THL May June 2007

Does No Good Deed Really Go Unpunished?
Malpractice Myths and Realities in Pro Bono Representation

By James W. Paulsen

Attorneys sometimes hesitate to accept pro bono work because they fear malpractice complaints down the road. About one-third of Texas lawyers responding to a 2006 Bar-sponsored survey ranked lack of skills or experience in pro bono practice areas as a factor discouraging participation; half of those listed a lack of malpractice coverage as a factor.1 These responses are typical of lawyers across the nation.2
The possibility that any given client might sue a volunteer lawyer cannot be denied. Nor can one deny the possibility that any given reader of this article, or the writer, might one day be struck by lightning. The question is whether the perception of risk bears any resemblance to reality.
The truth is that malpractice suits against volunteer attorneys are rare, judgments rarer, and significant financial consequences rarer still. Indeed, it is easier to find reported examples of attorneys killed by lightning strikes than examples of successful malpractice judgments against volunteer lawyers.3 Moreover, as with the risk of lightning strike, a few reasonable precautions go a long way. This article goes beyond malpractice myths and anecdotes, and explores some underlying realities.

Synopsis
Every good lawyer wants to represent every client competently. Accordingly, if an attorney is not proficient in the subject of pro bono representation, he should take a little extra care, just as he would for any paying client in similar circumstances.
That said, the average volunteer lawyer’s malpractice worries are in large part unfounded. Organized pro bono programs try to match attorneys with cases those attorneys are competent to handle. They may limit the scope of representation, offer “bail out” options, provide mentors and skills training, and even extend malpractice coverage to volunteer attorneys, to the extent state and federal tort reform legislation does not already provide a shield.
Such considerations, coupled with the fact that cases typically handled by volunteer attorneys have little potential for substantial malpractice liability in the first place, help explain why real-life malpractice exposure does not match commonly expressed fears. An attorney who calculates the odds might even rationally, though cynically, conclude pro bono work is more likely to reduce the overall likelihood of career damage from malpractice than otherwise.

The Volunteer’s Duty of Care
An attorney who takes a case pro bono should strive to perform at the same level of competence as one who takes a case for a paying client.4 Accordingly, a lawyer ought to think twice before taking a pro bono case he might not be able to handle competently.
Opinions differ, however, even on this elementary point.5 One might ask what real harm a client suffers if a volunteer lawyer files suit one day after the statute of limitations runs, if without that lawyer’s assistance no suit would have been filed anyway. Some jurisdictions, including Texas, have bowed to such realities by enacting “Good Samaritan” laws to shield medical professionals from the consequences of their negligence in emergency situations.6 Texas ethics rules recognize a similar exception for “emergency” legal work.7
Some lawyers also fear they may take on pro bono representation, then have the client announce “price is no object” and demand efforts far beyond anything objectively justified in the circumstances. One answer is that ethics rules may provide a “rule of reason.” A paying client can object to an unexpected bill for voluminous discovery and pretrial maneuvering in a small case because, though this frenetic lawyer activity might improve the odds of success marginally, the game is not worth the candle. To use the rule’s language, the proposed fee is unreasonable in light of the “amount involved.”8

It would be strange if a fee-paying client could legitimately refuse to pay her lawyer for services a non-paying client could legitimately insist the lawyer provide. This may be why Comment 2 to Rule 1.01’s general standard of “competent and diligent representation” adds a caveat:

The required attention and preparation are determined in part by what is at stake; major litigation and complex transactions ordinarily require more elaborate treatment than matters of lesser consequence.9

Nonetheless, even if ethics rules can properly be read to set reasonable limits on the volunteer lawyer’s duties in some cases, they provide little guidance in others. For instance, most parents would consider anything affecting their children “major litigation,” and would pay any amount to stop abuse or neglect. Likewise, a $50 per month difference in Social Security benefits is of no “lesser consequence” to a retired homemaker than a million dollar check might be to a trust fund beneficiary.

The Volunteer’s Support Network
Finer points of ethics aside, no volunteer attorney takes a case with the goal of doing only the minimum required by disciplinary rules.10 Fortunately, the attorney who volunteers through an established pro bono program can expect some help along the way.
The American Bar Association’s recommended standards for pro bono programs11 suggest that volunteers receive “training opportunities and support services.”12 The standards also recommend that attorneys handle matters in “areas in which the volunteers have substantive expertise or in which the program or other resources have trained them.”13
Organized pro bono programs typically screen prospective clients carefully.14 Most programs also provide training, supervision15 and mentoring,16 and sometimes even technical and research support.17 Further incentives are offered through the State Bar of Texas.18
As one program’s volunteer coordinator put it, “We need pro bono attorneys and will do whatever is necessary to support them.”19 Locally, the Houston Volunteer Lawyers Program “is prepared to develop whatever methods are necessary to make pro bono work as convenient and accessible as possible, and to present training programs at [the volunteer’s] convenience.”20

