Try it, you’ll like it:  taking pro bono outside of your comfort zone

 Amy J. Lorenz-Moser

It is easy to forget the obvious:  when we all first started our practicing, we didn’t have any experience.  The first case we litigated or the first deal we closed was . . . well, the first one.  Over the years, we develop a practice area.  We gain experience.  We find a niche.  We build our comfort zone:  the little area of the law we know the very best.  While comfort zones are great for delivering added value for clients, they can sometimes be a barrier to finding meaningful, fulfilling pro bono opportunities.  We are terrified to go back in time and take on a very first case in a new field and learn a new area of the law.  However, doing so (with the right preparation and support) can be an extremely rewarding and satisfying experience.  I encourage you to leave your comfort zone behind, and stretch your skills to provide pro bono representation in an area of greatest need.

If you already practice in a field with a high demand for pro bono services, then you no doubt are already inundated with requests for pro bono assistance.  But let’s say you’re me, and your practice area is defense-side product-liability litigation.  Not surprisingly, I don’t have an endless stream of requests for pro bono litigation help from needy product manufacturers.  Some fields just don’t naturally lend themselves to opportunities to help those of limited means.  Instead you have to look elsewhere.

Competence?:  If your primary practice area is not naturally pro bono friendly, remember that your law license allows you to pick a case in another area.  The biggest fear in doing so is, of course, that you won’t be able to provide competent representation.  It is important to remember what competence requires, and what it does not require.  Model Rule 1.1 requires that lawyers provide competent representation, and the rule applies equally to paying and pro bono clients.  Competency requires “the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.”  What competency doesn’t require, however, is that you be a 20-year seasoned veteran in a field.  Comment 2 recognizes that “[a] lawyer need not necessarily have special training or prior experience to handle legal problems of a type with which the lawyer is unfamiliar.”  The comments also recognize that some necessary skills transfer across many areas of the law, such as analysis of precedent, legal drafting, and evaluation of evidence.

While more experience might improve your skills in a particular area, in most of these areas the need for pro bono representation far outweighs the availability of pro bono counsel already practicing in that area of law.  If attorneys from other practice areas don’t pitch in, there is simply no way to begin to make a dent in the problem.  For example, a study done in New Hampshire showed that in superior court domestic relations cases, nearly 70% of cases had at least one self-represented party, and for district court domestic violence actions, that number jumped to 97%.[1]  Another study in California found that over 90% of defendants in unlawful detainer cases were self-represented.[2]  Courts throughout the country are facing daunting numbers of litigants appearing without counsel.  Most of your prospective pro bono clients are not choosing between a less experienced lawyer or a more experienced lawyer:  they are choosing between a lawyer willing to take their case or no lawyer at all.  You are not cheating your client out of a better lawyer.  You are offering your client the opportunity to better access their rights through legal representation.

So how can you be competent while gaining experience?  The methods suggested by the Comments to 1.1 probably mirror things you did when you first started practicing law.

Pick your battle:  Your journey will be a little easier if you start out with something that is not very complex, and work your way into more difficult cases as you gain some experience.  The comments recognize the obvious – one of the factors in determining whether you are competent or not is the “relative complexity and specialized nature of the matter.”  So if, for instance, you are interested in helping out with a domestic case, a good place to start might be with an order of protection with no children involved, rather than a nasty contested divorce where custody is at issue.  Keep it simple to start.

Study up:  Comment 2 recognizes that “[a] lawyer can provide adequate representation in a wholly novel field through necessary study.”  Read up on the relevant law in a particular area.  Look for handbooks that are often readily available for things such as landlord-tenant law, domestic violence cases, or veteran benefit appeals.  Depending on the area of law, there may also be training opportunities available.  For instance, many Legal Services programs and other referral sources offer free CLE opportunities and trainings for lawyers who want to take pro bono cases on referral.  These can be particularly valuable learning tools because they are targeted towards areas with an abundance of pro bono opportunities, and are usually set up for beginners.

Buddy up:  Mentoring offers the back-up and experience of a lawyer who is already competent in the field.  Comment 2 recognizes that “competent representation can also be provided through the association of a lawyer of established competence in the field in question.”  If you are at a larger firm, there may already be lawyers at your office that handle pro bono or paying cases in the relevant practice area.  Ask them to partner-up with you on a case.  Many referral sources, such as many Legal Services programs, The Veterans Consortium Pro bono Program, Kids In Need of Defense, and others provide experienced attorney mentors to offer substantive assistance and answer questions.  Another tactic is to research attorneys in your area that practice in that particular area, and just ask if they will mentor you on a case.  I have personally found that most lawyers are flattered and happy to assist in such circumstances, especially if they don’t have to shoulder the majority of the workload themselves.  Sometimes a few phone calls can get you all of the support you need.

Why?:  All of this sounds like a bunch of work.  At this point you may be asking yourself if all of this effort is worth it.  I can only offer my own personal experience.  Over the years, along with my product-liability practice, I have developed a side practice offering pro bono representation to women in prison for killing their abusers in domestic violence situations.  Most of them were unable to admit evidence of abuse at trial.  I have been fortunate enough to see 5 women released from prison as a result of my pro bono practice.  If my palpable fear of practicing outside of my practice area had slowed me down, I doubt that any of these women would have found a lawyer at all.

The benefits my pro bono practice have been many:  the opportunity to learn new areas of the law; expanding my network to new people outside of my regular practice; growing my legal skills and knowledge; giving back to society; awards and recognition, and many others.  But the main reason I do it is because I love it.  The facts are interesting, the cause is just, and the cases are fun.  Not to mention that I have never had a paying civil case that gave me as much personal satisfaction as watching one of my unjustly imprisoned pro bono clients walk free from prison.  Nothing in my life has made me feel more like a lawyer, or a human being.  When I look back at my career, I have no doubt that those cases will be the ones I mark as my greatest achievements.

So give it a try.  Get out there, stretch your skills, find some support, and take on a pro bono case outside of your primary practice area.  You may just find that comfort zone wasn’t so comfortable after all.

Amy J. Lorenz-Moser is a partner at Armstorng Teasdale LLP in St. Louis and received the ABA Pro Bono Publico Award in 2012 for her dedicated work on behalf of abused women. Ms. Lorenz-Moser is a current member of the ABA Standing Committee on Pro Bono and Public Service.

 

[1] Challenge to Justice-A Report on Self Represented Litigants in New Hampshire Courts—Findings and Recommendations of the New Hampshire Supreme Court Task Force on Self Representation. State of New Hampshire Judicial Branch (January 2005).

[2] California Statewide Action Plan for Self-represented Litigants. California Judicial Council

Task Force on Self Represented Litigants (2004).

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