Normally when a potential client comes in with a case we don’t handle, or we don’t have time for, we refer them to competent counsel.The last thing we want to do is take on a matter and not do a good job with it. That is why we’re selective about who we represent.
This concept is even built into the Pennsylvania Rules of Professional Conduct:
Obviously, a lawyer is permitted and encouraged to refer cases to other lawyers where that lawyer does not have the skill or expertise to properly represent a client.
Shouldn’t pro bono litigants be afforded the same courtesy and professional judgment?
Apparently not. The Delaware Supreme Court reprimanded an attorney for turning down mandatory pro bono work he felt he was not qualified to handle.
This is the story of attorney John Murray. Mr. Murray is a business law attorney in Delaware who deals with corporate transactional and business matters. In May 2009, he was appointed to serve as pro bono counsel in a family law matter and he told the Family Court Commissioner the truth: “I don’t know anything about family law, so appointing me is probably not in the client’s best interest. I also don’t have the time or resources to do a good job on the matter.”
Murray ended his letter with “Even though a foot surgeon and a brain surgeon are both doctors, you wouldn’t want a foot surgeon to perform your brain surgery.”
No argument there. As a civil litigator, I don’t touch criminal law or family law. To borrow a line from Scott Greenfield:
I remember getting a call from a NJ real estate lawyer who was assigned an indigent to defense for his pro bono requirement. He wanted to know what he should say at arraignment. I told him to try “not guilty.” Yeah, a great system.
Good morning, Sir. I’m your new pro bono lawyer. If you can just point me in the direction of the courthouse, it would be my honor to defend you in your murder case.
In January 2011, Murray again was appointed to represent a juvenile in a sexual assault case, something he wasn’t familiar with. Murray told the court, “I don’t handle this type of work, and I’m too busy to take it on and do a good job. The client is better off with someone else.”
The family law court didn’t like this and kept him on the case.
So Murray disclosed his lack of experience to the juvenile client’s mother. Not surprisingly, she was less than thrilled, and she asked the court why it was in her son’s best interest to have an attorney with no experience appointed to represent him. (hint: it wasn’t). The Family Court Commissioner let Murray out because the “well was tainted” (read: the potential client learned the truth), though it “hoped the Respondent ‘could be educated about the process so that this does not occur again, in the likely event he is appointed again.”
In other words: “Hey! Don’t tell your pro bono clients that you’re not experienced in this type of law! It hurts the system! They might demand competent counsel!”
The Family Law Commissioner then filed a bar complaint against Murray while assigning him a pro bono firearm case.
Murray responded again (in substance), “there is a pending bar complaint right now, but once it gets resolved, I would be happy to assist the family court in an area where I know what I’m doing. I don’t do firearm defense. It’s also my practice to disclose my lack of experience to clients.” And Murray did just that – he told his new pro bono client that he is a business transactional attorney and he has no experiences in firearms cases. Once again, the client demanded competent counsel. The Family Law Court was, yet again, less than happy.
At the ODC hearing, Murray testified that “He does not accept a lot of matters outside his limited, narrow area of expertise, and he is concerned with his clients’ right to effective assistance of counsel.” He also testified that “I disclose my background, my experience, and if the issue is something I’ve never dealt with in these three particular appointments, I say I have no experience [for example] I never represented anyone with seven felony counts, so I tell them that.”
Normally we call that being open and honest with clients. Something I consider a good thing.
But the Delaware Supreme Court disciplined Murrary for, in their view, trying to avoid doing pro bono service.
By telling his clients the truth.