Lawyers often say that the most rewarding aspect of their careers is providing pro bono services to individuals in need. While not intending to be comprehensive, the following post provides several examples of ethical issues that may occur in pro bono representation and the rules that guide attorneys facing them.
Scope of Representation. Who is your client, and what are the parameters of the work that you will be providing to your client? Equally important, what work will not be done on your client’s behalf? The New York Rules of Professional Conduct (the “Rules”) permit attorneys to provided “unbundled” or limited-scope legal services to clients, as a way of making at least some legal representation available to greater numbers of people who may need it. For example, you might have the bandwidth to help a pro bono client with an uncontested divorce, but not to handle a custody trial. This is completely acceptable, provided such a limitation is reasonable under the circumstances and the client gives informed consent. (See Rule 1.2(c)). Whether a limitation in a particular case is reasonable will depend on the facts of the situation, and will require you, as the lawyer, to exercise professional judgment.
Privilege and Confidentiality. Clients seeking pro bono legal assistance will often want family members or trusted advisors to attend their meetings with you. Before allowing any third party to sit in on a meeting, you must explain to your client that the attorney-client privilege might be waived. A high-profile example of the privilege waiver appears in the Martha Stewart case, where Martha’s sharing of an email from her lawyer with her daughter Alexis resulted in that email being admitted in evidence. In less high-profile matters, particularly those not involving litigation, you may perceive minimal risk in a potential waiver of the privilege, and may advise your client accordingly. You should also explain to your client that, although the conversation may not be privileged, it is absolutely still confidential. (See Rule 1.6). Confidentiality is broader than privilege and is not waived by the presence of a third party.
Clients With Diminished Capacity. One of the most difficult situations often encountered by lawyers providing pro bono legal services is dealing with clients with diminished capacity. Rule 1.14 counsels lawyers to maintain a conventional relationship with the client as far as reasonably possible. If you believe that your client cannot adequately act in his or her own interest, there are several options available to you. You can consult with entities that might be able to take action to protect the client. You or another representative can pursue appointment of a guardian ad litem if necessary. It may be tempting to communicate directly with a family member or friend of the client, and you may do so with your client’s consent, but you should not allow that family member to act as a substitute for the client. If you need to communicate a material development in the case, you should try to the greatest extent possible to speak with the client directly, rather than providing that information to a family member who may be easier to communicate with.
Fortunately, the ABA has created a number of resources for lawyers in such situations. See, for example, ABA News, “Who is the client, and other questions in dealing with diminished capacity,” and ABA Commission on Law and Aging, Assessment of Older Adults with Diminished Capacity: A Handbook for Lawyers.