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TCL > February 2006 Issue > Court Business

The Colorado Lawyer
February 2006
Vol. 35, No. 2 [Page  113]

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From the Courts
Court Business

Court Business

COLORADO RULES OF CIVIL PROCEDURE

Appendix to Chapters 18 to 20
Colorado Rules of Professional Conduct
Rule 6.1. Voluntary Pro Bono Public Service

This Comment, Recommended Model Pro Bono Policy for
Colorado Licensed Attorneys and Law Firms
,

Is to be Added to the Existing Comment in Rule 6.1. Voluntary Pro Bono Public Service

The Recommended Additional Comment is Adopted by the Court
November 23, 2005, Effective Immediately.

Recommended Model Pro Bono Policy for Colorado Licensed Attorneys and Law Firms

Preface. Providing pro bono legal services to indigent persons and organizations serving indigent persons is a core value of Colorado licensed attorneys enunciated in Colorado Rule of Professional Conduct 6.1. Adoption of a law firm pro bono policy will commit the firm to this professional value and assure attorneys of the firm that their pro bono work is valued in their advancement within the firm.

The Colorado Supreme Court has adopted the following recommended Model Pro Bono Policy that can be modified to meet the needs of individual law firms. References are made to provisions that may not apply in a small firm setting. Adoption of such a policy is entirely voluntary.

At the least, a pro bono policy would:

(1.) Clearly set forth an aspirational goal for attorneys, as well as the number of hours for which billable credit will be awarded for firms that operate on a billable hour system (the attached model policy uses the figure of at least 50 hours per attorney per year, which mirrors the aspirational goal set out in Rule 6.1 of the Colorado Rules of Professional Conduct);

(2.) Demonstrate that pro bono service will be positively considered in evaluation and compensation decisions; and

(3.) Include a description of the processes that will be used to match attorneys with projects and monitor pro bono service, including tracking pro bono hours spent by lawyers and others in the firm.

The Colorado Supreme Court will recognize those firms that make a strong commitment to pro bono work by adopting a policy that includes:

(1.) An annual goal of performing 50 hours of pro bono legal service by each Colorado licensed attorney in the firm, pro-rated for part-time attorneys, primarily for indigent persons and/or organizations serving indigent persons consistent with the definition of pro bono services as set forth in the Colorado Supreme Court’s Model Pro Bono Policy, and

(2.) A statement that the firm will value at least 50 hours of such pro bono service per year by each Colorado licensed attorney in the firm, for all purposes of attorney evaluation, advancement, and compensation in the firm as the firm values compensated client representation.

The Colorado Supreme Court will also recognize on an annual basis those Colorado law firms that voluntarily advise the Court by February 15 that their attorneys, on average, during the previous calendar year, performed 50 hours of pro bono legal service, primarily for indigent persons or organizations serving indigent persons consistent with the definition of pro bono services as set forth in the Colorado Supreme Court’s Model Pro Bono Policy.

Recommended Model Pro Bono Policy for
Colorado Licensed Attorneys and Law Firms

Table of Contents

Page

I. Introduction

II. Firm Pro Bono Committee/Coordinator

III. Pro Bono Services Defined

IV. Firm Recognition of Pro Bono Service

A. Performance Review and Evaluation

B. Credit For Pro Bono Legal Work

V. Administration of Pro Bono Service

A. Approval of Pro Bono Matters

B. Opening a Pro Bono Matter

C. Pro Bono Engagement Letter

D. Staffing of Pro Bono Matters

E. Supervision of Pro Bono Matters

F. Professional Liability Insurance

G. Paralegal Pro Bono Opportunities

I. Attorneys Fees in Pro Bono Matters

J. Departing Attorneys

VI. CLE Credit for Pro Bono Work

A. Amount of CLE Credit

B. How to Obtain CLE Credit

References

A. Preamble to the Colorado Rules of Professional Conduct

B. Colorado Rule of Professional Conduct 6.1

C. Chief Justice Directive 98-01, Costs for Indigent Persons Civil Matters

D. Colorado Rule of Civil Procedure 260.8

E. Colorado Rule of Civil Procedure 260.8, Form 8

I. Introduction

The firm recognizes that the legal community has a unique responsibility to ensure that all citizens have access to a fair and just legal system. In recognizing this responsibility, the firm encourages each of its attorneys to actively participate in some form of pro bono legal representation.

