Reproduced by permission.
2017 Colorado Bar Association
SERIES | ACCESS TO JUSTICE
Demystifying Pro Bono
Ethical Concerns
BY A L I S ON DA N I E L S A N D T ROY R AC K H A M
The Access to Justice Series explores the access to justice gap in Colorado, discusses strides that
have been made in closing this gap, and encourages further innovation in this arena.
F
ar too many individuals who have legal
problems cannot afford assistance from
a lawyer. In 2008, the Colorado Access
to Justice Commission (Commission)
explained that Colorado faces a serious crisis
in civil legal representation of the indigent.
Many Coloradans who need legal assistance
to secure and maintain healthcare, housing,
custody, or other necessities do not receive help
because there are too few lawyers at Colorado
Legal Services, Colorados statewide legal aid
program.1 Six years later, the Commission found
the situation had not improved significantly.2 It
made several recommendations, including taking
[a]dditional measures to encourage law firms,
solo practitioners, government legal offices, and
in-house counsel to provide, or expand their
provision of, pro bono services.3
This problem is not limited to Colorado.
The American Bar Association (ABA) has noted
that in some jurisdictions, more than eighty
percent of litigants in poverty are unrepresented
in matters involving basic life needs. . . .4 The
ABA recommended, among other approaches,
that [l]egal aid and pro bono efforts must be
expanded, fully-funded, and better-promoted
across the country.5
One of the barriers to expanding pro bono
service is that many lawyers have concerns about
the ethical risks and ramifications involved in
providing such representation. This article aims
to alleviate some of those concerns. While it is
true that lawyers owe many obligations under
the Colorado Rules of Professional Conduct (the
46 Colorado Lawyer 25 (Aug./Sept. 2017). All rights reserved.
Rules), the Rules actually encourage pro bono
representation and should be viewed as a resource
rather than a barrier to such representation.
The Three Cs of Pro Bono Work
The concerns lawyers have about pro bono
representation generally fall into one of three
categories: competence, conflicts, and commu-
nication. However, a close examination of the
Rules reveals there are sufficient safeguards in
place to alleviate each of these areas of concern.
Competence
It is a lawyers ethical duty to provide a client
competent representation. Competent repre-
sentation requires the legal knowledge, skill,
thoroughness and preparation reasonably
necessary for the representation.6 In daily
practice, most lawyers take careful measures to
abide by this ethical standard. Often, however,
the pro bono work that is needed is not in
the field in which an interested attorney has
expertise. In such cases, a lawyer should look
to the Rules for guidance.
The Rules recognize and embrace the basic
analytical training that lawyers undergo to
become lawyers. A Rule comment notes that
[p]erhaps the most fundamental legal skill
consists of determining what kind of legal
problems a situation may involve, a skill that
necessarily transcends any particular specialized
knowledge.7 This comment acknowledges that
many times a lawyers best skill is to sit and
listen to a potential client and help the person
AUG US T/S E P T E M BE R 2 017
identify the most important or time-sensitive
matters she may be facing.8 In this situation,
subject matter expertise is not paramount.
In more substantive situations, the Rules
provide guidance on factors to consider in
evaluating competency, including:
the complexity of the matter;
the lawyers experience generally and in
the subject matter;
the lawyers training;
the possibility for preparation and study;
and
whether the lawyer can consult or as-
sociate with a lawyer who has subject
matter expertise.9
Further, the Rules indicate that subject mat-
ter expertise is not usually required, noting that
[i]n many instances, the required proficiency
is that of a general practitioner.10 With these
guidelines in mind, a well-trained lawyer can
use his most basic analytical skills to ethically
undertake many pro bono activities.
Conflicts
Another concern is the danger of conflicts.
Although conflicts of interest can cause trep-
idation on the part of even the most eager
prospective pro bono lawyer, again the Rules
provide appropriate safeguards.
In addition to a duty to avoid any current
conflicts of interest, lawyers owe an ethical
duty to former clients they or their law firm
have served.11 Essentially, the Rules protect
against a lawyer obtaining confidential factual
information in the course of representation
and then using that same information to the
disadvantage of another client.12 This concept
creates apprehension for lawyers who worry
that even consulting with a person during a pro
bono activity could later disqualify them or their
firm from representing others.
The Rules caution that to avoid obtaining
disqualifying information, a lawyer should limit
a consultation to only such information as
reasonably appears necessary for the consulta-
tion.13 Simply obtaining information necessary
to determine eligibility for pro bono services
typically does not trigger disqualification for
future representation of others.14 Moreover, even
if an agency sponsoring the pro bono activity
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SERIES | ACCESS TO JUSTICE
has a conflict, a pro bono attorney who accepts
a referral from that agency does not have any
imputed conflicts.15
Finally, the Rules explain that a lawyer who
provides short-term limited legal services to
a client without an expectation of ongoing
representation (such as a legal advice hotline,
advice-only clinic, or pro se counseling program)
is not bound by the Rules prohibiting conflicts
in representation for current or former clients.16
If the lawyer is directly involved with or knows
specifically that a conflict exists or if the lawyer
decides to undertake ongoing representation,
the standard ethical obligations apply.17 Thus,
again the Rules provide adequate tools that allow
lawyers to engage in pro bono work without fear
of compromising their work or that of their firm.
