Pro Bono Services

I am pleased to report that I am now local counsel for prominent conservative/libertarian bloggers Mandy Nagy and Patrick Frey in litigation filed by a Maryland resident and public figure of some notoriety. The facts and circumstances of the case have some very indirect, 6-degrees of separation overlap with litigation with which I was involved in 2012. The primary pro bono attorney is Ronald Coleman, Esquire, of Goetz Fitzpatrick LLP of New York, who has moved for pro hac vice admission; I was pleased to discover that he is a fellow Princeton graduate.

Without regurgitation of what inquiring minds can find elsewhere, the case involves free speech rights of bloggers, allegations of civil violations of the Racketeer Influenced and Corrupt Organization Act and a host of defendants, mostly but not solely conservative bloggers, represented by attorneys including some pro bono attorneys.

The politics of most of the defendants in the case pertain to a general profession point known to attorneys, but sometimes missed by the general public. The representation of a client does not signify (or exclude the possibility) that the attorney has a personal, political or philosophic agreement or disagreement with the client on any topic. While attorneys may sometimes choose to pro bono work that is “close to their heart”, it is often in the representation of people of somewhat unpopular views that important legal work gets done, including important pro bono work.

You don’t have to want to do carpentry to represent a carpenter on a carpentry case. Replace “carpentry” with “same-sex marriage”, “marijuana consumption”, “deer hunting”, “conservative blogging”, “liberal blogging” or the like. It’s sort of like asking an architect whether she would like to wash cars for a living because she produced drawings for a car wash for hire. You also don’t have to oppose the views or avocations of a client to represent the client, either; there’s no inherent conflict of interest from agreeing with or disagreeing with a client, in and of itself.

I appreciate the professional opportunity to participate in this work involving the protection of public rights and civil rights.

I don’t particularly like the “pro bono” world even though I have warm acquaintances and bona fide friends who live and work in it.  My world is the work-a-day world of the solo lawyer working hard to pay all bills on time, both lawyer bills and the personal expenses of being an adult American father and taxpayer.  So sometimes the solicitations from “Pro Bono Inc.” sound a little sanctimonious.  I don’t like them (the solicitations) and sometimes throw them into the electronic or steel can trash. I don’t like getting harangued from people whose health insurance is paid by grant money telling me how I should help their clients or projects. Worse, sometimes the pro bono agencies aren’t well run (though sometimes they ARE quite well run.)

To hell with them, I tell myself; let me work for my paying clients and pay my bills on time and be a responsible citizen. Let the millionaire lawyers in Roland Park and Gibson Island condescend to each other about pro bono work on the golf courses; I represent poor paying folks as it is and bills for myself and two autistic pre-teen sons have to get paid.

Then I get a rapid reminder of why Rule 6.1 exists.

I am changing a few details to protect privacy but the substance of the tale is true.  I recently represented a worker who was fairly new in her career.  Her employer fired her for what he described in writing as commercial reasons – no business coming in, hadn’t taken a salary himself in forever, etc.  When she inquired politely by email about her one week’s paid vacation that she believed she had earned, the employer became indignant, threatened to make her firing “for cause” and later told her that he made mid-high six figures and he could afford an attorney while she could not and would not benefit from having one.  His use of his wealth to intimidate a much poorer, younger and newer worker out of seeking legal counsel might well have worked. but it didn’t.  I represented the worker at a reduced fee.

The second was a worker who quit her job for medical necessity; her doctor told her not to use public transit due to a specific condition and she had no car.  Maryland allows a “valid circumstances” quit with a reduced penalty, but medical documentation is required.  The UI Division apparently lost her submitted documentation and declined her benefits, though she has proof of its timely production by her doctor’s office.  No one appears to have intimidated her out of getting counsel, but the cost of representation would make a market approach to justice in her case absurd at her income level.  My office is representing this worker pro bono.

