Tamara Serwer Caldas, deputy director of the Atlanta Volunteer Lawyers Foundation, dreams of creating a legal clinic where people of limited means can take their debt issues, small claims or landlord-tenant disputes for quick, immediate legal advice.
"To do that, we’d need more volunteers," Caldas said, but conflicts of interest have been hindering pro bono recruitment efforts.
Screening for conflicts can take between an hour to a couple of days, and concern about them can have a chilling effect on pro bono volunteers, said Steven Gottlieb, executive director of the Atlanta Legal Aid Society.
"In our case, talking about our senior hotline, we get lawyers who want to volunteer to talk to people over the phone. But because they don’t necessarily know who they’re talking to or what the problem is about, they could easily run into what is a conflict," Gottlieb said. "You may get a call and talk to somebody about a problem with a housing authority, somebody trying to get through the bureaucracy, and you don’t know your partner somewhere has been doing bond work for the same housing authority."
Under the State Bar of Georgia’s Rules of Professional Conduct, that scenario would be a violation that could carry penalties up to disbarment, but AVLF and the Atlanta Legal Aid Society have crafted a rule working around the problem.
The measure, Rule 6.5, has cleared the State Bar of Georgia and is awaiting approval of the state Supreme Court. It would shield firms from imputation of conflicts if their lawyers provide limited, short-term representation under the auspices of a nonprofit legal or court program. The rule would free lawyers to give advice as long as they don’t represent the pro bono clients long-term.
The new rule should give big firms peace of mind that they won’t lose clients if a conflict is detected later, Gottlieb said, a point confirmed by pro bono partners at Sutherland, Asbill & Brennan and King & Spalding.
Atlanta Legal Aid Society and AVLF lobbied for Rule 6.5 for years to no avail until Bar President Robin Frazer Clark, whose term ends this month, backed them.
"We weren’t getting enough volunteer lawyers for spot programs where people call in or come in for advice on one little issue, and young lawyers who need the experience but work at big firms could never help because their firms would have so many conflicts," Clark said.
The bar’s Disciplinary Rules and Procedures Committee "kept saying they didn’t want to change the rules, and there were other rules being changed at the same time so they didn’t want to do too many things at the same time," Gottlieb said.
Caldas also alluded to concerns from some bar members about whether the rule would be vulnerable to abuse and whether it would provide all types litigants with the same protection.
Caldas noted that California, Massachussetts, Minnesota, Nevada and New York have similar rules. The American Bar Association also approved a similar rule as part of its Model Rules.
In Georgia, the Disciplinary Rules and Procedures Committee approved the rule last October. The Executive Committee signed off on it in November, and the Board of Governors followed in January. However, the rule doesn’t seem to have caught the attention of the legal community. Bar General Counsel Paula Frederick said the bar received no comments after publishing the proposed rule in the bar journal in April.
Later in April, the bar submitted the new rule to the Georgia Supreme Court for its approval.
So far, big firms appear to be receptive to it.
John Fleming, pro bono partner at Sutherland, said conflicts are a concern for his firm because there often isn’t time to adequately check for them when lawyers are working on hotlines or weekend clinics.
"Right now in Georgia, unlike in other jurisdictions, you run the risk of not just having a conflict, but it could knock you out of representation of a new client," Fleming said. "There’s really no good reason to have conflict rules applied that harshly."
Fleming said he believes the proposed rule "would be very welcome in the legal services community to permit a freer use of big firm lawyers."
AVLF runs a Saturday clinic, which operates more like a legal intake program with attorneys assessing potential clients’ cases. Sutherland lawyers participate in the clinic, Fleming said, and both sides acknowledge during the process that an attorney-client relationship has not been established. If an attorney ultimately decides to take the case pro bono, a conflict check will be run, and then the lawyer can give legal advice.
"You can do a conflict check on a rushed basis, but if you have a matter that is reported back by the computer system as ambigious as to whether it’s still ongoing and that partner is on vacation…well, you couldn’t get that answer on a Saturday morning," Fleming said.
Joshua Toll, pro bono counsel for King & Spalding in Washington, said in a written statement that the proposed rule "should make it easier for Georgia lawyers to reach the aspirational goal of 50 hours of pro bono per year as set forth in Rule 6.1."
Toll also indicated that the rule isn’t likely to ruffle big firm feathers.
"Given that it applies solely to limited, one-time encounters, it is an incremental change that other states have implemented, and one that is recommended by the American Bar Association," he wrote.