RECOMMENDATIONS
67 FORDHAM LAW REVIEW 1751 (1999)
1. The recommendations are consecutively
numbered for ease of reference. Citations to these recommendations elsewhere
in this volume shall be as follows:
Recommendations of the Conference on the Delivery
of Legal Services to Low-Income Persons, 67 Fordham L. Rev. 1751, Recommendation
___, at ___ (1999) [hereinafter
Recommendations].
RECOMMENDATIONS
67 FORDHAM LAW REVIEW 1784 (1999)
20. Model Rules of Professional
Conduct Rule 6.1 (1998).
RECOMMENDATIONS 67 FORDHAM LAW REVIEW 1785 (1999)
many states have not adopted Model Rule 6.1, and that there is still
significant opposition among the private bar to any efforts to imple-ment
either mandatory pro bono or mandatory reporting of pro bono activity.
All reasonable efforts should be taken to increase the com-mitment
of pro bono lawyers. It is also evident that new information technologies
may provide effective means to address and overcome
obstacles to increased pro bono contributions.
85. The states should adopt Model Rule 6.1. The ABA and other bar organizations
should serve as a resource for these state
efforts.
86. All segments of the bar (law firms, bar associations, law schools, courts, in-house legal departments, government agen-cies,
etc.) should take steps to create incentives and minimize disincentives
to performing pro bono work, e. g., treating pro
bono hours in the same manner as billable hours for the pur-poses of
compensation and advancement, free CLE courses
for pro bono attorneys, awards and recognition, reduced dues for active
attorneys, "challenges" such as the Law Firm Pro
Bono Challenge, etc.
22. See 45 C. F. R. §
1614.2 (1998). 35
RECOMMENDATIONS 67 FORDHAM LAW REVIEW 1786 (1999)
groups. On the other hand, others have expressed concerns that PAI resources
are either being underutilized or could be redirected in ways
that would serve more clients. No comprehensive study of the effec-tiveness
of the PAI requirement has been conducted since 1982.
87. A comprehensive study should be undertaken to assess PAI programs
including, among other things, identifying and repli-cating
the best practices (in both LSC-and non-LSC-funded programs) and evaluating
possible changes to the PAI regula-tions
and structure that would make this program more effec-tive. Any study
should look at both the numbers of cases
placed with and closed by private practitioners and the intangi-ble
benefits of PAI programs that relate to increase in bar sup-port
for legal services, building relationships between legal service advocates
and private practitioners, etc.
law firm giving patterns, (2) law firm size, (3) pro bono partici-pation,
and (4) comparisons over time and with other corpo-rate
and business sectors. Potentially valuable sources of information for
these studies include data compiled by various
state IOLTA funds and other state organizations and fundrais-ing efforts.
The goal of these studies will be the development
of strategies for increasing financial support from private prac-titioners
for the legal service community.
community, including private practitioners. For example, matching clients
with lawyers and providing private practitioners with ready ac-cess
to work product and training materials via the World Wide Web might
lower the barriers to providing services to low-income clients
and communities.
RECOMMENDATIONS 67 FORDHAM LAW REVIEW 1787 (1999)
89. Encourage the use of technology (websites, teleconferencing, etc.)
to build bridges between private practitioners and legal
services oganizations and other public interest law groups.
90. In any project involving the use of technology, programs should
pay particular attention to using the technology to bet-ter
support private practitioners who are practicing in low-in-come communities.
to do so, and to ensure that services provided meet the requirements
of Model Rule 1.1, (Footnote 23) private practitioners
(especially
those who do not routinely practice in low-income communities) must
have the requisite knowledge and skill to provide competent legal
services to low-income individuals and communities.
91. Lawyers and law firms, in accepting pro bono matters, should take
steps to ensure that they have the knowledge and exper-tise
necessary for the representation.
92. Programs that seek to involve private practitioners (including
bar associations and legal services organizations) should en-sure
that support and training resources are made available. These resources
include formal training programs, practice
manuals, access to mentors, and the use of technology.
93. Model Rule 1.1 reflects a traditional, "full service" model of
representation. There should be further study and analysis to
determine whether Rule 1.1 inhibits or deters private attorney participation
in alternative delivery methods such as unbun-dled
services, brief advice, hotlines, or assisted pro se representation.
23. Model Rules of Professional Conduct Rule 1.1 (requiring lawyers to provide "competent" service). 37
RECOMMENDATIONS 67 FORDHAM LAW REVIEW 1788 (1999)
and the client? Once the case is referred, does the referring organiza-tion
have or continue to have a relationship with the client? If the
referring organization provides support and follow-up, what are the
implications for the relationship under the ethics rules?
As can be seen from these examples, these issues can be extremely fact-specific,
and it is difficult to set forth any general rules. Possible
questions include:
(1) When does an attorney-client relationship begin?
(2) What is the definition of a "firm" in the pro bono context?
