Copyright 1996 American Bar Association
All rights reserved. ISBN 1-57073-4
Library of Congress Catalog Card Number : 96-83707
 Printed in the United States of America

A. FOREWORD

B. INTRODUCTION

C. STANDARDS WITHOUT COMMENTARY

D. STANDARDS WITH COMMENTARY

Program Governance

Role and Responsibility of Governing Body

Standard 1.1-1 General Policy Development

Standard 1.1-2 Oversight and Review

Standard 1.1-3 Fiscal

Standard 1.1-4 Fundraising, Recruitment, Recognition and Public Relations

Standard 1.1-5 Non-Interference in Attorney-Client Relationship

Standard 1.1-6 Non-Interference in Specific Acceptance and Referral Decisions

Standard 1.1-7 Conflicts of Interest

Membership of the Governing Body

Standard 1.2-1 Representation of the Legal Community

Standard 1.2-2 Representation of the Community at Large

Standard 1.2-3 Orientation and Training

Program Effectiveness

Standard 2.1 Identification of Clients' Needs

Standard 2.2 Program Priorities

Standard 2.3 Delivery Design

Standard 2.4 Quality Assurance

Standard 2.5 Results of Services Provided

Standard 2.6 Fiscal Management

Standard 2.7 Relations with Other Providers of Legal Services

Standard 2.8 Relations with the Organized Bar

Standard 2.9 Relations with the Judiciary

Standard 2.10 Relations with Community Organizations

Standard 2.11 Institutional Stature and Credibility

Standard 2.12 Periodic Program Evaluation

Relations with Clients and Volunteers

Standard 3.1 Establishment of Relationships

Standard 3.2 Conflicts of Interest

Standard 3.3 Non-Discrimination and Diversity

Relations with Clients

Standard 3.4-1 Establishment of an Effective Relationship

Standard 3.4-2 Protection of Client Confidences

Standard 3.4-3 Client Access

Standard 3.4-4 Communication with Clients

Standard 3.4-5 Eligibility Guidelines

Standard 3.4-6 Grievance Procedure

Standard 3.4-7 Client Satisfaction

Relations with Volunteers

Standard 3.5-1 Recruitment

Standard 3.5-2 Utilization

Standard 3.5-3 Training and Support

Standard 3.5-4 Professional Liability Insurance

Standard 3.5-5 Costs Policy

Standard 3.5-6 Attorneys' Fees Policy

Standard 3.5-7 Retention

Standard 3.5-8 Recognition

Facilitating Effective Delivery of Service

Standard 4.1 Acceptance Policy

Standard 4.2 Volunteer Qualifications

Standard 4.3 Client Intake System

Standard 4.4 Placement System

Standard 4.5 Tracking and Oversight

Standard 4.6 Record Keeping

Standard 4.7 Program Personnel

Standard 4.8 Attorney Supervision of Non-Attorney Staff

Endnotes

FOREWORD

On February 5, 1996, the House of Delegates of the American Bar Association without dissent adopted the Standards for Programs Providing Civil Pro Bono Legal Services to Persons of Limited Means (Pro Bono Standards). The Pro Bono Standards were the product of four years of work by the Standing Committee on Lawyers' Public Service Responsibility (SCLPSR). We believe that they will be extremely useful in guiding new pro bono programs and in improving and evaluating existing programs so that these programs can effectively and efficiently facilitate the provision of high quality legal services to persons of limited means.

Development of the Pro Bono Standards

To assist it, the Committee formally sought the direct involvement of a number of organizations which have an interest in and knowledge of the operations of pro bono programs. Accordingly, a diverse set of organizations was invited to appoint members to an Advisory Group. The Advisory Group worked directly with the Pro Bono Standards Subcommittee and Reporter, reviewing initial drafts and offering valuable insights from their varied perspectives. The result of their efforts were drafts of proposed standards which were carefully reviewed and revised on several occasions by the full Committee.

The proposed standards were released for public comment in February 1995. They were widely distributed to a large number of organizations including state and local bar associations, pro bono, legal services and IOLTA programs and various ABA entities.

There were four public hearings regarding the draft standards, and interested persons were invited to comment and suggest further revisions. Those hearings were held in conjunction with the following events: the 1995 ABA Pro Bono Conference (April 1995 in Nashville, Tennessee), the 1995 California Pro Bono Conference (May 1995 in Fresno, California), the 1995 Southeast Project Directors' Meeting (July 1995 in St. Petersburg, Florida) and the 1995 ABA Annual Meeting (August 1995 in Chicago, Illinois).

 Numerous oral and written comments were received and carefully reviewed by the Committee. Overwhelmingly, the comments favored the draft standards and offered constructive and useful suggestions. Some commentators suggested additional areas to address or a fuller treatment of topics already covered. Many other commentators suggested specific changes in language. Whenever possible, the draft standards were revised to adopt the suggestions offered to the Committee.

Several commentators expressed the view that because of the special circumstances faced by pro bono programs operating in rural communities, portions of the draft standards were not as applicable to rural programs. Changes were made to the Introduction to reflect this concern, and strategies were suggested in specific standards for addressing some of the particular problems faced by rural programs. In addition, the Committee added information on a variety of alternative methods for delivering pro bono services to assist programs in leveraging their resources to better meet clients' legal needs.

After reviewing all the comments, the Committee adopted its final revisions. The result is a document that will provide guidance to both new and existing pro bono programs on effective and efficient operation while facilitating the provision of high quality legal services by program volunteers.

Many people made valuable contributions to the development and adoption of the Pro Bono Standards, and we are indebted to them for their insight and assistance. Special appreciation is due to Victor Geminiani, who served as Chair of SCLPSR's Pro Bono Standards Subcommittee which oversaw the development of the Pro Bono Standards. Even after his term on the Committee ended, Victor continued to provide guidance and assistance in the final stages of the development of the Pro Bono Standards. The other members of the Standards Subcommittee also deserve special thanks. They are: Judith Bernstein-Baker, Judge Judith Billings, Robert Juceam and Debbie Segal.

 The members of the Advisory Group gave generously of their time and talents. They are: Paul Carlin, representing the National Association of Bar Executives; Nancy Chandler and Lisa DeLoache Melton, representing the National Association of IOLTA Programs; Emilia DiSanto, representing the Legal Services Corporation; Sharon Goldsmith, representing the Statewide Pro Bono Support Directors; Lillian Johnson and Karen Meyers, representing the Program Advisory Group; Esther Lardent, representing the National Legal Aid and Defender Association; Ellen Mishkin and Steven Scudder, representing the National Association of Pro Bono Coordinators; Robert Remar, representing the American Civil Liberties Union; Richard Teitelman, representing the Management Information Exchange; Ron Wright, representing the National Organization of Client Advocates; and Laurie Zelon, representing the ABA Standing Committee on Legal Aid and Indigent Defendants.

Valuable contributions were made by John Tull, who prior to joining the staff of the Legal Services Corporation, acted as an advisor to the Reporter; Gerry Singsen and Carol Babichuk, who each drafted portions of Standard 2.6 (Fiscal Management); and Miriam Matienzo, who provided research assistance to the Reporter.

The contributions of those people who testified at our hearings and submitted written comments were important. Their insight and suggestions strengthened the final document.

The project was begun while Robert Hirshon was chair of SCLPSR (through August 1993). The members of the full Committee, both former members and present members, spent many hours reviewing drafts between meetings and many more hours in discussion. Those discussions were skillfully guided to focus attention on the main policy issues by Victor Geminiani and the Reporter, and the Committee was advised throughout by Committee Counsel, Lynn Sterman. It is and has been a diverse, insightful, energetic and hard working Committee. We hope the final product reflects the real consideration, debate, reconsideration and resolution of the important issues that must be addressed in the operation of pro bono programs.

Finally, we need to acknowledge that there would be no Pro Bono Standards without the diligent and skillful drafting and redrafting by the Reporter, Beverly Groudine. It is not an easy task to capture the conclusions and nuances expressed by each member of the Committee and, if truth be known, to help the Committee find and express the points where competing considerations reach balance, but the Reporter did that extremely well. In these ways and with her patience and constant good-natured assistance, Bev was essential to the successful completion of this project.

