Many lawyers view their pro bono work as a higher calling. Providing professional services free of charge is a way to give back to the profession and elevate the practice of law. It’s also common for lawyers to view their pro bono work as an opportunity to broaden their horizons.
At the same time, it’s important to remember the high level of care and duty to professionalism inherent to your law practice exists whether or not money will change hands. The same risks lawyers face with their paying clients are also in play when the work is done pro bono. However, an even higher level of risk exposure is possible if a lawyer forgets this lesson. Here are three things you should know about the risks of pro bono work.
What Risks Exist for Pro Bono Work
Lawyers face many risks in their day-to-day work with paying clients. It’s important to realize the same risks will exist in your pro bono work. These risks can span the whole length of your pro bono engagement, from initial consultation to disengagement.
In the most recent Profile of Legal Malpractice Claims report by the ABA Standing Committee on Lawyers’ Professional Liability, the top risk areas identified as related to all claims were:
- Preparation, Filing and Transmittal of Documents (35.24%)
- Commencement Action/Proceeding (16.16%)
- Advice (13.59%)
- Settlement/Negotiation (8.78%)
- Pre-Trial/Pre-Hearing (6.95%)
In particular with pro bono case matters, observe the same high standard as in your regular practice. Follow all regular office policies and procedures, including:
- Conflicts checks
- Confidentiality, engagement and disengagement letters
- Scope of representation
- Communication memorialization and calendaring
- Thorough documentation and so on
Professional attention to detail here will help mitigate many of the risks of your pro bono work.
How Shortcuts Increase Risk
Pro bono work is sometimes stigmatized with a higher level of risk because lawyers may treat it less seriously. Shortcuts increase risk in pro bono work, since your legal and ethical obligations exist whether the client is paying you or not.
Consider these two common shortcuts some lawyers take in their pro bono work:
- Failure to Screen—Pro bono clients should be screened in the same manner you would screen a paying client, otherwise numerous problems can arise. Intake procedures must still screen for motivation, expectations and history that could result in a problem client. Conflicts of interest and adverse interest risks remain and must be properly checked before confidential information is revealed and an engagement is started.
- Failure to Document—Proper documentation of the matter is a must for every representation, but some pro bono lawyers take shortcuts here. Problems can easily arise if the scope of representation is ill-defined and it is not clear who was and was not the client. Courts and ethics committees will also expect to see documentation of advice and decision-making if a pro bono client later files a claim.
How Dabbling Increases Risk
Another common risk of pro bono work is dabbling in unfamiliar areas of law. Done without care, this can have disastrous results for a client as well as for an attorney. It’s important to remember that courts and state bars expect the same high level of professionalism in pro bono representations.
Many lawyers can and do use pro bono work to expand their horizons, but it must be done responsibly. Lawyers should become educated by researching the relevant law, seeking professional guidance or consulting with a trusted colleague. In some cases, it is better to reject a potential pro bono client if you do not have expertise in that area of practice.
Remember that some areas of practice can be very complex. Errors can and do happen and the result may be a claim against you or your firm. Substantive errors, including failure to know or properly apply the law and inadequate discovery or investigation, represent over half of all alleged errors cited in the ABA’s recent Profile of Legal Malpractice Claims.
When it comes to doing pro bono work, make sure your efforts lead you to rewards that outweigh the risk. Treat a pro bono engagement like you would any other. Follow your regular policies and procedures, avoid shortcuts, and educate yourself fully about any facets of the law of which you are less familiar. These precautions will greatly reduce the risk of doing work pro bono and will ensure you enjoy the satisfaction of helping others while protecting your professional reputation.
Like any engagement, some risk of a claim or complaint always exists and malpractice claims are common in the legal profession. Should you ever need to, our experienced Lawyers Professional Liability claim team is ready to handle your claim accurately and efficiently, so you can get back to doing what you do best.
With Professional Liability Insurance from Lockton Affinity and CNA, you have coverage that is specifically designed for Colorado Bar Association members, so that you can pursue your professional practice with coverage that’s right for your firm.