1. Ethics: I Know I Should Do Pro Bono, I Want to, But I Don t Know Where to Start

Transcription

1 1. Ethics: I Know I Should Do Pro Bono, I Want to, But I Don t Know Where to Start Moderator: Wallace B. Wason, Jr. Jones, Blechman, Woltz & Kelly, P.C. P.O. Box Newport News VA Tel: wwason@jbwk.com Website: Panelists: Karl A. Doss Virginia State Bar 1111 E. Main St. Suite 700 Richmond VA doss@vsb.org Website: John Edward Whitfield Blue Ridge Legal Services, Inc. P.O. Box 551 Harrisonburg VA jwhitfield@brls.org Website:

2 I Know I Should Do Pro Bono, I Want to, But I Don t Know Where to Start VTLA 2017 Annual Convention Karl A. Doss, VSB Access to Legal Services Director Wallace B. Wason, Jr., Jones, Blechman, Woltz & Kelly, PC John E. Whitfield, Executive Director & General Counsel, Blue Ridge Legal Services, Inc. Early 20th Century America. Without equal access to the law, the system not only robs the poor of their only protection, but it places it in the hands of their oppressors the most powerful and ruthless weapon ever created. -Reginald Heber Smith, Justice and the Poor, 1919 Prepared by John E. Whitfield, Executive Director, BRLS 1

3 Mid-20 th Century America. There can be no equal justice where the kind of trial a man gets depends on the amount of money he has. - The United States Supreme Court in Griffin v. Illinois, 1956 Prepared by John E. Whitfield, Executive Director, BRLS The Civil Rights Movement Injustice anywhere is a threat to justice everywhere. -Rev. Martin Luther King, Jr. Prepared by John E. Whitfield, Executive Director, BRLS 2

4 Correlation Between Representation and Outcomes in Eviction Cases Percentage of Tenants Retaining Possession of their Homes in Eviction Cases Source: The Importance of Representation in Eviction Cases and Homelessness Prevention, Boston Bar Association Task Force on the Civil Right to Counsel, March Correlation Between Representation and Outcomes for Tenants in Landlord -Tenant Cases Study #1: Court Study Group of the Junior League of Brooklyn, Report on a Study of the Brooklyn Landlord and Tenant Court 21 (1973). Study #2: Steven Gunn, Note, Eviction Defense for Poor Tenants: Costly Compassion or Justice Served?, 13 YALE L. & POL Y REV. 385, 411 (1995). Study #3: Chadha, Lisa Parsons Time to Move: The Denial of Tenants' Rights in Chicago Eviction Court, Chicago: Lawyers Committee for Better Housing, Inc. Study #4: Rebecca Hall, Eviction Prevention as Homelessness Prevention: The Need for Access to Legal Representation for Low-Income Tenants (1991). Study #5: Seron, Carroll, Greg Van Ryzin, Martin Frankel, and Jean Kovath The Impact of Legal Counsel on Outcomes for Poor Tenants in New York City's Housing Court: Results of a Randomized Experiment. Law and Society Review 35(2): Study #6: Anthony J. Fusco, Jr. et al., Chicago s Eviction Court: A Tenant s Court of No Resort, 17 URB. L. ANN. 93, (1979). Study #7: Boston Bar Ass n Task Force on Unrepresented Litigants, Report on Pro Se Litigation, 17 (1998), available at Study #8: Mass. Law Reform Inst., Summary Process Survey, 14 (2005) Prepared by John E. Whitfield, Co-chair, Virginia Access to Justice Commission 3

5 Correlation Between Representation and Custody Outcomes Source: The Women s Law Ctr. of Md., Inc., Families in Transition: A Follow-up Study Exploring Family Law Issues in Maryland (2006), available at Prepared by John E. Whitfield, Co-chair, Virginia Access to Justice Commission Correlation Between Representation and Unemployment Benefit Hearings Outcomes 0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100% Employer Only is Represented Neither Party Represented Both Parties Represented Claimant Only is Represented Claimant gets benefits Claimant loses Source: Herbert M. Kritzer, Legal Advocacy: Lawyers and Nonlawyers at Work (1998) Prepared by John E. Whitfield, Co-chair, Virginia Access to Justice Commission 4

