Practice Points with Mark Scruggs: The Accidental Pro Bono Client

At Lawyers Mutual, we warn lawyers not to have accidental clients. These are clients with whom you form an attorney-client relationship without intending to do so. Accidental clients can give rise to conflicts of interest and other troublesome issues.

But I’m not talking about the accidental client here; I’m talking about the accidental pro bono client (i.e., non-paying or slow-paying client). I’m talking about a client you willingly took on and who you fully intended to be a paying client, but who turns out to be an accidental pro bono client.

A lawyer once told me his paying client turned into a pro bono client who then morphed into a contingency fee client in one of his cases. What he meant was he had gotten himself into a situation where the only hope he had of getting paid was to win the case!

Accidental pro bono clients are also a malpractice risk. The client who is not paying you is the client you are most likely to neglect. You are more prone to miss a deadline or ignore the client’s case in some other way, giving rise to a grievance or a malpractice claim. Don’t be tempted to cut corners in the case because you think you might not get paid for your work. The ethics rules and the standard of care are the same for pro bono clients and paying clients.

So how do we prevent paying clients from becoming pro bono clients? The first way (and I know this is easier said than done) is to stay on top of your accounts receivables. If you require an advance fee, make sure your client replenishes it when necessary.

The next best option is to withdraw from the representation before you get too deep in the hole and before the circumstances of the case prevent you from withdrawing. Lawyers too often realize they need to withdraw on the eve of a significant period of work for which they are likely not to get paid, like trial preparation. Filing a motion to withdraw a month before trial is too late. The court will most likely not let you out. You will be stuck trying the pro bono case.

Pro bono legal representation is something we should all do. But it should be intentional. Stay a step ahead of your non-paying or slow-paying clients and avoid the accidental pro bono client and the attendant malpractice risks.