What Counts? A Compilation of Queries and Answers. Prepared by the Law Firm Pro Bono Project Pro Bono Institute - PDF

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What Counts? A Compilation of Queries and Answers Prepared by the Law Firm Pro Bono Project 2008 Pro Bono Institute What Counts Index Administration of a Firm s Pro Bono Program (9) Administration of Justice
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What Counts? A Compilation of Queries and Answers Prepared by the Law Firm Pro Bono Project 2008 Pro Bono Institute What Counts Index Administration of a Firm s Pro Bono Program (9) Administration of Justice (12-13) Attorneys Fees in Pro Bono Matters (15) Bar Association Service (13) Board Service (10-11) Charter School Creation (9) Child Representation (10) Civil Rights/Discrimination Litigation (18) Community Service (6-7) Adopt-a-School Programs (6) Habitat for Humanity (6) Homeless Shelters (6) Street Law Programs (7) Contingency Fee Cases (12) Corporate Client s Employees (18) Counsel for Committee Assessing Judicial Candidates (13) Developing Nations (19) Drafting Legislation (14) Election Day Activities (14) Externships (5) Fellowships Sponsored by the Firm (4-5) International Offices (4) Law-Related Boards (10-11) Law School Clinics (8) Legal Observer (14) Legal Research (7) General Legal Research Projects (7) i Legal Research for Courts (7-8) Legal Research for Organizations (8) Legal Seminars (10) Lobbying (15) Low-Income Relatives (17) Meetings with an Organizational Client (11) Non-Legal Staff/Consultants (4) Non-Litigation Activities (7) Nonprofit Organizations (16) Nonprofit Organizations Funded by For-Profit Entities (16) Offices Outside of the United States (4) Paralegals (4) Pro Bono Committee (3) Pro Bono Coordinators (3) Reduced Rate Cases (11) Religious Institutions (19) Rotation Programs (5, 17) Rules Committee of a Court (12) Start-up Companies and Small Businesses (18-19) Student Law Clerks (3) Summer Associates (3, 5) Training (9) Traveling (9) ii What Counts? An Updated Compilation of Questions and Answers Interpreting the Law Firm Pro Bono Challenge SM Statement of Principles Introduction The following supplement to the original What Counts publication has been compiled to provide an easy-to-use guide of frequently asked questions and explanations of what counts as pro bono legal services under the Pro Bono Institute s Law Firm Pro Bono Challenge SM definition. (The Challenge Statement of Principles and Challenge Commentary are reproduced at the end of this compilation.) The information is arranged in three general sections: (I): who addressing questions concerning who is performing the pro bono services; (II): what addressing questions concerning the types of activities and work (i.e., what services are being performed); and (III): for whom addressing the eligibility of various types of potential clients (i.e., for whom the work is being done). Although many questions fall into more than one category, for ease of reference, they have been included only once. The Law Firm Pro Bono Project s main goal in responding to law firms seeking guidance about what counts under the Challenge has been to define pro bono legal services in a principled, clear, and consistent fashion. The Project s effort, which includes careful analysis and measured responses to hundreds of confidential what counts inquiries each year has been described as informal rulemaking interpretation of the inevitable grey areas of the definition in a manner that strives to be as fair and uniform as possible. Although we believe that this publication will be of general assistance to law firms, in making screening and eligibility determinations, and to the legal community at large, we add a note of caution. The Law Firm Pro Bono Challenge SM is not about bean counting; it is a tool to enable 1 1 major law firms to increase their contribution to pro bono legal services and enhance access to justice. As law firms have become more knowledgeable regarding the Challenge definition, the issues regarding any individual potential pro bono engagement have become exceedingly subtle and fact-based. While we believe that this supplemental edition of What Counts will be helpful, it is no substitute for the individual counseling and consultations the Project provides. Moreover, Challenge Signatory law firms may elect to internally use a pro bono definition that is broader than the Challenge definition, so long as the hours they report to the Project reflect only Challenge-qualifying pro bono work. Should you have any questions about these issues or wish to receive confidential technical assistance for your firm, please do not hesitate to contact the Law Firm Pro Bono Project. (Contact information may be found below; what counts questions should be submitted in writing to the Project.) Project staff members are also available to work with individual firms to assist in the creation of screening policies and procedures that are most appropriate for their specific needs. Contact us at: Law Firm Pro Bono Project (202) (202) (fax) 2 Who