The Volunteer’s Limited Financial Exposure
One obvious factor limiting a volunteer lawyer’s malpractice exposure is the nature of the typical pro bono case. Though lawyer errors can have profound effects on the lives of the indigent, the financial consequences of honest mistakes in civil pro bono cases usually are not substantial.21 Practically speaking, if the client really would have recovered millions of dollars “but for” her volunteer attorney’s negligence, another lawyer would have taken the case on a contingent fee basis. In view of the enormous mismatch between need and resources, the volunteer who accepts a case through an organized legal service provider has some assurance that big-dollar cases already have been screened.22
Additionally, in many of the family court cases that are the staple of pro bono practice,23 malpractice damage is not easily proved, much less reduced to a dollar amount. Consider the typical child custody dispute, in which there is no real statute of limitations, the facts are disputed, and the trial court has broad discretion and an independent duty to act in the child’s best interest. The stakes – the future well-being of a child – are huge, but it usually is difficult to draw a line between any particular attorney act or omission and a bad result. Moreover, assuming a pro bono malpractice case ever got to trial, the volunteer attorney might reasonably expect a sympathetic hearing from the judge24 or jury.25
An attorney who volunteers through an institutional legal services provider such as the Houston Volunteer Lawyers Program has additional protection from malpractice exposure. For one thing, the federal Volunteer Protection Act of 199726 offers significant protection.27 Simplifying greatly, this federal law insulates unpaid volunteers28 who perform work for a nonprofit organization – including Section 501(c)(3) charities and “any not-for-profit organization which is organized and conducted for public benefit and operated primarily for charitable, civic, educational, religious, welfare or health purposes”29 – from liability for the consequences of simple negligence in the performance of volunteer work.30
The legislation is not completely one-sided. The charitable organization and its paid staff remain liable.31 Moreover, if the nonprofit must pay a judgment, it theoretically could sue the culpable volunteer,32 though that surely would have a chilling effect on future recruiting efforts. The volunteer should also think twice before driving the pro bono client to court, because liability rising from motor vehicle accidents (for which the volunteer presumably has personal insurance) is exempted.33
The Texas Charitable Immunity and Liability Act of 198734 also is worth mention. As with federal law, the Texas statute immunizes volunteers for Section 501(c)(3) charities from liability for ordinary negligence.35 However, unlike the federal statute, the organization’s direct liability for money damages is limited to $100,000 for “each single occurrence for injury to or destruction of property.”36
Volunteers for organized pro bono programs in Texas37 and elsewhere38 benefit from an additional layer of financial protection -– free malpractice coverage. Generally speaking, the State Bar of Texas provides malpractice insurance for organized poverty legal service providers, which extends to volunteers as well,39 up to $250,000 per incident, with a $500,000 aggregate.40 The coverage is primary,41 so even lawyers with private malpractice coverage may benefit.

Avoiding Exposure by Limiting Representation
Volunteer lawyers and the organizations through which they work also can control malpractice exposure up front by client agreements. Strictly speaking, an attorney cannot prospectively limit malpractice exposure.42 But an attorney can limit the scope of representation to those matters the attorney has the time or competence to handle,43 which can accomplish essentially the same result.
Limited representation can be helpful. A pro bono case that seems simple when the attorney assumes representation can become a litigation “black hole” as the facts develop. It therefore is common in pro bono representation, particularly representation handled through an experienced provider, for the client contract to specify the particular services or tasks to be provided.
There also is considerable discussion these days about meeting the needs of the poor through lawyer “assisted pro se” and the “unbundling” of legal services.44 These approaches, much like a standard limited representation contract, have the potential to increase access to basic legal services, while simultaneously limiting lawyer liability. The pros and cons of these innovations certainly can be debated, but are beyond the limited scope of this article.