This commitment mirrors the core principles enunciated in the Colorado Rules of Professional Conduct:

A lawyer should be mindful of deficiencies in the administration of justice and of the fact that the poor, and sometimes persons who are not poor, cannot afford adequate legal assistance, and therefore devote professional time and civic influence in their behalf. A lawyer should aid the legal profession in pursuing these objectives and should help the bar regulate itself in the public interest . . . A lawyer should strive to attain the highest level of skill, to improve the law and the legal profession and to exemplify the legal profession’s ideals of public service. (Preamble, Colorado Rules of Professional Conduct).

The firm understands there are various ways to provide pro bono legal services in our community. In selecting among the various pro bono opportunities, the firm encourages and expects that attorneys (both partners and associates or other designation) will devote a minimum of fifty (50) hours each year to pro bono legal services, or a proportional amount of pro bono hours by attorneys on alternative work schedules. In fulfilling this responsibility, firm attorneys should provide a substantial majority of the fifty (50) hours of pro bono legal services to (1) persons of limited means, or (2) charitable, religious, civic, community, governmental and educational organizations in matters which are designed primarily to address the needs of persons of limited means. (Colorado Rule of Professional Conduct 6.1). The firm strongly believes that this level of participation lets our attorneys make a meaningful contribution to our legal community, and provides important opportunities to further their professional development.

II. Firm Pro Bono Committee/Coordinator (see suggested change for small firms below)

The firm has established a Pro Bono Committee responsible for implementing and administering the firm’s pro bono policies and procedures. The Pro Bono Committee consists of a representative group of attorneys of the firm. In addition, the firm has designated a Pro Bono Coordinator. The Pro Bono Committee/Pro Bono Coordinator has the following principal responsibilities:

1. Encouraging and supporting pro bono legal endeavors;

2. Reviewing, accepting and/or rejecting pro bono legal projects;

3. Coordinating and monitoring pro bono legal projects, ensuring, among other things, that appropriate assistance, supervision and resources are available;

4. Providing periodic reports on the firm’s pro bono activities; and

5. Creating and maintaining a pro bono matter tracking system.

Attorneys are encouraged to seek out pro bono matters that are of interest to them.

**[Small firms may wish to designate only a Pro Bono Coordinator and can introduce the above paragraph as follows: "The firm has designated a Pro Bono Coordinator responsible for implementing and administering the firm’s pro bono policies and procedures" and then delete the next two sentences.]

III. Pro Bono Services Defined

The foremost objective of the firm pro bono policy is to provide legal services to indigent or near-indigent members of the community and the nonprofit organizations that assist them, in accordance with Rule 6.1 of the Colorado Rules of Professional Conduct. The firm recognizes there are a variety of ways in which the firm’s attorneys and paralegals can provide pro bono legal services in the community. The following, while not intended to be an exhaustive list, reflects the types of pro bono legal services the firm credits in adopting this policy:

A. Representation of Low Income Persons. Representation of individuals who cannot afford legal services in civil or criminal matters of importance to a client;

B. Civil Rights and Public Rights Law. Representation or advocacy on behalf of individuals or organizations seeking to vindicate rights with broad societal implications (class action suits or suits involving constitutional or civil rights) where it is inappropriate to charge legal fees; and

C. Representation of Charitable Organizations. Representation or counseling to charitable, religious, civic, governmental, educational, or similar organizations in matters where the payment of standard legal fees would significantly diminish the resources of the organization, with an emphasis on service to organizations designed primarily to meet the needs of persons of limited income or improve the administration of justice.

D. Community Economic Development. Representation of or counseling to micro-entrepreneurs and businesses for community economic development purposes, recognizing that business development plays a critical role in low income community development and provides a vehicle to help low income individuals to escape poverty;

E. Administration of Justice in the Court System. Judicial assignments, whether as pro bono counsel, or a neutral arbiter, or other such assignment, which attorneys receive from courts on a mandatory basis by virtue of their membership in a trial bar;

F. Law-related Education. Legal education activities designed to assist individuals who are low-income, at risk, or vulnerable to particular legal concerns or designed to prevent social or civil injustice.