6 Correlation Between Representation and Favorable Outcomes in Other Types of Cases Frequently Involving Low-Income Litigants Social Security Appeals Unemployment Claims Represented Unrepresented Immigration Removal Domestic Violence Source: Russell Engler, Connecting Self-Representation to Civil Gideon: What Existing Data Reveal About When Counsel is Most Needed, to be published in an upcoming edition of the Fordham Law Review. Virtually all of the outcome studies cited in these materials were referenced in this very helpful work by Professor Engler, who is currently Professor of Law and Director of Clinical Studies at New England College of Law. Prepared by John E. Whitfield, Co-chair, Virginia Access to Justice Commission 5

7 Contemporary America Poor people have access to the American courts in the same sense that the Christians had access to the lions when they were dragged into a Roman arena. -California Court of Appeals Justice Earl Johnson Jr. Prepared by John E. Whitfield, Executive Director, BRLS The Documented Unmet Civil Legal Needs of the Poor 6

8 WHAT IS PRO BONO? ETHICAL RULES AND PROFESSIONAL REGULATIONS The basic responsibility for providing legal services for those unable to pay ultimately rests upon the individual lawyer, and personal involvement in the problems of the disadvantaged can be one of the most rewarding experiences in the life of a lawyer. Every lawyer, regardless of professional prominence or professional workload, should find time to participate in serving the disadvantaged. ABA Model Code of Professional Responsibility, EC VSB Professional Guidelines - Rules of Professional Conduct Preamble: A Lawyer s Responsibilities A lawyer is a representative of clients or a neutral third party, an officer of the legal system and a public citizen having special responsibility for the quality of justice.... As a public citizen, a lawyer should seek improvement of the law, the administration of justice and the quality of service rendered by the legal profession. As a member of a learned profession, a lawyer should cultivate knowledge of the law beyond its use for clients, employ that knowledge in reform of the law and work to strengthen legal education. A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance, and should therefore devote professional time and civic influence in their behalf. A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest. 7

9 VSB Professional Guidelines - Rules of Professional Conduct Preamble: A Lawyer s Responsibilities (cont.) Many of a lawyer's professional responsibilities are prescribed in the Rules of Professional Conduct, as well as substantive and procedural law. However, a lawyer is also guided by personal conscience and the approbation of professional peers. A lawyer should strive to attain the highest level of skill, to improve the law and the legal profession, and to exemplify the legal profession's ideals of public service.... Lawyers play a vital role in the preservation of society. The fulfillment of this role requires an understanding by lawyers of their relationship to our legal system. The Rules of Professional Conduct, when properly applied, serve to define that relationship. But we have Legal Aid. Why is there a problem? Why is pro bono still necessary? Prepared by John E. Whitfield, Co-chair, Virginia Access to Justice Commission 8

10 Who Does Legal Aid Help? In FY , Virginia s legal aid programs closed a total of 28,574 cases for low-income Virginians with civil legal problems, benefitting 66,694 people. Family Law 46% Housing 22% Consumer/Finance 14% Income Maintenance 6% Other 12% Source: Legal Services Corporation of Virginia, Report to the Commonwealth and the General Assembly FY Why can t Legal Aid help everyone who qualifies for their assistance? Sources: Number of active Virginia Lawyers practicing in the state (23,851), VSB Membership Report, 8/3/15. Number of Virginia Legal Aid Attorneys (130), LSCV Grant Applications, May Virginia Population figure (overall population, (8,326,289) and poverty population (940,871), US Census website, 2014 estimates. Prepared by John E. Whitfield, Co-chair, Virginia Access to Justice Commission 9

11 A Worsening Situation In FY , Virginia s legal aid programs closed a total of 28,574cases for low-income Virginians with civil legal problems, benefitting 66,694people. 28,504 cases closed, 66,764 people helped ( ) 28,688 cases closed, 68,857 people helped ( ) 31,132 cases closed, 74,936 people helped ( ) 35,015 cases closed, 86,698 people helped ( ) 38,204 cases closed, 87,548 people helped ( ) 39,390 cases closed, 92,680 people helped ( ) Source: Legal Services Corporation of Virginia, Report to the Commonwealth and the General Assembly FY through FY A Worsening Situation In just six years time, both the number of cases closed and the number of people helped are down by 27-28% 10

12 Federal LSC Funding Levels Annual LSC Appropriations Millions Annual LSC Appropriations Source: Legal Services Corporation Modified from slide initially prepared by John E. Whitfield, Co-chair, Virginia Access to Justice Commission Declining IOLTA Revenue in Virginia Source: Legal Services Corporation of Virginia (LSCV) $500,000 $400,000 Monthly Revenue $300,000 $200,000 $100,000 $0 Month 11

