Pro Bono Work Outside the Courtroom: Helping with the Legal Needs of Nonprofit Organizations
Most lawyers are familiar with the Public Service rules of Professional Conduct. Lawyers often take individuals on as pro bono clients, assisting them with pending civil or criminal legal issues. Pro bono service can be, and is often, provided outside of a courtroom, to organizations rather than individuals. Lawyers with skills in corporate, transactional, and regulatory legal matters can play an important role in social change efforts by supporting charitable nonprofit organizations.
The Florida Bar’s Professional Rules of Conduct Rule 4-6.1 Pro Bono Public Service describes, among other issues, community service suggestions and mandatory reporting requirements. The Rule encourages all lawyers in Florida to:
Render pro bono legal services to the poor and
Participate, to the extent possible, in other pro bono service activities that directly relate to the legal needs of the poor.
The rules provide two examples of how to satisfy these requirements:
Annually providing at least 20 hours of pro bono legal service to the poor; or
Making an annual contribution of at least $350 to a legal aid organization.
These rules have always been aspirational, rather than mandatory. A lawyer cannot be sanctioned by the Bar for failure to comply, nor is there any reward for compliance.[i] This is similar to the ABA Model Rule of Professional Conduct 6.1 and in-line with other state bars. Under the ABA Model Rule, every lawyer has a professional responsibility to provide legal services to those unable to pay. However, the suggested requirement is 50 hours of pro bono public legal services per year. The Model rule is also only suggestive, providing encouragement to volunteer, but with teeth to enforce the suggestion.
While the community service requirement is optional, reporting one’s pro bono service is mandatory. Florida joins Hawaii, Maryland, Illinois, Indiana, Mississippi, Nevada, New Mexico and New York as the only nine states to have mandatory reporting requirements. New York and California are the closet to implementing mandatory requirements. So far, these two states require prospective attorneys to register at least 50 hours of pro bono service in order to be eligible for admission to the state bar. This rule does not apply to current members of the state bar, and no state mandates attorneys to provide pro bono hours.
Given the current access to justice issues, especially for civil legal matters, an argument for mandatory pro bono requirements could be made. In practice, any benefits associated this type of requirement would likely be over shadowed by the administrative difficulty in implementing it. Forced volunteerism undermines the spirit of giving back. In Positional Conflicts and Pro Bono Publico[ii] the authors hypothesize that “in most cases, the factor that moves lawyers to this service is not an oath or rules, but rather, a call from the heart.” Over the past twenty years, the pro bono activity of Florida lawyers has been increasing steadily each year; July 1st 2013 through June 30th, 2014 saw the most hours, lawyers in Florida registered 1,881,396 hours of pro bono service and donated $4,891,433 to legal aid organizations.[iii]
Many attorneys give back by providing pro bono services that involve “civil proceedings given that government must provide indigent representation in most criminal matters.”[iv] However, there are a number of practice areas that are not involved in litigation on a regular basis. What are transactional attorneys with a call from the heart supposed to do? Is courtroom representation the only option? “Lawyers are often driven to use their talents for not just gain, but good…[t]he lawyer may seek out charity work within”[v] his comfort level and practice area. The Comments to the Rules suggest that lawyers may also provide: "Legal services to charitable, religious, or educational organizations whose overall mission and activities are designed predominately to address the needs of the poor".[vi]
This comment explains that lawyers may volunteer their time to support nonprofit, charitable, religious, and educational organizations. While many large nonprofits have legal departments, small and medium size organizations often have a variety of unmet legal needs and issues. Many of these organizations have similar legal issues as for profit businesses including routine compliance and regulatory issues, employment law issues, and negotiating contracts and intellectual property rights.
Volunteering your pro bono hours to an organization creates a ripple effect in the community. It allows that organization to dedicate more time, talent, and treasure to its mission and the people it is supporting. It also instills confidence in the organization’s Board of Directors, staff, and stakeholders that the organization is operating in compliance with all of the rules and regulations governing its work. This helps the organization secure more donations and resources, which allows the organization to help even more people.
Interpreting statutory and regulatory compliance issues is second nature to many lawyers, and their skills sets will easily transfer to supporting a nonprofit organization.
[i] A review of the history of this rule can be found at The Florida Bar’s floridaprobono.org website: http://www.floridaprobono.org/about/item.3304-History_of_Pro_Bono_Legal_Assistance_in_Florida
[ii] Yochum, M. and Fromknecht, J., Positional Conflicts and Pro Bono Publico, 16(2) Florida Coastal Law Review 233 (2015).
[iii] Pro Bono Publico: Facts and Statistics, The Florida Bar. (Revised Jul. 15th2014),https://www.floridabar.org/DIVCOM/PI/BIPS2001.nsf/1119bd38ae090a748525676f0053b606/a8e811c59073e9f68525669e004d21f6?OpenDocument
[iv] Rule 4-6.1 Pro Bono Public Service, Comment (accessed at: http://www.floridabar.org/divexe/rrtfb.nsf/FV/BF60AF4C185D99D085256BBC00533761)
[v] Yochum, M. and Fromknecht, J., Positional Conflicts and Pro Bono Publico, 16(2) Florida Coastal Law Review 234 (2015).
[vi] Rule 4-6.1 Pro Bono Public Service, Comment (accessed at: http://www.floridabar.org/divexe/rrtfb.nsf/FV/BF60AF4C185D99D085256BBC00533761)