G. Mentoring of Law Students and Lawyers on Pro Bono Matters. Colorado Supreme Court Rule 260.8 provides that an attorney who acts as a mentor may earn two (2) units of general credit per completed matter in which he/she mentors a law student. An attorney who acts as a mentor may earn one (1) unit of general credit per completed matter in which he/she mentors another lawyer. However, mentors shall not be members of the same firm or in association with the lawyer providing representation to the indigent client.

Because the following activities, while meritorious, do not involve direct provision of legal services to the poor, the firm will not count them toward fulfillment of any attorney’s, or the firm’s, goal to provide pro bono legal services to indigent persons or to nonprofits that serve such persons’ needs: participation in a non-legal capacity in a community or volunteer organization; services to non-profit organizations with sufficient funds to pay for legal services as part of their normal expenses; client development work; non-legal service on the board of directors of a community or volunteer organization; bar association activities; and non-billable legal work for family members, friends, or members or staff of the firm who are not eligible to be pro bono clients under the above criteria.

IV. Firm Recognition of Pro Bono Service (see suggested change for small firms below).

A. Performance Review and Evaluation. The firm recognizes that the commitment to pro bono involves a personal expenditure of time. In acknowledgment of this commitment and to support firm goals, an attorney’s efforts to meet this expectation will be considered by the firm in measuring various aspects of the attorney’s performance, such as yearly evaluations and bonuses where applicable. An attorney’s pro bono legal work will be subject to the same criteria of performance review and evaluation as those applied to client-billable work. As with all client work, there should be an emphasis on effective results for the client and the efficient and cost-effective use of firm resources.

B. Credit for Pro Bono Legal Work. The firm will give full credit for at least fifty (50) hours of pro bono legal services, and additional hours as approved by the Pro Bono Committee and/or Coordinator, in considering annual billable hour goals, bonuses and other evaluative criteria based on billable hours.

**[Small firms may wish to only include the following paragraph in lieu of the above provisions: The firm recognizes that the commitment to pro bono involves a personal expenditure of time. In acknowledgment of this commitment and to support firm goals, your pro bono service will be considered a positive factor in performance evaluations and compensation decisions and will be subject to the same criteria of performance review and evaluation as those applied to client-billable work. As with all client work, there should be an emphasis on effective results for the client and the efficient and cost-effective use of firm resources.]

V. Administration of Pro Bono Service (see suggested change for small firms below).

A. Approval of Pro Bono Matters. The Pro Bono Committee/Coordinator will review all proposed pro bono legal matters to ensure that:

1. There is no client or issue conflict or concern;

2. The legal issue raised is not frivolous or untenable;

3. The client does not have adequate funds to retain an attorney and

4. The matter is otherwise appropriate for pro bono representation.

All persons seeking approval of a pro bono project must: (1) submit a request identifying the client and other entity involved; (2) describe the nature of the work to be done; and (3) identify who will be working on the matter. Once the firm undertakes a pro bono matter, the matter is treated in the same manner as the firm’s regular paying work.

B. Opening a Pro Bono Matter. It is the responsibility of the attorney seeking to provide pro bono legal services to complete the conflicts check and open a new matter in accordance with regular firm procedures.

C. Pro Bono Engagement Letter. After a matter has received initial firm approval, the principal attorney on a pro bono legal matter must send an engagement letter to the pro bono client. Typically, the engagement letter should be sent after the initial client meeting during which the nature and terms of the engagement are discussed.

D. Staffing of Pro Bono Matters. Pro bono legal matters are initially staffed on a voluntary basis. It may become necessary to assign additional attorneys to the matter if the initial staffing arrangements prove to be inadequate, and the firm reserves the right to make such assignments.

E. Supervision of Pro Bono Matters. As appropriate, a partner shall supervise any associate working on a pro bono legal matter and the supervising partner shall remain informed of the status of the matter to ensure its proper handling. In addition, it may be appropriate to use assistance or resources from outside the firm. The firm will assist attorneys in finding a supervisor if necessary.

