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�Tis the gift to be simple, �tis the gift to be free, �Tis the gift to come down where we ought to be. — Elder Joseph Brackett In Latin, pro bono publico means “for the public good.” Increasingly, pro bono is also good for lawyers, or so the argument goes. But can it become so good for lawyers that the term loses meaning or, worse, signals ethical problems? The legal profession’s gifts to the public are not always simple, nor do lawyers always come down where they ought to be. Something has gone wrong when pro bono publico crops up in the business plans of law firms, in the representation of tony nonprofits, and on both sides of civil rights litigation. Traditionally, pro bono meant a lawyer representing someone, often (although not always) someone charged with a crime, who could not afford to pay for legal counsel. The old American Bar Association rules referred to pro bono clients as “those unable to pay” and the “disadvantaged” — i.e., the poor. That’s still a good rule of thumb in choosing pro bono work. The other important consideration is why lawyers offer such services: It’s their ethical obligation (albeit not an enforceable one). Pro bono is not meant to redound to the benefit of the individual lawyer’s career — or his firm, his other clients, or his political causes. Any cachet attached to pro bono service should come solely because a lawyer has done his ethical duty. But work dubbed pro bono these days extends far beyond legal services for the indigent. Some of the confusion stems from the ABA’s Model Rules of Professional Conduct, which come down in favor of pro bono in a big way. Model Rule 6.1 says lawyers should aspire to 50 hours of pro bono work per year and urges that those hours be devoted to helping people of limited means. But the rule actually defines pro bono much more broadly to include the “delivery of legal services at no fee or substantially reduced fee to 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.” In short, just about anything that good people might consider good for some other people. But the term pro bono is supposed to connote something different, something higher and nobler even than the routine charity work that individuals and corporations do. NICE CLIENTS The first question is whether, ABA rule aside, the term pro bono should be used at all if the client is not indigent. Current Rule 6.1 permits some eyebrow-raising results. For example, the July 2006 issue of The American Lawyer reported that major New York law firms have provided the Lincoln Center for the Performing Arts, a $280 million institution, with free legal services under the rubric of pro bono. A commentary in the July 19, 2006, BusinessWeek pointed to WilmerHale’s pro bono representation of Massachusetts in litigation over the collapse of ceiling tiles in the “Big Dig” highway tunnel. The fact that well-financed nonprofits and governments are beneficiaries of pro bono is no secret. In the case of charities, law firms’ Web sites brag about such work. Lawyers sit on the boards of all kinds of nonprofits to which they provide free legal services, calling this pro bono. Indeed, pro bono has become so indistinguishable from charity that at least one firm lists financial contributions to museums, theaters, and orchestras under the rubric of pro bono. There is an obvious temptation here to choose pro bono clients for the benefits they bring — such as the glamour of cultural organizations or the chance to curry favor with state officials — as opposed to the indigency they suffer. Some firms stick closer to the traditional definition. Stephen Hanlon, who heads Holland & Knight’s pro bono effort out of the firm’s D.C. office, says, “We are the strictest” in limiting pro bono activities to indigent clients and the organizations that help them. But Hanlon’s firm seems to be in the minority. GOOD FOR BUSINESS The initial question of who receives pro bono aid leads naturally into the second question of how far law firms can go in using pro bono to make money. Esther Lardent, president of the Pro Bono Institute at Georgetown University Law Center, wrote a paper in 2000 with the provocative title “ Making the Business Case for Pro Bono.” Rather than looking back at the old rules, Lardent looked forward at large modern law firms and discussed, among other things, how firms can use pro bono in marketing and how pro bono efforts can help with recruitment, morale, training, and public perception. But can firms go too far in this regard? Can they so integrate their pro bono work into their plans for making money that they run into conflicts? Can they resist the opportunities to twist the representation of a pro bono client to advance the interests of a current or prospective paying client? How many pro bono clients will know to complain? Consider four hypothetical cases, which I posed to two legal ethics professors, Michael Frisch of Georgetown Law and Charles Wolfram of Cornell University Law School: (1) A law firm offers to represent pro bono a neighborhood association that opposes a proposed shopping center. One of the firm’s larger-paying clients is a nearby shopping center that wants to block the proposed project for competitive reasons. Frisch saw a disclosable conflict of interest that the client can waive. Wolfram, on the other hand, saw no conflict: Because the two clients’ interests are aligned on this issue, he said, there is no realistic prospect that the neighborhood association will be disadvantaged by the firm’s representation of the other