13 Virginia Rules of Professional Conduct RULE 6.1 Voluntary Pro Bono Publico Service (a) A lawyer should render at least two percent per year of the lawyer s professional time to pro bono publico legal services. Pro bono publico services include poverty law, civil rights law, public interest law, and volunteer activities designed to increase the availability of pro bono legal services. (b) A law firm or other group of lawyers may satisfy their responsibility collectively under this Rule. (c)direct financial supportof programs that provide direct delivery of legal services to meet the needs described in (a) above is an alternative method for fulfilling a lawyer s responsibility under this Rule. COMMENT Not Mandatory but. [1] Every lawyer, regardless of professional prominence or professional work load, has a personal responsibility to provide legal services to those unable to pay, and personal involvement in the problems of the disadvantaged can be one of the most rewarding experiences in the life of a lawyer. The Council for the Virginia State Bar urges all Virginia lawyers to contribute a minimum of two percent of their professional time annually to pro bono services. Pro bono legal services consist of any professional services for which the lawyer would ordinarily be compensated, including dispute resolution as a mediator or third party neutral. [10] To provide legal services beyond those available through the pro bono efforts of individual lawyers, the legal profession and government have established additional programs to provide such services. Lawyers who are unable to fulfill their pro bono publicoobligation through direct, legal representation should support programs that provide legal services for the purposes described in (a) through financial contributions in proportion to their professional income. 12

14 Voluntary Pro Bono Publico Service (a)rule 6.1 (a) says. Pro bono publico services include poverty law, civil rights law, public interest law, and volunteer activities designed to increase the availability of pro bono legal services. ConPngency Fee Cases Pro Bono (Even on Unsuccessful Cases) [6] Service in any of the categories described is not pro bono publico if provided on a contingent fee basis. Because service must be provided without fee or expectation of fee, the intent of the lawyer to render free or nominal fee legal services is essential. Accordingly, services for which fees go uncollected would not qualify. Virginia Rule of Professional Conduct 6.1, comment 6 13

15 The picture can't be displayed. 3/13/ VIRGINIA'S PRO BONO GAP Total Potential Pro Bono Hours Annually under Rule 6.1 vs. Estimated Actual Pro Bono Hours The The Estimated Pro Bono Gap in Virginia Potential pro bono hours if Rule 6.1's goal was met annually Estimated pro bono hours actually donated Estimated ad hoc pro bono hours donated Pro bono hours reported as donated through Independent pro bono programs Pro bono hours reported as donated through Legal Aid Pro Bono programs What Kind of Help Is Needed? 14

16 Michelle Stockberger Pro Bono Developer Blue Ridge Legal Services

17 Kathy G. Brigman Director of Volunteers Services Central VA Legal Aid Society Mary C. Bauer Executive Director Legal Aid Justice Center X

18 Tameeka M. Williams, Esq. Director of Pro Bono & PAI Legal Aid Society of Eastern VA Jennifer Fulmer Pro Bono Managing Attorney Legal Services of Northern VA

19 Contact the pro bono coordinator at any of our three offices: Fredericksburg: (Carolyn Ross); Culpeper: (Sarahi Johnson); Tappahannock: (Kim Wilkins). Cassandra Turner Pro Bono Coordinator Southwest VA Legal Aid Society X

20 Debby Hudgins Pro Bono Coordinator Virginia Legal Aid Society Text of Virginia Proposed Reporting Rule Change b) Pro Bono Publico Legal Service Reporting Requirement. In order to make available information about lawyers pro bono public legal service, each active member of the Virginia State Bar shall provide the following annual certification: 1. Pro Bono Hours. I have personally provided approximately hours of pro bono public legal services during the previous 12 months beginning July 1 of the preceding year and ending June 30 of the current year. 2. Financial Contribution. I have personally contributed $ to support programs that provide the direct delivery of legal services to meet the needs described in Rule 6.1 (a) of the Virginia Rules of Professional Conduct, as an alternative method for fulfilling my responsibility to render pro bono legal services. 3. Exempt Persons... 19

21 Florida Experience With Mandatory Pro Bono Reporting 20

22 National Page Users select their state of residence here. State Homepage A Virginian who s never used the site would select Get Started 21

