Screening, Supervision Key To Avoiding Pro Bono Errors

By Jack Karp | December 2, 2022, 8:02 PM EST ·

Attorney mistakes and allegations of malpractice are rare in pro bono cases, experts say, but they do happen.

The Fourth Circuit in November dismissed a petition from a Guatemalan migrant and her daughter seeking review of a Board of Immigration Appeals order concerning their asylum claim because their attorney at K&L Gates LLP filed their petition one day late.

A pair of California mobile home owners sued Jones Day in 2019, calling the pro bono legal services the firm provided them in an eviction case "a fiasco" that left them homeless.

And the Ohio Supreme Court suspended an attorney a few years earlier for pursuing a romantic relationship with a pro bono client.

Neither K&L Gates nor Jones Day responded to requests for comment. Jones Day has insisted it did not breach its duty to its clients and that the settlement agreement those clients signed "represented their best option considering the significant risks they faced proceeding to trial," according to court documents.

Cases like these illustrate how pro bono work can go awry. But attorneys and firms that do take on pro bono cases can prevent these missteps by carefully screening cases, supervising newer attorneys, researching unfamiliar practice areas and teaming up with experts, according to pro bono leaders.

Law360 spoke with several of those leaders and with legal malpractice experts about the potential pitfalls of pro bono work and how attorneys can take on that work without inadvertently getting themselves into trouble.

Evaluate Cases Carefully

The first step lawyers and law firms can take to avoid making errors in the course of pro bono work is to carefully screen cases before taking them on, experts say.

Vetting cases is "the No. 1 most important consideration" when doing pro bono work, according to Ellen Pansky, a California State Bar certified specialist in the area of legal malpractice law.

Some pro bono clients, for instance, may have medical, psychological or addiction problems that a private practice attorney doing volunteer legal work may not be equipped to handle, Pansky said.

Those clients may be better off being referred to a civil legal aid service that has more experience working with those types of issues, according to Robert Scott Wylie, executive director of Pro Bono Indiana and past president of the National Association of Pro Bono Professionals.

"There's some folks who just aren't appropriate for placement with pro bono counsel and really need a front-line civil legal aid attorney," Wylie said.

It's important to screen cases as well as clients, experts say.

"I wouldn't, for example, place a highly contentious and very complex litigation matter with someone who passed the bar yesterday," Wylie said.

That's why every pro bono case at O'Melveny & Myers LLP goes through a strict screening process, according to David A. Lash, the firm's managing counsel for pro bono and public interest services.

Before taking on a pro bono case, O'Melveny lawyers evaluate it for conflicts, make sure the attorneys who would be assigned to the case understand the legal issues involved and assess whether they can handle the case in terms of staffing and expertise, Lash said.

"Every pro bono case has to go through the same kind of rigorous approval processes that our commercial cases have to go through," he added.

Gain or Partner With Expertise

Taking on pro bono work often requires attorneys to step outside of their usual areas of expertise, experts say.

"They may want to get involved in an area of law for which they have a personal interest, or they have a passion for that may not be part of their normal practice," Lash said.

But while expanding one's knowledge into different areas of the law is laudable, working in unfamiliar territory can lead attorneys to make mistakes, according to experts.

"Statistically, attorneys are at a significantly higher risk of malpractice when they 'dabble,'" said Seth L. Laver, a partner at Goldberg Segalla LLP who focuses on matters of professional liability.

That can be especially problematic because some insurance policies exclude coverage for claims arising from pro bono assignments considered outside the scope of an attorney's employment, Laver cautioned.

So lawyers have an obligation to research the law relevant to any pro bono case they handle and become competent in the subject matter at the core of the case, according to experts.

Pro Bono Indiana, for example, provides its volunteer attorneys with training that covers areas of the law in which its clients need help and that offers continuing legal education credits, according to Wylie.

That instruction usually includes basic family law, housing and eviction issues, and public benefits cases, Wylie said.

It's also a good idea for attorneys taking on pro bono cases outside their normal practice areas to partner with subject-matter experts, particularly at legal aid organizations, something O'Melveny's pro bono lawyers do often, Lash said.

A legal aid organization may have a particular expertise in public benefits law or immigration law, while a private attorney at a law firm may have more experience with litigation as well as more resources and staff to work on a case, according to Lash.

"It's a great combination of skills and expertise that we both bring to the table, and when you combine it, we're a great team," Lash said.

Ensure Adequate Supervision

It's also important when taking on pro bono cases to make sure less-experienced attorneys assigned to handle them are supervised, experts say.

Many firms assign newer lawyers to handle pro bono cases, which can be a great way for those attorneys to gain experience, according to lawyers.

But failing to supervise those attorneys can lead to mistakes, said Jason E. Fellner, founding partner of Millstein Fellner LLP who is recognized by the California State Bar as a certified specialist in legal malpractice law and is a board-certified diplomate of the American Board of Professional Liability Attorneys.

"That's the main potential pitfall of pro bono work," Fellner said. "Young lawyers don't necessarily know what they're doing and require supervision."

The former Jones Day pro bono clients who sued the firm for alleged malpractice in 2019 pointed to their attorneys' lack of experience, saying the firm had staffed their case primarily with first-year lawyers and summer associates.

"Jones Day staffing is engineered to provide individual 'pro bono' clients with junior, inexperienced attorneys and staff," they said in their complaint.

So firms absolutely have to ensure that junior attorneys working on pro bono cases are closely supervised, according to experts.

"Every case has to have a supervising partner, and that supervising partner has the same responsibilities when supervising a pro bono case as they have when they supervise a commercial case," O'Melveny's Lash said.

Don't Treat Pro Bono Cases Differently

Finally, attorneys should be sure to treat their pro bono cases the same way they treat the cases they handle for paying clients, according to experts.

Professional standards set by the state bar and rules of professional conduct don't change just because a client is pro bono, Fellner said.

"If you look, for instance, at doctors and medical professionals as an analogy, it would be exceedingly horrific if a doctor didn't perform the standard of care within his field of expertise just because a patient didn't pay," Fellner said.

Attorneys' professional and ethical responsibilities are identical for pro bono and paying clients, experts say.

"It doesn't matter if we're getting paid or not," Lash said. "We've got the same obligations."

Those obligations remain the same if and when an attorney does make a mistake in a pro bono case, according to experts.

Pro bono attorneys should treat any mistake in a pro bono case as they would treat one in a case handled for a paying client, including advising the client of what has happened, evaluating how to move forward and contacting the relevant insurer, experts say.

And remember that it's not just the attorneys who can suffer consequences for errors made in pro bono cases.

While the amounts of money at issue in these cases are usually far lower than in commercial work, the repercussions to the client for a mistake made in a death penalty case, a housing case or a public benefits case can be "severe," Lash said.

"Just because the client is low-income or just because there's not a lot of money at stake in a pro bono case doesn't mean that the consequences are not as serious as in our commercial cases," Lash said. "Sometimes they're more so."

--Editing by Kelly Duncan and Jill Coffey.

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