Can a lawyer make an in-person offer to represent an indigent person for free, and is a lawyer required to take a pro bono case?

Plain-English summary

The Committee addressed questions arising from Attorney A's in-person offer to represent, pro bono, a genuinely indigent debtor who did not qualify for Alaska Legal Services and could not find counsel, in a proceeding where another attorney was trying to collect fees. Attorney A offered to represent the debtor without any compensation, subject to Bar Counsel confirming no ethical violation; Bar Counsel so confirmed, and the debtor accepted.

On solicitation, the opinion concluded Attorney A committed no violation. DR 2-104(A) bars a lawyer who has given unsolicited in-person advice that a layperson should obtain counsel from accepting "employment" resulting from that advice. The opinion read "employment," guided by EC 2-4, to denote activities carried on for material benefit, favorable publicity, or other private gain, and concluded it does not include pro bono representation, citing In re Primus, which recognized an exception from the general ban on solicitation for offers of representation without charge to those unable to obtain legal assistance (accord ABA Formal Opinion 148 and ABA Informal Opinion 1339). Because the offer was purely pro bono, there was no solicitation violation; the opinion stated Attorney A was to be commended for providing representation to an indigent person at personal financial sacrifice.

On the duty to serve, the opinion concluded Attorney A would not have violated his obligations had he declined to offer help. Canon 2 and EC 2-25 call on every lawyer to find time to serve the disadvantaged, but that duty runs to a reasonable portion of disadvantaged persons in need, not to each person who wishes to become a client; any violation is determined by a lawyer's pattern of practice over time, not a single refusal. Finally, the opinion concluded that whether bar counsel must give an opinion on proposed conduct, and the legal effect of such an opinion, are questions for the officers of the Bar Association and the courts.

Currency note

This opinion was issued in 1981, before the Alaska Bar Association's adoption of the Alaska Rules of Professional Conduct (it applies the former Code of Professional Responsibility) and before the 2009 revisions to those rules. The rules on solicitation and pro bono service have since been recodified. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule or duty mentioned here.

Common questions

Q: Can a lawyer approach an indigent person and offer to represent them for free?

A: The opinion concluded a purely pro bono in-person offer does not violate the solicitation rules, because the prohibited "employment" means activity for material benefit and does not include pro bono representation.

Q: Is a lawyer required to take a particular pro bono case if asked?

A: No. The opinion concluded the pro bono duty runs to a reasonable portion of the disadvantaged, judged by the lawyer's pattern of practice over time, so declining a specific case is not itself a violation.

Q: Does Bar Counsel's clearance protect the lawyer?

A: The opinion concluded that whether bar counsel must give an opinion, and the legal effect of any such opinion, are questions for the officers of the Bar Association and the courts.

Background and rules framework

The opinion applied the former Code's solicitation rule (DR 2-104, with EC 2-4), the subject now treated by Model Rule 7.3, and its pro bono provisions (Canon 2, EC 2-25), now reflected in Model Rule 6.1. It relied on the U.S. Supreme Court's decision in In re Primus and two ABA opinions for the principle that pro bono offers fall outside the solicitation ban.

Citations and references

Rules of Professional Conduct (former Code; cf. Model Rules):

• DR 2-104, EC 2-4 (in-person advice and resulting "employment") (cf. Model Rule 7.3)
• Canon 2, EC 2-25 (making legal counsel available; serving the disadvantaged) (cf. Model Rule 6.1)

Cases:

• In re Primus, 436 U.S. 412 (1978), solicitation exception for offers of free representation

Other opinions cited:

• ABA Formal Opinion 148 (1967); ABA Informal Opinion 1339 (1975): pro bono offers and solicitation

See also

• Alaska Ethics Op. 92-5: Solicitation of Clients
• Alaska Ethics Op. 92-1: Disclosing Class Counsel to Class Members
• Alaska Ethics Op. 2009-2: Advertising and Lawyer-Ranking Systems