James L. Baillie, Chair
February 1996

Organized pro bono programs have existed in this country for over a century and have played a vital role in providing access to justice by assisting members of the private bar in their efforts to furnish free civil legal services directly to persons of limited means. In the past 15 years the growth in the number of programs has been remarkable: in 1980, 80 pro bono programs were identified by the American Bar Association; today, there are more than 900. The variety, sophistication and complexity of programs and program structures similarly have grown and that growth is expected to continue. Given this growth and the period of change and re-invention in which existing programs are operating and new programs are being established, it seems appropriate to develop standards that will aid programs in becoming more effective and efficient in marshalling volunteers, meeting clients' needs and facilitating the provision of high quality legal service.

In 1961, the American Bar Association first adopted standards for the operation of civil legal aid programs. The most recent version of those standards, the Standards for Providers of Civil Legal Services to the Poor (hereinafter "Civil Standards"), was adopted in 1986. While the Civil Standards were designed to provide guidance to all organizations serving the civil legal needs of the poor, it was recognized that some of those standards would not be applicable to pro bono programs due to legal, practical and institutional reasons. Moreover, many issues unique to pro bono programs were not addressed in the Civil Standards.

It is the goal of the Pro Bono Standards to furnish current guidance to newly established programs and their governing bodies and to provide a basis for improving and evaluating the effectiveness and efficiency of existing programs. These standards recognize that to utilize all resources effectively, programs should strive to develop a variety of methods for delivering high quality services to clients. These methods may include the most common one of program staff referring individual clients to individual attorneys for representation, or the use of "full service clinics" at which volunteers conduct in-depth interviews with clients and agree to provide whatever level of assistance is needed. In addition, programs may explore developing supplemental means of utilizing volunteers by establishing advice clinics, legal hotlines and pro se clinics through which clients' legal needs may be addressed. Another approach put forth is developing relationships with entities such as law firms or corporate counsels' offices through which multiple matters are referred at the same time and an individual at the entity is responsible for placement of the matters, with oversight being provided, when possible, through the entity's usual quality assurance mechanisms. While it is recognized that a program's ability to implement a variety of delivery models will depend upon local conditions and resources, the Pro Bono Standards encourage all programs to carefully consider the best way to leverage their resources to effectively and efficiently address clients' legal needs.

As guidelines only, the Pro Bono Standards are not intended to create any mandatory requirements or minimum standards for performance. Thus, failure to comply with a standard should not give rise to a cause of action, nor should it create any inference or presumption that a pro bono program has failed to comply with any legal duty owed to a client, a volunteer or a funding source. Of course, all lawyers and those working under their supervision must comply with all applicable rules of professional conduct when providing pro bono service.

Application of the Standards

The Pro Bono Standards have been crafted specifically for programs and components of programs which provide free civil legal services through the use of volunteers to persons of limited means and the organizations serving them. It is likely, however, that all pro bono programs will obtain guidance from a review of these Standards.

There are a number of pro bono programs that, in addition to utilizing volunteers to provide free civil legal services to persons of limited means, employ staff to carry out that same function. There are also many programs established primarily as staff model legal services organizations that include a volunteer component. The Pro Bono Standards are meant to apply only to the pro bono component of such programs. They are not intended to provide guidance to those components of programs in which staff lawyers provide representation. In establishing operational guidelines for the staff component, such programs should turn to the Civil Standards.

While judicare and contract programs in which private attorneys are paid a reduced fee to provide free legal services to persons of limited means are likely to find a review of the Pro Bono Standards instructive, the unique issues faced by such programs are not addressed in these standards. In addition, the Pro Bono Standards are not intended to be applicable to law school and law firm pro bono programs due to their distinctive missions and operations. The same holds true for some programs that are organized to address certain types of special issues such as civil rights and civil liberties. All such programs may nevertheless obtain guidance from a review of the Standards.

Even those programs to which the Pro Bono Standards are intended to apply may find that not every standard is helpful to them due to their special characteristics, their method of service delivery or the community in which they operate. For example, those programs that only provide assistance to pro se litigants will find that much of the discussion on case placement, tracking and oversight, and attorneys' fees policies (among other areas) are not relevant to their operation. Likewise, programs that provide legal services only to a particular population, such as children, will need to adapt, for example, the discussion regarding establishment of relationships to fit the unique situations that they face. Furthermore, the extent to which programs can rely upon staff model legal services programs to provide assistance in areas such as training and support, as the Pro Bono Standards recommend, will vary depending upon the size and resources of those staff programs, as well as the type and scope of services that they provide.

There are special conditions under which rural pro bono programs operate due to the characteristics of their communities and legal institutions which must be recognized. Specifically, rural areas usually have a limited number of attorneys who are spread throughout a region, and those regions often lack active, well organized bar associations. While strategies for addressing some of the special problems faced by rural programs are suggested in specific standards, such programs may find that some standards are not relevant to them, and some may not be attainable. Standards that fall within these categories may include those that address the role of the organized bar, the role of a centralized governing body and establishing special panels to address conflicts of interest. All programs, be they specialized as to function, client group or location, should review the Pro Bono Standards with an understanding that they are intended as goals to be achieved and may not fully reflect the reality in which each program operates.

It is recognized that in the pro bono context, two distinct attorney-client relationships may exist: one between the client and the volunteer, and one between the client and the program. As used throughout the Standards, however, the term "client" refers to an individual or group who receives advice, counsel or representation from a program volunteer, whether or not that individual or group also stands in an attorney-client relationship with the program.

The terms "legal services program" and "staff model legal services program" are used interchangeably and refer to any program, regardless of its funding source, that provides free legal services to the poor primarily through the use of paid staff who directly represent clients.

The term "persons of limited means" refers to 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. It is the same definition used in ABA Model Rule of Professional Conduct 6.1 which sets forth an aspirational standard for pro bono service by lawyers.

A conscious decision has been made to avoid the use of the term "pro bono coordinator" in these Standards. Instead, the term "pro bono manager" is used to refer to the individual who has primary responsibility for the day to day operation of the program. This new term has been chosen because it better reflects the wide range of duties involved in successfully operating a program as well as the professionalism required of the individual who holds the position.

For the purpose of these Standards, the term "pro bono program" does not include all organizations that provide pro bono service as defined in Model Rule of Professional Conduct 6.1. Rather, it refers to a specific type of pro bono program - an organization that provides free civil legal services through the use of volunteers to persons of limited means or organizations serving them.

The terms "provider of legal services" and "legal services provider" are used interchangeably and refer to an organization founded primarily to render free or reduced fee civil legal services to persons of limited means or those who cannot otherwise afford counsel. Examples of such providers include pro bono programs, legal services programs, law school clinics and judicare programs.

While there is no attempt to define the terms "case" or "matter," it should be noted that those terms are used interchangeably throughout this document, and they are not limited to legal problems that can only be resolved through litigation.

STANDARDS FOR PROGRAM GOVERNANCE

Standard 1.1-1 General Policy Development

A pro bono program should establish a governing body which adopts broad general policies.

The governing body should ascertain that the pro bono program is in compliance with any contractual obligations and applicable laws governing the program and should regularly review the program's operations.

Standard 1.1-3 Fiscal

The governing body should assume responsibility for the financial integrity of the pro bono program by adopting a budget, monitoring revenues and expenditures in relation to the approved budget and providing for an annual independent financial examination.

The governing body should support the operation of the pro bono program by assisting in activities such as fundraising, volunteer recruitment, volunteer recognition and public relations.

Standard 1.1-5 Non-Interference in Attorney-Client Relationship

The governing body and its individual members should not interfere directly or indirectly in the representation of a client by a volunteer attorney.

The governing body and its individual members should not interfere directly or indirectly in the decision of the pro bono program staff to accept or reject a specific matter, or to refer a matter to a particular volunteer.

Governing body members should not attempt to influence any decisions in which they have a conflict with clients served by or through the pro bono program.

Standard 1.2-1 Representation of the Legal Community

The governing body should include members who represent various segments of the legal community.

To the extent practicable, the governing body should include members of the community at large, with special emphasis on participation by the client community.