The Bottom Line: How Many Pro Bono Clients Actually Sue?
As suggested above, one would expect that pro bono malpractice fears are not borne out by the facts. And so it is. Without exception, knowledgeable insiders contacted by this writer say such claims are rare.
Take, for example, the member-owned Texas Lawyers’ Insurance Exchange, which currently serves about 1,200 Texas firms with 3,500 attorneys.45 Jett Hanna, Senior Vice President for Underwriting, can recall only one claim of pro bono malpractice in which he has personally been involved since 1987. That claim concluded successfully, from the attorney’s point of view.46 Similarly, John Neal, the State Bar of Texas’ Chief Disciplinary Counsel, says pro bono representation is “an area where we rarely see complaints against attorneys.”47
David Mandell, executive director of the Houston Volunteer Lawyers Program, Inc. (HVLP), provides the same view from a different perspective. The HVLP is one of the nation’s larger pro bono programs. In 2006, the program closed over 10,000 cases and referred more than 1,000 cases to local volunteer attorneys.48 Nonetheless, over the 16 years for which records are available, not one matter has ever been referred to the HVLP’s malpractice carrier.49
These examples, though compelling and consistent, are only anecdotal. Unfortunately, national or statewide figures on malpractice claims against pro bono attorneys are hard to come by. Insurance and disciplinary data is not usually collected and organized with the categories of ”pro bono or paying client” in mind.50 This may by itself say something about how uncommon such real-life claims are.
One exception of sorts to this data void is a recent, and comparatively simple, analysis by Steven K. Berenson.51 Professor Berenson looked at an ABA statistical study on the incidence of malpractice claims, then compared those figures to the sorts of cases typically handled by pro bono attorneys. For example, personal injury litigation generates a high percentage of all malpractice claims, but constitutes a very small percentage of pro bono work.52 Professor Berenson’s conclusion: “[T]he prevalence of legal malpractice claims is greater in areas of law where clients typically pay for legal services and is lesser in areas of the law where pro bono representation is most common.”53
Another indication that real-life exposure to pro bono malpractice liability is negligible may be found in this writer’s January 2007 review of court opinions. A LEXIS search for the occurrence of the word ”malpractice” within 50 words of the phrase “pro bono,” supplemented and confirmed by a similar Westlaw search, generated only a handful of relevant decisions, state or federal, across the nation. Even in those cases, the lawyer usually won at a very early stage.
Two Texas cases, both from the Dallas Court of Appeals, are typical. In one, the appeals court affirmed summary judgment for a volunteer attorney who helped an older woman draft her will because the disappointed potential beneficiary lacked privity.54 In the other, the court did not need to decide whether an attorney was representing inmates pro bono or not, because the inmates presented no evidence to support their cause of action.55
Cases from other jurisdictions are much the same. An Ohio court affirmed summary judgment against an inmate on proof of non-representation.56 The Wisconsin Court of Appeals upheld summary judgment because an inmate serving time for double murder could not prove he would have prevailed in his civil rights action against prison officials “but for” the attorney’s supposed errors.57 A New Jersey court affirmed dismissal on the pleadings in pro se litigation brought by the parents of children removed from their care.58 In New York, a federal judge dismissed on the pleadings a complaint brought by a mentally troubled client59 who turned on her volunteer trial lawyer after pursuing a pro se appeal of a claimed $40 million discrimination suit all the way to the United States Supreme Court.60 In the last case, the judge complimented the attorney’s performance in the underlying case.61
Even the few arguable exceptions to the rule – cases in which the pro bono attorney did not win outright, usually by summary disposition – are not impressive. The most interesting rises from a firm’s supposed negligence in its pro bono representation of the widow of a Washington, D.C. postal worker killed by anthrax spores meant for the United States Senate.62 The appeals court reversed a threshold ruling in favor of the law firm. However, the court simply referred to the local rule’s “minimal pleadings requirement,”63 at which stage the former client need only present “a sufficient pleading, not actual proof” of malpractice, or of damage from that malpractice.64 Nothing in the opinion suggests the plaintiff would win on the merits.
The bottom line? This writer did not find a single reported opinion sustaining a malpractice judgment against a volunteer attorney.
Widening the search beyond malpractice, only four reported disciplinary proceedings were discovered in which complaints of misconduct against a pro bono attorney concluded unfavorably. In three, the result most likely would have been the same if the attorney had never taken the case, pro bono or otherwise.65 For instance, the Arizona Supreme Court affirmed an attorney’s suspension in part because of his mishandling of a pro bono child support matter.66 However, the pro bono case represented only one count of a 25 count ethics complaint that also involved problems with a dozen or so paying clients.67 Moreover, the lawyer failed to respond to the Arizona Disciplinary Commission’s request for information responsive to the pro bono client’s complaint. That was an independent violation of the state’s disciplinary rules.68
In the only appellate decision discovered nationwide in which a lawyer actually was disciplined for problems rising exclusively from pro bono work, the sanction was a mere public reprimand. Even that sanction might have been avoided if the attorney had produced documents to support his claim that the client had withdrawn the complaint.69 Moreover, the lawyer apparently did not accept his representation through a legal service organization,70 and the misconduct (failing to forward a $500 check to the client’s creditors) appears unrelated to the nature or novelty of the pro bono work involved.
This latter point also is a common thread running through the decisions in which an attorney was disciplined for misconduct in which pro bono representation was even arguably a factor: The misconduct that got volunteer attorneys in trouble does not seem related to the attorney’s lack of familiarity with the area of law. Instead, they involved failure to file incorporation documents for months after receiving all necessary paperwork and fees,71 misappropriation of client funds,72 and the mishandling of a child support case by an attorney who also mishandled a variety of other family law cases (including a child support matter) for paying clients.73
This computer-assisted survey is neither thorough nor scientific. Nonetheless, the fact that a good-faith sample of reported decisions reveals no examples whatsoever of final malpractice judgments against volunteer attorneys, and only one clear example of disciplinary action, is suggestive. The failure to find much smoke does not negate the possibility of fire. However, the results should give concerned lawyers some confidence that taking the occasional pro bono case does not open the door to a raging inferno of malpractice.

The Coin’s Other Side: Limiting Malpractice Exposure by Volunteer Work
In closing, a couple of other points that often are overlooked in “pro bono malpractice” discussions bear mention. First and most obviously, the training and mentoring offered to young attorneys through organized pro bono programs, together with exposure to comparatively low-risk litigation, may reduce malpractice exposure in high-stakes paying cases down the road.74

Second, and perhaps less obviously, a record of pro bono work can mitigate the consequences of malpractice in paying cases. As already stated, this writer found only one reported case nationwide in which an attorney has been subjected to discipline solely for misconduct in a pro bono matter. By contrast, in more than 100 reported cases nationwide, a prior record of pro bono work has been acknowledged as something for courts and disciplinary boards to consider when deciding what sanction to impose for unrelated misconduct.75 Texas disciplinary rules likewise appear sufficiently broad to include a record of pro bono work as a mitigating factor for attorney disciplinary sanctions.76

This is not to say that any volunteer lawyer should, or ever would, consider pro bono work a backhanded form of malpractice insurance. Quite the contrary: Attorneys take on pro bono work because that is what professionals do, and they do their work well because that also is what professionals do.77 Rather, this article’s simple message is that widespread lawyer fear of pro bono malpractice is – just as the premature rumor of Mark Twain’s death once was – “greatly exaggerated.”78

Professor James W. Paulsen teaches at the South Texas College of Law. He received his J.D. from the Baylor Law School in 1984, and his LL.M. from the Harvard Law School in 1992. He is a member of The Houston Lawyer editorial board.