is Performing the Legal Work? This Section addresses questions concerning the various categories of individuals associated with law firms performing pro bono legal services and whether those hours may count towards a firm s Law Firm Pro Bono Challenge SM goal. Question: In determining a firm's total number of hours spent on pro bono for purposes of the Challenge, should hours spent by pro bono coordinators and other pro bono leadership be included? Answer: The determination of whether the activities of the individuals who direct or administer the firm s pro bono program (i.e., pro bono coordinators, pro bono counsel, pro bono partners, pro bono committee members) constitute pro bono hours for purposes of the Challenge is governed by the definition of pro bono in Principle 7. While that definition encompasses a wide range of legal services, it does not include non-legal services and activities. Accordingly, time spent by the firm s pro bono staff (or pro bono committee members who play a leading role in the administration of the program) in closely supervising pro bono matters handled by other firm attorneys, directly representing pro bono clients, conducting legal research on proposed and active pro bono projects, or providing legal services as a member of a task force or commission addressing an issue of importance to the community may be counted as pro bono time for purposes of the Challenge. Time spent in recruiting firm volunteers, placing cases, revising the firm s pro bono policies and procedures, preparing the firm s pro bono newsletter or report, responding to surveys, or revamping the firm s time-keeping system to properly account for pro bono service -- as essential as these activities are to ensuring an effective pro bono program -- does not count as pro bono time for purposes of the Challenge. Question: In determining a firm's total number of hours spent on pro bono for purposes of the Challenge, should hours billed by summer associates and student law clerks employed by the firm be included? Answer: Time spent by summer associates and law clerks performing legal work may be considered in aggregating hours to meet the firm s 5% or 3% Challenge goal. Cognizable time may include direct pro bono representation by a summer associate or law clerk, under the supervision of a firm attorney, pursuant to a student practice rule; assistance provided by summer associates or law clerks to firm attorneys in pro bono matters; and time spent by summer associates at legal services, public interest and other organizations as part of a firm program in which summer associates spend a portion of their summer detailed to such a program. If the pro bono time of summer associates and/or law clerks is included in the firm s 3% or 5% goal, the summer associate/law clerk hours billed to paying clients must be included in aggregating the firm s total billable hours. 3 Question: In determining a firm's total number of billable hours and hours spent on pro bono for purposes of the Challenge, should hours billed by firm attorneys who are resident at offices outside of the United States be included? Answer: Because local practice rules and local conditions often make it less feasible for attorneys in these offices to undertake pro bono work as defined in the Challenge, firms may choose to include or exclude time billed by attorneys in firm international offices. If the pro bono time of non-u.s. attorneys is included in the firm s 3% or 5% goal, the hours billed to paying clients by non-u.s. attorneys must be included in aggregating the firm s total billable hours. Question: In determining a firm's total number of hours spent on pro bono for purposes of the Challenge, should hours billed by non-legal staff and non-legal consultants employed by the firm (actuaries, economists, lobbyists, librarians, science experts, nurses, etc.) be included? Answer: The firm should not include non-legal consultant time for purposes of the Challenge unless their time is billed similar to how paralegals bill their time. Question: In determining a firm's total number of hours spent on pro bono for purposes of the Challenge, should hours billed by firm paralegals be included? Answer: To qualify for purposes of the Challenge, the paralegal work must be substantive in nature, resulting in the delivery of legal services to qualifying groups and/or individuals. Paralegal hours may only be included in the firm s aggregation of pro bono hours to meet the 5% or 3% Challenge goal so long as hours spent by paralegals on behalf of paying clients are included in the firm s total billable hours. In other words, for Challenge purposes, the firm cannot include the paralegals pro bono hours in its overall total if it does not include paralegal hours in its total billable hours to paying clients. Question: In determining a firm s total number of hours spent on pro bono for purposes of the Challenge, should hours spent by fellows sponsored by the firm, such as an Equal Justice Works fellowship that allows a recent law school graduate to spend two years working with a public interest