law firms with organized pro bono programs require advance committee or partner approval. These are generally higher ticket items, such as the provision of filing fees or paying for expert witnesses or investigators, which—while necessary to the provision of legal services–extend beyond routine costs.
Firms vary with respect to their understanding of routine and non-routine costs. The important thing to ensure is that the firm’s attorneys understand the importance of using good judgment when it comes to expenditures associated with pro bono matters, and that firm policy is made explicit in the firm manual on pro bono policies and procedures. It should be very apparent when an attorney must seek prior approval and when he/she does not need to do so. Again, where a law firm has an annual routine expense budget for pro bono, it should determine what kinds of costs fall into this budget based on the needs and characteristics of the firm and set clear guidelines so that attorneys understand what costs are considered routine and which require additional approval.
Regardless of a firm’s ultimate choice regarding budgeting for pro bono work, the law firm’s pro bono manual of policies and procedures should clearly outline the firm’s pro bono budget (or if there is no budget, the firm’s practices regarding the subjects discussed herein). To further highlight the importance of being mindful of costs associated with pro bono work, attorneys who have recently been assigned to a new pro bono matter or project should also receive or be explicitly referred to a detailed written articulation of the firm’s pro bono budget/cost policies and procedures. It should also be made clear that attorneys should make every effort to keep costs associated with providing free legal services at a minimum, including asking for fee waivers when appropriate or available, as is often possible with regard to indigent clients. If fee waivers are denied or not available, the attorney should otherwise determine if other ways exist to waive or lower the costs associated with the pro bono matter.
3.5.2 Is it ever appropriate to charge a fee to a pro bono client?
It is never appropriate for a law firm to charge a fee to a pro bono client. If a law firm charges its client any kind of fee for its legal services, the work cannot be considered pro bono work. A law firm and pro bono client can agree, however, that a client will be responsible for paying some or all of the expenses associated with the client’s pro bono representation or with effectuating the advice provided by pro bono counsel. These expenses may include court fees, charges associated with obtaining official documentation, registration fees and other such costs.
If there is a possibility of the recovery (by judgment, settlement, or otherwise) of attorneys’ fees, costs, or both, this subject should be discussed with the client and dealt with in the Pro Bono Commitment Letter. Wording should be developed that avoids creating ambiguity that may make it impossible to deal with contingencies, such as settlement offers that are conditioned on waiving attorneys’ fees, costs, or both.
3.5.3 Allocation of Expenses
A firm’s policy on the allocation of expenses typically depends largely on the firm’s pro bono budget, the amount of the fees associated with the specific pro bono project or case (e.g., some pro bono matters will have many more costs associated with it than others), and the client’s own financial circumstances. Options include the pro bono client bearing no costs, bearing external costs only, bearing internal and/or external costs up to a certain amount, bearing both internal and external costs in the full amount, or making the decision on who bears expenses on a matter-by-matter basis, depending upon the financial resources of the client and whether the client is an individual or an NGO. For example, some firms will pay all reasonable and ordinary expenses associated with the pro bono representation of an indigent client, but will require NGOs to pay for such fees as those associated with registering the NGO. In any event, the firm’s policy on the allocation of costs should be included in the firm’s pro bono manual of policies and procedures.
This policy also should be clearly communicated to the client, and the pro bono client should always have a clear understanding of those expenses for which he/she/it will be responsible. In an effort to avoid confusion and establish a healthy relationship with the pro bono client, the pro bono attorney and client should determine and discuss this before the pro bono attorney undertakes the representation. Just like a paying client, the pro bono client should read, understand and sign a written agreement or form outlining who will ultimately be responsible for the expenses associated with the representation or with effectuating the advice or other legal work provided by pro bono counsel. This “expenses agreement” should be incorporated into the client engagement letter (for an example of a client engagement letter, please see Annex 2 of the Guide, Format of Pro Bono Commitment Letter). The firm should consult with the pro bono client before incurring any material expenses for which the client will be responsible.