23 Clients -Ask a question page To reach this page, clients complete: New client information page (name, , county) New client information page OPTIONAL (requests demographic information) New client information page REQUIRED (age and income screening) Attorneys - Pick a question When a client posts a question, it is sent to the queue of questions and attorneys can select which question they d like answer. 22

24 Attorney Responds An attorney answers the question and decides if they will leave the queue open for additional questions or close the conversation. Client Question closed When an attorney closes a question, the client is notified that a question has been closed and is prompted to take a survey. 23

25 What about Conflicts of Interest? Will the client know who I am or vice versa? The only conflicts of interest that would preclude a lawyer from answering a question for an eligible user of Virginia.freelegalanswers.org are conflicts of interest that the lawyer actually knows of at the time that they receive or answer a client's question. This means that the possibility exists, and the clients agree that they understand, that a lawyer who answers a question, or another lawyer with whom they practice in a firm, may actually be representing other parties with an interest in the question. The client name, the name of the opposing parting and legal deadline/court date will be provided to the lawyer so that the lawyer can make sure not to answer the question if the lawyer knows that he would have a conflict of interest. If based on the information the client provides, whether client name or any details of the question, the lawyer actually knows of a conflict of interest precluding him from answering, the question will be referred to another volunteer lawyer. Users will not know the name of the lawyer who answers their questions (they will see Volunteer Lawyer ). The lawyer should not take any further action to help the user except to respond to the request for advice and information that the user posted on the web site. Data 8/22/2016-2/23/2017 Virginia.freelegalanswers.org launched on August 22, 2016 Total Users 598 Attorneys Registered 174 Moderated Attorneys 5 Clients Registered 214 Moderated Clients 152 Ineligible Clients 53 Questions Asked 173 Questions Accepted by Attorneys Questions Closed (NOTE Attorneys and Clients are moderated if they fail to complete the registration process, i.e., confirm an address or click the I agree or submit buttons. The ABA is creating a feature that will advise moderated users that they need to complete the registration process. Clients are ineligible if their income and assets exceed the financial threshold of 250% of the federal poverty guidelines ) 24

26 More Data Most Frequently Asked Categories of Questions: Family/Divorce/Custody 35%; Housing/Property Law 17%; Debts and Purchases 7%; Constitutional/Civil Rights 7%; Employment 7% Percent of Use/Questions by Jurisdiction: Virginia Beach 25%; Loudoun County 8%; Fairfax County 6%; Norfolk 5%; Richmond City 4%; Chesapeake 3%; Prince William County 3%; Chesterfield County 3% Number of Attorneys Answering Questions: 36 Attorneys (3 attorneys have answered 10+ questions to date) 25

27 VSB Access to Legal Services Committee Formed during bar year Mission is to foster support for free and reduced fee legal services with the goal of improving access to the legal system for all Virginians and for nonprofit charitable and civic groups that serve the public good. Promotes pro bono publico services by Virginia lawyers and encourages the integrated development of like contributions by law school faculty and students, lay mediators, court reporters, interpreters, tax accountants, paralegals and members of related professions 15 members 6 subcommittees: Pro Bono Training and CLE; Social Media; Legal Aid Funding; Legal Education Access; Awards; and (new) Unbundling Legal Services For more information - or VSB Pro Bono Initiatives The Access to Legal Services Committee of the Virginia State Bar encourages participation in pro bono through: Meeting with access to justice stakeholders, including legal aid project directors and staff, nonprofit legal services organizations directors, law school administrators, leadership and membership of state, local, and specialty bar organizations to ascertain how VSB s Access to Legal Services can assist them in addressing deficiencies in meeting the legal needs of the indigent. Increasing pro bono participation and engagement by members of the private bar by developing and conducting free webinars and seminars covering topics related to pro bono work. In exchange for free CLEs, participants certify that they will accept pro bono work referrals or make donation to legal aid or non-profit legal services organizations. Collaborating with legal aid programs, non-profit legal services organizations, and state/local/specialty bar associations to develop strategies to mobilize volunteer lawyers to provide legal assistance in response to urgent access to justice challenges, i.e., Virginia SIJS Project. Using social media, the VSB website, and print and online publications to increase awareness of access to justice issues, galvanize support for pro bono, recognize exemplary pro bono efforts, and promote pro bono service and training opportunities. 26