Endnotes
1. D’Arlene Ver Duin et al., State Bar of Texas Survey of 2005 Pro Bono 38 (Survey Research Center, University of North Texas, Apr. 13, 2006); see also Justice at Work: Summary of State Bar of Texas Pro Bono Survey, 69 Tex. B.J. 768 (2006). 2. See, e.g., ABA Standing Committee on Pro Bono and Public Service, Supporting Justice: A Report on the Pro Bono Work of America’s Lawyers (2005). This national survey and study found that about 15 percent of attorneys interviewed cited “lack of specific expertise or skills in the required practice area” as a factor discouraging pro bono work. Id. at 5. More significantly, the availability of free training, malpractice insurance, and a “discrete legal task” were rated (in that order) as the top three factors that could encourage more pro bono work. Id. at 20. 3. As will be discussed in detail later in this article, a broad-ranging LEXIS and Westlaw search did not turn up a single reported opinion describing a successful malpractice judgment against a pro bono attorney. See infra text accompanying notes 55 through 65. However, a LEXIS search did unearth reports of a half-dozen lawyers killed by lightning strikes since 1983. See Keri Kirby, Technology Frees Wrongly Imprisoned Local Man, Shreveport (La.) Times, Oct. 19, 2003 (reporting 1987 death of Louisiana attorney while working on the case of an incarcerated client ultimately found innocent); Randy Krehbiel, Tribes, State Agree to Child Protection Pact, Tulsa (Ok.) World, Mar. 2, 2003, at A24 (reporting the death of an assistant U.S. attorney on a camping trip in Wyoming); Steve Rhodes & Linda Young, Lightning Kills 1 in Joliet, Chicago Tribune, July 8, 1994, at 1D (reporting death of an attorney on a YMCA running track); David K. Rogers, State Lightning Deaths a Record, St. Petersburg (Fla.) Times, Nov. 19, 1991, at 1A (reporting death of an attorney while walking on a beach); Samuel Huntington, Executive for Utility, N.Y. Times, July 28, 1988 (reporting death of Massachusetts attorney while hiking in Colorado); Susan Kuczka, Domestic News, UPI, Aug. 10, 1983 (reporting death of Atlanta attorney on a fishing trip in Florida); Metro; Around the Region, Washington Post, May 26, 1983, at C2 (reporting the death of a Maryland attorney while boating).
Of these, the case of the Louisiana attorney is easily the most bizarre. Shreveport lawyer N. Graves Thomas was boating on Lake Bistineau. He chose to ignore approaching storm clouds. Instead, according to one news report, he “stood up in the back of the boat, raised his arms toward heaven and shouted ‘Here I am.’” Moments later, he was dead. Robin Marantz Henig, Water Time: The Fun . . . The Hazards, Washington Post, June 30, 1987, at Z10.
On the bright side, a New York estate planning lawyer struck by lightning in his firm’s conference room survived. In fact, according to one witness, “he kept right on talking about taxable assets and durable power of attorney.” Jeff Kramer, Being of Unsound Mind and Body . . ., Syracuse (N.Y.) Post-Standard, Mar. 31, 2006, at E1. 4. See Tex. Disc. R. Prof. Cond. 1.01 (a); cf. Lu v. Ashcroft, 259 F.3d 127, 135 (3d Cir. 2001) (stating that “[a]n attorney’s obligation to his client is not diminished by the pro bono nature of the representation”); Segal v. State Bar, 751 P.2d 463, 466 (Cal. 1988) (stating that “[a]n attorney’s standard of professional conduct to a pro bono client should be no different from his or her responsibility to any other client”); John Levin, Legal Ethics: Treat Pro Bono Clients Like Any Other, Chi. Bar Ass’n Record, Oct. 2005, at 61 (noting that “you are required to treat your pro bono clients no differently from your paying clients”); Thomas D. Shellenberger, The Large Firm Perspective: Rules for the Good Samaritan, Del. Lawyer, Spring 2005, at 24 (stating that “[n]onpaying clients cannot be given short shrift simply because they are not paying you”). 5. Russell Engler, And Justice For All B Including the Unrepresented Poor: revisiting the Roles of the Judges, Mediators, and Clerks, 67 Fordham L. Rev. 1987, 2042 n.246 (“[r]ecognizing a standard of care consistent with the limited representation, rather than measuring the provider of discrete task representation by the standards of full representation, and embedding the sliding standing into analysis under the ethics and malpractice rules, seems to be the most sensible approach”); Steven K. Berenson, A Cloak for the Bare: In Support of Allowing Prospective Malpractice Liability Waivers in Certain Pro Bono Cases, 29 J. Leg. Prof. 1, 2 (2004/2005) (arguing that ”in an effort to increase the direct provision of pro bono legal services to poor clients, the profession should remove its longstanding ban on prospective legal malpractice liability waivers in such cases”). 6. See Tex. Civ. Prac. & Rem. Code §74.151. 