United States: Developing Advocacy Skills Through Pro Bono Work

Previously published in The Legal Intelligencer

As its Latin translation suggests, pro bono publico work is for the public good and can provide immensely rewarding professional experiences for attorneys. The benefits of pro bono work are many, including, perhaps most significantly, the opportunity to make a meaningful difference in a client's life and positively influence the legal system. Indeed, Rule 6.1 of the Pennsylvania Rules of Professional Conduct calls for every lawyer to "render public interest legal service," including by "providing professional services at no fee or a reduced fee to persons of limited means."

An additional benefit of pro bono work is the opportunity for lawyers, especially less-experienced lawyers, to develop their advocacy skills. This is particularly true with respect to appellate matters. Over the years, appellate advocacy has emerged as a distinctive practice area, focused not on a particular substantive area of the law but instead on the special skill sets needed when advocating in an appellate tribunal. Appellate work demands specialized abilities, including cogent brief writing, sophisticated legal reasoning and outstanding oral advocacy, that less-experienced lawyers may still be in the process of developing.

Pro bono matters present a valuable opportunity to develop these skills. In some situations, a newer lawyer may be able to take the lead on a pro bono matter, drafting the briefs and arguing the case before an appellate court. This is precisely how many seasoned lawyers, including those at my firm, Schnader Harrison Segal & Lewis, got their start in the appellate courts and began developing this expertise. In fact, one of our attorneys even had the opportunity to argue a pro bono case in the U.S. Supreme Court. Indeed, Schnader's rich tradition of pro bono representation often intersects with its dedication to the craft of appellate advocacy.

Fortunately, there are opportunities for lawyers to become involved in pro bono cases on appeal. Interested attorneys can accept referrals from public interest organizations and bar associations, or take advantage of the 3rd U.S. Circuit Court of Appeals' longstanding pro bono appointment system to represent a pro se party on appeal on a pro bono basis.

The 3rd Circuit maintains a list of attorneys and law firms that have volunteered to take pro bono assignments from the court. Attorneys can elect to join the list when they are admitted to practice in the 3rd Circuit, or can later contact the court and inform it that they would like to be considered for a pro bono appointment. Counsel can highlight special experience or interest in a particular type of case when joining the list of volunteer attorneys. The court also has relationships with several clinical programs at area law schools that receive appointments in pro bono cases.

Before appointing counsel, the court first screens pro se parties for financial eligibility, as an individual must be in forma pauperis (unable to afford to retain his or her own counsel) to be appointed counsel. In deciding whether to appoint counsel in a given case, the court applies the factors identified in the 3rd Circuit's 1993 ruling in Tabron v. Grace , which includes consideration of the merits of the claim, the party's ability to present his or her case and the difficulty of the legal issues involved.

The cases in which the 3rd Circuit appoints counsel span a wide range, although the majority are prisoner civil rights suits and immigration appeals. These cases often present interesting and complicated questions of federal statutory and constitutional law. The court may also appoint counsel to serve as amicus curiae to address a particular issue in a case. The court provides appointed counsel with ample time to review the record before establishing a briefing schedule, and, even though the 3rd Circuit hears oral argument in only approximately 14 percent of its cases, it traditionally has encouraged pro bono representation by holding oral argument in most cases in which counsel has been appointed.

Currently, there is no similar pro bono appointment system in the Pennsylvania state appellate courts, but efforts are underway to establish a pilot program in the family division of the Allegheny County Common Pleas Court for cases that are headed for appeal. Spearheaded by Pennsylvania Superior Court Judge Mary Jane Bowes and Allegheny County Family Court Judge Kim Eaton and Administrative Judge Kathryn Hens-Greco, the program would be housed in the family court's pro se motions office and provide critical assistance to pro se parties from the very beginning of an appeal.

Pittsburgh law firm Metz Lewis Brodman Must & O'Keefe has agreed to coordinate the program and screen cases to determine whether counsel should be appointed. Among the factors that would be considered are a party's financial eligibility, the case's merit, the likelihood that the case could establish valuable precedent and the availability of volunteer lawyers. The coordinating firm would match appropriate cases with attorneys who have volunteered to be a part of the program. These pro bono attorneys would file the notice of appeal and Appellate Rule 1925(b) statement of matters complained of on appeal, which, in a children's fast-track appeal, must be filed simultaneously with the notice of appeal under the appellate rules. Because of the tight filing deadlines, it is especially important in Pennsylvania state courts that pro se parties obtain legal assistance from the beginning stages of an appeal to avoid waiver of any issues.

Pro bono counsel, possibly with the assistance of law students, would then brief and argue the case before the Pennsylvania Superior Court. The Pennsylvania Bar Admission Rules presently permit law students to participate in the drafting of the brief, but not to present oral argument in the case, although proposals have been made to change this rule in order to allow law students to argue cases before the state appellate courts in appropriate situations.

The Allegheny County program would be housed in the family court rather than the Superior Court, given the need for early appellate representation and the absence of appropriate infrastructure in the Superior Court (including staffing and funding for such a program), as well as a desire to keep separate the screening and judicial review phases of the case. While there are presently no plans to extend a pro bono appointment system to other types of cases on appeal or create a system similar to the 3rd Circuit's, this program could be the beginning of a statewide initiative to provide invaluable legal assistance in family law matters where pro se parties are especially in need of counsel on appeal. The Pennsylvania courts will need the assistance of the bar — including volunteer attorneys and firms to coordinate the program and take on cases — to ensure the success of this program.

Pro bono representation, especially at the appellate level, is a true win-win arrangement for all involved. The formerly pro se party benefits from the skill and experience of counsel. The pro bono attorney benefits from the opportunity to further develop his or her skills and gain meaningful, valuable experience. The law firm employing the attorney benefits from the advancement of the attorney's professional development, at little or no cost to the firm. And the appellate courts benefit from reviewing cases briefed and argued by counsel rather than pro se litigants.

Attorneys seeking to develop their appellate advocacy skills and fulfill their professional obligation of pro bono representation should consider this rewarding opportunity.


The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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