When does the amended rule go into effect?
Originally approved on February 27, 2018, and updated on March 13,
2020, the Rules of the Supreme Court of Virginia, Part 6, Section IV,
now include a new provision, Paragraph 22, that requests each active
and associate VSB member report their pro bono hours and/or financial
contributions in support of pro bono legal services on their annual
dues statement.
When will I see it on my annual dues statement?
The July 2019 dues statement for the 2020 bar year was the first to
incorporate voluntary pro bono reporting. The new reporting form
(Section 5) will be included as a separate insert in the dues
statements mailed out by the VSB to active and associate members and
the form will be available to active and associate members renewing
online.
If I plan to report on my annual dues statement, when should I begin
tracking my pro bono contributions?
Attorneys can report contributions made during the 12 months prior to
the annual dues statement. As a practical matter, attorneys should
start tracking their hours and financial support starting on July 1 of
the year prior to the annual dues statement on which they plan to
report. They should continue tracking through June 30 of the current
year’s dues statement. For example, attorneys who wish to report on
their July 2020 dues statement should track and report their pro bono
contributions from July 1, 2019 and through June 30, 2020.
What membership classes are subject to voluntary pro bono reporting?
The rule requests that active and associate members voluntarily supply
information regarding pro bono service and financial contributions.
Does the rule allow me to opt out if I don’t wish to report my pro bono
hours and/or financial contribution?
Yes. The new rule sets forth voluntary, not mandatory, pro bono
reporting. Active and associate members who wish to opt out of
reporting should select option 3: Decline to Report.
Does the new rule mean that I must perform pro bono service?
No. The new voluntary pro bono reporting rule is meant to complement
the aspirational goals of Rule 6.1 of the Virginia Rules of
Professional Conduct. This new rule is an opportunity for active
Virginia bar members to report their contributions to pro bono and to
provide the Bar with data to assess the extent of the justice gap and
respond with programming to help close it.
What types of pro bono service hours can I include in my report?
-
Providing low bono or pro bono legal assistance to someone who lacks
the financial resources to hire a lawyer (poverty law). Examples in this category include but are not limited to
providing advice or representation to low-income clients through
legal aid and the independent pro bono programs in the
Free and Low Cost Legal Resources in Virginia pamphlet, or through partnership programs like the
Triage Project, or
answering client questions on Virginia.freelegalanswers.org.
This type of service involves direct practice, so should only be
performed by active members in good standing.
-
Providing nominal fee or free legal assistance to assert or protect
the rights of individuals in which society has an interest (civil rights law). Examples in this category include but are not limited to
providing advice or representation to
veterans, ACLU clients, and
people with disabilities. This type of service involves direct practice, so should only be
performed by active members in good standing.
-
Providing pro bono or sliding scale legal services to religious,
charitable or civic groups (public interest law).
Examples in this category include but are not limited to providing
advice or representation to non-profit organizations through the
Greater Richmond Bar Foundation or
the
Fairfax Law Foundation. This type of service involves direct practice, so should only be
performed by active members in good standing.
-
Engaging in volunteer activities to increase the
availability of pro bono. Examples in this category include but are
not limited to training and mentoring lawyers who have volunteered
to take legal aid referrals, helping recruit lawyers for pro bono
referral programs, developing informational materials that provide
pro bono legal services information to the public or promote pro
bono programs, joining the
VSB Standing Committee on Access to Legal Services
or other boards, committees or bodies that increase access to pro
bono services on the state or local level. This type of service does
not involve the direct practice of law, so it is a great way for
associate members to engage in Rule 6.1 service that doesn’t
implicate UPL.
Can I report hours devoted to court-appointed criminal defense work
performed for a statutory fee?
No. Court-appointed criminal defense work where the attorney is
awarded a statutory fee, even though the fee is low, does not qualify
as pro bono under the current rule. This is true even if the funding
for the fee cap waiver runs out and the court-appointed attorney is
aware of this fact before starting work on a case.
What if I waive my fee?
Yes. Court-appointed criminal defense work where the attorney’s
fee is waived does qualify as pro bono. Comment 1 defines pro bono
legal services as "any professional legal services for which the
lawyer would ordinarily be compensated." Court-appointed criminal
defense attorneys are ordinarily paid for this work, although the
statutory flat fee is very low. Additionally, there must be a
connection between the pro bono legal services being provided and one
of the pro bono categories outlined under Rule 6.1 (a). In this case,
the court-appointed criminal defense attorney is performing pro bono
services in the "poverty law" category by providing uncompensated
legal representation to a person who does not have the financial
resources to pay for an attorney.
Can I report hours devoted to court-appointed GAL work performed for a
fee?
No. Court-appointed GAL work for a fee, even though the hourly
rate is very low, does not qualify as pro bono under the current rule.