F. Professional Liability Insurance. Attorneys may provide legal assistance through those pro bono organizations that provide professional liability insurance for their volunteers. The firm also carries professional liability insurance for its attorneys in instances where no coverage is available on a pro bono matter through a qualified legal aid organization. Before undertaking any pro bono legal commitments, the professional liability implications should be reviewed with the Pro Bono Committee or the Pro Bono Coordinator.

G. Paralegal Pro Bono Opportunities. Approved pro bono legal work for paralegals includes: (1) work taken on in conjunction with and under the supervision of an attorney working on a specific pro bono legal matter, or (2) work handled independently for an organization that provides pro bono legal opportunities, provided, however, that such participation does not create an attorney-client relationship and/or involve the paralegal’s provision of legal advice.

H. Disbursements in Pro Bono Matters. The firm can and should bill and collect disbursements in pro bono legal matters where it is appropriate to do so based on the client’s resources. The firm encourages attorneys to pursue petitions for the waiver of filing fees in civil matters (Chief Justice Directive 98-01) when applicable, and to use pro bono experts, court reporters, investigators and other vendors when available to minimize expenses in pro bono legal matters. The firm may advance or guarantee payment of incidental litigation expenses, provided the client agrees to be ultimately responsible for them. However, the firm may later forego repayment of such expenses if such repayment would cause the client substantial financial hardship. (Colo. Rule of Professional Conduct 1.8(e)). The Pro Bono Committee/Pro Bono Coordinator must approve in advance any expense of a non-routine, significant nature, such as expert fees or translation costs. The supervising partner in a pro bono legal matter should participate in decisions with respect to disbursements.

I. Attorney Fees in Pro Bono Matters. The firm encourages its attorneys to seek and obtain attorney fees in pro bono legal matters where possible. In the event of a recovery of attorney fees, the firm encourages the donation of these fees to an organized non-profit entity whose purpose is or includes the provision of pro bono representation to indigent or near-indigent persons.

J. Departing Attorneys. When an attorney handling a pro bono case leaves the firm, he or she should work with the Pro Bono Committee/Coordinator to (1) locate another attorney in the firm to take over the representation of the pro bono client, or (2) see if the referring organization can facilitate another placement.

**[Small firms may wish to title this section "Pro Bono Procedures" and include only the following paragraph in lieu of the above provisions: All pro bono legal matters will be opened in accordance with regular firm procedures, including utilization of a conflicts check and a client engagement letter. Pro bono matters should be supervised by a partner, as appropriate. The firm encourages its attorneys to seek and obtain attorney fees in pro bono legal matters whenever possible.]

VI. CLE Credit for Pro Bono Work

Colorado Rule of Civil Procedure 260.8 provides that attorneys may be awarded up to nine (9) hours of CLE credit per three-year reporting period for: (1) performing uncompensated pro bono legal representation on behalf of indigent or near indigent clients in a civil legal matter, or (2) mentoring another lawyer or law student providing such representation.

A. Amount of CLE Credit. Attorneys may earn one (1) CLE credit hour for every five (5) billable-equivalent hours of pro bono representation provided to the indigent client. An attorney who acts as a mentor may earn one (1) unit of general credit per completed matter in which he/she mentors another lawyer. Mentors shall not be members of the same firm or in association with the lawyer providing representation to the indigent client. An attorney who acts as a mentor may earn two (2) units of general credit per completed matter in which he/she mentors a law student.

B. How to Obtain CLE Credit. An attorney who seeks CLE credit under CRCP 260.8 for work on an eligible matter must submit the completed Form 8 to the assigning court, program or law school. The assigning entity must then report to the Colorado Board of Continuing Legal and Judicial Education its recommendation as to the number of general CLE credits the reporting pro bono attorney should receive.

Amended and adopted by the Court, En Banc November 23, 2005, effective immediately. Justice Coats would not adopt the additional comment to RPC 6.1.

By the Court:

Gregory J. Hobbs, Jr.
Justice, Colorado Supreme Court

________________________________________________________________________

Adopt a Firm Pro Bono Policy and Participate
In Colorado Supreme Court’s Recognition Program

An Invitation from Chief Justice Mary Mullarkey

On behalf of the Colorado Supreme Court, I invite every licensed Colorado attorney to participate in the implementation of Rule of Professional Conduct 6.1, voluntary pro bono public service.