7. See Tex. Disc. R. Prof. Cond. 1.01 (a) (2) (permitting a lawyer to accept employment in a matter “which the lawyer knows or should know is beyond the lawyer’s competence” if “the advice or assistance of the lawyer is reasonably required in an emergency and the lawyer limits the advice and assistance to that which is reasonably necessary in the circumstances”). 8. Tex. Disc. R. Prof. Cond. 1.041 (b) (4). 9. Id. Rule 1.01, comment 2. 10. Id. Preamble & 7 (describing the Rules as “minimum standards of conduct below which no lawyer can fall without being subject to disciplinary action”). 11. See American Bar Ass’n, Standards for Programs Providing Civil Pro Bono Legal Services to Persons of Limited Means (1996), available at http://www.abanet.org/legalservices/probono/standards.html (hereinafter ABA Program Standards). 12. Id. Standard 3.5-3. 13. Id. Standard 3.5-3 Commentary. 14. Tara Shockley, Feature: In the Best Interest of a Child, Hous. Lawyer, Nov./Dec. 1996, at 39 (quoting a volunteer stating that “I only do pro bono cases through HVLP, because of their screening process,” and adding: “If clients make it through the financial screening and intake, I know they are going to be the kind of clients who are proactive, who really need the help”). 15. See Kenneth L. Jacobs, How to Institutionalize Pro Bono at Your Office, Mich. B.J., Jan. 1999, at 52 (stating that “[l]egal services agencies regularly provide detailed training and supervision to ensure that competent representation is rendered to pro bono clients”); see also Houston Refugee Pro Bono Project (stating that volunteers work with a full-time pro bono coordinator and staff attorney, and participate in “training seminars, which orient volunteers to the HRPBP, program objectives, and mode of operation”). 16. See, e.g., Houston Refugee Pro Bono Project, http://www.houstontx.gov/moira/2005TownHall/probono.pdf (stating that volunteer attorneys may participate in “a ‘mentor’ system by which an experienced immigration attorney is assigned to each case to work with and advise those attorneys whose areas of expertise are not presently in immigration law”); Association of Corporate Counsel - Houston, Pro Bono Opportunities, http://www.acca.com/chapters/pro bono/houst.php (visited Jan. 2, 2007) (stating that volunteers for the Houston Volunteer Lawyers Program “are supported by an excellent mentor program” and “the ready help of HVLP’s experienced staff attorneys”). 17. Morgan Morrison, Overcoming the Obstacles: Government Lawyers Find Ways to Provide Much-Needed Pro Bono, 69 Tex. B.J. 344 (2006). 18. See, e.g., Texas Lawyers Care, Benefits for Pro Bono Attorneys (Sep. 26, 2005), http://www/texaslawyershelp.org/news (describing, inter alia, continuing legal education credit for mentoring, custom CLE, scholarships, and membership in the Pro Bono College). 19. Morrison, supra note 18, at 344 (quoting Kathy Duncan, Legal Aid of Northwest Texas’ director of pro bono and bar relations). 20. Letter from Roland Garcia [President] and Stewart Gagnon [Board Chairman] to Houston Bar Ass’n Members, Hous. Lawyer, Sep./Oct. 2001, at 58. 21. Accord Jacobs, supra note 16 (stating that “[r]ealistically, the amounts in controversy in many pro bono cases are comparatively small (although the cases are very important indeed to the clients!), and the potential for malpractice claims is comparatively low”); Berenson, supra note 6, at 29-30 (stating that “[e]ven though attorney malpractice may have devastating effects on persons of limited means in the areas of family law, real estate law, or corporate law, such persons are less likely to have as much at stake financially in these cases as persons who can afford to hire private counsel”). 22. See, e.g., ABA Program Standards, supra note 12, Standard 3.4-5 (recommending written financial eligibility standards); see also Berenson, supra note 6, at 30 (observing that “[n]umerous studies continue to support the view that the overwhelming majority of the legal needs of poor persons go unserved by attorneys”). 23. Garcia & Gagnon, supra note 8 at 58 (stating that “[w]hile HVLP accepts both family and non-family law cases, 93% of HVLP applicants currently waiting for placement need assistance with a family law matter, as family law is the most pressing problem for people with limited means”). 24. Cf. Margaret C. Benson, I Can’t Do Po Bono Work Because . . . Overheard at the Daley Center’s West Egg Café, CBA Record, Oct. 2005, at 36 (“When they [judges] know you’re handling a case pro bono, most of them love you for it”). 25. Cf. Berenson, supra note 6, at 21-22 (stating that “when polled, members of the public clearly indicate that increased provision of free legal services would improve their perception of lawyers”) (citing Deborah L. Rhode, Pro Bono in Principle and in Practice, 53 J. Legal Educ. 413, 432 n.38 (2003). 26. 42 U.S.C. §§ 14501 - 14505. 