What if I waive my fee?
Yes. Comment 1 defines pro bono legal services as "any professional
legal services for which the lawyer would ordinarily be compensated."
Attorneys are ordinarily paid for GAL work, so if the GAL services are
being provided for free and to meet the needs of at least one the pro
bono categories outlined under Rule 6.1 (a), it counts as pro bono.
Can I report volunteer time spent on client intake and screening work
for legal aid or other Qualified Legal Services Providers?
Yes. Volunteer attorney time spent on client intake and screening work
for legal aid or other Qualified Legal Services Providers counts as
pro bono under Rule 6.1 (a) as a "volunteer activity designed to
increase the availability of pro bono legal services" because such
work aids in identifying qualified clients to receive free legal
services through these organizations and the pro bono attorneys
serving them.
What about volunteer time spent drafting or editing substantive legal
content for self-help materials or informational materials designed to
educate the public on the law?
Yes. Time spent assisting a civil, religious, or charitable
organization in drafting substantive legal content to create brochures
and other informational resources (printed, video, online, etc.)
containing legal information of interest to the public qualifies as
pro bono "public interest law" under Comment 4 so long as the activity
is a professional service for which an attorney would ordinarily be
compensated.
Can I report hours spent preparing and presenting an informational legal
clinic to the public (i.e. no direct legal advice is provided)?
Yes. Volunteer time an attorney spends preparing and presenting an
informational legal clinic to the public counts as pro bono if the
attorney is performing the service to meet one or more of the needs
described in Rule 6.1 (a) and the activity is a professional service
for which an attorney would ordinarily be compensated.
Does time an attorney spends as a volunteer arbitrator on behalf of a
public service program run by a religious, civic or charitable group
count as pro bono?
Yes. Time spent volunteering as a third-party neutral is a reportable
contribution if an attorney would ordinarily get paid for this type of
work and the dispute resolution program serves the public interest
consistent with Comment 4.
What about time spent giving free legal consultations?
Time spent assisting a civil, religious, or charitable organization in
drafting substantive legal content to create brochures and other
informational resources (printed, video, online, etc.) containing
legal information of interest to the public qualifies as pro bono
"public interest law" under Comment 4 so long as the activity is a
professional service for which an attorney would ordinarily be
compensated.
Can I report hours that I have discounted or written off in retrospect
because the client couldn’t or didn’t pay my fees? What about hours
related to losses associated with contingency fee cases?
No. Comment 6 to Rule 6.1 requires that the free or nominal fee nature
of the legal work must be established in advance of engaging in the
work for it to be considered pro bono under the rule – i.e., no
writing off fee losses and no contingency fees.
What types of financial contributions can I include in my report?
Active bar members should report direct financial support of programs
that provide direct delivery of legal services to meet the needs
outlined in Rule 6.1 (a). Donations to legal aid and other nonprofit
Qualified Legal Services Providers that provide direct legal
representation to low-income persons (poverty law) counts under the
Rule.
Do donations to nonprofits serving a quasi-legal services function
count?
Yes, these kinds of donations count if the financial contribution
supports the program providing the direct legal services work. If the
donation isn't earmarked to the legal services program and the donor
can't otherwise determine how much of the donation goes to the legal
services program, it doesn't count.
What about donations to non-legal services organizations that provide
informational legal materials or informational legal clinics to the
public?
No. Donations count under Rule 6.1 (c) only if the financial
contribution directly supports a program that provides direct delivery
of legal services designed to meet the needs described in paragraph
(a). Programs are not engaged in the direct delivery of legal services
simply by providing the public with access to informational legal
materials or informational legal clinics. As such, donations to these
organizations do not count. Please note, although organizations
providing these legal informational materials and clinics to the
public are not providing direct legal services under the Rule by doing
so, attorneys assisting in these efforts may be entitled to pro bono
credit (see FAQ # 12 and 14).
Can I report the purchase price of tickets to legal aid and other QLSP
fundraising events?
Yes, if the ticket proceeds support programs that provide direct
delivery of legal services to meet the needs described in Rule 6.1
(a). Like the approach under the IRS rules related to charitable
donations, the amount claimed as pro bono should be the price paid for
the ticket minus the value of the ticket to the purchaser (food,
entertainment, etc.). Lawyers purchasing tickets to these types of
events should contact the organization to get a tax receipt.
Can time spent traveling to/from client meetings and court appearances
on pro bono cases be counted as pro bono time?
Yes, if travel time is something for which you would “ordinarily be
compensated.” If you would typically bill and get paid for travel time
on paying cases, hours devoted to travel on pro bono cases can be
counted and reported. Similarly, if you typically account for travel
time in establishing the amount to charge for flat-fee work, you can
count your travel time on pro bono matters involving the same type of
work. See Rule 6.1, Comment 1.