A pro bono program should strive to assure that all members receive the orientation and training necessary for full and effective participation on the governing body.

A pro bono program should establish a means of identifying the legal needs of persons of limited means who reside within its service area.

A pro bono program should establish priorities for the allocation of its resources based upon identified client need while taking into account areas of interest and expertise of volunteers, any volunteer need for specialized training and support, and the priorities of other providers of legal services in the service area.

A pro bono program should establish a design for the delivery of legal services which is tailored to local circumstances and which effectively and efficiently meets identified client need.

A pro bono program should strive to assure that all clients served through the program receive high quality legal services.

A pro bono program should strive to achieve lasting results responsive to clients' needs and objectives by utilizing volunteers to resolve or assist in resolving clients' individual problems, to improve laws and practices affecting clients, and to increase client self-sufficiency.

A pro bono program should establish and maintain systems and procedures to account for revenues, expenditures and program services in conformity with appropriate accounting principles for non-profit organizations.

A pro bono program should strive to cooperate, collaborate and coordinate with other providers of legal services.

A pro bono program should strive to develop and maintain an active, cooperative and collaborative relationship with the organized bar.

A pro bono program should strive to work with the judiciary to develop methods for judges to provide their support and assistance to the program.

A pro bono program should strive to develop and maintain active and cooperative relations with community organizations and social service agencies that serve clients.

A pro bono program should strive to attain institutional stature and credibility to enhance its ability to achieve client objectives.

A pro bono program should periodically evaluate its effectiveness and implement appropriate improvements, as needed.

A pro bono program should clearly communicate the nature of the relationship it is establishing with each client and volunteer and delineate each party's rights and responsibilities. A program should aid a client and the volunteer who is representing or otherwise assisting that client in communicating clearly their duties and responsibilities to each other.

Standard 3.2 Conflicts of Interest

A pro bono program should establish policies and procedures to identify and address conflicts of interest.

A pro bono program should not impermissibly discriminate in the acceptance and placement of cases, in the recruitment of volunteers or in the employment of staff. To the extent practicable, staff hired and volunteers recruited should reflect the diversity of the community being served.

A pro bono program should strive to establish a relationship with each client which fosters trust and preserves client dignity. It should assist volunteers in establishing a similar relationship with their clients.

Consistent with ethical and legal responsibilities, a pro bono program should preserve information regarding clients and applicants from any disclosure not authorized by the client or applicant.

A pro bono program should adopt policies and procedures which facilitate access to its service by the client community.

A pro bono program and its volunteers should communicate effectively with clients.

A pro bono program should establish written guidelines to determine an applicant's eligibility for service.

A pro bono program should establish a policy and procedure to address complaints regarding the denial, quality and manner of service.

A pro bono program should obtain information from clients regarding their satisfaction with the program and its volunteers.

A pro bono program should develop effective strategies for recruiting volunteers.

Standard 3.5-2 Utilization

A pro bono program should develop effective strategies for utilizing volunteers to meet clients' legal needs.

A pro bono program should provide training opportunities and support services to its volunteers.

A pro bono program should obtain professional liability insurance coverage for itself, its staff and its volunteers.

A pro bono program should establish and communicate to clients and volunteers a policy and procedure regarding the payment of costs in matters in which filing fees, service fees, discovery, use of expert witnesses and other expenses related to representation are appropriate.

A pro bono program should establish and communicate to clients and volunteers a policy regarding the receipt of attorneys' fees by program volunteers.

A pro bono program should develop effective methods for retaining its volunteers.

A pro bono program should develop effective methods for the recognition of its volunteers.

A pro bono program should establish a policy regarding the acceptance of matters which focuses resources on the identified priorities of the program, considers the maximum number of matters that volunteers can reasonably address and takes into account the resources available to provide volunteers with any necessary preparation and support.

A pro bono program should strive to determine that representation and advice are provided by volunteers who are competent and sensitive to clients.

 Standard 4.3 Client Intake System

A pro bono program should establish or utilize an intake system through which knowledgeable staff or volunteers determine eligibility, discover potential conflicts of interest, obtain essential facts, identify legal issues and maintain client confidentiality and client dignity.

A pro bono program which places matters with volunteers for assistance should establish a system for timely and appropriate referral. When placing matters, a program should provide volunteers with information regarding the nature of the problem and all known pertinent facts and documents.

A pro bono program should establish a system for obtaining information regarding the progress of matters placed with volunteers. Based upon the information received, the program should provide the assistance required, subject to any limitations imposed by rules of professional conduct.

A pro bono program should develop internal systems for identifying conflicts and for maintaining, retrieving and evaluating data regarding applicants, clients, volunteers and services provided.

A pro bono program should employ personnel who are competent, sensitive to clients and committed to the provision of high quality legal services.

A pro bono program should provide for appropriate attorney supervision of its non-attorney staff.

Those who serve on the governing body should be committed to fulfilling the purposes of the program. In addition, they should be willing to commit adequate time to obtain the necessary understanding of the program's operations to meet their board responsibilities. Because serving as a board member can demand much time and energy, the program may want to consider instituting term limits for its members. Such a system not only creates a finite commitment for board members, but it also provides a means for regularly adding new members who can bring fresh perspectives and new energy to the governing body. To avoid a governing body made up of entirely new members, however, a program may want to consider staggering the terms of its board members. A program may also want to consider developing a method for removing board members for failure to consistently and actively participate in program governance, or for other cause.

One of the main functions of the governing body is to set broad general policy for the program. The exact policy role of the governing body will depend upon local judgments as to the appropriate role of the governing body and the pro bono manager. Generally, the governing body has broad decision making authority on fundamental matters, such as determining the delivery design, adopting priorities, establishing eligibility guidelines and a grievance procedure, determining the salary structure for staff and adopting a budget². For those programs that are separately incorporated, usually the governing body has the additional responsibility of hiring the program's director and periodically evaluating his or her performance.

Standard 1.1-2 (Role and Responsibility of Governing Body - Oversight and Review)

The governing body should ascertain that the pro bono program is in compliance with any contractual obligations and applicable laws governing the program and should regularly review the program's operations.

The governing body should regularly review the program to determine that policy decisions are being properly implemented and that the program is in compliance with all contractual, statutory and regulatory requirements³. To ascertain that the program is in compliance with applicable laws, the members of the governing body should have a working knowledge of the various statutes and regulations governing the program. To assist the governing body members in understanding those laws, program management should schedule relevant training events⁴.

Although the pro bono manager is responsible for the day-to-day operations of the program, the governing body should regularly review those operations to determine that established policy is being implemented properly, to ascertain that the program's mission and goals are being achieved and to identify problems that may require intervention⁵. To properly fulfill this review function, the governing body should regularly obtain and review internal program reports regarding financial matters, number of clients served, disposition of matters handled, recruitment data, budget data, funding changes and major provider undertakings. In addition, it should review both the program evaluations provided by funding sources or other entities and the report of the annual financial examination⁶. The board should also make certain that it is aware of new developments in pro bono delivery so that it can evaluate the program's ability to recruit and utilize volunteers effectively and efficiently. The board should also ascertain that the program is making its best effort to coordinate with other providers to maximize the delivery of service to clients⁷.

In the commentary to the ABA's Standards for Providers of Civil Legal Services to the Poor, several "warning signs" requiring the attention of the governing body are enumerated, the following of which should be of particular concern to pro bono program governing bodies: a sharp change in the number of cases handled; significant deviations from the approved budget; an increase in client grievances; an increase in complaints from employees of the provider; an increase in complaints from participating volunteers or entities, the private bar or the legal community; and a decrease in participation by the private bar in assisting clients⁸. In addition, the governing body should take special note of any substantial decrease in the number of volunteers recruited and any significant turn-over of the governing body's members. If the governing body does discover any problems in the course of its review, it should take proper steps to remedy them.

Standard 1.1-3 (Role and Responsibility of Governing Body - Fiscal)

The governing body should assume responsibility for the financial integrity of the pro bono program by adopting a budget, monitoring revenues and expenditures in relation to the approved budget and providing for an annual independent financial examination.

