Bell/Whelan: 3 things to know about amended pro bono reporting rule

Nearly everyone does some form of pro bono legal work throughout the course of his or her career, and the Indiana Supreme Court has made it clear that it supports and encourages regular performance of public interest legal services. James Bell’s article in the Sept. 24, 2014, Indiana Lawyer, “3 things to know about reporting pro bono hours,” discussed the requirements of new Rule 6.7 of the Indiana Rules of Professional Conduct, which requires Indiana attorneys to report their pro bono hours at the time of annual registration.

However, Rule 6.7, in effect for a mere four months, was recently amended by a Supreme Court order issued April 30, 2015, and effective immediately. The amendment provides additional clarity on what is expected of Indiana attorneys with respect to reporting pro bono service. Nothing has changed with respect to exemption from the rule, so if Rule 6.7 applied to you before, it still applies to you now (Judiciary members and staff, government attorneys prohibited from providing legal services outside employment, retired attorneys, and inactive attorneys, you are still in the clear). Here are three things to know about the amended rule requiring the reporting of pro bono service.

1. Reportable pro bono hours are a subset of traditional pro bono hours under the Rules of Professional Conduct.

Rule 6.7 of the Indiana Rules of Professional Conduct mandates that Indiana attorneys report their pro bono hours. However, not all pro bono hours can be reported. Rule 6.1 of the Indiana Rules of Professional Conduct, which defines traditional pro bono service, is far more encompassing than what can be reported under Rule 6.7.

Rule 6.1 states that an attorney may discharge his or her responsibility to provide pro bono service “by providing professional services at no fee or a reduced fee to persons of limited means.” This is consistent with Rule 6.7. However, Rule 6.1 also states that pro bono service includes professional services to “charitable groups or organizations” and by providing “service” to “activities for improving the law, the legal system or the legal profession.”

Under Rule 6.1, serving on a rules committee, being active in certain bar association activities or even teaching a seminar could be considered activities that improve the legal profession. Therefore, these activities could be considered “pro bono” under Rule 6.1. However, these activities are not reportable pro bono hours. In fact, the first version Rule 6.7 allowed “services . . . solely aimed at assisting persons of limited means” to be considered reportable pro bono hours. This could have included board service to an organization that provided legal services to indigent individuals. However, amended Rule 6.7 removes this portion of the rule.

2. “Reportable pro bono” hours are legal services to individuals of limited means.

Amended Rule 6.7 defines reportable pro bono hours as “legal services . . . directly to individuals reasonably believed to be of limited means without charge and without any fee expectation when the services were rendered.” It also includes services to those of limited means at “a charge of less than 50%” of your “normal rate and without expectation of any greater fee when the services were rendered.”

Under amended Rule 6.7, determining who is of “limited means” is less difficult than under the old version of 6.7. Previously, to be of “limited means,” Rule 6.7 required a determination that the client had a household income up to 200 percent of the federal poverty guideline. Now a “reasonable expectation” that the client is of “limited means” is all that is required.

3. “Getting stiffed” on a bill is still not pro bono.

We are sorry to report that legal services written off as bad debts will not count as pro bono service under either Rule 6.1 or Rule 6.7. Getting stiffed on a bill that you expected to get paid on is simply not pro bono service, but “pro stinko” service. (“Pro stinko” is Latin for “It stinks to be an attorney today.”) If it makes you feel any better, we have yet to meet the attorney who has not provided some sort of “pro stinko” service in his or her career.

When we find ourselves in “pro stinko” situations, we should think about the future and not the past or present. We should think about getting higher retainers and withdrawing from cases when we see early signs that the client may not be willing to meet his or her financial obligations. What we should not do is stop working on the case without formally withdrawing or holding the file hostage until the client pays. Doing the former could be a violation of Rule 1.3 of the Rules of Professional Conduct for a failure to act with reasonable diligence. Doing the latter could result in a violation of Rule 1.16 due to the failure to surrender papers and property to which the client is entitled.•

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James Bell and Jessica Whelan are attorneys with Bingham Greenebaum Doll LLP who assist lawyers and judges with professional liability and legal ethics issues. Bell is a regular speaker on criminal defense and ethics topics. He can be reached at [email protected] and Whelan can be reached at [email protected]. The opinions expressed are those of the authors.