27. See, e.g., Paul D. Georgiadis, Pro Bono Efforts Boosted By Tort Reform: The Volunteer Protection Act, Hawaii B.J. (Apr. 1998) (stating that the act “promises to give a much needed boost to pro bono efforts of bar associations by protecting volunteers from ordinary negligence”); Andrew F. Popper, A One-Term Tort Reform Tale: Victimizing the Vulnerable, 35 Harv. J. Legis. 123, 129, 137 (1998) (criticizing the then-recent legislation on the ground that “[i]ndividuals who need charitable or public services will have no recourse against . . . careless attorneys” and stating categorically that “[l]egislation of this type forgives malpractice by doctors and lawyers when the victim receives charitable medical or legal service”); YLD Plans for Hurricane Season, Fla. B. News, July 15, 2000 at 1 (stating that “the Florida Good Samaritan Act and the Federal Volunteer Protection Act provides protection for the volunteer [lawyer]’s services”); cf. Fla. Op. Att’y Gen. 94-16 (Mar. 2, 1994) (responding affirmatively to the question, “Are the provisions of the Florida Volunteer Protection Act . . . applicable to attorneys providing pro bono legal services to a nonprofit organization?”). The federal act also may protect medical professionals who volunteer their time. See generally Texas Med. Ass’n, Volunteer Protection Act of 1997 Federal Law, http://www.texmed.org/Template.aspx?id’2107 (visited Jan. 10, 2007). 28. For purposes of the statute, a “volunteer” is an individual who performs services without compensation. Expense reimbursement and “any other thing of value in lieu of compensation [not] in excess of $500 per year” does not count as compensation. 42 U.S.C. § 14505 (6). 29. 42 U.S.C. § 14505 (4). The act exempts only those organizations that practice hate crimes, as defined in federal law. Id. 30. See 42 U.S.C. § 14503. Put differently, volunteers remain liable for “willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious, flagrant indifference to the rights or safety of the individual harmed by the volunteer.” 42 U.S.C. § 14503(a)(3). 31. See 42 U.S.C. § 14503 (c). 32. See 42 U.S.C. § 14503 (b). 33. See id. § 14503 (a) (4). 34. Tex. Civ. Prac. & Rem. Code §§ 84.001 - 84.008; see generally Texas Medical Ass’n, Volunteer Protection Act of 1997 Federal Law, http://www/texmed.org/Template.aspx?id’2107 (viewed Jan. 10, 2007). 35. Id. § 84.004. 36. Id. § 84.006. 37. See, e.g., Tara Shockley, Feature: In the Best Interest of A Child, Hous. Lawyer, Nov./Dec. 1996, at 39 (stating that the Houston Volunteer Lawyers Program “provides malpractice insurance for attorneys handling pro bono cases”); Ann D. Zeigler, Bankruptcy Pro Bono: You Can Do It, Hous. Lawyer, May/June 2004, at 24 (stating that “by linking with the HBA, the [local form file project for bankruptcy representation] was able to arrange for malpractice insurance to cover the volunteers”). 38. See generally Consumer Corner, ABA J., June 2005, at 53 (stating that “[m]ost formal pro bono programs have free malpractice coverage available to their volunteers for work done on assigned pro bono cases”); see also Symposium Transcript, Access to Justice: Does It Exist in Civil Cases?, 17 Geo. J. Legal Ethics 455, 463 (2004) (quoting former ABA president Dennis Archer, who “would urge whoever has an interest in rendering pro bono service [but lacks malpractice coverage] . . . to go to their local or state bar association, because through the local and state bar association they will be able to . . . get into a particular program that may already have a broad blanket, a legal malpractice policy that will give them the comfort level that they need”); Benson, supra note 9, at 36 (stating that “any decent pro bono program covers its volunteers under a malpractice policy”). 39. See, e.g., Texas Lawyers Care, Benefits for Pro Bono Attorneys (Sep. 26, 2005) (stating that the State Bar Malpractice Insurance Network “pays premiums for professional liability insurance to more than 50 legal aid and pro bono programs throughout Texas,” which insurance “covers staff attorneys and pro bono volunteers for cases taken through the programs”), available at http://www.texaslawyershelp.org/news (visited Jan. 5, 2007). 40. See, e.g., State Bar of Texas Request for Proposal: Specifications for Texas Legal Services Network Malpractice Insurance Program 1 (June 20, 2003) (available from author) (stating that “[b]asic coverage includes coverage at $250,000 per incident, $500,000 aggregate” but that “[a]ny program that wishes to may purchase through the winning bidder additional insurance services, or increased amounts of coverage”). 41. See id. (describing the insurance as “basic primary professional liability coverage”).
