1-6
7-12
13-18
19-24
25-30
31-36
37-42
43-48
49-54
55-60
61-66
67-72
73-78
79-84
85-90
91-96
97-102
103-108
109-114
115-120
121-126
127-132
133-138
139
1-6
7-12
13-18
19-24
25-30
31-36
37-42
43-48
49-54
55-60
61-66
67-72
73-78
79-84
85-90
91-96
97-102
103-108
109-114
115-120
121-126
127-132
133-138
139
PROPOSED RULE 5.7
RESPONSIBILITIES REGARDING LAW-RELATED SERVICES
law-related services, as defined in paragraph (b), if the law-related services are provided:
legal services to clients; or
fails to take reasonable measures to assure that a person obtaining the law-related services
knows that the services of the separate entity are not legal services and that the protections
of the client-lawyer relationship do not exist.
conjunction with and in substance are related to the provision of legal services, and that are not
prohibited as unauthorized practice of law when provided by anonlawyer.
[1] When a lawyer performs law-related services or controls an organization that does so,
there exists the potential for ethical problems. Principal among these is the possibility that the
person for whom the law-related services are performed fails to understand that the services may
not carry with themthe protections normally afforded as part of the client-lawyer relationship. The
recipient of the law-related services may expect, for example, that the protection of client
confidences, prohibitions against representation of persons with conflicting interests, and
obligations of a lawyer to maintain professional independence apply to the provision of law-related
services when that may not be the case.
[2] Rule 5.7 applies to the provision of law-related services by a lawyer even when the
lawyer does not provide any legal services to the person for whom the law-related services are
performed. The Rule identifies the circumstances in which all of the Rules of Professional Conduct
apply to the provision of law-related services. Even when those circumstances do not exist,
however, the conduct of a lawyer involved in the provision of law-related services is subject to those
Rules that apply generally to lawyer conduct, regardless of whether the conduct involves the
provision of legal services. See, e.g., Rule 8.4.
[3] When law-related services are provided by a lawyer under circumstances that are not
distinct from the lawyer's provision of legal services to clients, the lawyer in providing the
law-related services must adhere to the requirements of the Rules of Professional Conduct as
provided in Rule 5.7(a)(1).
[4] Law-related services also may be provided through an entity that is distinct from that
through which the lawyer provides legal services. If the lawyer individually or with others has
control of such an entity's operations, the Rule requires the lawyer to take reasonable measures to
assure that each person using the services of the entity knows that the services provided by the
entity are not legal services and that the Rules of Professional Conduct that relate to the
client-lawyer relationship do not apply. A lawyer's control of an entity extends to the ability to
direct its operation. Whether a lawyer has such control will depend upon the circumstances of the
particular case.
[5] When a client-lawyer relationship exists with a person who is referred by a lawyer to a
separate law-related service entity controlled by the lawyer, individually or with others, the lawyer
must comply with Rule 1.8(a).
[6] In taking the reasonable measures referred to in paragraph (a)(2) to assure that a person
using law-related services understands the practical effect or significance of the inapplicability of
the Rules of Professional Conduct, the lawyer should communicate to the person receiving the
law-related services, in a manner sufficient to assure that the person understands the significance of
the fact, that the relationship of the person to the business entity will not be a client-lawyer
relationship. The communication should be made before entering into an agreement for provision
of or providing law-related services, and preferably should be in writing.
[7] The burden is upon the lawyer to show that the lawyer has taken reasonable measures
under the circumstances to communicate the desired understanding. For instance, a sophisticated
user of law-related services, such as a publicly held corporation, may require a lesser explanation
than someone unaccustomed to making distinctions between legal services and law-related services,
such as an individual seeking tax advice from a lawyer-accountant or investigative services in
connection with a lawsuit.
[8] Regardless of the sophistication of potential recipients of law-related services, a lawyer
should take special care to keep separate the provision of law-related and legal services in order to
minimize the risk that the recipient will assume that the law-related services are legal services. The
risk of such confusion is especially acute when the lawyer renders both types of services with
respect to the same matter. Under some circumstances the legal and law-related services may be so
closely entwined that they cannot be distinguished from each other, and the requirement of
disclosure and consultation imposed by paragraph (a)(2) of the Rule cannot be met. In such a case
a lawyer will be responsible for assuring that both the lawyer's conduct and, to the extent required
by Rule 5.3, that of nonlawyer employees in the distinct entity which the lawyer controls complies
in all respects with the Rules of Professional Conduct.
[9] A broad range of economic and other interests of clients may be served by lawyers'
engaging in the delivery of law-related services. Examples of law-related services include providing
title insurance, financial planning, accounting, trust services, real estate counseling, legislative
lobbying, economic analysis, social work, psychological counseling, tax preparation, and patent,
medical or environmental consulting.
[10] When a lawyer is obliged to accord the recipients of such services the protections of
those Rules that apply to the client-lawyer relationship, the lawyer must take special care to heed the
proscriptions of the Rules addressing conflict of interest (Rules 1.7 through 1.11, especially Rules
1.7(b) and 1.8(a), (b), and (f)), and to scrupulously adhere to the requirements of Rule 1.6 relating
to disclosure of confidential information. The promotion of the law-related services must also in all
respects comply with Rules 7.1 through 7.3, dealing with advertising and solicitation. In that
regard, lawyers should take special care to identify the obligations that may be imposed as a result
of a jurisdiction's decisional law.
[11] When the full protections of all of the Rules of Professional Conduct do not apply to
the provision of law-related services, principles of law external to the Rules, for example, the law of
principal and agent, govern the legal duties owed to those receiving the services. Those other legal
principles may establish a different degree of protection for the recipient with respect to
confidentiality of information, conflicts of interest and permissible business relationships with
clients. See also Rule 8.4 (Misconduct).
