Solo Contendere

Okay, so you’ve opened your own firm. Now your friends come to you with their legal problems the same way they go to your friend with the pickup whenever they need to move. But just because you help a friend incorporate her new business for free doesn’t mean you can claim the work as pro bono — the ABA Model Rules define “pro bono” as legal services to “persons of limited means” or “charitable, religious, civic, community, governmental and educational organizations.”

But donating our services pro bono is still at least an “aspirational” goal, so why should we donate those hours? And why should we not?

Three good reasons to give your time away:

It’s the economy, stupid

Allow me to make a blanket statement. Everyone will need an attorney at some point in their lives. Whether it’s a divorce or a lawsuit, starting a business or being charged with a crime, at some point in every person’s life he or she will need an attorney. Whether that person can afford an attorney is a different story.

Let’s not kid ourselves: attorneys are the gatekeepers of justice. Sure, there are plenty of pro se litigants in many areas of the law; family law and landlord/tenant law are high on that list. Small claims courts do a fair job of leveling the playing field for …  well … small claims. But in contested cases, the success rate is low.

The ABA’s Model Rules “recognize the critical need for legal services that exists among persons of limited means.” It’s a recognition of the simple truth that by volunteering our time, we can make a difference for those who could not otherwise afford a lawyer.

You just like the cause/client

There’s a myth about small firms that I hear a lot — second behind “being your own boss” on my personal list of Top 10 Myths About Small Firms. That is that you get the kind of cases you want to take. No. You take the kind of cases that can keep the firm afloat, and you hope that a majority of them are the kind of case you like.

Taking a pro bono case gives you the opportunity to work on something you are truly passionate about. Solo attorneys, of course, have a much easier time with this part. You don’t have a pro bono committee to pitch as to why the firm should invest its time and resources in one case among dozens or hundreds of worthy suggestions. Like the case? Pitch in.

You are going to get something out of it

I have no problem with self-interest, and not everything is about money. Maybe you want to take a case in a practice area in which you are competent but have no experience. Maybe you want to build your reputation and get the word out about your new solo practice. Maybe you have simply been working on tax returns 20 hours a day for weeks and take a child support case because if you see another Form 1099 you are going to implode. That’s fine too.

Two bad reasons to give your time away:

1. You backed into it

It starts out innocently enough. Someone calls you with a case, and you meet with them. They talk about what is going on and you tell them that your firm cannot take the case. Maybe your fees would cost more than their potential recovery, and you tell them that small claims court is the best course of action. Two weeks later they call back trying to find out the next step. And the next. Even if you don’t intend to form an attorney-client relationship, you may find that you have unintentionally taken an open-ended pro bono case.

There is certainly nothing wrong with giving away your services, as long as you take the advice to non-paying clients as seriously as you take the advice you give to paying clients. Just be careful to whom you dispense free services, or you may end up with a client you never intended.

2. You noticed your appearance, and now the client can’t pay

Mentors to young solos never get tired of saying to get paid, in full, up front — or at least, be comfortable representing the person for the amount they give you before you notice your representation. Even in areas where you are not locked into representation, it may still be difficult to withdraw from litigation or to stop work on a transaction the client needs to have done by a certain deadline. Look: You should do pro bono work — but when you do, it should be by choice.

One important thing to remember about pro bono clients:

It helps when clients have skin in the game

As attorneys, we have a duty to treat pro bono clients just as well as our paying clients. Unfortunately, that does not go the other way; clients have every incentive to ask more of attorneys when they are not paying for that attorney’s services. The ABA’s Model Rules accepts “substantially reduced” fees as pro bono, meaning that if you want to charge your clients $5 or $10 for a phone call, it might be a good way to ensure that they are not calling you every day while still allowing them to afford quality legal services. Helping someone doesn’t mean letting them take advantage of you.

Contact Michael Kemp at mkemp@metlawmn.com.