Pro-Bono Ethics for the In-House Lawyer Presented to Mid-America ACC 10.11.2017
Presenters MAKING IN-HOUSE PRO BONO ETHICS WORK FOR YOUR CORPORATION Eve Runyon, Pro Bono Institute THE ETHICS OF IN-HOUSE PRO BONO Mark Iba, Stinson Leonard Street IN-HOUSE PRO BONO ETHICS ROUNDTABLE Jennifer McAdam, NAIC Jamie Randall, Deere & Company Dwight Arn, Hallmark Cards Charley Jensen, Stinson Leonard Street Chelsea Templeton, Stinson Leonard Street
Making In-House Pro Bono Ethics Work for Your Corporation October 11, 2017 1025 Connecticut Avenue, N.W., Suite 205 Washington, DC 20036 (202) 729-6699 (202) 296-0303 fax www.cpbo.org erunyon@probonoinst.org Copyright, Pro Bono Institute 2017, All Rights Reserved
Improving Justice Through Pro Bono Began with a small group of law firm trail blazers (1996) Consulting, resources, best practices, training, conferences Expanded to include in-house departments (2000) Have taken the Challenge 138 law firms 174 legal departments Providing more than 4 million of hours of pro bono a year 4
Common Ethical Concerns Insurance Multijurisdictional Practice Conflict of Interest (Business Conflicts) Competent Representation Limited Scope Representation 5
In-House Pro Bono in Practice Types of Opportunities o Wide Variety of Matters (e.g., transactional, litigation) o Range of Time Commitments (e.g., ongoing representation, limited scope) o Need for All Practice Areas (e.g., tax, family law, real estate, IP, employment) o Many Clients Groups (e.g., children, seniors, veterans, nonprofits) Sources for Opportunities (1996) o Legal Services Organizations (81%) o Law Firms (87%) o Other Legal Departments (55%) 6
In-House Pro Bono in Practice ACC Chicago Chapter Clinic in a Box Program UnitedHealth Group Review-a-Rama Ford Motor Company Food Stamp Clinic HPE Corporation (Global) United Kingdom Young Entrepreneurs Program 7
Pro Bono Resources Eve Runyon President and CEO, Pro Bono Institute (202) 729-6699 (202) 296-0303 fax erunyon@probonoinst.org CPBO offers a number of resources on its website (www.cpbo.org), including the following: o o o o o o o o The Business Case for In-House Pro Bono: www.cpbo.org/businesscase Pro Bono Development Guide: How to Start an In-House Pro Bono Program: www.cpbo.org/getstarted Best Practices Profiles: http://www.cpbo.org/resources/best-practice-profiles/ Guide to Multijurisdictional Practice Rules: http://www.cpbo.org/mjp-guide Professional Liability Insurance for In-House Pro Bono: www.cpbo.org/insurance Pro Bono Opportunities and Ideas: CPBO Clinic in a Box Program: http://www.cpbo.org/initiatives/clinic-in-a-box/ Pro Bono Marketplace of Ideas: www.cpbo.org/marketplace Benchmarking In-House Pro Bono: 2016 Benchmarking Survey Report: http://www.cpbo.org/wpcontent/uploads/2017/09/2016-benchmarking-report.pdf The Corporate Pro Bono Challenge Initiative: http://www.cpbo.org/cpbo-challenge/ Corporate Pro Bono Who We Are: http://www.cpbo.org/about-us/ 20
Ethics of In-House Pro Bono The information contained in this presentation has been prepared as a service to the community and is not intended to constitute legal advice. Reasonable efforts were used in collecting, preparing, and providing this information, but Pro Bono Institute, CPBO, and the presenter do not guarantee the accuracy, completeness, adequacy, or currency of the information contained in this presentation. The publication and distribution of this presentation are not intended to create, and receipt does not constitute, an attorney-client relationship. Participants are encouraged to seek independent legal counsel for their specific legal needs. Corporate Pro Bono (CPBO) is a global partnership project of the Association of Corporate Counsel and Pro Bono Institute. Through on-line services (www.cpbo.org), technical assistance to the in-house community, and educational outreach, CPBO seeks to encourage and support the participation of in-house counsel in pro bono legal services. For more information, please visit us at www.cpbo.org, or contact Eve Runyon, Pro Bono Institute President and CEO, at erunyon@probonoinst.org or 202.729.6699. Copyright 2017 Pro Bono Institute
THE ETHICS OF IN-HOUSE PRO BONO Mark Iba, Stinson Leonard Street
Voluntary Pro Bono Publico Service Rule 6.1 a lawyer should aspire to render at least 50 hours of pro bono per year to: 1. persons of limited means 2. organizations in matters that address the needs of persons of limited means 3. those seeking to protect civil rights, civil liberties, public rights, or organizations where the payment of fees would deplete the resources or would be inappropriate 4. participation in activities for improving the law, the legal system or legal profession
Voluntary Pro Bono Publico Service In addition, a lawyer should voluntarily contribute financial support to organizations that provide legal services to persons of limited means
Notable State Variations Kansas/Missouri/Nebraska Rule is equivalent to the Model Rules but contains no hour requirement
Discussion 2012 ABA Survey Median # of Pro Bono hrs = 30 Almost 40% had fewer than 20 hrs Mandatory pro bono is not likely to fix the problem Too frequently, the services (of lawyers appointed by the court with minimal or no compensation) are halfhearted or openly negligible.... The client pays the penalty, perhaps not for the crime but often for his poverty. Mayer C. Goldman
Obstacles for In-House Attorneys Despite the need for more pro bono services, in-house attorneys are at a disadvantage Most state practice rules allow counsel, licensed to practice in other US jurisdictions, to represent their in-state employer through a certification process No need for many attorneys to get licensed in state they work When it comes to providing pro bono services, this problem is intensified by Rule 5.5.
