2014 Hotline CLE Basic Advice for Basic Needs Ethics

Emanations from the Preamble Basic Responsibilities of a Lawyer Special responsibility Individual responsibility To the barricades Participate or otherwise support Professional service, public service, financial support Persons of limited means

Special responsibility A lawyer, as a member of the legal profession, is a representative of clients, an officer of the legal system, and a public citizen having special responsibility for the quality of justice. NCRPR Preamble 0.1 Comment 1

Individual Responsibility It is the basic responsibility of each lawyer to provide community service, community leadership, and public interest legal services without fee, or at a substantially reduced fee, in such areas as poverty law, civil rights, public rights law, charitable organization representation, and the administration of justice. The basic responsibility for providing legal services for those unable to pay ultimately rests upon the individual lawyer. NCRPR Preamble 0.1 Comment 8, 9

To the barricades It is the basic responsibility of each lawyer to provide community service, community leadership, and public interest legal services without fee, or at a substantially reduced fee, in such areas as poverty law, civil rights, public rights law, charitable organization representation, and the administration of justice. The basic responsibility for providing legal services for those unable to pay ultimately rests upon the individual lawyer. NCRPR Preamble 0.1 Comment 8, 9

Participate or otherwise support Every lawyer, regardless of professional prominence or professional workload, should find time to participate in, or otherwise support, the provision of legal services to the disadvantaged. NCRPR Preamble 0.1 Comment 9

Professional service, public service, financial support A lawyer should render public interest legal service and provide civic leadership. A lawyer may discharge this responsibility by providing professional services at no fee or a reduced fee to persons of limited means or to public service or charitable groups or organizations, by service in activities for improving the law, society, the legal system or the legal profession, and by financial support for organizations that provide legal services to persons of limited means. RPR Preamble 0.1

Persons of limited means Referenced 12 times in RPR’s Living Wage currently $11.85/hr Pisgah Legal Services 2014 Income Eligibility Guideline $29,812.50 annual income (125% of federal poverty level), asset ceiling $53,000 for family of 4 Just a dollar figure or more than that?

RHETORICAL QUESTION #1 ARE LEGAL SERVICES TO INDIGNANT CLIENTS ELIGIBLE FOR PRO BONO?

Rule 6.1 Voluntary Pro Bono Publico Service 50 Hours annually, 3 no fee options and 2 low fee options Substantial majority of hours no fee or no expectation of fee pro bono Low fee/improve the system pro bono Real Deal Pro bono intent (and the unexpected fee) Eligible for Real Deal substantial majority of hours Eligible for the rest of the hours Real Deal Pro bono: No fee, create attorney client relationship

50 Hours annually, 3 no fee options and 2 low fee options Every lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should aspire to render at least (50) hours of pro bono publico legal services per year. RPR 6.1 The North Carolina State Bar urges all lawyers to provide a minimum of 50 hours of pro bono services annually. It is recognized that in some years a lawyer may render greater or fewer hours than the annual standard specified, but during the course of his or her legal career, each lawyer should render on average per year the number of hours set forth in this Rule. RPR 6.1 Comment 1 The responsibility set forth in this Rule is not intended to be enforced through disciplinary process. RPR 6.1 Comment 11

Rhetorical Question #2 DOES RULE 6.1 “ASPIRE TO RENDER” MEAN YOU SHOULD INHALE?

Substantial majority of hours no fee or no expectation of fee pro bono (a) provide a substantial majority of the (50) hours of legal services without fee or expectation of fee to: (1) persons of limited means; (2) charitable, religious, civic, community, governmental and educational organizations in matters that are designed primarily to address the needs of persons of limited means; or (3) individuals, groups or organizations seeking to secure or protect civil rights, civil liberties or public rights, or charitable, religious, civic, community, governmental and educational organizations in matters in furtherance of their organizational purposes, where the payment of standard legal fees would significantly deplete the organization's economic resources or would be otherwise inappropriate RPR 6.1(a)

