Managing Pro Bono

by PAUL MCLAUGHLIN
Practice Management Advisor
The Law Society of Alberta

Alberta lawyers have an ethical obligation to act on a pro bono basis in appropriate cases (Code of Professional Conduct, Chapter 5, Commentary G2). Most of the solo and small firm lawyers I work with fulfill this important professional obligation admirably. 

However, I also see situations where excessive pro bono work severely damages a practice, resulting in considerable personal stress and unhappiness for the lawyer. Usually this problem arises when the lawyer takes on too much unintentional pro bono work.

Sometimes you know from the start of a file that you aren’t going to get paid. As long as you don’t feel you were guilted into the case, this kind of pro bono work can be the most rewarding because you feel it was your choice to take it on.

Other times you don’t find out that the client can’t pay until the file is partly done. You have bonded with the client and the work is in your system. You may feel betrayed or deceived by the client but you will probably be tempted to just finish the file and hope to get something out of it. However, motivating yourself may well become a problem, particularly if the file drags on or becomes complicated. The longer it takes, the more you will resent the file and the client, increasing your chances of facing a complaint or insurance claim. The worst cases are those where you don’t discover the file is a freebie until you render the bill. In these cases, you should do your credit due diligence sooner.

So, how do you get better control of your pro bono? Here are two simple management tools for controlling the inadvertent intake of nonpaying work.

The “Pro Bono List”

The “Pro Bono List” works like this:

• decide how many pro bono files you wish to carry (your “pro bono target”), usually between 5 and 10 files
• write the numbers from 1 to your pro bono target on a sheet of paper
• write the names of the pro bono files you currently are working on beside the numbers (if you have more files on your list than openings, you cannot take any new pro bono work until the number of files is reduced to your target)
• put the list on your desk where it is readily accessible
• from now on, you do not open any new pro bono files or allow any existing files to convert to pro bono status unless there is an opening on your Pro Bono List

When you interview a new client who does not have enough money to pay for the legal work required, or discover that an existing client cannot afford the work needed to finish an ongoing matter, you can explain that, like most lawyers, you take on a certain number of files for free or at reduced fees, but you have no openings on your list right now, so you are not in a position to help or continue to help them. You must give your client reason-able notice of your decision to terminate a representation (Chapter 14, Rule 1, and Commentary), so you should address your client’s ability to pay in a timely fashion or you may not have any choice but to continue.

Pro Bono Screens

If you have an opening on your list, you shouldn’t necessarily just give it to the next client through the door who can’t afford to pay for the legal work they need. Once you agree to work on a file pro bono, you have to apply the same level of competence and timeliness as you would to any other file, so you have to consider how to keep yourself committed if you don’t have the motivation of getting paid. What other factors can you count on to sustain your enthusiasm? Here are some additional screening questions you can use to avoid accepting pro bono files that will turn into dog files:

• do you like the client?
• is the client reasonable? will the fact that the client will not be constrained by the obligation to pay for your services result in unreasonable demands?
• does the client have anything invested in the file?
• what are the client’s motivations for pursuing the matter?
• is the file interesting to you? is it challenging enough to keep your interest but not so challenging as to demoralize you? is it a worthy cause? does it stir your moral indignation?
• are you competent to do the work? do you have the resources that will be required to do a competent job, including lawyer time, staff time and cash for disbursements? can you get it done efficiently without an adverse impact on your other clients?
• can the client make a partial contribution to fees, or at least cover the disbursements? are there other sources of funding you or your client can tap?
• is this a unique file, or will it open the doors to other paying work?

Remember, there are few things that are more depressing and wasteful than having to spend time and energy responding to a complaint or an insurance claim on a file where you thought you were doing someone a favour. Keep yourself out of this situation by taking control of deciding who will be the objects of your charity.

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