Easing Conflicts for Limited Help

Easing Conflicts for Limited Help

Rule 6.1 says that every lawyer has a professional responsibility to provide legal services to those unable to pay, and it asks each lawyer to aspire to at least fifty hours of pro bono service a year.¹ The ordinary conflict rules can make a single volunteer evening costly. A lawyer checks for conflicts before undertaking a representation, and a conflict held by one lawyer is generally imputed to every other lawyer in the same firm. Applied in full to someone who gives a stranger a few minutes of advice at a clinic, those rules would discourage volunteering. Rule 6.5 relaxes them for that setting. It tailors the conflict rules to short-term, limited representation through a nonprofit legal assistance program, so that a lawyer can participate without an advance conflicts check and without constricting other lawyers in the firm in their freedom to represent clients.²

The relaxation exists to support Rule 6.1. One authority describes Rule 6.5 as "an attempt by the ABA to fortify, or at least render less difficult to fulfill, the fifty-hour pro bono commitment."³ It leaves the pro bono aspiration untouched and removes one obstacle to meeting it.

Three conditions must all be present, and each answers a different worry. The first concerns the sponsor. The lawyer must act "under the auspices of a program sponsored by a nonprofit organization or court."⁴ That requirement confines the exception to genuine pro bono work. A lawyer who expects compensation gets no relief from the strict conflict rules. A nonprofit or court sponsor also assures that the program is designed to help people of limited means and is not a marketing front for a law firm or other commercial venture.⁵

The second condition concerns the kind of help. The rule is written for short-term and limited legal services, such as advice given through a nonprofit program, and its premise is that the restricted nature of that advice keeps the risk to the pro bono client small.⁶ A representation that grows into a full engagement no longer fits that premise.

The third condition is the knowledge standard, which carries most of the exam weight. A volunteer in a qualifying program is precluded from participating only if she knows that the person seeking counsel has an interest adverse to a client of the volunteer or of her firm.⁷ The restricted nature of the advice is also why the rule can safely depend on what the volunteer knows. The risk to the pro bono client is small even when the volunteer could not have detected a conflict.⁸ A stem on this rule usually turns on what the volunteer knew and when she knew it.

The aftermath follows from the same logic. Under Rule 6.5(b), a lawyer's participation in a qualifying short-term, limited representation is personal to her and is not attributed to the other lawyers in her firm, provided she did not know that another lawyer in the firm represented an adverse client. In that situation Rule 6.5 overrides the general rule that a conflict is imputed to everyone in the firm.⁹ The firm may therefore keep representing, or later accept, a client whose interests are adverse to the pro bono client.¹⁰ The volunteer herself remains bound. She may not later represent a client against the pro bono client in the same or a substantially related matter, because that would violate her duty of loyalty and confidentiality to the pro bono client.¹¹