As a core value of the legal profession, RPC 6.1 encourages every Colorado licensed attorney to provide at least 50 hours per year of pro bono legal service, primarily to indigent persons and/or organizations that serve indigent persons.

There is a great unmet need among our indigent fellow Coloradans for legal help. Due to its limited staff, Colorado Legal Services is able to provide counsel to only 1 out of 2 indigent persons. Imagine how difficult and even frightening it must be for persons with no training in the law to appear in court and represent themselves.

To assist law firms that voluntarily participate, our court adopted a recommended model pro bono policy as part of the RPC 6.1 commentary. You will find this recommended policy on both the Colorado Courts website under the Colorado Supreme Court section for rule changes adopted in 2005, and the Colorado Bar Association’s website under the Access to Justice Commission section.

The court will publicly recognize each law firm that adopts its own pro bono policy that contains the two following components:

1. An annual goal of performing 50 hours of pro bono legal service by each Colorado licensed attorney in the firm, pro-rated for part-time attorneys, primarily for indigent persons and/or organizations serving indigent persons consistent with the definition of pro bono services as set forth in the Colorado Supreme Court’s Model Pro Bono Policy; and

2. A statement that the firm will value at least 50 hours of such pro bono service per year by each Colorado licensed attorney in the firm, for all purposes of attorney evaluation, advancement, and compensation in the firm as the firm values compensated client representation.

The court will also recognize on an annual basis those law firms that voluntarily advise the court by February 15 that their Colorado licensed attorneys, on average, during the previous calendar year, performed 50 hours of pro bono legal service, primarily for indigent persons or organizations serving indigent persons consistent with the definition of pro bono services as set forth in RPC 6.1’s recommended model pro bono policy.

Your firm can participate in the court’s recognition program simply by writing me a letter advising the court that the firm has adopted a model pro bono policy containing the above two components. The RPC 6.1 recommended policy, as a whole, is a guide for your firm to consider in drafting and adopting its own policy.

In addition, your firm can participate in the court’s annual recognition of firms that, in the previous calendar year, met the 50 hour goal per attorney averaged across the firm’s Colorado licensed attorneys. All you must do is to write me by February 15 indicating your firm has met this goal.

Although the new commentary in RPC 6.1 is focused on law firms, the court welcomes the participation of solo practitioners in the recognition program. We know that solo practitioners are the backbone of pro bono activities in many parts of the state, and we want to recognize solo practitioners who meet these goals.

Please accept the court’s invitation. Thank you.

Sincerely,

Chief Justice Mary Mullarkey,
Colorado Supreme Court

________________________________________________________________________

Colorado Judicial Department
Chief Justice of the Supreme Court Directives

Notice of Availability

A full set of the Chief Justice Directives may be purchased from the Colorado Judicial Department for $15, which includes copying, handling, and postage costs. Checks should be made payable to Colorado Judicial Department and should be mailed to: Court Services Division, Office of the State Court Administrator, 1301 Pennsylvania St., #300, Denver, CO 80203. Individual Chief Justice Directives will be assessed a $5 charge, pursuant to Chief Justice Directive 96-01, concerning standard research fees. Chief Justice Directives also are available from the Colorado Supreme Court homepage at: http://www.courts.
state.co.us/supct/directives/supctdirectives.htm.

Publication in The Colorado Lawyer

Chief Justice Directives will be published on a space available basis in this "Court Business" section of The Colorado Lawyer. Some attachments may be omitted due to space restrictions. To obtain a copy of attachments, contact: Court Services Division, Office of the State Court Administrator, 1301 Pennsylvania St., #300, Denver, CO 80203.

____________________

Repeal of Chief Justice Directive 03-02

Effective January 1, 2006, I hereby repeal Chief Justice Directive 03-02, amended September 17, 2003, concerning Motions to Withdraw in Civil Cases and declare it to be no longer in force or effect.

Dated at Denver, Colorado this 9th day of December, 2005.

Chief Justice Mary Mullarkey,
Colorado Supreme Court

 

 

© 2006 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved. Material from The Colorado Lawyer provided via this World Wide Web server is protected by the copyright laws of the United States and may not be reproduced in any way or medium without permission. This material also is subject to the disclaimers at http://www.cobar.org/tcl/disclaimer.cfm?year=2006.


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