COMMENTARY

A basic responsibility of the governing body is to adopt a sound budget that enables the program to meet its responsibilities to its clients, its volunteers and its funding sources. To fulfill these responsibilities, the governing body should devote sufficient resources to meeting program priorities, to furnishing training and support to volunteers and to providing adequate salaries to qualified, experienced staff.⁹ In addition, the governing body must ascertain that the budget is in compliance with the terms and conditions set by its funders.¹⁰

As is pointed out in the commentary to the ABA's Standards for Providers of Civil Legal Services to the Poor, "budget responsibilities involve more than mechanical approval of broad spending categories and perfunctory review to assure that income and expenditures balance."¹¹ Rather, the budget is the mechanism through which the governing body implements major policy decisions regarding the program's direction and operation. Budget planning also provides the governing body with the opportunity to assess future resource needs and to plan for expected changes in available resources.¹²

The pro bono manager is often the individual responsible for spending funds based upon the budget established by the governing body.¹³ To enable the manager to perform this responsibility, the governing body should develop written procedures regarding that individual's role in and authorization for purchasing, payroll, cash disbursements, cash receipts, entering into monetary obligations and maintenance of pro bono or contractual services. The governing body should also create internal controls to ensure safeguarding of the programs's assets by, for example, requiring dual signatures (e.g. program manager and governing body member) on all checks or on checks drawn above a certain amount.

There will be times when deviations from the established budget will occur due to unanticipated costs or unforeseen circumstances. The commentary to the ABA's Standards for Providers of Civil Legal Services to the Poor address this issue in the following manner:

To assure that the program is in compliance with both sound accounting principles and the terms and conditions set by its funders, the governing body should authorize an annual audit. Among other things, it should include a report on existing assets¹⁵ and liabilities of the program, delineating material contingencies (including claims and contracts) and development of recommendations on internal controls and procedures. For programs that are a component of a larger organization, such as a legal services program or a bar association, that financial review usually will be part of the larger organization's annual audit. However, there may be some programs such as those with very small budgets, for which conducting a full scale audit would be unduly burdensome. In those situations, a less extensive form of an annual independent financial review may be appropriate.

The commentary to the ABA's Standards for Providers of Civil Legal Services to the Poor set forth the following guidelines for the audit process:

Once the governing body receives the financial report, it should meet with the examiners to discuss their findings, their recommendations for responding to identified problems and their suggestions for improving and updating the program's accounting system.¹⁷ The governing body should then take steps to remedy the identified problems and carefully consider any recommendations made for changing the current accounting system.

Standard 1.1-4 (Role and Responsibility of Governing Body - Fundraising, Recruitment, Recognition and Public Relations)

The governing body should support the operation of the pro bono program by assisting in activities such as fundraising, volunteer recruitment, volunteer recognition and public relations.

COMMENTARY

The governing body and its individual members should assume a vital role in a number of activities that are of critical importance to the program including fundraising, recruitment, volunteer recognition and public relations. While it is likely that the pro bono manager will be involved in these activities, given the many demands of directing the day-to-day operations of a program, the manager must look to the governing body for assistance.

Members of the governing body should be called upon to inform bar members and the public of the program's mission, goals and achievements.¹⁸ Important functions such as writing recruitment letters, speaking at recruitment events and writing articles about the program are ones that members of the governing body can easily perform.¹⁹ In addition, they can play a valuable role by speaking at recognition events and by personally presenting the program's awards for outstanding service.²⁰ Fund raising is another area in which members of the governing body can play an active role.²¹ Attorneys and business leaders, for example, who are governing body members can take part in the direct solicitation of funds for the program from their peers. In addition, they can use their contacts and influence with institutional funding sources to try to obtain grants for the program.

Together, the pro bono manager and board members may establish other areas in which the members of the board can support the operation of the program. The examples provided are meant to be illustrative of the wide range of activities in which the board can provide valuable assistance to the program.

Standard 1.1-5 (Role and Responsibility of Governing Body - Non-Interference in Attorney-Client Relationship)

The governing body and its individual members should not interfere directly or indirectly in the representation of a client by a volunteer attorney.

COMMENTARY

In representing a client, a lawyer has an ethical duty to exercise independent professional judgment.²² Any action by the governing body or its members that interfere with the fulfillment of this duty by a volunteer attorney, therefore, is strictly prohibited.²³

ABA Formal Opinion 334 (1974) addresses the extent to which a governing board of a legal services office may prescribe rules and regulations that limit or restrict the activities of staff attorneys acting on behalf of clients without placing those lawyers in violation of their duty to exercise independent judgment in legal matters. Because the volunteer attorneys of a pro bono program and the staff attorneys of a legal services program serve the same function of providing free legal services to individuals seeking assistance through the program, Formal Opinion 334 is relevant to the governing bodies of pro bono programs.

Formal Opinion 334 permits the activities of the staff attorneys on behalf of their clients to be limited or restricted by the governing body only to the extent necessary to allocate fairly and reasonably the resources of the program and to establish proper priorities in the interest of maximizing available legal services to the poor. Once a case has been assigned to an attorney, however, the governing body cannot interfere with the attorney-client relationship. In addition, neither the governing body nor an advisory committee of its lawyer members can have access to the confidences and secrets of the client because such bodies have not established an attorney-client relationship with the client.²⁴

There may be exceptions to this prohibition, such as when a client explicitly consents to the disclosure of confidential information when filing a grievance against the volunteer lawyer. In that situation, the governing body or a duly selected committee may examine the conduct of a case by the volunteer attorney, but the body cannot specifically direct the volunteer to undertake or to refrain from any action in the case.²⁵

Standard 1.1-6 (Role and Responsibility of Governing Body - Non-Interference in Specific Acceptance and Referral Decisions)

The governing body and its individual members should not interfere directly or indirectly with the decision of the pro bono program staff to accept or reject a specific matter, or to refer a matter to a particular volunteer.

 COMMENTARY

Decisions about whether to accept a specific matter for referral to a volunteer must be made on a basis consistent with rules of professional conduct. Two formal ethics opinions of the American Bar Association have addressed the question of case-by-case decisions by the governing body of a legal aid society, Formal Opinion 324 (1970) and Formal Opinion 334 (1974). Those opinions discuss three ethical issues: preservation of client confidences and secrets, the obligation not to decline a matter based on controversy, and non-interference with lawyers' independent judgment. The opinions concluded that the governing board of the legal aid societies "should set broad guidelines respecting the categories or kinds of cases that may be undertaken rather than act on a case-by-case, client-by-client basis."²⁶

Ethical obligations require that lawyers maintain client confidences.²⁷ ABA Formal Opinion 90-358 concludes that the duty to maintain client confidences applies to protect information imparted by a potential client seeking to engage a lawyer's services even though no legal services are performed and the representation is declined.²⁸ The protected information includes not only the underlying facts of the case, but extends to the names, addresses and telephone numbers of potential clients.²⁹ The staff of a pro bono program is prohibited, therefore, from revealing such information to anyone not entitled to such information under applicable ethical standards. Such standards include not only the attorney client privilege, but also the doctrine of non-disclosure of client secrets and information relating to the representation of a client.³⁰ This is true even if an attorney-client relationship is never established between the program and the individual seeking assistance. The program must determine, under applicable ethical standards, whether disclosures to the program's governing body would be permissible.³¹ If such disclosure would not be permissible, then the only information regarding cases that a governing body should receive is that which is necessary to determine if the program's policies are being carried out, unless a client provides knowing, voluntary consent to the disclosure of confidential information.³² If making a an informed judgment to accept or reject a case requires access to information that the governing body would not be entitled to receive under applicable ethical standards, then the governing body clearly cannot insert itself into the referral decision.

A pro bono program often establishes an attorney-client relationship with an individual seeking a pro bono representation prior to the placement of the case with a volunteer. This occurs, for example, when the program staff provides legal advice to the client pending the referral decision.³³ In such cases, the governing body is further restricted from interposing itself in the referral decision because it cannot interfere with a lawyer's independent professional judgment on behalf of a client.³⁴

A board may properly request information regarding the substantive areas of cases referred (i.e. housing, consumer, family law) to ascertain, for example, that the priorities of the programs are being followed. Where communications with the governing body are not protected by the attorney-client privilege, the governing body cannot receive any specific facts regarding those cases without knowing, voluntary client consent.