Low fee/Improve the system pro bono [In fulfilling this responsibility, the lawyer should:] (b) provide any additional services through: (1) the delivery of legal services described in paragraph (a) at a substantially reduced fee; or (2) participation in activities for improving the law, the legal system or the legal profession. RPR 6.1(b)

Real Deal pro bono intent (and the unexpected fee) Because service must be provided without fee or expectation of fee, the intent of the lawyer to render free legal services is essential for the work performed to fall within the meaning of paragraph (a). Accordingly, services rendered cannot be considered pro bono if an anticipated fee is uncollected, but the award of statutory attorneys' fees in a case originally accepted as pro bono would not disqualify such services from inclusion under this section. Lawyers who do receive fees in such cases are encouraged to contribute an appropriate portion of such fees to organizations described in paragraphs (a)(2) and (3). RPR 6.1 Comment 4

Eligible for Real Deal substantial majority of hours The critical need for legal services among persons of limited means is recognized in paragraphs (a)(1) and (2) of the Rule. Legal services to persons of limited means consists of a full range of activities, including individual and class representation, the provision of legal advice, legislative lobbying, administrative rule making and the provision of free training or mentoring to those who represent persons of limited means. RPR 6.1 Comment 2

Eligible for Real Deal substantial majority of hours Persons eligible for legal services under paragraphs (a)(1) and (2) are those who qualify for participation in programs funded by the Legal Services Corporation and those whose incomes and financial resources are slightly above the guidelines utilized by such programs but, nevertheless, cannot afford counsel. RPR 6.1 Comment 3

Eligible for Real Deal substantial majority of hours Paragraph (a)(3) includes the provision of certain types of legal services to those whose incomes and financial resources place them above limited means. Examples of the types of issues that may be addressed under this paragraph include First Amendment claims, Title VII claims and environmental protection claims. Additionally, a wide range of organizations may be represented, including social service, medical research, cultural and religious groups. RPR 6.1 Comment 6

Eligible for Real Deal substantial majority of hours Legal services can be rendered to individuals or to organizations such as homeless shelters, battered women's centers and food pantries that serve those of limited means. The term "governmental organizations" includes, but is not limited to, public protection programs and sections of governmental or public sector agencies. RPR 6.1 Comment 3

Eligible for the rest of the hours Paragraph (b)(1) covers instances in which lawyers agree to and receive a modest fee for furnishing legal services to persons of limited means. Participation in judicare programs and acceptance of court appointments in which the fee is substantially below a lawyer's usual rate are encouraged under this section. RPR 6.1 Comment 7

Eligible for the rest of the hours Paragraph (b)(2) recognizes the value of lawyers engaging in activities that improve the law, the legal system or the legal profession. Serving on bar association committees; serving on boards of pro bono or legal services programs; taking part in Law Day activities; acting as a continuing legal education instructor, a mediator or an arbitrator; and engaging in legislative lobbying to improve the law, the legal system or the profession are a few examples of the many activities that fall within this paragraph. RPR 6.1 Comment 8

Real Deal Pro bono: No fee, create attorney client relationship Real Deal eligible hours are Strictly pro bono as to fee Rendered directly to individuals or organizations – implies establishment of an attorney/client relationship The rest of the eligible hours May be low fee May be indirect and not rendered to specific individuals or organizations – no attorney client relationship necessary

Rhetorical Question #3 WHO ARE THESE GUILTY FLEAS? (See Proverbs 28:1; Lewis Greene)

Rule 6.1 Voluntary Pro Bono Publico Service You could always buy a substitute Government and public sector lawyers Reporting pro bono service to PLS Reporting pro bono service to IRS: Business expense v charitable contribution

You could always buy a substitute In addition, a lawyer should voluntarily contribute financial support to organizations that provide legal services to persons of limited means. Rules of Professional Responsibility 6.1

You could always buy a substitute Because the efforts of individual lawyers are not enough to meet the need for free legal services that exists among persons of limited means, the government and the profession have instituted additional programs to provide those services. Every lawyer should financially support such programs, in addition to either providing direct pro bono services or making financial contributions when pro bono service is not feasible. RPR 6.1 Comment 9

