A Criminal Mind: Think carefully about pro bono retainers

The pro bono retainer is a quandary. When would you agree to act for free?

Sometimes, what goes around comes around. There’s a virtue in assisting the indigent and, conversely, there may be a benefit for you as you may act for the client in the future on a paid matter. In addition, it may help build your name and reputation.

But when does it work for you? When should you act for free? Some work is extremely urgent and time sensitive, such as advice to an arrestee or assistance with bail, and there may be no time for a retainer. Some lawyers will do a trial for free but probably not many. (I could give you his name, but he might get mad at me.) If I feel strongly enough, I have done my own clients’ appeals for free, but don’t make the mistake of not getting the disbursements up front. It may turn out that you have a greater commitment to your client’s cause than he or she does.

One of life’s little legal ironies is that the client who pays for legal work may value it more than the one who doesn’t.

It’s never ideal to act for free, but if it’s a matter of doing negotiations, getting the matter diverted — even though the work may be worth a great deal of money — the lawyer’s time input isn’t considerable. But maybe it is. The client may not be anxious to wrap up the case in a timely manner. It’s not acceptable for counsel if clients are continuing to do their volunteer work the following year, nor does a lawyer want to hear that a client has blown the restitution money on fancy shoes.

What I’ve found surprising in practice are the varying attitudes of pro bono clients. Some are a pleasure to act for and will repay you with flowers; others will drop off some rancid plonk. Some will let you wait for hours in court because no one paid their bus fare; others will actually come in with cold cash six months later.

Some of those are deal breakers. And any sort of complaint or rudeness to you or your staff is also a deal breaker.

But let’s go back to that concept of lawyers working for free. I’ll always recall a client who had been on welfare for life and was facing her 13th or 14th shoplifting charge. I suggested she do some volunteer work and she said, “What? You mean work? For free?” I was gobsmacked.

The public thinks it’s salutary if lawyers work for free, and we even have a special name for it: pro bono publico. But clients often don’t complete community service hours whether they’re for diversion or pursuant to a probation order.

Retainer agreements aren’t common among criminal lawyers, and I’ve rarely used one. Ideally, I e-mail a retainer letter to the client immediately after a first meeting. Even a pro bono matter needs a retainer letter. The letter should set out the matter you’re agreeing to represent the client on as there may be new or unexpected matters that fall outside the scope of your retainer. If you can no longer act for the person, you should write a disengagement letter but you can’t jeopardize your client’s representation by removing yourself from the record precipitously whether it’s a pro bono arrangement or not.

When representing people on a pro bono matter, clients should keep up their end of the bargain: pay the disbursements, make appearances, stay in touch, do the volunteer work, attend any programs, and pay the restitution. And it’s always good to ask yourself whether clients are even serious about the matter if they haven’t retained you in the conventional way.


Rosalind Conway is a certified specialist in criminal litigation. She can be reached at [email protected].

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