Another exception may occur when a client files a grievance against program staff for declining to refer the matter to a volunteer or for advice received.³⁵ In such situations, there may be an implied waiver, allowing the governing board to investigate the grievance.³⁶ Absent an implied waiver, if a privilege applies, the client's consent to the disclosure of the confidential information would be necessary before the grievance could be investigated.³⁷

Standard 1.1-7 (Role and Responsibility of Governing Body - Conflicts of Interest)

Governing body members should not attempt to influence any decisions in which they have a conflict with clients served by or through the pro bono program.

Conflicts of interest may arise for governing body members due to either the clients that they represent or the institutions or individuals with which they are associated. In either case, members should not use their position on the governing body to further interests which are in conflict with the interests and objectives of either clients of the program or pro bono clients represented by the program's volunteers. Lawyer members of the governing body are generally prohibited from knowingly participating in a decision or action of the program if the decision could have a material adverse effect on a client served by or through the program whose interests are in conflict with interests of the lawyer or a client of the lawyer.³⁸ In other situations where conflicts may arise, such as when a board member has a financial interest in a matter under consideration, the law of the jurisdiction regarding disclosure and recusal should be reviewed for guidance.

While a program and its governing body should be sensitive to potential conflicts and address actual conflicts, the program should not exclude from the board every person identified with an institution or individual with a potential adverse interest to a client of the program or a pro bono client represented by a program volunteer. The determination as to whether an actual conflict exists for an individual board member must be made on a case by case basis. As is pointed out in the ABA's Standards for Providers of Civil Legal Services to the Poor:

A board member's representation of or association with an institution can create particular problems with conflicts. This is because a member's decision on issues such as program priorities, allocation of resources and program structure can affect the availability of counsel to act against that institution. For example, by deciding that consumer issues will not be among the program's priorities, a board member who represents or is otherwise associated with a car dealership located in the client community can assure that volunteers will not be available through the program to represent clients in lawsuits filed by or against that institution.

The commentary to the ABA's Standards for Providers of Civil Legal Services to the Poor provides other examples of institutional conflicts that may arise in this context:

The fact that a person is employed by or is otherwise significantly connected with an institution that is in conflict with the clients served by or through the program should not automatically disqualify that person from service on the governing body. Rather, a factual determination should be made as to whether an actual conflict exists. The commentary to the ABA's Standards for Providers of Civil Legal Services to the Poor provides guidance in this area by listing factors that would evidence the lack of an actual conflict in such situations:

• The individual is not regularly involved directly or through a supervisory role in cases against provider clients.

• The individual does not have a policy-making role within the institution.

• The individual is not directly engaged in an activity which itself adversely affects client interests.

• It is clear that the individual will exercise independent judgment in serving as a member of the governing body.

• The individual is committed to the provision of legal services to the poor. Examples of such evidence would be previous experience in legal services work; participation as a private attorney in the representation of provider clients; a professional role consistent with legal services work, such as employment in the consumer fraud division of a county attorney's office; or previous experience on the provider's governing body.⁴¹

An attorney member of the board may occasionally represent a client who is an adverse party to either a client of the program or a pro bono client of a program volunteer.⁴² The presence of a board member in such a case may not create an actual conflict because that member does not have an attorney-client relationship with the individual obtaining pro bono assistance. Nevertheless, the situation may raise ethical concerns.

The issue of whether a staff attorney of a legal services program and a board member of that program can represent adverse parties in litigation has been addressed in the American Bar Association's Formal Opinion 345 (1979). Although that opinion does not involve a pro bono program, in analyzing whether a pro bono program's board member can represent a client who is an adverse party to either a client of the program or a pro bono client of a program volunteer, the opinion is relevant and provides some guidance.

Opinion 345 holds that the adverse parties can be represented provided that both clients are advised of the circumstance and consent to proceed, and provided that there is in fact no impact on the exercise of independent judgment by either attorney. It specifically states that "clients and counsel on both sides must feel comfortable that in the particular circumstances neither client will be deprived of independent and uninhibited representation."⁴³

In those situations in which an attorney-client relationship is established between the client and the program, it exists most often due to the case oversight, mentoring and support that the program staff provides to the volunteer during the course of his or her representation of a pro bono client. Given this rather attenuated relationship with the client, it may seem unlikely that the independent judgment of the pro bono program staff would be affected due to a board member's representation of an opposing party. Yet, because the board member may have input on issues such as staff salaries and promotions, it is possible that the appearance of a board member as opposing counsel in a matter could impede the program staff's independent judgment. For example, the program staff may balk at providing funds from its litigation fund to the pro bono client's attorney, for fear of angering the board member. A factual determination must be made by the program staff in each case, therefore, where the potential for a conflict exists.

In those cases in which the program staff conclude that their independent judgment has not been affected and so they can proceed in their role, the consent of the client should be obtained. If however, the attorney-client relationship should not continue, the program has several alternatives. It may choose to cease providing case oversight, mentoring and support to the volunteer. Alternatively, the program may locate other counsel to provide those services. Another alternative is for the attorney board member to choose not to represent the conflicting client or to resign from the governing board.

Because a pro bono program's volunteers receive no fee or other economic benefit as a result of the governing body's decisions, it is highly unlikely that their independent judgment would be impeded due to a board member's appearance as opposing counsel in a case. Nevertheless, a factual determination must be made in each case in which the potential for a conflict exists. In those cases in which the volunteer concludes that independent judgment has not been affected and so representation can proceed, the consent of the client should be obtained to do so. If that representation should not continue, the program may attempt to place the matter with another volunteer or find other free counsel for the client. Another alternative is for the attorney board member to choose not to represent the conflicting client or to resign from the governing board.

Standard 1.2-1 (Membership of the Governing Body - Representation of the Legal Community)

The governing body should include members who represent various segments of the legal community.

COMMENTARY

By including representatives of various segments of the legal community on its governing body,⁴⁴ a program can create a sense of ownership in the program by lawyers and judges; it can obtain needed guidance and support; and it can call upon the special talents of the bar and bench to obtain assistance in several critical areas including recruitment, recognition, fundraising and training. Although a program may not be able to include representatives of all segments of the legal community on its governing body, it should strive to include as broad a cross section as possible.

Bar leaders, legal services representatives, judges and pro bono attorneys can each provide important perspectives and valuable skills to the governing body. Bar leaders can lend their status and prestige to recruitment campaigns, recognition events and fundraising efforts. In addition, due to their considerable experience with the private bar, they can be excellent sources of information on successful ways to recruit, retain and recognize volunteer attorneys, and they can act as sounding boards for program initiatives.

Judges also can make important contributions to the program through membership on the governing body. They can play important roles in recruitment campaigns and recognition events,⁴⁵ as well as provide valuable insights and advice to the program. It must be noted, however, that judicial canons exist that may be interpreted as prohibiting members of the judiciary from serving on governing bodies of legal services providers.⁴⁶ In the two states in which the issue of judicial service on a pro bono program board has been addressed, one has held that service may be permissible and one has held that it is not.⁴⁷ However, the same state that found that judicial service on a pro bono program board may be permissible, as well as several other states, have held that judicial service on the board of a staff model legal services program is prohibited.⁴⁸ A program, therefore, should research the issue in its jurisdiction before approaching a judge to serve on its governing body. In addition, it should be noted that even when service by members of the judiciary is permissible, they are generally prohibited from providing legal advice or participating in most fundraising activities of the governing body.⁴⁹

 Volunteer attorneys are another segment of the legal community that the program should strive to include on the governing body because they can provide an important perspective as participants in the program. Based upon their experience, they can suggest ways in which program operations may be improved to better serve the needs of volunteers. Furthermore, they can provide valuable insights into why attorneys volunteer, how to attract volunteers and how to retain them.