See Rule 1.0(f)
“Reasonably” and “Reasonable”See Rule 1.0(i)
PUBLIC SERVICE
PROPOSED RULE 6.1
PRO BONO PUBLICO REPRESENTATION
should:
organizations in matters which are designed primarily to address the needs
persons of limited means; and
groups or organizations seeking to secure or protect civil rights, civil liberties
public rights, or charitable religious, civic, community, governmental and
educational organizations in matters in furtherance of their organizational
purposes, where the payment of standard legal fees would significantly
the organization's economic resources or would be otherwise inappropriate;
means; or
profession.
In addition to providing pro bono legal services, a lawyer should voluntarily
contribute financial support to organizations that provide legal services to persons of
limited means.
[1]Every lawyer, regardless of professional prominence or professional work load, has a
responsibility to provide legal services to those unable to pay, and personal involvement in the
problems of the disadvantaged can be one of the most rewarding experiences in the life of a lawyer.
The actual amount of pro bono legal service a lawyer provides is left to the sound professional
judgment of each lawyer, but every lawyer should render a reasonable amount of pro bono legal
service each year. Services can be performed in civil matters or in criminal or quasi-criminal matters
for which there is no government obligation to provide funds for legal representation, such as
post-conviction death penalty appeals.
[2]Paragraphs (a)(1) and (2) recognize the critical need for legal services that exists among
persons of limited means by providing that a substantial majority of the legal services rendered
annually to the disadvantaged be furnished without fee or expectation of fee. Legal services under
these paragraphs consist of a full range of activities, including individual and class representation,
the provision of legal advice, legislative lobbying, administrative rule making and the provision of
activities should facilitate participation by government lawyers, even when restrictions exist on their
engaging in the outside practice of law.
[3]Persons eligible for legal services under paragraphs (a)(1) and (2) are those who
qualify for participation in programs funded by the Legal Services Corporation and those whose
incomes and financial resources are slightly above the guidelines utilized by such programs but,
nevertheless, cannot afford counsel. Legal services can be rendered to individuals or to organiza-
tions such as homeless shelters, battered women's centers and food pantries that serve those of
limited means. The term "governmental organizations" includes, but is not limited to, public
protection programs and sections of governmental or public sector agencies.
[4]Because service must be provided without fee or expectation of fee, the intent of the
lawyer to render free legal services is essential for the work performed to fall within the meaning of
paragraphs (a)(1) and (2). Accordingly, services rendered cannot be considered pro bono if an
anticipated fee is uncollected, but the award of statutory attorney’s fees in a case originally accepted
as pro bono would not disqualify such services from inclusion under this section. Lawyers who do
receive fees in such cases are encouraged to contribute an appropriate portion of such fees to
organizations or projects that benefit persons of limited means. In some cases, a fee paid by the
government to an appointed lawyer will be so low relative to what would have been a reasonable fee
-- as in post-conviction death penalty cases -- that the lawyer should be credited for the purpose of
this rule as having rendered the services without fee.
[5]While it is possible for a lawyer to fulfill the annual responsibility to perform pro bono
services exclusively through activities described in paragraphs (a)(1) and (2), to the extent that any
hours of service remained unfulfilled, the remaining commitment can be met in a variety of ways as
set forth in paragraph (b). Constitutional, statutory or regulatory restrictions may prohibit or impede
government and public sector lawyers and judges from performing services the pro bono services
outlined in paragraphs (a)(1) and (2). Accordingly, where those restrictions apply, government and
public sector lawyers and judges may fulfill their pro bono responsibility by performing services
outlined in paragraph (b).
[6]Paragraph (b)(1) includes the provision of certain types of legal services to those whose
incomes and financial resources place them above limited means. It also permits the pro bono
attorney to accept a substantially reduced fee for services. Examples of the types of issues that may
be addressed under this paragraph include First Amendment claims, Title VII claims and
environmental protection claims. Additionally, a wide range of organizations may be represented,
including social service, medical research, cultural and religious groups.
[7]Paragraph (b)(2) covers instances in which attorneys agree to and receive a modest fee
for furnishing legal services to persons of limited means. Participation in judicare programs and
acceptance of court appointments in which the fee is substantially below a lawyer's usual rate are
encouraged under this section.
[8]Paragraph (b)(3) recognizes the value of lawyers engaging in activities that improve the
law, the legal system or the legal profession. Serving on bar association committees, serving on
boards of pro bono or legal services programs, taking part in Law Day activities, acting as a
continuing legal education instructor, a mediator or an arbitrator and engaging in legislative
lobbying to improve the law, the legal system or the profession are a few examples of the many
activities that fall within this paragraph.
[9] Because the provision of pro bono services is a professional responsibility, it is the
individual ethical commitment of each lawyer. Nevertheless, there may be times when it is not
feasible for a lawyer to engage in pro bono services. At such times a lawyer may discharge the pro
bono responsibility by providing financial support to organizations providing free legal services to
persons of limited means. Such financial support should be reasonably equivalent to the value of
the hours of service that would have otherwise been provided. In addition, at times it may be more
feasible to satisfy the pro bono responsibility collectively, as by a firm's aggregate pro bono
activities.
[10] Because the efforts of individual lawyers are not enough to meet the need for free legal
services that exists among persons of limited means, the government and the profession have
instituted additional programs to provide those services. Every lawyer should financially support
such programs, in addition to either providing direct pro bono services or making financial
contributions when pro bono service is not feasible.
[11] Because this Rule states an aspiration rather than a duty, it is not intended to be
enforced through disciplinary process.
See Rule 1.0(l)