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Limited pro bono work gets easier with new conflict of interest rule

In recent years, volunteers and staff for the Public Law Center in Santa Ana have paid once-a-week visits to two National Guard armories open to homeless people during the winter months. After setting up folding tables and chairs in the gymnasium-like space, they walk among the beds where some 200 people sleep nightly asking if anyone needs to talk to a lawyer.

Although some large firm practitioners have wanted to participate in the winter clinics, they have been unable to do so because of conflict of interest rules that made it virtually impossible to offer legal assistance at drop-in centers.

That barrier was eliminated in California last month with Supreme Court approval of Rule of Professional Conduct 1-650. Patterned on American Bar Association Model Rule 6.5, the new rule limits a lawyer’s exposure to conflicts of interest only to representations where the lawyer knows that a real or imputed conflict exists. The rule also limits conflicts imputed to a lawyer’s firm as a result of the attorney’s participation in a limited legal services program.

The new rule, said Toby J. Rothschild, general counsel of the Legal Aid Foundation of Los Angeles, “will provide private attorneys with the clarity and confidence needed to participate in legal aid clinics and will, as a result, provide pro bono attorneys with a crucial opportunity to assist the needy. The ability to participate in clinics is particularly important to those attorneys unable to take on more extended representation of the poor and disadvantaged.”

Although many large law firms now have a pro bono coordinator or partner and take on many cases, they often turned down the smaller jobs because it is not practical to systematically screen for conflicts of interest, as is generally required before undertaking a representation. As a result, helping someone complete a legal form or manning legal advice hotlines — key services provided by legal aid programs — could not be undertaken without risk of violating Rule of Professional Conduct 3-310 (avoiding representation of adverse interests).

The change “achieves the proper balance between client protection and meeting the needs of the disadvantaged,” Rothschild said.

Backers of the change hope the new rule will increase the availability of short-term limited legal services, particularly during the current economic downturn. Legal services programs report an increased need for lawyer volunteers to help people out of work, bankruptcy debtors, crime victims, particularly victims of increased domestic violence, and the thousands of California residents facing foreclosure or who need help with mortgage loan modification.

The eight months between inception and adoption of the rule “was probably a speed record,” said incoming bar President Howard Miller, who said the change was part of a process in which the bar is trying to break down some barriers by examining its internal rules. “We’re trying to create opportunities for lawyers who want to help but think they’ve been barred” from doing so, he said.

With layoffs and deferred starts for new associates at law firms, plenty of lawyers also have time on their hands. “What’s going to be interesting to see is the combination of this new rule with the new realities because of the impact of the recession on major law firms,” said Kenneth Babcock, executive director and general counsel of the Public Law Center.

Cristin Zeisler, director of pro bono activities at Manatt Phelps & Phillips LLP, said the firm’s lawyers “generally limit ourselves to certain topics and I was always onsite and could prescreen cases.” For example, the firm turned down assistance at a legal center that operates a cancer hotline because the likelihood of questions related to insurance issues was high and Manatt represents insurance companies. That scenario will not change with the new rule.

And Zeisler said Manatt’s pro bono activities are so extensive that the rule “may not make much of a difference.” But, she added, “it allows me more creativity in terms of the type of projects we can do.”

And for law firms just getting on the pro bono wagon, or for lawyers who want to get involved but not make a huge commitment, the rule makes a difference. “Clinics are a great starting point for firms to dip their toes in a project,” Zeisler said. “They serve as a springboard toward getting people involved. Clinics reawaken the need of lawyers to effect change … People remember why they went to law school.”

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