organization, be included? Answer: Although sponsoring fellowships, such as Equal Justice Works fellowships, contributes significantly to public interest groups in the community, the time an Equal Justice Works fellow spends working on pro bono matters does not count towards the firm s total pro bono Challenge hours. Unlike associates, law clerks, and summer associates, an Equal Justice Works fellow does not actually work for the firm. Because associates, law clerks and summer associates work directly for the firm, their hours are considered billable hours when it comes to both paying and nonpaying clients. On the other hand, even though the firm sponsors the fellowship, the fellow is employed by the public interest organization. Therefore, the hours that fellows, such as an Equal 4 Justice Works fellow, devote to pro bono matters would be unassociated with the law firm s overall Challenge hours. There are, however, instances where a firm would include the time spent on a fellowship. Situations where time should be included are where the firm sponsors an associate in a three, four, or six month fellowship at a local legal services/public interest organization. Fellowships of this type (called rotation or externship programs in different parts of the country) would count for purposes of the Challenge because the associate is and remains an employee of the firm but is detailed to the public interest or legal services program for the duration. Question: In determining a firm s total number of hours spent on pro bono for purposes of the Challenge, should hours spent away from the firm on public interest externship or rotation programs be included? Under these programs, firm associates, summer associates, or law students who will become associates after graduation, are paid by the firm but work at a qualifying legal services organization or governmental entity for a certain number of weeks or hours per week. Answer: Time spent at externships or rotations should be counted as pro bono time and in total billable hours for purposes of the Challenge. Since associates, law clerks, and summer associates work directly for the firm (or will work for the firm upon graduation from law school), their hours are considered billable hours when it comes to both paying and non-paying clients. 5 What is the Work Being Performed? This Section addresses questions related to whether the proposed activity qualifies as pro bono service under the Law Firm Pro Bono Challenge. SM (Questions related to the eligibility of the recipient of the services are addressed in the next Section.) The threshold determination in deciding whether particular hours count towards the Challenge is whether the activity involves the provision of legal assistance, as opposed to some other type of volunteer effort. This threshold test can be applied to a range of activities which benefit the community but may not be cognizable as pro bono time for purposes of the Challenge. Question: Does time spent performing community service or time spent participating in activities that combine legal services with community service activities count as pro bono hours for purposes of the Challenge? Answer: The Challenge definition of pro bono includes a broad range of legal services, but does not encompass non-legal community service or other volunteer activities (see Principle 7), since one of its goals is to narrow the gap between the need for legal services and the limited legal resources available to meet those needs. The threshold determination in deciding if such hours count towards the Challenge is whether the firm is providing legal assistance in conjunction with its community service activities. Time spent in providing legal advice and assistance in this context would be considered pro bono for purposes of the Challenge. Specific Examples: Habitat for Humanity: Time spent on closings and other real-estate-related work for low-income families assisted by Habitat for Humanity and similar qualifying organizations, as well as time spent providing corporate, real estate, and other legal representation and advice to the qualifying organization itself, comports with the Challenge definition. However, time spent by firm lawyers and other staff actually building and renovating homes, while laudable, is not pro bono within the scope of the Challenge. Adopt-a-School Programs: Time spent on an adopt-a-school project unrelated to legal work, such as mentoring and reading to students, would not be considered pro bono. However, some programs include use of the school as a site for legal clinics for students and their families. Time spent providing legal advice and assistance in this context would be considered pro bono service for purposes of the Challenge, and this is an excellent way to combine community service with legal service. Homeless Shelters: Time spent advising residents of a homeless shelter about their eligibility for government benefits falls within the Challenge definition of pro bono; time spent preparing or distributing food to those residents does not. 6 Street Law Programs: Time