shopping center. (2) A law firm offers to represent a group that opposes a state gun control law. The firm believes this will demonstrate an expertise in Second Amendment issues that can be parlayed into representation of gun manufacturers on a national level. Neither professor saw an ethical problem. Frisch said lawyers generally do not need to disclose their motivations for taking a case. He cautioned, however, that if the firm plans from the outset to publicize the case for self-promotion purposes, then it should get the client’s consent. Wolfram warned that as plans move from wishful thinking to written memorandums and spreadsheet projections of how much money will someday flow from the pro bono representation, the firm’s financial stake in the litigation might become tangible enough to warrant disclosure to the pro bono client. At the very least, the firm has a clear tug on its loyalty to its client. (3) Again, a law firm offers to represent a group opposing a gun control law, but in this case the firm already represents gun manufacturers. Frisch said the firm has to conform to the general conflict-of-interest provision in Model Rule 1.7(a)(2), which warns of “a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.” Wolfram felt that because the local gun control group might be satisfied with far less from the litigation than a gun manufacturer would, there is a clear potential conflict that must be disclosed. As a general principle, Wolfram said, a lawyer should disclose any fact that he might want to know if he were the client. (4) A lawyer sits on the board of a community nonprofit that wants to “take back the night” from criminals. Hearing that another community group is suing to overturn the state gun control law, the lawyer suggests that his nonprofit file an amicus brief in support. The brief will argue that the Second Amendment contemplates a citizenry armed to defend itself. The lawyer also represents gun rights groups and gun manufacturers on Second Amendment issues and is considered a national expert. Frisch again saw problems and noted that the Model Rules don’t provide enough guidance, often leaving lawyers to make their own moral choices. Wolfram felt that the lawyer has a conflict of interest that must be disclosed. Interestingly enough, the ABA has standards that address ethical problems such as these. The standards apply only to legal aid organizations, however, and not to the pro bono efforts of law firms. Standard 7.2-5 of the Standards for Providers of Civil Legal Services to the Poor states, “Members of the governing body [of a legal services provider] may not use their position on it directly or indirectly to further institutional or individual interests which are in conflict with the interests and objectives of clients of the legal services provider.” Perhaps the ABA should consider adding similar language to Model Rule 6.1 to make it clear that lawyers may not use pro bono representation to further their own or their firm’s interests where they are in conflict with the interests and objectives of the pro bono client. At the least, this would send a message to the profession and public that pro bono is not designed to benefit the lawyer. BEST FOR THEM Last is the question of whether lawyers on opposing sides of a lawsuit can legitimately say they both work for the public good. An example is the case of Morse v. Frederick, now pending in the U.S. Supreme Court. High school principal Deborah Morse suspended student Joseph Frederick for holding up a banner reading “Bong Hits 4 Jesus” as the Olympic torch passed by the school. Frederick sued, claiming the principal’s action violated his free speech rights. Legal Times has reported that Kenneth Starr, dean of Pepperdine University School of Law, represented Morse pro bono on appeal and in the Supreme Court. In an e-mail for this article, Douglas Mertz said he has represented Frederick pro bono since the inception of the case five years ago. What sense does it make for legal adversaries to claim they are both working “for the public good”? When the case presents a juicy legal, maybe even constitutional, debate, are the lawyers trying to help an impoverished client — or are they signing on to advance their own agenda, be that a political cause or their own reputation? Lawyers are certainly permitted to offer free counsel in these situations, but they shouldn’t say they’re acting in the public’s interest. Some might argue that this is all just a matter of semantics with no real-world consequences. There are no tax implications, and lawyers may give away their time and skills however they want to whomever they want. But the ethical obligations and public appearance of the profession demand that it define its terms clearly and draw the lines brightly. It is time for the legal profession to re-examine its practices with respect to pro bono publico. It is time to go back to the traditional definition of that old Latin phrase: free legal services provided to those who cannot afford them. A new English phrase could be used in all other cases where the lawyer does not intend to charge a fee. The word “free” comes to mind. When a lawyer represents a charity, a governmental organization, or a political cause without charge, he could just say that he’s doing the work “for free.” A change of tune, yes, but in keeping with Elder Brackett’s idea: It’s a gift to be simple. It’s a gift to be free.
James H. Johnston is a Washington, D.C., lawyer and regular contributor to Legal Times .

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