Where there are no decent human beings, sometimes a decent human being must step in.  Man is flawed, but corporate man is mind-numbingly stupid; this fact is part of why attorneys as individuals must step up.  Although there are some over-enthusiastic fools pretending that the latest iPad app will replace us lawyers, the iPad hasn’t replaced the doctor, the architect or the plumber and won’t replace us.  Why? Because the exercise of our judgment and effort and our willingness as licensed practitioners to do the difficult won’t get replaced by technology.

It might be nice if we were replaceable; human judgment, temperament and character are difficult enough to assure and maintain and people (i.e. lawyers) are less reliable than some gadgets for gadget tasks.  We aren’t gadgets.  No gadget could have won Brown v. Board of Education.  Perhaps more tellingly, no gadget could have won Gideon v. Wainwright, the pro se case in which the right to legal counsel was affirmed for indigent defendants.  While most cases aren’t Supreme Court precedent-setting cases, or even close, our work cannot be “machine coded.”

A significant part of the non-gadgetable side of our work as attorneys is in handling pro bono cases.  While technology can produce an client intake form of the sort that lawyers would typically hand off to a clerk, it’s no more the practice of law than is the filling out of forms at the doctor’s office the practice of medicine.  We need not “fear” technology; what we should fear is the failure to realize that our ability to perceive the need for legal services and to deliver them – pro bono if necessary – is a core part of the profession.  It’s part of what makes the practice law a profession while arguably more difficult endeavors – writing code, composing art, selling rugs in an Anatolian bazaar – aren’t professions.

Knowing when pro bono help is needed and, within one’s capacity, delivering some of it are core parts of the profession. We cannot wait for some clerk, some app or some pro bono organization, no matter how well or poorly run, to “bop” us on the head. Sometimes, we have to be the cavalry for which we and our clients are waiting.  If we willfully refuse to help, when we can and we should, we won’t get hit for a Rule 8.4(d) violation.  The pro bono rules are hortatory, not mandatory.  But that’s not the point; if we never do any pro bono, we within the state-enforced oligopoly of the Bar are in fact standing idly by and smiling at conduct prejudicial to the administration of justice.  Either we are the sort of profession that stands idly by, or we aren’t.

In my last post, I dragged out the negative side of pro bono work.  I think it needed to be said.  But the “stink” side of pro bono work is only part of the story.

In the last year, I have done a decent amount of pro bono work and the responses of the referring agencies and clients to my modest but real efforts have ranged from insolent, skunk-level ingratitude to administrative indifference to basic thanks to effusive, over-the-top thanks with bear hugs.  There was a personal toll from this work as well, the details of which will not appear in this blog.  But it was an interesting year and 2013 is looking up.

The following are some of the ways that an attorney can do pro bono work that doesn’t “stink” (or rarely “stinks.”)

1)  Simply writing off a fee or a meaningful fraction of it for a current client who needs a “no-fee.”  This is probably the most-common, lowest-overhead way of discharging the technical duty under Rule 6.1 and the moral duty to be a decent human being.  Most pro-bono work never gets an award.  When does a client need a “no-fee”? Sorry, this poor dumb blog cannot make you a decent human being with reasonable judgment, it has to make me one first.

2)  Some types clients to seek out for pro bono work.

Disabled clients who are trying to earn a living – they are good candidates and in my experience generate very little “stink” in terms of demoralizing aggravation and trifling foolishness.  I have had the honor of representing two disabled workers who were fired in part due to disability issues at no charge in unemployment appeals in Circuit Court and before the Appeals Division of the UI Division.  It is very meaningful to help a disabled citizen maximize her ability to stay independent, and the cash from UI can help keep things stable for a short while so as to aid in that goal.

People who have dependents themselves – good candidates, you help relieve the social burden of multiple citizens at once.

People who cannot speak easily for themselves due to disability or trauma – their capacity for self-advocacy is lower so they start one to twelve steps behind in the process.  This includes survivors of state violence here or abroad, survivors of torture including sexual violence, in some cases survivors of persecution on the basis of immutable characteristics or moral or religious identities.

Young morons who ought to know better than to jackpot themselves – you and I are now lawyers, and we were once a thicker grade of stupid too.  Arguably doubling the fee would teach the lesson better, but slashing the fee for someone trying not to let his or her massive screw-up wreck his or her life start is a decent thing to consider if you are going to slash a fee.