Unauthorized Practice of Law; Multijurisdictional Practice of Law Rule 5.5 a) A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction b) A lawyer who is not admitted to practice in this jurisdiction shall not: 1 2 except as authorized by these Rules or other law, establish an office or other continuous presence for the practice of law hold out to the public or otherwise represent that the lawyer is admitted to practice law.
Obstacles for In-House Attorneys Rule 5.5 4 states provide pro bono exemptions Illinois, New York, Virginia and Wisconsin Many other states have adopted pro bono provisions
Missouri Missouri Supreme Court Rule 8.105(c), specifically addresses in-house counsel, admitted to the practice of law in another state to receive limited license to practice law. This license authorizes them to engage in pro bono work... 8.105(c)
Nebraska Neb. Ct. R. 3-1201(D) allows registered inhouse to provide pro bono services through established not-for-profit associations, pro bono programs or legal service programs authorized in Nebraska.
Kansas No pro bono provisions
Scope of Representation and Allocation of Authority Between Client and Lawyer Rule 1.2 a) Lawyer may take action that is impliedly authorized to carry out representation b) Lawyer shall abide by client s decision whether to settle, waive jury trial, or to testify c) Lawyer may limit the scope of the representation if reasonable and client gives informed consent d) Lawyer shall not counsel or assist client in conduct that is criminal or fraudulent but may discuss the legal consequences of proposed conduct
Notable State Variations Kansas/Missouri Adds: When a lawyer knows client expects assistance not permitted by the rules of conduct or law, they shall consult with client regarding relevant limitations on the lawyer s conduct
Discussion Suppose a soon-to-be small business owner wants legal advice about requirements to set up a corporation in your state She wants to know the basics but cannot afford the thorough research that would explore every detail of her obligations May the lawyer provide discount service for a discount price?
Discussion Yes, under certain conditions a lawyer and client may contract to lower expectations on the lawyer below the ethical rules imposed in exchange for a discounted fee charged to the client. Rule 1.2(c) allows lawyer to limit the scope of representation if the limitation is reasonable under the circumstances and the client gives informed consent. REMEMBER, an agreement to limit representation does not exempt a lawyer from duty to provide competent representation. But if client asks lawyer to perform limited service, lawyer would not be incompetent for failing to do work he was not asked to do.
How to Protect Yourself in a Pro Bono Matter?
Discussion Scope Provide a detailed description of the scope of representation in engagement letter Limitations Have a candid conversation about the limitations of your representation Advice Decline to provide legal advice that exceeds the scope of the engagement letter
Rule 6.5 Nonprofit & Court-Annexed Limited Legal Services Programs A lawyer, under the auspices of a program sponsored by a nonprofit or court, provides short-term legal services without expectation by lawyer or client that lawyer will provide continuing representation in the matter: is subject to Rules 1.7 and 1.9(a) only if the lawyer knows the representation of client involves conflict of interest is subject to Rule 1.10 only if lawyer knows another lawyer associated with the lawyer in a firm is disqualified by Rule 1.7 or 1.9(a) with respect to matter Except as provided in paragraph (a)(2), Rule 1.10 is inapplicable to a representation governed by this Rule
Practice Points Lawyer who provides short-term limited legal services pursuant to this Rule must secure the client s informed consent Because lawyer ordinarily is not able to check systematically for conflicts of interest, paragraph (a) requires compliance with Rules 1.7 and 1.9(a) only if the lawyer knows that the representation presents a conflict of interest Paragraph (b), lawyer s participation in limited legal services will not preclude the lawyer s firm from undertaking or continuing representation of a client with interests adverse to a client being represented under this Rule nor will the personal disqualification of a lawyer participating in the program be imputed to other lawyers
Practice Points In 2003, an ABA task force recommended greater use of limited scope legal assistance because in the great majority of situations some legal help is better than none. An informed pro se litigant is more capable than an uninformed one.
Mark Iba 816.691.3289 mark.iba@stinson.com 2017 STINSON LEONARD STREET LLP \\ STINSON.COM DISCLAIMER: This presentation is designed to give general information only. It is not intended to be a comprehensive summary of the law or to treat exhaustively the subjects covered. This information does not constitute legal advice or opinion. Legal advice or opinions are provided by Stinson Leonard Street LLP only upon engagement with respect to specific factual situations.
IN-HOUSE PRO BONO ETHICS ROUNDTABLE Jennifer McAdam, NAIC Jamie Randall, Deere & Company Dwight Arn, Hallmark Cards Charley Jensen, Stinson Leonard Street Chelsea Templeton, Stinson Leonard Street