Representation of a local legal services program on the governing body should also be sought, due to the staff's expertise in the area of the delivery of legal services to the poor. Governing body members who are legal services staff members can provide valuable advice and guidance on issues such as needs identification, priority setting, delivery design, case acceptance polices and case oversight. In addition, they can assist with designing training events involving areas of poverty law, and they can be an excellent source for obtaining trainers for these events. Finally, the inclusion of members of the legal services program on the governing body is likely to create in those members a commitment to the success of the program. This commitment can aid in building a constructive relationship between the pro bono program and the local legal services program: one based upon cooperation, coordination and collaboration.⁵⁰

From time to time, there may be issues that are presented to the governing board for consideration that may create an actual conflict of interest or the appearance of a conflict of interest for board members who are legal services staff. For example, strategic decisions regarding a funding proposal may be under discussion by the board at the same time that the legal services organization is preparing a competing proposal. As a result, board members who are staff of legal services programs must be sensitive to issues that raise actual conflicts or the appearance of conflicts and may need to recuse themselves from discussion and decision making on such matters.

In identifying members of the legal community to serve on the governing body, the program should strive to reflect the diversity of the profession by including, for example, African Americans, Hispanics, Asian Pacific Americans, women and persons with disabilities. To the extent that constituent-specific bar associations exist within the community, the program may want to consider selecting a representative from each of those bar associations to serve on its governing body. In addition, if the program serves a large geographical area, the program should consider having a representative from the legal communities of the various regions served represented on its governing body.

For those programs that are part of a legal services program or a social service agency, often a subcommittee of the board of directors of the legal services program or the agency is the governing body of the pro bono program. In such cases, many segments of the legal community may be unrepresented on the governing body. To address this problem, the pro bono program may create an advisory board to provide a vehicle through which it can obtain formal input from additional segments of the legal community.

Standard 1.2-2 (Membership of the Governing Body - Representation of the Community at Large)

To the extent practicable, the governing body should include members of the community at large, with a special emphasis on participation by the client community.

COMMENTARY

The value of including members of the client community on the program's governing body is set forth in the commentary to the ABA's Standards for Providers of Civil Legal Services to the Poor:

Including other members of the community at large, such as social workers, bankers and accountants can also provide the board with valuable perspectives on issues that it might otherwise not receive. In addition, those members may have expertise and professional contacts that can be useful to the program in activities such as developing fundraising campaigns, writing grant proposals, organizing training events and recruiting non-attorney volunteers.

A pro bono program that is part of a larger organization, such as a bar association or social service organization may find, however, that it impossible or impractical to include members of the community at large on its governing body. For example, a requirement of membership on the governing body of a bar association may be licensure in the jurisdiction, thereby precluding non-lawyer members. In such situations, the program should strive to attain other means of involving clients and other members of the community at large. It may, for example, create a client advisory committee to provide input on issues such as delivery structure, priorities and other policy matters affecting representation of clients. Likewise, it may establish an advisory committee that could provide input from other members of the community on issues such as fundraising, training or recruitment, depending upon the expertise and skills of those chosen to serve. Alternatively, the governing body may choose to maintain contact with groups that represent various interests within those communities.

Given the number of client groups and other groups that exist in many communities, it is not contemplated that every such group will be represented on the governing body or advisory group. Nevertheless, in identifying members of the client community and the broader community who will serve on the board, the program should strive to reflect the diversity of those communities, particularly with respect to race, ethnicity, age and gender.

To the extent practicable, members of the client community who serve on the governing body or advisory committee should include persons who are financially eligible for the program's services, as well as those individuals who may not be eligible for services, but who are recognized as leaders in the client community. If the program services a large geographical area and a widely dispersed client population, the governing body or advisory committee should include members who live in representative locations and understand client needs particular to those areas.⁵²

The limited financial resources of clients may make it difficult for them to afford transportation and child care costs associated with attending meetings of the governing body or advisory committee. To facilitate their attendance, the program should consider providing reimbursement for these and similar expenses.⁵³

Standard 1.2-3 (Membership of the Governing Body - Orientation and Training)

A pro bono program should strive to assure that all members receive the orientation and training necessary for full and effective participation on the governing body.

COMMENTARY

When new members are selected to serve on the governing body, it is likely that each will possess different levels of knowledge regarding the program and the delivery of legal services and pro bono services at the local, state and national level. Because such knowledge is critical to full and effective participation on the governing body, the program should strive to assure that proper orientation and training are provided to all members.

Orientation should include information on a wide range of topics including: an historical perspective of legal services and pro bono services nationally and in the local community; the role, structure and function of the governing body and any advisory groups; the program's structure and operations; the identified legal needs of the client community; the program's priorities; the nature of the legal services offered by the program; any limitations or requirements imposed by statutes, regulations, contracts or ethical obligations; and national and local funding sources for all providers of legal services in the community.⁵⁴ Based upon their experience and expertise, current board members, program staff, staff of other local providers of legal services and clients may be particular good trainers on these topics, as well as other topics to be covered in ongoing training.

In addition to orientation, the program should provide ongoing training to members of the governing body, as needed. Areas that may be of special interest are: budgeting and accounting oversight; developments in legal services and pro bono delivery; developments in substantive legal issues that affect the program; and other matters that relate to effective governing body operation. Due to the many demands for board members' time, the program may want to consider including trainings as part of the agenda of regular meetings or board retreats.⁵⁵

 PROGRAM EFFECTIVENESS

 Standard 2.1 (Program Effectiveness - Identification of Clients' Needs)

A pro bono program should establish a means of identifying the legal needs of persons of limited means who reside within its service area.

COMMENTARY

The identification of the legal problems faced by potential clients is critical to the process of establishing program priorities, for unless legal needs are identified, a program will have no basis upon which to determine the types of legal problems it should address.⁵⁶ In addition to those legal needs that may be easily identified as unmet, programs should explore emerging or traditionally unrecognized legal needs of the low income population. By examining a variety of problems experienced by the client community, programs can better develop creative solutions to improving their clients' lives. For example, it is unlikely many clients would identify the lack of affordable housing as a legal problem. However, many lawyers involved in housing development have the skills necessary to positively impact on this specific client need. By comprehensively identifying actual, emerging and traditionally unrecognized legal needs, a program enhances its ability to make rational decisions regarding its operations and facilitates planning for its future.

There are several methods that may be used for determining the legal needs of the client community: a program may engage in its own needs assessment; it may rely on a needs assessment conducted by others in the community, such as a local legal services program; or it may choose to combine a careful review of any legal needs assessments conducted in the community previously with its own study. The method chosen may depend upon many factors including the resources of the program, the structure of the program (free-standing or part of a bar association or local legal services program), whether a legal needs assessment has been conducted previously in the community and the age of any pre-existing study.

It is important to note that the breadth of a legal needs assessment may vary as a result of the program's mission: a program that is established to address a particular issue (e.g. community economic development) or the legal needs of a particular population (e.g. battered spouses, the homeless, immigrants, prisoners) may find it unnecessary to engage in as extensive a legal needs analysis as a program that addresses a wide range of issues or serves the general population. Nevertheless, it is important that specialty programs take steps to determine the most significant needs of its targeted population or the most critical issues to be addressed within its area of focus.

For those programs that conduct an independent legal needs study, meaningful communication with a variety of groups and organizations is critical. One of the most important groups to communicate with is clients. This communication ideally should take place with individuals who qualify for services and with the leaders of client based community organizations. Discussions with leaders of community groups can provide much insight into the critical issues facing the client community which will better enable the program to identify emerging and traditionally unrecognized legal needs. While it is recognized that direct communication with actual and potential clients may be difficult to achieve, there are ways to facilitate it. One method is to survey potential clients to elicit relevant information from them on their legal needs. In addition, for those programs that conduct their own client intake, that process will furnish a good source of information on clients' legal needs.

Meaningful communication with other providers of legal services in the service area is essential in determining the legal needs of clients.⁵⁷ These other providers interview clients regularly, turning away many who have legal needs that cannot be met due to limited resources. Such programs, therefore, are acutely aware of many areas in which unmet legal need exist for clients. In addition, due to their regular presence before various tribunals, the lawyers and paralegals employed by the staff model legal services program can provide much information regarding the types of matters in which clients are appearing most often without representation.