Communication
The final element in the trio of ethical concerns
is communication. Again, the Rules provide
sufficient guidance. For example, if a lawyer
agrees to participate in a short-term limited legal
services program, that lawyer is not expected
to maintain communication with any of the
clients whom they counsel during the event.
Rather, the lawyers primary responsibility in
that situation is providing enough information,
at a level that is understandable to the client,
to allow the client to effectively participate in
the consultation.18
The Aorneys and Professionals at
EPSTEIN PATIERNO, LLP
Congratulate their colleague
JOHN H. TATLOCK
On his selection as one of
Super Lawyers Top 100
Colorado Attorneys
26 | C OL OR A D O L AW Y E R | AUG US T/S E P T E M BE R 2 017
Although conflicts
of interest can
cause trepidation
on the part of
even the most
eager prospective
pro bono lawyer,
again the Rules
provide appropriate
safeguards.
On the other hand, if a lawyer undertakes
pro bono representation in a more involved
legal matter, her ethical duties regarding
communication with the client are the same
as if she were being compensated. Namely,
the lawyer is required to promptly inform the
client of any new circumstances in the case,
reasonably consult with the client regarding
effectuating the clients objectives, reasonably
inform the client about the status of the matter,
respond promptly to reasonable requests for
6161 South Syracuse Way, Suite 370
Greenwood Village, Colorado 80111
www.EPFamilyLawAorneys.com
information, and consult with the client if it
becomes apparent that the lawyer cannot fulfill
the clients expectations.19 In all instances, a
lawyer must ensure that she is explaining the
matter in a way that allows the client to make
informed decisions about the case.20
Unbundling or Limited
Representation Work
Another barrier to providing pro bono legal
services is the traditional presumption that a
lawyer will provide the full array of legal services
in any representation. Taking on that level of
involvement could prove daunting to a lawyer.
It also may take a lawyer out of his comfort zone
or areas of competence.
The Rules accommodate for these concerns
by allowing unbundling of legal services,
sometimes referred to as limited-scope repre-
sentation. Rule 1.2(c) expressly permits lawyers
to limit the scope of their representationfor
example, by agreeing to represent the client for
only one hearing or only one brief.21 Likewise,
CRCP 11(b) and 311(b) permit lawyers to draft
pleadings or briefs for self-represented litigants
without entering a formal appearance in court.
A lawyer who is considering providing pro bono
services to a client therefore may expressly limit
those services to discrete tasks or portions of
the representation. The theory is that some
representation is better than no representation
Epstein Paerno, LLP
730 17TH Street, Suite 230
Denver, Colorado 80202
303-893-3111
and clients should not be deprived of any legal
services merely because a lawyer is unwilling or
unable to provide all legal services that would
be necessary for a representation.
Formal Ethics Opinion 101, which the CBA
Ethics Committee recently amended, explains
the ethical issues applicable to a lawyer pro-
viding limited scope representation.22 The key
obligations include clearly communicating the
limitations on the representation (e.g., what the
lawyer will do and not do),23 obtaining informed
consent, and ensuring that the limited scope
representation be reasonable based on the facts of
the particular case.24 Further, unless the lawyers
role is limited to assisting a pro se party in filling
out pre-printed and electronically published
forms that are issued by the judicial branch
for use in court,25 a lawyer must disclose to a
court her participation in providing unbundled
services to the client when those services will be
used in court.26
Unbundling may be an effective way to
provide pro bono legal services for lawyers who
fear that they may lack the time or competence
necessary to provide a client all the needed
legal services. Conscientious lawyers should
N OTE S
1. Colorado Access to Justice Commission, The
Justice Crisis in Colorado: A Report on the Civil
Legal Needs of the Indigent in Colorado at 1
(Jan. 2008), www.cba.cobar.org/repository/
Access%20to%20Justice/08ATJ_FULLReport.
pdf.
2. Colorado Access to Justice Commission,
Justice Crisis in Colorado 2014: Report on Civil
Legal Needs in Colorado at 1 (Feb. 2014), www.
cba.cobar.org/repository/Justice%20Crisis%20
2014%20text.pdf.
3. Id.
4. See ABA Commission on Future of Legal
Services, Report on the Future of Legal
Services in the United States at 1 (2016), www.
americanbar.org/content/dam/aba/images/
abanews/2016FLSReport_FNL_WEB.pdf.
5. Id. at 54. The ABAs Commission also
explains that the ABA should encourage the
maintenance and development of effective
programs to provide pro bono representation
and other affordable sources of professional
legal services for low-income citizens. Id.