Source

• Landing page: https://alaskabar.org/ethics-discipline/ethics-opinions/adopted-ethics-opinions-chronological/
• Original PDF: https://alaskabar.org/wp-content/uploads/81-1.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Ethics Opinion No. 81-1
Propriety of an in-Person Offer to Handle a Specific Legal Problem on a
Pro Bono Basis.
The Committee has been asked several questions arising out of an
attorney's in-person offer to an individual to handle a specific legal problem on
a pro bono basis. The facts are as follows.
Attorney A becomes aware of a proceeding in which Attorney B is
attempting to collect legal fees from a former client. The debtor, though he does
not qualify for help from Alaska Legal Services, is genuinely indigent and thus
cannot afford counsel. He has been unable to find counsel who will represent
him on a pro bono basis.
Attorney A therefore approaches the debtor and offers to represent him
subject to confirmation by the Bar Association Counsel that there is no ethical
violation. It is expressly stated that Attorney A will not be compensated for
these services at any time or in any manner. The debtor accepts this offer. Bar
Counsel states that there is no ethical violation.
The issues presented to this Committee are: (1) has Attorney A violated
any ethical rules through his solicitation of the debtor; (2) would Attorney A
have violated his ethical obligations had he failed to offer his services pro bono;
(3) is Bar Counsel required to express an opinion when consulted; and (4)
having given his opinion, is the Bar Association now estopped from instituting
disciplinary proceeding on this matter. These issues will be addressed seriatim.
Attorney A has committed no ethical violation by his approach to the debtor.
This situation is governed by DR 2-104 which states in relevant part:
(A) A lawyer who has given in-person unsolicited advice to a layperson that he
should obtain counsel or take legal action shall not accept employment resulting
from that service, except that: [exceptions not relevant].
The answer to the issue posed lies in the term "employment." EC 2-4 states:
EC 2-4 Since motivation is subjective and often difficult to judge, the motives of
a lawyer who volunteers in-person advice likely to produce legal controversy may
well be suspect if he receives professional employment or other benefits as a
result. A lawyer who volunteers in-person advice that one should obtain the
services of a lawyer generally should not himself accept employment,
compensation, or other benefit in connection with that matter. However, it is not
improper for a lawyer to volunteer such advice and render resulting legal services
to close friends, relatives, former clients (in regard to matters germane to former
employment), and regular clients.

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"Employment" in this instance denotes activities carried on for a material
benefit, favorable publicity or other private gain; it does not include pro bono
legal representation. This view has been adopted by the United States Supreme
Court.
In recognition of the overarching obligation of the lawyer to serve the community,
see Canon 2 of the ABA Code of Professional Responsibility, the ethical rules of
the legal profession traditionally have recognized an exception from any general
ban on solicitation for offers of representation, without charge, extended to
individuals who may be unable to obtain legal assistance on their own.
In re Primus, 436 U.S. 412, 437, 98 S.Ct. 1893, 1907, n.31 (1978); accord,
American Bar Association, Opinions of the Committee on Professional Ethics,
Formal Opinion 148, (1967); American Bar Association, Committee on Ethics
and Professional Responsibility, Informal Opinion 1339 (1975).
Because the offer of Attorney A under the facts presented, is purely pro
bono, there is no violation of ethical rules relating to solicitation; in fact,
Attorney A is to be commended as acting within the finest traditions of the
profession in his active effort at providing legal representation to an indigent
individual at a personal financial sacrifice.
Had Attorney A failed to offer to represent the debtor, he would not, by
that act, have violated his ethical obligations.
As a practical matter there are many persons who are unable to pay a
reasonable fee for needed legal representation. Canon 2 states, "[a] lawyer
should assist the legal profession in fulfilling its duty to make legal counsel
available." In order to assure that such needs are met, "every lawyer, regardless
of professional prominence or professional workload, should find time to
participate in serving the disadvantaged." Code of Professional Responsibility,
EC 2-25. This duty however, is not to each person who wishes to become the
lawyer's client, but rather to a reasonable portion of those disadvantaged
persons in need of professional services. Thus the attorney does not violate
ethical obligations by refusing to help a specific individual; rather, any violation
must be ascertained by observation of his or her pattern of practice over a
period of time.
Finally, the Committee believes that any question as to the duty of bar
counsel to state an opinion on ethical considerations of proposed conduct, and
as to the legal effect of any such opinion, must be answered by the officers of
the Bar Association, and the courts.
Approved by the Board of Governors on June 3, 1981.

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