28 About the Virginia SIJ Project In October 2014, the VSB Access to Legal Services Committee, Legal Aid Justice Center, Ayuda, and Poach Law Firm collaborated to conduct a free webinar, Pro Bono and Special Immigrant Juveniles: Best Practices for Family Court Practitioners. Over 150 lawyers from across Virginia attended the webinar and many of them agreed to accept referrals from the newly created Virginia SIJ Project, which increases pro bono capacity to represent immigrant juveniles seeking Special Immigrant Juvenile Status. The project matches family court lawyers practicing in J&DR courts with immigration lawyers practicing in Northern Virginia to provide continuity of representation of undocumented youth in the family court and immigration court proceedings. Each case that the SIJ Project is able to place with a pro bono attorney will help an immigrant minor at imminent risk of deportation and start them on the path towards lawful permanent residence and eventually obtaining U.S. citizenship. For more information, please contact: TanishkaCruz, Staff Attorney, Legal Aid Justice Center, 6066 Leesburg Pike, Suite 520, Falls Church, VA 22041, Phone: (703) , Fax: (703) , tanishka@justice4all.org Greater Richmond Bar Foundation The Greater Richmond Bar Foundation (GRBF). GRBF s mission is to expand public access to the justice system in central Virginia by facilitating the delivery of pro bono legal services and service projects. Through its programs, GRBF helps the Central Virginia region with its priority needs for pro bono services and helps connect lawyers with pro bono clients. (804) Pro Bono Clearinghouse a referral service linking volunteer attorneys with nonprofit organizations in need of legal representation on a variety of transactional matters. Pro Bono Promise law firms and law departments are invited to join Pro Bono Promise with a pledge to commit a percentage of time to the provision of pro bono legal services to the disadvantaged and/or to include financial support to legal services organizations annually. JusticeServer an all-inclusive case management and referral system that enables private attorneys to accept and work on pro bono cases from their own computers. Attorneys are able to create a confidential profile, view pro bono opportunities available in designated practice areas/jurisdictions, and find the resources to assist with handling the legal matter. Other Volunteer Opportunities GRBF also provides a menu of volunteer opportunities available in the greater Richmond area. 27

29 Other Volunteer Opportunities Virginia Trial Lawyers Association The VTLA has a Pro Bono Committee that puts on programs like this one and other activities to encourage pro bono involvement by VTLA members. American Bar Association - The ABA s Standing Committee on Pro Bono and Public Service includes a directory of pro bono service providers in Virginia. Virginia Bar Association The VBA serves the public through a number of legal advocacy and volunteer service opportunities including the Veterans Initiative and ProsforKids. Legal Information Network for Cancer (LINC) - LINC is a non-profit, community-based organization that provides information, education and referral services for legal, financial, and community resources to cancer patients, survivors, and their families confronted with the overwhelming issues that arise from the diagnosis and treatment of cancer. Fairfax Law Foundation Northern Virginia Pro Bono Center assists individual residents of Fairfax County, as well as Northern Virginia nonprofits ProBono.net/va This website offers a Pro Bono Opportunities Guide. Law School Pro Bono Programs University of Richmond s CarricoCenter: University of Virginia School of Law: William & Mary Law: x.php Washington and Lee Law: George Mason Law VBA Pro Bono Society: Regent Law Public Service: Appalachian School of Law: Service.html Liberty University Law: 28

30 Rule 1.1 Competence A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. Comment [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. [4] A lawyer may accept representation where the requisite level of competence can be achieved by reasonable preparation. This applies as well to a lawyer who is appointed as counsel for an unrepresented person. See also Rule

31 30

32 31

33 32

34 Some Other Pro Bono Resources Immigration? Hogar Immigrant Services ( ), Just Neighbors ( ), CAIR Coalition ( Human Trafficking? (Girls and Women) Tahirih Justice Center ( ) HIV/LGBTQ? Whitman-Walker Health ( Restoration of Driving Privileges? Drive to Work ( ) Tax Relief? Community Tax Law Project ( Faith-Based? Good Samaritan Advocates ( ) Young or Newly Admitted Lawyer? VSB Young Lawyers Conference ( or VBA Young Lawyers Division ( Senior Lawyer? - VSB Senior Lawyers Conference ( ) Many state, local and specialty bar associations sponsor pro bono projects. For More Information Bar-Access-to-Legal-Services /timeline/ Services-Inc / 33