As the Model Rules of Professional Conduct demonstrate, a lawyer may serve many functions for a client: advisor, advocate, negotiator, or evaluator, to name a few. Under any role, however, a lawyer is obligated to act with the best interests of his or her client in mind, even when the client is not paying for legal services. In this regard, attorneys must be mindful that they owe the same professional duties to both paying and pro bono clients. Indeed, the New Jersey Advisory Committee on Professional Ethics long ago held in Opinion 671 that “the same ethical rules apply regardless of whether legal advice and representation is provided on a compensated or a pro bono basis,” and that there is “no separate, more relaxed version of applicable ethical precepts for attorneys providing pro bono advice.” Advisory Committee on Professional Ethics, Opinion 671 (April 5, 1993). “Duties of competence, confidentiality, and conflict avoidance, for example, all remain fully applicable.” Id. Likewise, law firms should not simply staff junior attorneys on pro bono matters to avoid the cost of staffing more senior attorneys on such matters, as the RPCs require supervising attorneys to ensure that those under their supervision comply with the requirements of the RPCs. See RPC 5.1(b) (“A lawyer having direct supervisory authority over another lawyer shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct.”).
Much as the RPCs do not distinguish between compensated and pro bono work, neither do malpractice claims, and a lawyer’s failure to abide by the RPCs in the pro bono context in the same way he or she would in working for a paying client could just as easily open the lawyer up to a malpractice claim. (See, for example, the recently filed case in the Superior Court for the State of California, County of Orange, Bernier, et al. v. Jones Day, et al., Case No. 30-2019-01085904-CU-PN-CJC.) In short, lawyers should ensure that all clients are provided the same quality of work, regardless of compensation structure.