Rhetorical Question #4 Asheville resident Frank Coxe (as in Coxe Avenue) avoided the draft in the Civil War (and also the War Between the States) by hiring a substitute on both sides of the conflict

You could always buy a substitute THE GOOD NEWS: Cost to PLS to provide 1 hour of staff attorney time: $ ____________. Annual cost to supply a PLS Pro Bono substitute: $__________

You could always buy a substitute THE BAD NEWS: RPR 6.1 Financial support is “in addition” to the RPR 6.1 50 Hours

Government and Public Sector Lawyers Constitutional, statutory or regulatory restrictions may prohibit or impede government and public sector lawyers and judges from performing the pro bono services outlined in paragraphs (a)(1), (2), and (3), and (b) (1). Accordingly, where those restrictions apply, government and public sector lawyers and judges may fulfill their pro bono responsibility by performing services outlined in paragraph (b)(2) [participation in activities for improving the law, the legal system or the legal profession]. RPR 6.1 Comment 5 (see also Proposed 2014 Opinion 3 “Pro Bono Legal Services Provided by Government and Public Sector Employees”)

Reporting Pro Bono Service to PLS Lawyers are encouraged to report pro bono legal services to Legal Aid of North Carolina, the North Carolina Equal Access to Justice Commission, or other similar agency as appropriate in order that such service might be recognized and serve as an inspiration to others. RPR 6.1 Comment 12

Reporting Pro Bono Service to PLS Reporting time and/or value of legal services rendered to agency or charity such as PLS is recognized and also benefits the charity as part of its bottom line; tangible evidence of support but may also help the charity’s bottom line, for example efficiency ratings such as service delivery expense ratios

Reporting Pro Bono Service to PLS Government and public sector lawyers excluded from reporting per RPR 6.1 Comment 5

Reporting Pro Bono Service to IRS Business Expense v Charitable Contribution Time and/or value of services rendered is never tax deductible to the person who renders the services

Reporting Pro Bono Service to IRS Business Expense v Charitable Contribution Tax deductible charitable contributions include cash donations and also direct expenses such as mileage at reduced rate and other travel but subject to 50% of income limitation, require written acknowledgement with special disclaimer from charity prior to January 30 of year subsequent to contribution if over $250. IRS Publication 1771

Reporting Pro Bono Service to IRS Business Expense v Charitable Contribution Tax deductible business expenses are not subject to 50% limitation but must be “ordinary and necessary” QUERY does RPR 6.1 potentially qualify pro bono service expense as “ordinary and necessary” for income tax purposes?

Rule 6.5 Limited Legal Service Programs Attorney client relationship and conflicts of interest Short term limited legal services – informed consent Short term limited legal services – screening for conflicts

Attorney Client Relationship and Conflicts of Interest (a) A lawyer who, under the auspices of a program sponsored by a nonprofit organization or court, provides short-term limited legal services to a client without expectation by either the lawyer or the client that the lawyer will provide continuing representation in the matter: is subject to Rules 1.7 and 1.9(a) only if the lawyer knows that the representation of the client involves a conflict of interest; and is subject to Rule 1.10 only if the lawyer knows that another lawyer associated with the lawyer in a law firm is disqualified by Rule 1.7 or 1.9(a) with respect to the matter. (b) Except as provided in paragraph (a)(2), Rule 1.10 is inapplicable to a representation governed by this Rule. RPR Rule 6.5

Attorney client relationship and conflicts of interest Rule 1.2(c) – Lawyer may reasonably limit the scope of the representation Rule 1.6 – Confidentiality of Information Rule 1.7 – “Concurrent Conflict of Interest” clients directly adverse or representation of one client materially limited by lawyer’s responsibilities to another client, former client, third person, or personal interest of the lawyer Rule 1.9(a) – Representation materially adverse to former client without informed consent [Rule 1.0(c)] confirmed in writing [Rule 1.0(f)] Rule 1.10 – Imputation of conflicts within a firm