Sometimes, it is not possible to identify all expense items prior to undertaking the client’s representation. After agreeing to take on the client’s representation, an attorney may begin to investigate the client’s particular situation only to find that there are unforeseen or unexpected circumstances that may lead to unanticipated costs. Because of the surprising nature of these expenses, the attorney and client likely will not previously have agreed on the responsible party to bear these expenses. If unanticipated costs arise after the attorney-client relationship has been established, they should be addressed immediately and (unless covered by the existing client engagement letter) in a similar formal (documented) way, to avoid confusion and/or ethical breaches.
3.5.4 What are the tax implications (benefits and liabilities) associated with pro bono work?
There may be local or federal tax implications for performing pro bono work. Because tax law is country- and often region-specific, the implications of doing pro bono work from a tax perspective will vary depending on which country, region, and perhaps even city in which the law firm is located. Some jurisdictions may even have tax benefits for performing pro bono work.
Furthermore, each country will have different compliance requirements for the legal profession in terms of its tax consequences. While all of these innumerable differences cannot be detailed here, it is important for a law firm to research any tax implications associated with pro bono work as the law firm develops its pro bono program. Understanding these tax benefits and liabilities will allow the firm to establish a more appropriate and favorable pro bono structure, one that works to meet its needs and helps the firm achieve its goals.
3.6 Procedures for Pro Bono Matters
3.6.1 Opening of New Pro Bono Matters
The firm must establish formal procedures for initiating, undertaking, and completing pro bono work. For a description of the mechanisms through which firms can identify pro bono opportunities, see Section IV of this Guide.
Initiating a pro bono matter includes the following procedural steps:
(a) Pro Bono Request: After the firm has chosen a mechanism for identifying pro bono opportunities (see Section IV) and informing its attorneys of those opportunities (see Sections 2.2.3(d)) and 5.1) and once an attorney has expressed interest in working on a particular pro bono matter, the first step will be to complete an application for a new pro bono matter (the “Pro Bono Application”). The Pro Bono Application should contain basic information, such as the description of the pro bono client and the required services. The Pro Bono Application should be agreed upon and perhaps signed by the attorney responsible for the pro bono matter, a partner supervising or otherwise responsible for the matter, and, in some instances, the pro bono coordinator (if any) (see Section 3.5.2 and Annex 1, “Application for Opening a New Pro Bono Matter” – Model Pro Bono Manual).
(b) Conflict of Interests Check and, Where Required, Further Review: Pro bono matters could present conflicts of interest. As a result, a firm must undertake a conflicts check for each Pro Bono Application. The firm should use the same process it uses for conflicts checks with commercial clients and record the results in the Pro Bono Application.
At least where legally required in the applicable jurisdiction and perhaps (a firm may decide) in other circumstances, the firm should undertake further review—such as, in some countries, a “Know Your Client” review.
(c) Approval of the Pro Bono Matter: The firm must establish who will be responsible for approving new pro bono matters. As already noted, often the pro bono chair or committee will perform this role and otherwise will oversee the pro bono coordinator in performing this role (see Section 2.3.3(d)). The firm should establish certain essential criteria for use in considering Pro Bono Applications.
Some of the criteria that can be considered in approving new pro bono matters are: potential conflicts of interest, potential business conflicts (such as asserting a legal position on behalf of a pro bono client that is contrary to the legal position that the firm takes on behalf of other clients), whether the required services correspond to the firm’s definition of pro bono outlined in its policy manual, or if there are any extraordinary circumstances warranting rejection of the pro bono case.
The firm should also consider whether attorneys interested in the particular pro bono case have the experience or would be able to obtain the training necessary to provide the quality and standard of service expected of the firm and its attorneys. Firms can avoid rejecting complicated pro bono cases by finding ways to mitigate or compensate for lack of experience or training, such as staffing cases with a team of attorneys, including some with more advanced experience. If the application for a new pro bono case is rejected, it is recommended that the reasons be briefly explained.
Where pro bono matters are likely to be particularly large in scope, time and commitment, additional approval may be required, such as from the leader of a particular practice group, the office leader, and/or the firm’s executive or managing partner. Their approval or rejection should be based not on their personal opinions of the matter, but should represent a consideration of the firm’s ability to handle the matter effectively. They should weigh, rather, whether or not the matter can be properly handled despite potential departures, including lawyers from the firm, or lawyers from the matter.