What about hours traveling to/from pro bono committee meetings or legal
aid board meetings? Can this time be counted as pro bono?
Yes. You can count this travel time as pro bono if such travel is
reasonable and necessary for you to engage in “volunteer activities
designed to increase the availability of pro bono.” For example, if
you are a volunteer member of a pro bono committee and your physical
presence at the meeting is required or is the preferred attendance
method, you can report the time traveling to and from those meetings
as pro bono hours.
If a contingency case is set up for a nominal fee (like 5%, instead of
33 - 40%), can that count as 6.1 pro bono, under the "nominal fee"
provision?
No. Work on this matter cannot be considered nominal fee pro bono.
Rule 6.1 requires that “the free or nominal fee nature of the work be
established in advance.” Because the monetary amount of the award is
unknown prior to performing the legal work, it is impossible to know
the amount of fees the attorney will receive, which is necessary to
determine whether it is truly a nominal fee. See Rule 6.1, Comment 2
and 3.
If we know a case would cost at least $100,000 to handle, but we agree
in advance to handle the entire case for $20,000, due to the client's
limited funding, can that count as 6.1 pro bono?
No. Although discounting a fee in advance based on the client’s
ability to pay is admirable and serves to advance access to legal
services in Virginia, this situation would not qualify as pro bono.
The Rule 6.1 “nominal fee” language is interpreted very narrowly. For
example, the legal services performed by court-appointed attorneys for
the very low fees designated by statute do not qualify as “nominal
fee.” A $20,000 fee, even though it represents a significant discount
as compared to the standard rate of $100,000, would certainly be too
high to be considered “nominal fee” under Virginia Rule 6.1.
Our firm does a lot of pro bono work for non-profits, where the
organization could pay, but it's a charity (church, et al.). Does that
count for pro bono?
It depends. “Public interest law” is one of the four categories of pro
bono service specifically named in Rule 6.1(a). Although this category
is not defined in the rule itself, Comment 4 to Rule 6.1 says, “free
or nominal fee provision of legal services to religious, charitable or
civic groups in efforts such as setting up a shelter for the homeless,
operating a hotline for battered spouses or providing public service
information would be examples of ‘public interest law.’ “While there
is no requirement that the religious, civic or charitable group is
unable to afford an attorney, the examples outlined in Comment 4
illustrate a necessary connection between the legal services being
performed and a public-interest being served by the organization in
addressing the needs of low-income or otherwise vulnerable community
members. If legal work is being done to directly facilitate such a
public service, it will certainly count. Additionally, if this type of
public interest work is part of the nonprofit’s core mission, then
free or nominal fee legal work being provided to the organization in
furtherance of its mission will also qualify as pro bono under this
category, including reviewing and drafting bylaw, articles of
incorporation, or other governance documents of the nonprofit.
However, if the work is being performed to address legal issues
unrelated to the mission, such as defending against allegations of
wrong-doing, the legal services will not qualify as pro bono, even if
the mission of the organization meets the criteria set forth above.
Keep in mind, however, that if the organization cannot pay for the
needed legal work, legal services provided to the organization without
fee or expectation of fee will fall under the “poverty law” pro bono
category; this is true even if the organization is not serving the
public interest as described above. See Rule 6.1, Comment 4.
What about time a court-appointed criminal defense attorney devotes to
post-conviction collateral matters requested by the indigent client more
than 30 days after the completion of all proceedings? At this point the
voucher has been submitted to the court and the statute does not provide
a rate for “post-conviction collateral matters,” so a new voucher cannot
be filed. Therefore, the court-appointed attorney takes on this work
knowing she will not get paid for it. Do these hours count as pro bono?
Yes. The work qualifies as Rule 6.1 “poverty law” because the
court-appointed attorney is providing free legal service to an
indigent client and the work is being done without expectation of
payment. Rule 6.1, Comment 2 requires that “the free or nominal fee
nature of the work is established in advance.” Court-appointed work is
not considered pro bono because the attorney expects to be compensated
for the work by the court. In this situation, however, the request
from the client is being made after the voucher has been turned in,
and the lawyer has no mechanism to even request an allowance from the
court for this work. Therefore, the attorney is commencing these
post-conviction legal services knowing she will not get paid. However,
if the attorney was re-appointed by the court to handle such
post-conviction matters, it would not count, nor would filing a notice
of appeal even if such notice was filed after the voucher was
submitted or after the 30 days. See Rule 6.1, comment 2.
Can public defenders, legal aid attorneys, and staff attorneys employed
by other nonprofit legal service organizations count the hours they work
above and beyond those required by their employment contract as pro
bono?