Other organizations that serve the client community are another important source of information regarding clients' legal needs. Interviews with the staff of organizations such as battered women shelters, immigrant aid societies and child welfare advocacy groups can provide valuable insight into the unmet legal needs of clients, due to the regular interaction that these organizations have with persons of limited means and their knowledge of the problems faced by the special populations that they serve.⁵⁸ In addition, the views of local court personnel, including judges and clerks should be sought because they have first hand knowledge of the types of cases in which low income people appear most often in court without the assistance of counsel. Legislators and representatives of local governmental entities can also be helpful in assessing the legal needs of clients because persons of limited means often contact these individuals for assistance with their legal problems. The private bar, too, can provide valuable information regarding unmet legal needs. Their input may be especially helpful in those localities, such as rural communities, in which few legal services or social services programs currently exist.

The identification of critical client need can often be improved by coordinating the collection of information and communicating results among the providers of legal services within an entire region or state. This collaborative effort will assist each program to better identify current, emerging and traditionally unrecognized legal needs of the client community.⁵⁹

Standard 2.2 (Program Effectiveness - Program Priorities)

A pro bono program should establish priorities for the allocation of its resources based upon identified client need while taking into account the areas of interest and expertise of volunteers, any volunteer need for specialized training and support, and the priorities of other providers of legal services in its service area.

COMMENTARY

Typically, a pro bono program cannot provide legal assistance to every person of limited means who desires assistance because most often, program resources are outweighed by the demand for legal services. This is true for all types of programs: those established to assist all persons of limited means within a service area; those programs established to serve specialty populations (e.g. battered spouses, the homeless); those programs established to address a wide range of issues; those programs established to address a particular issue (e.g. community economic development, immigration); those programs established to provide full case representation; and those programs established to provide advice only. To allocate a program's limited resources, the governing body should engage in comprehensive planning to establish priorities that reflect the legal problems that are most significant to the clients that will be served by the program.⁶⁰

While the critical legal needs of clients must be the driving force in establishing priorities, a program should be sensitive to the fact that its service to clients depends in large part upon volunteers' willingness to accept cases. There may be some identified areas of critical client need, such as family law or bankruptcy, in which many volunteer lawyers possess the knowledge and skills to represent or otherwise assist clients effectively. There may be others, such as medicaid, food stamps and other public benefits, that involve complex statutory schemes with which one must be knowledgeable to provide effective assistance or representation. In many communities, staff of other providers of legal services possess special expertise in these areas of the law. While some private practitioners regularly handle such matters, many others have no familiarity with these areas of law and therefore, must be offered training opportunities before handling such cases if these matters are included within program priorities.

Among the most important factors that a program must consider in deciding which areas of critical client need should be included in its priorities are: the level of need that exists for service in each area; the private bar's level of expertise in such areas; the existence of other, specialized resources to meet the need for some of these services; the resources available for training volunteers to handle such cases and the willingness of volunteers to be trained in these matters. Thus, in reaching its decision, it is important that a program not limit its vision as to the types of matters pro bono lawyers can address, while at the same time avoiding duplication of services and realistically assessing its volunteer resources.

When setting its priorities, the program should work cooperatively with other local providers of legal services.⁶¹ Due to their experience, those providers have valuable insights into clients' legal problems and can provide a wealth of information that can be useful to the program in determining how to allocate it resources. As a starting point, the program should review the other providers' priorities to determine the types of legal problems that are being addressed currently in the service area. Such a review may reveal, for example, that certain areas of identified client need in which private attorneys often have expertise, such as consumer law, family law or community economic development, are not included as areas of high priority by the other providers. In addition, the program should engage in dialogues with those providers to learn about the inter-relationship between their established priorities and actual client request for services. For example, the program should inquire about the priority areas in which the providers must turn away clients, the priority areas in which they have the fewest cases and the non-priority areas in which they receive the most requests for service. By obtaining all of this important information, the program will be in a better position to decide in which areas of client need it should focus its resources.

For pro bono programs that are a component of a staff model legal services program, often one set of priorities are adopted for both the pro bono and direct delivery components of the program. In such situations, often the staff of the direct delivery component is responsible for interviewing clients, screening cases for merit and deciding which cases it will keep and which it will refer to the pro bono program for placement with volunteers. In these situations, the need for cooperation between the two components of the program is critical. The staff of the pro bono program should keep the direct delivery component's staff updated on its ability to place various types of cases. The staff of the direct delivery program should only place those cases that fall within priorities and are meritorious; the pro bono program should not be viewed as a place to "dump" cases that staff members of the direct delivery component are unwilling to accept.⁶²

Although a program should focus on the critical legal needs of clients in establishing its priorities, there may be other legal needs that the program decides to address as well. For example, there may be times when private attorneys express a willingness to handle matters in areas that are not of critical need, but in which client need exists, nevertheless. If the program can meet these needs by identifying pro bono attorneys who will assist clients while not expending large amounts of its resources, it should endeavor to do so. However, if large amounts of staff time in the form of recruitment, training, case screening and oversight would be required to meet low priority needs of clients, the program should reconsider including those matters within its priorities.

Once priorities have been established, the program should periodically review them to ascertain that they continue to reflect the significant legal needs of clients and take into account both the areas of expertise and interest of volunteers and the priorities of other local providers of legal services.⁶³

Standard 2.3 (Program Effectiveness - Delivery Design)

A pro bono program should establish a design for the delivery of legal services which is tailored to local circumstances and which effectively and efficiently meets identified client need.

COMMENTARY

A program should establish a delivery design that enables it to operate at the most effective and efficient level possible so that limited resources are utilized effectively to meet clients' legal needs. It is critical that the program work cooperatively with any other providers of legal services when formulating its delivery design. This cooperation is necessary to create a unified delivery design both in the immediate service area and statewide, through which the efforts of the various providers are coordinated to complement each other, thereby maximizing service to clients.⁶⁴ It is important too, for the program to seek input on the delivery design decision from clients, community groups, social service agencies, the private bar and court personnel. Each of these sources can provide valuable insights into the best manner in which to provide service, based upon both their interaction with members of the client community and their observations regarding clients' service needs.⁶⁵

In establishing its delivery design, the program must first address the fundamental issues of what types of services it will ask program volunteers to deliver, the manner in which services will be delivered and the role the program will play in aiding with that delivery. There are a wide range of types of services a program may deliver through its volunteers including: engaging in individual client representation; engaging in class action or major litigation representation; engaging in legislative or administrative advocacy; providing advice only on legal matters; teaching pro se litigants how to proceed with their cases; working with community groups; and focusing on specific issues such as community economic development. Ideally, a program should try to offer as many types of services to clients as is practicable. By doing so, it is likely that more of the varied needs of clients will be met. In addition, by providing volunteers with a variety of opportunities, it is more likely that a program will be successful in its volunteer recruitment and retention efforts.⁶⁶

It is recognized, however, that many programs will not be able to deliver a wide range of services to clients due to limited resources or restrictions imposed by funding sources. If choices must be made due to limited resources, they will depend upon many factors including: the needs of clients; the type and extent of services rendered by other local providers; the ability and willingness of volunteers to deliver each type of service; and the resources available to provide the necessary support and training to volunteers for each possible type of service being considered.⁶⁷ Meeting client need, however, should always be of paramount concern in making delivery design decisions. For example, if a program decides to establish an advice only clinic or hotline, there should be another provider in the service area to which clients who are in need of representation or other, more extensive services can be referred. Likewise, if a program establishes a pro se clinic, it should engage in follow-up to determine if those attending the clinic have been able to proceed on their own and obtain the result they were seeking.⁶⁸

There are a variety of models that a program can consider when determining in what manner services will be delivered and the role the program will play in aiding with that delivery. For example, a program may utilize staff or volunteers to conduct intake interviews, place individual cases with individual volunteers and engage in case tracking and regular follow-up. Alternatively, a program may establish a full service clinic at which volunteer attorneys conduct intake interviews, advise those clients whose matters can be disposed of by advice only, or if that is not possible, agree to represent the client with full service, with or without program follow-up and support. A program may also decide to interview clients, accept cases and then place a number of cases at one time with an entity such as a law firm or corporate law department which will have the responsibility to refer those cases to individual employees and utilize its quality assurance system (if it exists and is appropriate for pro bono cases) to provide any necessary case tracking and oversight.⁶⁹ In deciding how to deliver services and its role in that process, a program should do its best to leverage all available resources to meet client need while making certain that appropriate quality assurance mechanisms are in place.