(d) Commitment Letter: Once a new pro bono matter has been approved, and often preferably after an initial discussion with the prospective client, the firm (or in some instances, the firm lawyers involved) and the pro bono client should sign a commitment letter setting forth the parameters of the representation. Even when a firm does not use this type of letter for its commercial clients, it is recommended that it do so for its pro bono clients. Among other topics, the letter should establish the nature, description and range of the representation, which are important for the client’s understanding of the exact scope of services that will be provided. Similarly, it should specify who will be responsible for paying any related expenses (see Annex 2, “Format of Pro Bono Commitment Letter”).
The firm might consider adding an advance waiver position clause to the letter, for example, “Our law firm has many other clients. If you have a conflict of interest with another one of our clients, we will explain that to you and expect that you will waive that conflict of interest unless it involves the same project we are working on for you, or a related matter, or we have confidential information that could be used to your detriment in that other matter.”
In order to preserve the attorney-client privilege and other protections, the commitment letter should, where applicable, mention the role(s) that a pro bono clearinghouse or other pro bono partner may or will play, such as getting status updates, providing mentoring, or serving as co-counsel.
(e) Co-Counsel Agreement: Where there is co-counsel, there should be a co-counsel agreement setting forth the respective roles and responsibilities of the firm (or the firm lawyers involved) and the co-counsel. This should include how expenses that will not be borne by the client will be paid, and how decisions will be made (in the event of disagreement with co-counsel) regarding advice to be provided to the client and decisions that are up to counsel to make. Where it is possible to seek legal fees, the co-counsel agreement should (to the extent possible to anticipate) articulate the key principles that will be followed in such situations. This should include (where feasible) what will be done where settlement may be impossible unless some or all possible attorneys’ fees (or recoupment of expenses) are waived.
(f) Pro Bono Matter Files: The firm should open and maintain a physical or electronic file for each pro bono matter, using the same procedure that is used for commercial clients. Firms that use a “coding system” to identify their commercial clients should use the same system for their pro bono clients. These files can be updated by the attorney assigned to the pro bono matter and maintained by (or under the oversight of) the pro bono coordinator.
3.6.2 Supervision, Oversight, and Possible Evolution of a Pro Bono Matter
It is necessary that a firm establish a formal supervising/oversight system for pro bono work in order to ensure that its attorneys provide pro bono services in a professional manner and follow the same standards of service that the firm provides to its commercial clients. As such, every pro bono matter should have a supervising partner who, directly or through the pro bono coordinator (if any) or otherwise, is regularly informed about and reviews associates’ work and provides feedback or assistance as necessary. The supervising partner can be a particular associate’s mentor, or associates can ask partners with specific knowledge or experience in a particular issue whether he/she can serve as the supervising partner for a particular pro bono matter. It is further recommended that the pro bono coordinator regularly monitor the status of each pro bono matter (See Section 2.2.3(b)).
Firms should implement a formal written reporting mechanism as a means by which attorneys responsible for pro bono matters inform the pro bono coordinator and (directly, or via the pro bono coordinator) the supervising partner of the status of the pro bono matter. These attorney-generated reports should include information about the most recent accomplishments or setbacks, potential next steps and the existence of any hindrances or problems (see Annex 3, “Format of Pro Bono Work Report”). The regularity of the reports will depend on the nature of the representation and services provided, with reports every four months often being reasonable.
The pro bono coordinator should not only seek to ensure that attorneys complete their pro bono reports, but they should also review and follow up on them, and file (physically or electronically) all submitted reports, and should, where reports are not submitted or are incomplete, pro-actively get the missing information (see Section 2.2.3 (b)).
It is crucial that the firm impresses on each attorney working on a pro bono matter that if the pro bono client asks for additional legal work to be done, or if existing pro bono work evolves to, potentially, involve additional parties or legal issues, the attorney notifies immediately the pro bono coordinator (if any), or the pro bono committee or pro bono chair. Requests to handle additional legal work should be dealt with in the same manner as the initial requests to do legal work for a pro bono client. It should not be assumed that the existing matter’s legal staff is appropriate for additional legal work, or that the additional work fits within the pro bono program’s mission, or that it can be handled effectively and without conflict. When approval is given to handle additional legal work, the commitment letter should be supplemented or else there should be a separate commitment letter for the additional legal work.
