Can pro bono work cause conflicts for you and your law firm?
Karl is a family law attorney whose firm has 25 attorneys. He learns that the local bar association has a legal aid clinic that provides legal advice and representation to low-income residents of the county. Karl has always been interested in providing pro bono services but has been reluctant to take a case on his own. But he is intrigued when he learns about the concept of “limited” pro bono legal services, where he could provide limited advice or assist with pro se documents while other attorneys handle the bulk of the representation. He decides that this would be a great way to give back to his community.
He is assigned to provide limited assistance in a case in which another pro bono attorney is primarily responsible. During his part of the case, he realizes that the client needs some potentially complicated real estate assistance. So he calls a law school friend, Anita, who works for a small real estate law firm and asks her to help. She says she’s happy to help but is not a member of the local bar association. Karl tells her she can assist him without going through the local bar. She provides some limited assistance to the client on a real estate document. Both are careful to maintain their files in a manner that prevents other lawyers in their firms from accessing them.
A week after Anita becomes involved, another party is added to the case, and both Karl and Anita realize that they must withdraw from the matter because of a conflict that only implicates them individually. But they both wonder whether the conflict is imputed to others in their respective firms. Under the Texas Disciplinary Rules of Professional Conduct rules, which firms are conflicted out?
A. Karl’s firm
B. Anita’s firm
TDRPC Rule 1.06 is the general rule prohibiting conflicts of interest, and Rule 1.06 conflicts are generally imputed to all other attorneys in the firm under Rule 1.06(f). Until recently, that would have been the end of the analysis. But in 2021 the Rules were amended to clarify conflicts with respect to pro bono work. New Rule 6.05 states:
(a) The conflicts of interest limitations on representation in Rules 1.06, 1.07, and 1.09 do not prohibit a lawyer from providing, or offering to provide, limited pro bono legal services unless the lawyer knows, at the time the services are provided, that the lawyer would be prohibited by those limitations from providing the services.
(b) Lawyers in a firm with a lawyer providing, or offering to provide, limited pro bono legal services shall not be prohibited by the imputation provisions of Rules 1.06, 1.07, and 1.09 from representing a client if that lawyer does not:
(1) disclose confidential information of the pro bono client to the lawyers in the firm; or
(2) maintain such information in a manner that would render it accessible to the lawyers in the firm.
(c) The eligibility information that an applicant is required to provide when applying for free legal services or limited pro bono legal services from a program described in subparagraph (d)(1) by itself will not create a conflict of interest if:
(1) the eligibility information is not material to the legal matter; or
(2) the applicant’s provision of the eligibility information was conditioned on the applicant’s informed consent that providing this information would not by itself prohibit a representation of another client adverse to the applicant.
(d) As used in this Rule, “limited pro bono legal services” means legal services that are:
(1) provided through a pro bono or assisted pro se program sponsored by a court, bar association, accredited law school, or nonprofit legal services program; 89
(2) short-term services such as legal advice or other brief assistance with pro se documents or transactions, provided either in person or by phone, hotline, internet, or video conferencing; and
(3) provided without any expectation of extended representation of the limited assistance client or of receiving any legal fees in that matter.
(e) As used in this Rule, a lawyer is not “in a firm” with other lawyers solely because the lawyer provides limited pro bono legal services with the other lawyers.
Here, both Karl and Anita kept their client files secure from their respective law firms. But only Karl offered his services through a program sponsored by a bar association as required by Rule 6.05(d)(1). The correct response is B. If you would like to learn more about how you can get involved with providing pro bono in your community, go to www.probonotexas.org.