42. See, e.g., Tex. Disc. R. Prof. Cond. 1.08 (g) (stating that “[a] lawyer shall not make an agreement prospectively limiting the lawyer’s liability to a client for malpractice unless permitted by law and the client is independently represented in making the agreement”); ABA Model R. Prof. Cond. 1.8 (h) (1) (more or less the same); see also Berenson, supra note 6, at 2 (commenting that “such a bargain would likely run afoul of the legal profession’s longstanding ban on prospective legal malpractice liability waivers by prospective clients”). Professor Berenson astutely notes that, so far as pro bono clients are concerned, “the prospects of engaging a second attorney to review the proposed liability waiver by the principal attorney are close to nil.” Id. at 7. 43. See, e.g., Tex. Disc. R. Prof. Cond. 1.02 (b) (stating that A[a] lawyer may limit the scope, objectives and general methods of the representation if the client consents after consultation@); cf. ABA Model R. Prof. Cond. 1.2 (b) (stating that “[a] lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent”). 44. See, e.g., Katharine Weber (Associated Press), States Letting Lawyers Provide ‘A La Carte’ Menu of Legal Services, (Law.com,, Jan. 24, 2007) (reporting California, Colorado, Florida, Maine and New Hampshire as states that provide for “unbundled” legal services, “driven partly by judges and bar associations trying to help the overwhelming number of people representing themselves in court, or appearing pro se”). 45. About TLIE, http://www.tlie.org/about.htm (visited Feb. 12, 2007). 46. Interview with Jeff Hanna (Feb. 12, 2007). 47. Interview with John A. Neal (Feb. 12, 2007). 48. Untitled fact sheet (copy on file with author). 49. Interview with David Mandell (Feb. 9, 2007). 50. See, e.g., interview with Jeff Hanna (Feb. 12, 2007) (stating that insurance claims data usually does not differentiate between pro bono and paying representation); interview with John A. Neal (stating much the same thing with regard to State Bar disciplinary data). 51. See Berenson, supra note 6. 52. Id. at 28-29. 53. Id. at 28. 54. Thomas v. Pryor, 847 S.W.2d 303 (Tex. App.,Dallas 1992), pet. Dism’d by agr., 863 S.W.2d 462 (Tex. 1993). 55. Wargo v. Cloutman, 2001 Tex. App. LEXIS 4406, *6 (Tex. App.,Dallas 2001) (ordered not published). 56. Richard v. Colucci, 2004 Ohio 1198, 2004 Ohio App. LEXIS 1045 (Ohio App. Mar. 10, 2004) (affirming summary judgment because malpractice claims barred by non-engagement letter, and because of lawyer’s unrefuted affidavit). 57. Irby v. Hackbarth, 532 N.W.2d 145 (Wis. App. 1995) (unpublished limited precedent opinion). 58. Delbridge v. Office of the Public Defender, 569 A.2d 854 (N.J. Super. 1989). 59. Agron v. Douglas W. Dunham, Esq. & Assocs., 2004 U.S. Dist. LEXIS 5412, *12, *15 (S.D.N.Y. 2004) (referencing a psychiatric report addressing the client’s “mental and emotional disabilities” and her claim that the lawyer hid a Hebrew prayer book from her at trial). 60. See Agron v. Trustees of Columbia Univ., 534 U.S. 932 (2001). 61. See Agron, 2004 U.S. Dist. LEXIS 5412 at *14 n.1. 62. In re Estate of Curseen, 890 A.2d 191 (D.C. App. 2006). 63. Id. at 192. 64. Id. at 194. 65. In addition to the Arizona case mentioned in the text, the California Supreme Court affirmed a lawyer’s suspension, but allegations also involved malfeasance against paying clients. Segal v. State Bar of California, 751 P.2d 463 (Cal. 1988). The Minnesota Supreme Court also affirmed disbarment of an attorney for numerous instances of misappropriation of funds, one of which was the diversion of a $60 check from a pro bono client. In re Leon, 524 N.W.2d 723 (Minn. 1994). 66. In re Romney, 2001 Ariz. LEXIS 40, *28 (Ariz. Mar. 23, 2001). 67. Id. 68. Id. 69. In re Gross, 306 S.E.2d 301 (Ga. 1983). In another case, In re Harris, 774 So. 2d 963 (La. 2000), the mishandling of a case the lawyer characterized as a pro bono appeal resulted in a two-year suspension. From the facts, however, it is unclear whether the appeal was truly pro bono, or involved a flat fee. See, e.g., id. at 967 n.9. Likewise, a case that resulted in lawyer suspension was excluded from the analysis because, though the attorney may have represented the client in question without financial compensation, the client was his spouse. See In re Sam, 626 N.Y.S.2d 782 (A.D. 1995). 70. While the decision does not affirmatively indicate how the representation came about, the opinion mentions that the lawyer turned down a contingent fee contract and contacted three prior lawyers to arrange fee waivers. See In re Gross, 306 S.E.2d at 439. 71. Segal, 751 P.2d at 465-66. 72. In re Leon, 524 N.W.2d at 724. 73. In re Romney, 2001 Ariz. LEXIS 40 at 9-12. 74. See, e.g., George B. Cauthen, Make a Difference: Volunteer for Ch. 7 Pro Bono Cases, 24-5 Am. Bankr. Inst. J. 10 (June 2005)(stating that “[p]ro bono work is a great way to train new lawyers on bankruptcy”); David B. Wilkins & G. Mitu Gulati, Why Are There So Few Black Lawyers in Corporate Law Firms? An Institutional Analysis, 84 Calif. L. Rev. 493, 579 (noting that “many firms view pro bono projects as ‘training vehicles’ for young lawyers,” but adding that “this work is often not supervised closely by partners”); Lua Kamal Yuille, Note, No One’s Perfect (Not Even Close): Reevaluating Access to Justice in the United States and Western Europe, 42 Colum. J. Transnat’l L. 863, 900 (commenting that “pro bono work is a source of free training and professional development for young lawyers”). 