Where additional parties or legal issues are potentially to be added to an existing pro bono matter, conflict checks should be done and consideration given to potential implications for business conflicts and for the sufficiency of matter staffing.
As provided above (see Section 2.2.3(b)), it is crucial that staffing changes in existing pro bono matters be made when appropriate, and that notifications thereof be made promptly.
It is important that the firm clearly indicate in its pro bono policy manual that pro bono services are provided with the same standard of quality provided to commercial clients. Attorneys at the firm should understand that pro bono work does not have a lower priority or standard of excellence than commercial work. This is especially important because attorneys who are under time pressure can be tempted to defer or give lesser attention to work on pro bono matters, thereby potentially prejudicing their pro bono clients’ interests.
This does not mean that an attorney must always handle both the time-pressured commercial work and the attorney’s existing pro bono matters. It does mean that the attorney must advise a supervising partner, the pro bono coordinator (if any), the pro bono chair, or the pro bono committee of the situation—so that one or more additional lawyers can be added (at least temporarily) either to the attorney’s commercial or pro bono matters.
Firms must maintain a recording system for attorneys to enter their pro bono hours. Without this record, firms cannot determine whether they are achieving their numerical pro bono goals and cannot properly evaluate their pro bono programs quantitatively (see Sections 3.2 and 6.2). Also, institutions with which firms create pro bono partnerships often request annual records of hours spent on pro bono matters (see Section 4.2.1), as do, frequently, particular pro bono clients as to work done for them.
Such records should, where appropriate, be maintained in essentially the same manner that the firm maintains its hours for commercial clients. In the event that the firm does not have a timekeeping system for its commercial clients, or if that system does not provide all the detail desired with regard to pro bono matters, it should implement a special or supplemental system for its pro bono matters. Depending on the firm’s size, different systems ranging from complex software systems to simpler Excel spreadsheets or basic paper forms may be used. Firms must also decide whether pro bono hours will be considered “billable” hours for the purposes of attorney expectations, performance evaluations and compensation (including bonuses) (see Sections 5.1(b) and 5.1(c)).
If there is more than one client, or if there are co-counsel, the additional relationships beyond the more usual situation with a single counsel and a single client will need to be handled in somewhat different ways, which over time should be set forth in standardized formats that can be adapted to particular circumstances. In particular, efforts should be made to avoid ambiguities as to how and by whom and through what process decisions will be made—and, where possible, on the basis of relatively specific guidelines. The failure to provide for appropriate decision making may lead to the inability to continue with co-parties, co-counsel, or both. The firm’s manner of dealing with multiple clients, co-counsel, or both in commercial representations can be instructive in drafting provisions at the outset.
3.6.6 Completion of a Pro Bono Matter
When pro bono services on a matter have been completed (either when a matter has ended or the firm has decided that it will not continue providing its services), the firm (or firm attorneys working on the matter) should communicate this fact to the pro bono client. It is advisable that such communication be in writing through a “termination of services” letter (see Annex 4, “Format of Pro Bono Services Termination Letter”). If the matter came from a pro bono clearinghouse, such organizations usually require that they be notified so that they can also close the matter in their own systems.
Additionally, the pro bono policy manual must indicate what will happen with the records of the completed or terminated pro bono matter. It is good practice for the firm to use the same procedures it uses for its commercial clients. These procedures should be set forth in the commitment letter.
Finally, the manual must establish procedures for when an attorney is not able to continue working on pro bono matters or leaves the firm altogether (and either does or does not wish to continue work on one or more pro bono matters). Regardless of the procedure, it is important to establish one and implement it properly, so that pro bono clients do not remain without representation and their rights are protected.
3.6.7 Evaluation
To ensure high quality pro bono representation, the firm must evaluate each associate’s and counsel’s pro bono work on a matter with the same regularity, and using the same standards as with work for commercial clients (see Section 6.1).
1This section was adapted from Frequently Asked Questions: A Supplement to the PBDA Implementation Handbook: A Guide to Establishing a Pro Bono Program at Your Law Firm.