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Frequently Asked Questions About Taking Pro Bono Cases

What are the benefits of taking pro bono cases?

Not only are you helping a person who is in dire need of your assistance, but also you are doing something that will ultimately benefit your own practice.

  • It is an opportunity to get into court. If you are a new attorney and are looking for opportunities to go to court and handle your own cases, pro bono matters provide the ideal opportunity.
  • It is an opportunity to get to know the Judges. If you are a new attorney or new to the area and want to be in Court, it is to your benefit to know the Judges, and they will certainly appreciate your pro bono efforts on behalf of an individual in need.
  • You never know who your next client might be. For example, if you do a lot of contingency work (i.e. personal injury), a client that may not pay now may return to you with a case at a later date.

Do I need to enter into a retainer agreement if it is a pro bono client?

Yes. Our rules of professional conduct require a retainer letter for every client. (The only exception to this would be cases you are handling as a special public defender). The retainer letter can contain similar language that you would use for a paying client; the obvious difference is that when it comes to setting forth the payment for the representation, you specify that it is being handled on a pro bono basis and that all legal services will be handled free of charge. You may not seek legal fees from a pro bono client referred by legal aid.

What about expenses of litigation?

In many cases, pro bono attorneys can seek a waiver of costs from the court. The manner in which this is done is addressed here. The correspondence you receive from legal aid when you accept a referral will specify that unless the applicant is eligible to have fees waived, you should collect all costs from the client.

Some pro bono attorneys will therefore ask that clients pay reasonable court costs. Others will offer to cover reasonable costs in the event such a waiver is denied. It depends on you and the needs/resources of your firm or practice.

Either way, it is important to set the terms relating to costs in the retainer agreement. If you or your firm covers reasonable costs, any award of costs at the conclusion of a matter would go to you or your firm. If, however, the client pays reasonable court costs, such an award should go to the client.

What happens if I get an award of attorney fees?

If you have a case in which the court permits an award of attorney fees, you or your firm may retain those fees. This arrangement should also be set forth in your retainer letter so as to avoid any confusion at the conclusion of the matter.

If a client has a lot of different issues, can I just limit my representation to one matter?

Yes. Oftentimes, pro bono clients have legal needs in multiple areas. If you want to ensure that your representation is limited to one area, be sure to discuss that with the client at your original intake meeting, and indicate this in your retainer letter.

If a case becomes too difficult or too time consuming, can I withdraw from the case?

Any case – pro bono or otherwise – can become time consuming or difficult. Yet, the same limitations governing your ability to withdraw in a paying client’s case extend with equal force to pro bono cases. Rule 1.16 of the Rules of Professional Conduct sets forth the grounds upon which an attorney can withdraw as counsel. Typically, your retainer letter should reflect that you reserve the right to withdraw your representation if the client violates the terms of the retainer agreement or if withdrawal is permitted by the Rules of Professional Conduct. If the relationship between you and the client has become so irreconcilable that Rule 1.16 would permit your withdrawal, you may always file an appropriate motion with the court. 

In a family case, can I withdraw after the conclusion of the matter I was retained to handle?

Yes. Typically, an appearance in a family law case remains on file for six months (or 180 days). If you have made an agreement with your client that your representation will only extend to the matter for which you have been retainer, you can ask your client to enter an “in lieu of” pro se appearance at the conclusion of the matter. This should remove your name as the attorney for the party and the client will receive any subsequent notices from the court.

Am I covered by malpractice insurance when I am representing a client referred by a legal aid organization?

Yes. The legal aid agency from which you accept a referral typically will offer malpractice insurance coverage for the case being referred. Be aware, however, that if your firm has a policy as well, the language of the policy may determine which of the two governs any malpractice claims.

Do I have to take every pro bono case that is referred to me?

No. In fact, if you have a conflict or you do not believe that you have the time to devote to the matter, you should not take the case. If you do decide that for some reason you are unable to take the case, be sure to let the referring agency know as soon as possible so that another attorney can be located. This is particularly important in housing cases, where the deadlines for filing appearances and pleadings move very quickly.

Can I specify what type of pro bono cases I am willing to take?

Yes. You can let legal aid know which types of cases you are willing to take.

What should I do at the initial intake interview?

You should treat the initial intake interview as you would any first client interview. When you first hear from the client, ask him or her to bring any and all paperwork relating to his or her case. At the interview, find out some background information about the client and about the case. Most importantly, assess immediately any deadlines that are looming. There are occasions where clients have waited some time before seeking out assistance, and it may be that action on your part is required right away.

In addition, be sure that you review the terms of the retainer agreement and establish reasonable expectations for the client. If your client has exceptional circumstances (i.e. the individual is homeless and/or living in a shelter), be sure to find alternative ways to contact the individual.

What if I find out either at the interview or during the course of representation that my client does not qualify for free legal assistance?

If you learn that your client is, or has become, over-income (which means there are liquid assets over $5,000), you inform the client that you can no longer represent him or her on a pro bono basis. You are then entitled to charge the client whatever you determine to be reasonable attorney fees, but you must enter into a new retainer agreement reflecting the terms of your new agreement. You should also advise the legal aid agency from which you received the referral so they can properly note the change in their records.

I am interested in taking cases in areas in which I do not have any expertise. Are there resources available if I want to take such a case and I have question?

Yes. The agency from which you accepted your case usually has attorneys that have expertise in the areas for which pro bono services are provided. There may also be training opportunities at no cost to pro bono attorneys, and mentors in the private bar who are also available to you.