No. The hours public interest attorneys spend working for their
organization and its clients, even if it goes beyond what is expected
of them or required by contract, do not count as pro bono because the
attorney is paid a salary for this work. However, if the public
interest attorney is engaged in other pro bono service outside of
their employment, those hours can be counted so long as it meets the
criteria under Rule 6.1 and its comments. For example, if a public
defender is serving on a pro bono or access to justice committee for
an outside organization and such service is not part of his job
responsibilities, the hours serving in such capacity can be reported
as “volunteer activities designed to advance the availability of pro
bono.” Additionally, if a legal aid attorney is providing free advice
to low-income clients on Virginia Free Legal Answers the time she
spends engaged in this service will count as pro bono “poverty law.”
See Rule 6.1, Comment 2 and 4.
If statutory attorneys’ fees are awarded to a lawyer on a pro bono case,
does that disqualify the work as pro bono?
Yes. Rule 6.1, Comment 6 states, "service in any of the categories
described is not pro bono publico if provided on a contingent fee
basis. Because service must be provided without fee or expectation of
fee, the intent of the lawyer to render free or nominal fee legal
services is essential. Accordingly, services for which fees go
uncollected would not qualify.” It is not improper to seek statutory
attorneys’ fees on a case originally taken as pro bono, but if such
fees are awarded then the work can no longer be considered pro bono.
What if the statutory attorneys’ fee award is given to a legal services
organization and not kept by the private attorney, can the hours and the
contribution of the fee award be considered pro bono?
Yes. If the attorney agrees in advance to donate any awarded fees to a
Qualified Legal Services Provider (QLSP) and, if awarded, donates them
as promised, then the free legal services provided still qualify as
pro bono because the legal services are being provided without fee or
expectation of fee. The attorney can also count the amount of the
award donated to the QLSP as a pro bono financial contribution.
I am renewing my dues and reporting my pro bono contributions by mail.
The voluntary pro bono reporting form (Section 5) asks for my circuit of
record. What do I do if I don't know it?
Please refer to your printed dues statement for your circuit
information. Your circuit of record is printed in small font directly
below the numbered boxes on your paper dues statement. Additionally,
you’ll find a list of circuits and corresponding counties/cities on
the back of the voluntary pro bono reporting form itself. Please note,
however, Circuit 33 is not listed on the back of the form. If you are
an active member with an out-of-state address of record, you are in
Circuit 33. If you are renewing and reporting online, you do no need
to enter your circuit information.
I am a government attorney with restricted practice rules, an associate
member of the VSB, or otherwise prohibited from providing pro bono legal
services. However, I do donate to legal aid and I serve on the pro bono
committee of my local bar association. Do these contributions count as
pro bono? If so, how should I report them?
Your time serving on the pro bono committee counts as a “volunteer
activity designed to increase the availability of pro bono services”
under Rule 6.1 (a). Additionally, your donations to legal aid count as
pro bono financial contributions under Rule 6.1 (c). If you have pro
bono contributions you are willing to report, please provide that
information under option 1 and/or option 2 on the form. We also
encourage you to explain more about your specific type of practice and
any pro bono restrictions you might face by filling out the “Tell Us
More” section at the bottom of the form.
I am a member of the Virginia State Bar as a Virginia Corporate Counsel.
Can I perform pro bono legal services under Rule 6.1 (a)?
Yes. Active and in good standing Virginia Corporate Counsel members,
licensed in accordance with the Rules of the Supreme Court of
Virginia, Rule 1A:5, Part I, are permitted and, indeed, are encouraged
to provide voluntary pro bono publico services in accordance with Rule
6.1 of the Virginia Rules of Professional Conduct. This includes
direct legal services in the areas of poverty law, civil rights law,
and public service law. However, if you were not qualified to practice
before the Supreme Court of Virginia, you cannot appear before or file
any pleadings in any court of the Commonwealth on behalf of your
employer or pro bono client, other than the court in the jurisdiction
in which you were admitted.
Unlike their counterparts licensed under Part I, Corporate Counsel
Registrants under Part II may not engage in pro bono legal
representation or represent their employer in court unless they
associate with a Virginia admitted attorney and move for admission pro
hac vice. Part II attorneys may, however, contribute to pro bono in
Virginia by making financial contributions consistent with Rule 6.1
(c) or by engaging in other volunteer services that advance the
availability of pro bono service as described in Rule 6.1 (a), Comment
5.
We also encourage Part I and II Corporate Counsel to select the
corporate counsel box under the “Tell Us More” section at the bottom
of the form.
If you desire to seek qualification before the Supreme Court of
Virginia, corporate counsel admission motions are entertained in
Richmond periodically. The next available date can be obtained from
the Office of the Clerk of the Supreme Court.