Elderly survivors of scams, buncombe, intimidation and hustlers.  This is an outrage that the AG’s consumer protection division cannot handle with its paid staff.  This includes tax fraud bunko operatives who need to have an accountability moment in front of a judge. The elderly poor often lack access to computers and are not comfortable or skilled at identifying their rights and advocating for themselves.  Going after a predatory dirtbag can be very satisfying work, fee or no fee (and if you prevail, attorney fee awards are common so there’s a shot that you will see a fee someday.)

3)  Here are some kinds of pro bono work to think about doing (IF you are competent to do it with whatever mentoring is appropriate.)  These kinds of pro bono work rarely, in my experience, cause big “aggro/agita” and are useful.

Wills for the elderly.  One of my favorite clients is one from whom I got to earn (and then just waived) a $25.00 fee from the elderly wills program through Baltimore County.  She was a pleasure to meet as was her family.  Wills are fairly compact, defined projects for most senior citizens of modest means.  Baltimore City and most county Bar Associations have a program for low-fee wills or free wills for seniors.

Petitions for Judicial Review.   Work reviewing in Circuit Court the decision of a state agency can be relatively pleasant, interesting work.  There is no trial prep as such so if the client is a difficult “stinker”, it’s less of a downer; the record is the record and it’s usually a clearly erroneous standard on the fact-finding.  In some cases such as UI appeals for workers, all fees and all transcript charges are waived for the worker.  The AAGs are almost always competent, organized and professional; they put on a good case for their agency but do not usually show unprofessional “win at all costs” excess or fanaticism.  The cases involve filing the petition, getting the record, paying for it (unless the fee is waived by statute), filing a memorandum, reading counter-memoranda and going in for oral argument.  It’s a substantial amount of work but it’s defined, finite.

Name Changes.  It was my great satisfaction to do a reduced-fee name change for a young man who underwent a religious conversion.  His given name ran a bit counter to his new religious and cultural identity and the new name and amended birth certificate are a source of great pride to him and to his family who also converted.  Name changes are a good example of leverage: the change is a fairly small task for the lawyer but can have such a major impact on the client’s identity and happiness.  They are fairly easy to do and have become even easier in terms of reduced publication requirements and costs.  If you are going to do some work for free or a substantially reduced fee, this is a good field to consider.

Public Education About the Law.  This is not a “case” but it is an acceptable way to discharge part of a pro bono duty.  I would say that any lecture or presentation that you do that’s open to the public and for which you don’t get paid probably qualifies (e.g. if a law school opens a symposium on ______________ to the public and not just its own enrolled suckers, that’s probably qualified.)  In addition, more private venues can qualify if the purpose of the education is to preserve civil rights or the defense of the poor or socially unpopular causes.  Public education online also qualifies, especially if you are doing work to alert people to poorly understood legal issues or debunking “water cooler” law that they learn from Marge or Herb in Sales at work while standing around the water cooler.  Public education about the law helps to prevent some pro bono legal demand by removing the risks.  Talking to high schools about the law is good, if you have the stomach to bear what the future looks like.

Redemption of Ground Rents.  There are public programs to get rid of these clumsy, antiquated vestiges of our local (Baltimore City/County) legal history, but an attorney simply preparing the deeds and filing them is both educational and worthwhile thing to do for free (and gets it done a lot faster).  I did one at a reduced fee last month and I am glad I helped get a senior citizen’s property from this serious encumbrance.  If you want sample forms, call me.  You might be surprised to hear that the most professional and pleasant person I have encountered in my dealings with the City government in decades was a wonderfully super-competent and energetic clerk in the Land Records office on Holliday Street; I wanted to offer her a job on the spot.

Anyway, pro bono can “stink” but it doesn’t have to.  You can be useful and accessible to people who need real and free help without the pro bono client or case driving you crazy, bleeding you dry of time or money, burying you in administrative red tape or wrecking your relationship with your significant other (or exposing you to professional liability, discipline or sanctions.)