A program's decisions regarding the type, manner and extent of services its volunteers will deliver and the role the program will play in aiding with that delivery will impact upon many other delivery design decisions it must make including: the type of volunteers to recruit to deliver the service; the extent of training, support and follow-up that must be offered to those delivering service; the staffing pattern of program personnel; and the type and extent of supervision that program staff should receive. For example, a program that relies upon volunteer attorneys to conduct full service clinics will not need to address the issue of legal supervision of non-lawyer staff, whereas a program that relies upon non-lawyer staff to conduct intake interviews must address it. Similarly, if a program decides to refer cases to a private institution such as a law firm or a corporate law department, it may not need to provide for specific case tracking and oversight, if the entity has an existing quality assurance mechanism that can be utilized for pro bono cases. It is important, therefore, that in planning its delivery design, the program recognize both the interrelationship of the various aspects of the delivery design and the impact that each delivery design decision has upon the other.

Once the delivery design has been determined, it should be communicated to the client community, other providers of legal services, social service providers, bar associations, the judiciary and volunteers. The information may be disseminated through meetings, distribution of a brochure, press releases or by taking advantage of public service announcement spots on local radio or television. In addition, when a significant number of persons in the client community speak and understand only a particular language other than English, the program should translate any materials produced or announcements made into that language.

Standard 2.4 (Program Effectiveness - Quality Assurance)

A pro bono program should strive to assure that all clients served through the program receive high quality legal services.

COMMENTARY

The provision of high quality legal services to clients by program volunteers is a goal that all programs should aspire to achieve. While it is recognized that often a program ultimately does not have control over the quality of work produced by a volunteer, there are many steps it can take to foster the provision of high quality assistance and representation by program volunteers.⁷⁰

As an initial matter, the program staff should determine that all attorney volunteers are licensed to practice law.⁷¹ The areas of expertise and interest of a volunteer should also be identified and when possible, matters in those areas should be made available to the volunteer for advice or representation. A determination should also be made regarding those areas in which a volunteer needs training prior to handling a matter or staffing a clinic, and such training should be provided.⁷²

For those programs that refer matters to volunteers, the manner in which they are referred can impact upon the quality of service provided by the volunteer. The program will greatly assist the volunteer who aims to provide high quality services to clients by including a clear case summary, copies of relevant documents and any form pleadings or other resource materials available when referring a matter.⁷³ If a program utilizes volunteers to staff full service clinics or places cases at one time through a central coordinator, the program should ensure that sufficient support is in place to enable the volunteers to handle the matters effectively.

After a matter is referred, the program should establish or utilize some means of tracking the progress being made by the volunteer. Through case tracking, the program or its designee is more likely to become aware of problems that exist in a referred matter.⁷⁴ If a problem does surface, steps should be taken to help remedy it. For example, if the problem involves confusion regarding matters of procedural or substantive law, the volunteer can be provided with research assistance or mentoring.⁷⁵

The type and amount of case tracking that is necessary will vary with the complexity of the case and the program's experience with the volunteer. In addition, if the volunteer works in a law firm or corporate counsel's office, the program should determine whether that entity has quality assurance mechanisms in place that can be utilized for pro bono cases and personnel with substantive expertise in the matters being handled who can evaluate the quality of the service being furnished and provide assistance, when needed. If such personnel and mechanisms exist, the program may decide to rely upon them, using only a summary follow-up of its own to keep track of when the matter is opened, closed and the results achieved.⁷⁶

The provision of on-going training and support is an important means of aiding volunteers in providing high quality services to clients. The types and methods of training will vary depending upon local needs, resources and conditions, but all programs should either conduct training events or make them available to program volunteers, as needed. Likewise, volunteer support can take many forms, from providing substantive research and mentoring to locating free secretarial assistance, and will vary depending upon local needs, resources and conditions. Regardless of its form, however, a program should make some support and back-up available to assist volunteers in providing high quality services to clients.⁷⁷

Program staff or volunteers who are knowledgeable in the substantive law should carefully review all case closing forms prepared by volunteers and any evaluation forms completed by clients because these documents can be important sources of information regarding the quality of service received.⁷⁸ If specific problems are identified by clients, or if staff or their designees spot troubling information in their review of the closing forms, it is incumbent upon them to raise these matters with the volunteers, so as to remedy any problem that may exist in a current case and to avoid repetition of the problem in future cases.

Standard 2.5 (Program Effectiveness - Results of Services Provided)

A pro bono program should strive to achieve lasting results responsive to clients' needs and objectives by utilizing volunteers to resolve or assist in resolving clients' individual legal problems, to improve laws and practices affecting clients, and to increase client self-sufficiency.

COMMENTARY

A program's effectiveness in achieving the objectives of clients can be measured in part by the tangible lasting results obtained through the services provided by its volunteers. Lasting results for clients can be achieved by volunteers utilizing their legal skills to resolve or assist in resolving individual legal problems, to improve laws and practices that affect clients and to increase client self-reliance.⁷⁹ Examples of specific methods of service delivery that a program may utilize in achieving these lasting results include calling upon volunteers to represent clients before tribunals, legislatures or administrative agencies, to provide counsel and advice, to conduct community education seminars, to provide pro se instructions or to refer to other providers, when appropriate.

Pro bono programs aid individual clients in resolving their legal problems by providing those individuals with volunteers to assist them. The types of matters that volunteers address will depend upon the priorities established by the program.⁸⁰ Regardless of the subject matters involved, the program staff should stress to all volunteers the importance of clearly identifying the objectives sought by the client. If it is determined that clients' objectives are ones requiring services that are beyond the scope of those provided by the program (e.g. advice clinic or advice hotline and client needs more extensive services), the program should, whenever possible, provide such clients with appropriate referrals to other providers that are organized to furnish the type of services needed.

To determine if client objectives have been achieved, the program should obtain feedback from the client (through client satisfaction questionnaires) and from the volunteer, when appropriate (through case closing forms or other communication appropriate to the model of service delivery utilized).⁸¹ If a program discovers that client objectives are largely not being met, it will need to re-evaluate its method of service delivery and the quality of the services being delivered by its volunteers, among other factors, to determine ways in which it can more effectively serve clients.

There are times when the resolution of a legal problem presented by an individual client may require: litigation that raises either statutory or constitutional issues; administrative representation that seeks a change in agency rules, regulations and practices of general applicability; or legislative representation that seeks statutory change.⁸² Likewise, there are times when a community group or social service agency may identify a problem in the client community such as the availability of affordable housing that would require complex litigation, transactional legal work or legislative or administrative lobbying to solve. Not all programs are organized or permitted by funding sources to place these types of cases with volunteers; if a program is unable to assist clients with these problems, it should try to refer them to other sources for representation.

It should be noted, however, that many pro bono programs do place matters that are aimed at broad challenges to legal problems confronting clients and the client community or that focus on specific issues such as community economic development to meet clients' objectives. Some programs are organized specifically for such purposes.⁸³ Other programs, in an attempt both to meet client needs and objectives and to offer a variety of challenging opportunities to volunteers, are increasingly including these types of cases within their delivery design.⁸⁴

In addition to addressing clients' legal problems, a program can play a role in assisting clients achieve the important lasting result of increased self-sufficiency. This is the case because the decisions a program makes regarding the types of services it will ask its volunteers to deliver to clients can impact upon the development of increased client self-reliance. For example, by focusing on the issue of community economic development, by providing community legal education, by providing pro se instructions to clients so that they can represent themselves or by advising clients so that they can resolve their problems themselves, the program may assist clients in becoming more self-sufficient. In addition, by providing training sessions and engaging in discussions with volunteers, the program can stress to its volunteers the importance of client self-sufficiency and the role that they can play through the use of their legal skills in helping clients achieve it.

Standard 2.6 (Program Effectiveness - Fiscal Management)

A pro bono program should establish and maintain systems and procedures to account for revenues, expenditures and program services in conformity with appropriate accounting principles for non-profit organizations.

Good financial management is an essential element of an effectiv