(3) What duty of confidentiality should apply in a pro bono context?
(4) Under what circumstances can a volunteer lawyer "give back" a
case that they have taken?
94. Further study of these complex issues (especially determina-tion
of when the attorney-client relationship attaches, and how
organizations can structure guidelines to protect themselves, the clients,
and the private practitioners) is sorely needed.
95. An organization should have an internally-consistent policy on these
subjects that should be made clear to both the client and
the private practitioner.
96. The Model Rules governing conflicts cannot reasonably be in-terpreted
to treat legal services programs and private lawyers
working together as a single "firm." States should conform to this
interpretation to avoid creating an unnecessary barrier to
private attorney involvement in pro bono matters.
97. The rules governing termination of representation of a client are
clearly set forth in the Model Rules. In addition, a private
firm should have the same obligation to continue representing a client
after the attorney dealing with that client leaves, regardless
of whether the client in question is a paying client or a pro bono
client.
RECOMMENDATIONS
67 FORDHAM LAW REVIEW 1789 (1999)
(broadly defined) need to be educated about what is permitted under the rules.
99. Plan and implement a process whereby the legal services community
(broadly defined) and law firms can enter into a
dialogue about this issue, including discussions about how private
firms actually deal with positional conflicts (for both
paying and non-paying clients), what policies and procedures have been
developed, identify the areas of greatest need that
may raise questions about positional conflicts, and explore ways to
minimize any barriers.
100. Firms should attempt to treat positional conflicts in the same
manner whether they involve paying or pro bono clients.
They should also consider obtaining consent and waivers when they have
positional conflicts with a pro bono case.
101. Consider supplementing the existing Model Rules by adding the language
of the old Model Code EC 8-1, which suggested
that lawyers should seek reform "without regard to the gen-eral interests
or desires of clients or former clients," and
urged lawyers to "seek just laws regardless of positions that might
have been previously taken when representing clients."
102. Study how private lawyers in small or rural communities han-dle
positional conflicts.
103. Further study is needed in the following areas: (a) The nature
of the representation provided by these attor-neys
to low-income clients, including the subject areas in which services
are being provided, the scope of represen-tation,
the range of fee arrangements, incentives to in-crease participation,
etc.
25. Comprehensive Legal Needs Study, supra note 3, at 52 tbl. 5-8.
26. See id. at 52-53 tbls. 5-8 to -9.
27. Cf. Robert J. Rhody,
Comparing
Legal Services to the Poor in the United States with Other Western Countries:
Some Preliminary Lessons, 5 Md. J. Contemp.
Legal Issues 223, 241-42 (1994) (estimating that "over
fifteen percent" of the licensed bar provides pro bono services to the
poor in the United States).
RECOMMENDATIONS 67 FORDHAM LAW REVIEW 1790 (1999)
(b) The quality of services provided by these attorneys to low-income
clients.
(c) Incentives for increasing the delivery of legal service by private
attorneys to poor people, including the expansion
of court-awarded fees to include the most commonly oc-curring legal
needs (matrimonial, landlord-tenant, etc.).
(d) Despite confirmation in several studies, the finding that most
poor people with an attorney have a private attor-ney
is not widely accepted. Additional studies may help gain wider acceptance
of this fact. Further, studies in
smaller geographic areasÐ especially urban ghettos and very rural
areasÐ need to be conducted to determine if
results from national and state studies can be applied to sub-state
planning and delivery areas.
(e) Legal services programs, the organized bar, and law schools may
wish to study whether providing training and
support to these attorneys would produce more effective services.
(f) The role of this group needs to be taken into account in the planning
for, and the development of, any compre-hensive
delivery system. (g) Use of electronic communications, especially the
web and
emerging telecommunications technology, to support pri-vate attorneys
is very promising. Developers of elec-tronic
support for legal services attorneys should take the needs of these
private attorneys into account.
J. Demographics
Background: The legal profession faces an impending demographic
transformation. The number of older lawyers will increase dramati-cally
while the number of younger lawyers will remain relatively un-changed.
The increasing portion of legal services produced by firms
servicing businesses and other organizations and the tendency of those
firms to phase out senior lawyers suggest that there will be a vast pool
of talented and experienced lawyers who might be enlisted in the legal
services/ public interest sector. This could involve not only a major
increase in lawyers, but also the infusion of new expertise and sub-stantive
skills, and the importation of new legal technologies. To util-ize
this new resource most effectively, it is important to begin to develop
the relevant knowledge and organizational base.
104. Develop reliable demographic projections.
105. Study the experience of legal services providers in utilizing older
(late career) attorneys. What are the problems and
benefits?
106. Survey the late career expectations and plans of lawyers, in-cluding
their public service motivations and financial needs.
RECOMMENDATIONS
67 FORDHAM LAW REVIEW 1791 (1999)
107. Convene a planning group to devise appropriate strategies for utilizing this new resource.
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