75. See, e.g., In re Klahr, 2002 Ariz. LEXIS 71, *20 (Ariz. 2002) (noting as a statutory mitigating factor the attorney’s “character or reputation for engaging in pro bono and extensive community work”); Calvert v. State Bar, 819 P.2d 424, 435 (Cal. 1991) (according “considerable weight” to “a substantial record of pro bono activities and community service”); People v. Williams, 915 P.2d 669, 670 (Colo. 1996) (approving conclusion that the attorney “has demonstrated good character by his pro bono and low fee representation of indigent senior citizens”); Statewide Grievance Comm. v. Tartaglia, 2003 Conn. Super. LEXIS 3264, *20 (Nov. 24, 2003) (noting the attorney’s history of pro bono work as a mitigating factor); In re Schlemmer, 840 A.2d 657, 660 (D.C. App. 2004) (noting attorney’s “extraordinary efforts in voluntary, pro bono service to the immigrant community”); Florida Bar v. Morgan, 938 So. 2d 496, 498 (Fla. 2006) (noting pro bono service as a mitigating factor); In re Rosenthal, 382 N.E.2d 257 (Ill. 1978) (mitigating factor of pro bono service for senior citizens); In re Kerth, 865 So. 2d 21, 26 (La. 2003) (citing attorney’s “extensive pro bono publico record”); Board of Overseers of the Bar v. Morgan, 2000 Me. LEXIS 223, *8 (Me. 2000) (reciting finding that attorney “has regularly provided many hours of pro bono service to people in need of legal assistance”); Attorney Grievance Comm’n of Md. v. Hayes, 789 A.2d 119, 123 (Md. 2002) (citing as a mitigating factor the attorney’s “participation in the Maryland Volunteer Lawyers Services and willingness to handle pro bono cases”); In re Hefferman, 351 N.W.2d 13, 14-15 (Minn. 1984) (mitigating factors including extensive pro bono work); In re Sturdivant, 1999 Nev. LEXIS 26, *6 (Nev. Mar. 25, 1999) (considering “extensive pro bono activity” in mitigation); In re Pena, 753 A.2d 633, 639 (N.J. 2000) (considering pro bono work for an AIDS clinic in mitigation); In re Weiss, 618 N.Y.S.2d 889, 904 (S. Ct. A.D. 1994) (approving a sanction reduced from disbarment to suspension in part on the basis that the attorney “was engaged in considerable pro bono work and public interest activities”); Columbus Bar Ass’n v. Micciulla, 830 N.E.2d 332, 335 (Ohio 2005) (noting the disciplinary panel’s acceptance as mitigating factors that the lawyer “has been very active in providing pro bono legal services to the homeless and the poor . . . and has unselfishly devoted many hours to these clients”); State ex rel. Oklahoma Bar Ass’n v. Flanery, 863 P.2d 1146, 1150 (Ok. 1993) (considering attorney record of “active pro-bono”); In re Bonn, 865 A.2d 1071, 1073 (R.I. 2005) (considering in mitigation the fact that the attorney “devotes a substantial amount of his time to pro bono representation”); In re Jones, 466 N.W.2d 564, 566 (Wis. 1991) (noting pro bono work as a mitigating factor). 76. See Tex. R. Disc. Pro. 3.10 (permitting consideration of “relevant evidence concerning the [attorney’s] personal and professional background”). Curiously, while such considerations are listed as admissible at trial, they are omitted from the list of factors considered by grievance committee evidentiary panels. See Tex. R. Disc. Pro. 2.17. 77. See, e.g., Tex. Disc. R. Prof. Cond. 6.01 comment 3 (stating that “each lawyer engaged in the practice of law should render public interest legal service,” and adding: “Personal involvement in the problems of the disadvantaged can be one of the most rewarding experiences in the life of a lawyer”). 78. Apparently, Twain originally just termed the report “an exaggeration,” though it has passed into popular culture as stated. See http://www.snopes.com/quotes/twain.asp.
Editor’s Note: Professor Paulsen gratefully acknowledges the assistance of attorney Jett Hanna (Senior Vice President for Underwriting at the Texas Lawyers’ Insurance Exchange), Charles F. Herring, Jr. (former chair of the State Bar of Texas Special Committee on the Prevention of Legal Malpractice), Emily Jones (director of Texas Lawyers Care), David M. Mandell (executive director of the Houston Volunteer Lawyers Program, Inc.), John M. Neal (Chief Disciplinary Counsel for the State Bar of Texas), and John Quinn (a second-year student at the South Texas College of Law). Professor Paulsen also is indebted to United States District Judge Loretta A. Preska, Southern District of New York, for unwittingly suggesting the title of this article. See Agron v. Douglas W. Dunham, Esq. & Assocs., 2004 U.S. Dist. LEXIS 5412, at *14 n.1 (Mar. 31, 2004).