Short term limited legal services Informed Consent A lawyer who provides short-term limited legal services pursuant to this Rule must secure the client's informed consent to the limited scope of the representation. See Rule 1.2(c). If a short-term limited representation would not be reasonable under the circumstances, the lawyer may offer advice to the client but must also advise the client of the need for further assistance of counsel. Except as provided in this Rule, the Rules of Professional Conduct, including Rules 1.6 and 1.9(c), are applicable to the limited representation. RPR 6.5 Comment 2

Short term limited legal services Screening for Conflicts Legal services organizations, courts and various nonprofit organizations have established programs through which lawyers provide short-term limited legal services - such as advice or the completion of legal forms - that will assist persons to address their legal problems without further representation by a lawyer. In these programs, such as legal-advice hotlines, advice-only clinics or pro se counseling programs, a client-lawyer relationship is established, but there is no expectation that the lawyer's representation of the client will continue beyond the limited consultation. Such programs are normally operated under circumstances in which it is not feasible for a lawyer to systematically screen for conflicts of interest as is generally required before undertaking a representation. See, e.g. , Rules 1.7, 1.9 and 1.10. RPR 6.5 Comment 1

Short term limited legal services Screening for Conflicts Because a lawyer who is representing a client in the circumstances addressed by this Rule ordinarily is not able to check systematically for conflicts of interest, paragraph (a) requires compliance with Rules 1.7 or 1.9(a) only if the lawyer knows that the representation presents a conflict of interest for the lawyer, and with Rule 1.10 only if the lawyer knows that another lawyer in the lawyer's firm is disqualified by Rules 1.7 or 1.9(a) in the matter. RPR 6.5 Comment 3

Short term limited legal services Screening for Conflicts Because the limited nature of the services significantly reduces the risk of conflicts of interest with other matters being handled by the lawyer's firm, paragraph (b) provides that Rule 1.10 is inapplicable to a representation governed by this Rule except as provided by paragraph (a)(2). Paragraph (a)(2) requires the participating lawyer to comply with Rule 1.10 when the lawyer knows that the lawyer's firm is disqualified by Rules 1.7 or 1.9(a). By virtue of paragraph (b), however, a lawyer's participation in a short-term limited legal services program will not preclude the lawyer's firm from undertaking or continuing the representation of a client with interests adverse to a client being represented under the program's auspices. Nor will the personal disqualification of a lawyer participating in the program be imputed to other lawyers participating in the program. RPR 6.5 Comment 4

Short term limited legal services Screening for Conflicts If, after commencing a short-term limited representation in accordance with this Rule, a lawyer undertakes to represent the client in the matter on an ongoing basis, Rules 1.7, 1.9(a) and 1.10 become applicable. RPR 6.5 Comment 5

Rule 5.5 and 6.5 Limited Assistance to Pro Se Parties Assistance with preparation of pleadings “Pro Se Client” is an oxymoron

Rule 5.5 and 6.5 Limited Assistance to Pro Se Parties Lawyers may also provide professional advice and instruction to nonlawyers whose employment requires knowledge of law; for example, claims adjusters, employees of financial or commercial institutions, social workers, accountants and persons employed in government agencies. In addition, a lawyer may counsel nonlawyers who wish to proceed pro se . RPR 5.5 Comment 10

Assistance with preparation of pleadings 2008 FEO 2 lawyer may assist pro se litigant by advising on content and format of documents to be filed with the court including pleadings, by drafting and/or giving advice about what to do in court, without appearing or otherwise disclosing or insuring the disclosure of the lawyer’s assistance, a “relaxation of the rules on conflicts authorized by Rule 6.5”. RPR’s otherwise apply including Rule 3.1 on filing or asserting frivolous pleadings. See also RPC 114, 2005 FEO 10.

Pro se client is an oxymoron A pro se litigant who seeks a lawyer’s advice or assistance outside the courtroom is a client of the lawyer although the representation is limited in scope and the individual may not pay for the advice or assistance. 2008 FEO 3

Rhetorical Question #6 True/False: “It’s better to have loved and lost then never to have lost at all” Chico Marx