spent on Street Law programs (which are designed to mentor youth and teach practical law in high school, juvenile justice, prison, and community settings but do not typically include the provision of legal services) does not generally qualify as Challenge pro bono hours. However, if a firm were to establish a weekend clinic in order to provide legal advice or assistance to Street Law students and their families, any time spent in such a clinic would count as pro bono hours under the Challenge. Likewise if sessions were designed to be similar to brief advice clinics about particular practical legal topics, such time could be considered pro bono for purposes of the Challenge. As with all community service work, the firm must determine if the lawyers actually provide any legal assistance in conjunction with the community service. Question: Does time spent on non-litigation activities count as pro bono hours for purposes of the Challenge? Answer: The Challenge focuses on direct representation in the broadest sense, but is not limited to litigation activities. Other types of representation, such as legislative or administrative policy advocacy on behalf of a qualifying client or client group, working with a community organization on an affordable housing project, providing tax advice and other corporate assistance to a nonprofit organization, are just some of the representational activities contemplated by the Challenge. Question: Does time spent on a legal research project, such as researching international human rights and preparing a report on violations of those rights, count as pro bono hours for purposes of the Challenge? Answer: Legal research and analysis on behalf of a qualifying client group constitutes pro bono work within the scope of the Challenge. Such research on behalf of an eligible client or client group is consistent with the Challenge s focus on representation and providing legal services. Authoring an analysis of the legal and factual issues relating to an environmental hazard, preparing a report on the level of compliance by a municipality with consent decrees that impact the welfare of its residents, or conducting research on an alleged violation of human rights are all activities that fall within the Challenge. Moreover, if the client is a poor person or an organization designed primarily to address the needs of persons of limited means, these activities also can be counted toward the Challenge principle which provides that a majority of pro bono time should be focused on delivery of legal services to those of limited means. Question: Does time spent conducting research on behalf of a court count as pro bono hours for purposes of the Challenge? Answer: Conducting legal research would be considered a legal service. The definition of pro bono in Principle 7 consists in part of the the delivery of legal services to persons of limited means or to charitable, religious, civic, community, governmental and educational organizations in 7 matters in furtherance of their organizational purposes, where the payment of standard legal fees would significantly deplete the organization s economic resources or would be otherwise inappropriate (emphasis added). Courts regularly experience severe budgetary constraints and generally qualify for pro bono services. Question: Does time spent doing research, conducting interviews, and issuing recommendations about the criminal justice system for a local organization count as pro bono hours for purposes of the Challenge? Answer: Legal research and analysis on behalf of a qualifying client group constitutes pro bono work within the scope of the Challenge. Such research on behalf of an eligible client or client group is consistent with the Challenge focus on representation. If the client is a poor person or an organization designed primarily to address the needs of low-income persons, the legal research conducted on their behalf would meet the requirements for Principle 3, which provides that a majority of pro bono time should be focused on delivery of legal services to those of limited means. Other examples of legal work that fit the Challenge definition include authoring an analysis of the legal and factual issues relating to an environmental hazard, preparing a report on the level of compliance by a municipality with consent decrees that impact the welfare of its residents, or conducting research on an alleged violation of human rights. Question: Does time spent working with a low-income tax clinic at a law school count as pro bono hours for purposes of the Challenge? Answer: Time spent providing legal advice and assistance in the context of such a clinic would be considered pro bono for purposes of the Challenge. In determining what counts as pro bono, the bright line defined by the Challenge is the provision of legal services. A pro bono matter is not disqualified under the Challenge simply because it is not litigation-oriented work. Furthermore, providing legal services for a low-income tax clinic not only meets the definiti
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