Further, the ABA Commission suggests that
[c]ourts should adopt rules that encourage
pro bono representation by lawyers, such as
emeritus rules, CLE credit for service, reporting
obligations, court processes that prioritize
service and minimize time required for pro
bono lawyers/cases, and other measures that
view unbundling as one of the many tools that
can be used to advance the shared professional
responsibility lawyers have to provide legal
services to those unable to pay.27
Conclusion
While undertaking extra work in a field outside
ones area of expertise may initially present
legitimate ethics concerns, the Rules make
such work feasible. Moreover, Colorado has
numerous programs available to assist a lawyer
undertaking pro bono work for the first time,
including Metro Volunteer Lawyers, Legal
Night, the Colorado Poverty Law Project, and
Project Safeguard. Time commitments vary,
ranging from one evening of providing legal
information and referral services to reviewing
documents or taking on a protection order case.
Some programs provide malpractice insur-
ance, CLE credit, or mentorship possibilities.
Lawyers should contact their local or state bar
association, Access to Justice Committee, or, if
available, their firms pro bono contact to get
more information. All lawyers have a shared
responsibility to provide legal services to those
in need, as reflected in Colo. RPC 6.1 and the
provide access and address legal needs. Id.
6. Colo. RPC 1.1.
7. Colo. RPC 1.1, cmt. [2].
8. See Colo. RPC 1.18(a)(b). Comments [1]
and [2] provide helpful guidance to lawyers
who have a short-term consultation with an
individual considering legal services. While that
person is a prospective client, rather than a
client, much of the ethical guidance applicable
to clients (e.g., concerning confidentiality and
conflicts) also applies to prospective clients.
9. Colo. RPC 1.1, cmt. [1].
10. Id.
11. See generally Colo. RPC 1.7, 1.9, 1.10.
12. Id.
13. Colo. RPC 1.18, cmt. [4].
14. See CBA Formal Ethics Op. 117: Ethical
Responsibilities of Attorneys in Legal Services
and Pro Bono Programs Concerning Prospec-
tive Clients at 4-421 (June 16, 2017), www.cobar.
org/Portals/COBAR/repository/ethicsOpinions/
FormalEthicsOpinion_117_2011.pdf.
15. Id. at 4-423.
16. Colo. RPC 6.5(a).
17. Colo. RPC 6.5(a)(1) and (2); Colo. RPC
6.5(b).
18. See Colo. RPC 1.4, cmts. [1] and [6].
19. See Colo. RPC 1.4(a).
AUG US T/S E P T E M BE R 2 017
Colorado Attorney Oath of Admission, where
we lawyers commit not to reject, from any
consideration personal to myself, the cause of
the defenseless or oppressed.28
Alison Daniels is director
of legal services at
Disability Law Colorado,
where she oversees all of
the organizations legal
work, including investigations of abuse and
neglect against people with disabilities, legal
issues involved in special education, and
discrimination against people with disabilities
in housing, employment, and public
accommodations. She is a member and former
co-chair of the Denver Bar Association Access
to Justice Committee. Troy Rackham is a director
at Fennemore Craig, P.C. He handles a wide
variety of complex commercial litigation and
represents lawyers in ethics matters, in matters
before the Office of Attorney Regulation Counsel
and Presiding Disciplinary Judge, and in legal
malpractice cases. He is a member of the CBA
Ethics Committee and of the Service Working
Group of the Chief Justices Commission on
Professional Development.
Coordinating Editors: Noah Patterson, noah.
patterson@coag.gov; Shelly Dill, shellrafiki@
hotmail.com
20. Colo. RPC 1.4(b).
21. Colo. RPC 1.2(c) (A lawyer may limit
the scope or objectives, or both, of the
representation if the limitation is reasonable
under the circumstances and the client gives
informed consent. A lawyer may provide limited
representation to pro se parties as permitted
by C.R.C.P. 11(b) and C.R.C.P. 311(b).).
22. See CBA Formal Ethics Op. 101: Unbundling/
Limited Scope Representation (amended May 21,
2016), www.cobar.org/Portals/COBAR/Repository/
ethicsOpinions/FormalEthicsOpinion_101.
pdf?ver=2017-03-31-144456-447.
23. See Colo. RPC 1.4(a)(2) (A lawyer shall . . .
reasonably consult with the client about the
means by which the clients objectives are to be
accomplished.).
24. See CBA Formal Ethics Op. 101, supra note
22 at 4 (citing Colo. RPC 1.2(c)).
25. CRCP 11(b). See also CRCP 311(b) (contain-
ing same requirement).
26. See CBA Formal Ethics Op. 101, supra note
22 at 12 (discussing Colo. RPC 3.4(c)).
27. Colo. RPC 6.1.
28. Colorado Attorney Oath of Admission,
www.coloradosupremecourt.com/Current%20
Lawyers/Oath.asp. See also Colo. RPC 6.1, cmt.
[1].
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