Lawyers could help their indigent pro-bono clients pay rent or meet other life necessities without concern about straying from ethics standards under a proposed American Bar Association rule change aimed at improving access to justice for the poor.
Attorneys won’t have to “check their humanity at the courthouse” under the proposal, said Daniel L. Greenberg, who’s been working on it for years and oversees Schulte Roth & Zabel’s pro bono program from its New York office.
The American Bar Association’s Standing Committees on Ethics and Professional Responsibility and Legal Aid and Indigent Defendants will submit amended Model Rule 1.8(e) to the ABA’s policy-making group at its annual meeting Aug. 3-4.
Milbank pro bono counsel Anthony Perez Cassino said the change was overdue. The regulation is really just “catching up to reality” because many pro bono lawyers are already providing “modest gifts to clients in need.”
Legal Services Corporation, the nation’s single-largest funding source of civil legal aid for low-income Americans, said nearly 1 million people who seek help for civil legal problems are turned away because they can’t afford a lawyer.
Assistance with family law matters generally comprise the greatest need, and the coronavirus has also spotlighted struggles with eviction and foreclosure, income maintenance, and consumer debt, according to a survey of attorneys and firms receiving LSC grants.
There’s a “very immediate need” for help because of the lack of funds to pay the rent, Cassino said.
Unethical to Help
It’s unethical to provide humanitarian aid to low-income clients under the current rule, Greenberg said. That’s to discourage lawsuits against attorneys and firms due to the possibility of financial gain, and to prevent lawyers from having too great a financial stake in a case’s outcome.
Under limited exceptions, lawyers can offer financial help for litigation expenses and court costs, a report accompanying ABA Resolution 107 said. Such help is “virtually indistinguishable” from contingent fees, and ensures access to justice, it said.
Eleven jurisdictions have a “humanitarian exception” to the rule. And the proposed section, 1.8(e)(3), says a lawyer representing “an indigent client pro bono” can offer at no fee “modest gifts” to help cover basic living expenses like food, rent, or medicine to ensure access to justice.
The amendment would allow, for example, a legal aid lawyer to take a client to lunch or to help someone who is slightly short on next month’s rent to pay it, Greenberg said.
No one will be forced into helping those less well-off, but the rule would simply allow lawyers to do what many already do—helping clients in need, he added.
To a lot of them, it hasn’t even occurred to them that what they’re doing is unethical, he said.