Tag Archive | "Pro Bono"

Pro Bono Attorneys Can You Recover Fees for Your Time?

The Need for Pro Bono Attorneys

More and more people are needing legal assistance either pro bono or at a reduced cost. The Indiana State Bar Association has a Pro Bono Committee that is charged with developing a plan. The Indianapolis Bar Association promotes that its members take on what they call Pro Bono Opportunities. The Marion County, Indiana Circuit and Superior Courts have a Family Resource Page that links you to many resources. Rule 6.1 of the Indiana Rules of Professional Conduct states: “A lawyer should render public interest legal service. A lawyer may discharge this responsibility by providing professional services at no fee or a reduced fee to persons of limited means or to public service or charitable groups or organizations, by service in activities for improving the law, the legal system or the legal profession, and by financial support for organizations that provide legal services to persons of limited means.” Attorneys are now required in Indiana to report their pro bono hours or contributions. See Rule 6.7 of the Indiana Rules of Professional Conduct. Once an attorney accepts a pro bono case that attorney may not seek a fee from her or his client. This, however, does not mean the attorney cannot seek a fee elsewhere.


Are Attorney’s Fees Recoverable in Your Case?

If the attorney is appointed under I.C. 34-10-1-2, the attorney is not undertaking the case pro bono, the attorney is just being paid by the county and not the client.

What if a court does not appoint you where you are expecting a fee from the client or the county? The first inquiry the court must make is whether attorney fees are recoverable in this type of case. For a review of cases when an attorney can recover fees for presenting his client go to my article titled Attorney Fees in Indiana.

Many times, attorneys take matters pro bono in the family law area. In paternity actions attorney fees are recoverable by statute. Attorney fees may be awarded in paternity actions pursuant to I.C. 31-14-18-2(a)(2).[1] The statute states “Sec. 2. (a) The court may order a party to pay: … (2) a reasonable amount for attorney’s fees, including amounts for legal services provided and costs incurred, before the commencement of the proceedings or after entry of judgment.” Similar provisions appear in the child support and divorce statutes. I.C. 31-16-11-1 and I.C. 31-15-10-1.

Now many times when an attorney takes a case pro bono the other party is also poor or of limited means and the attorney knows that no fees will be forthcoming. In some cases where the other party is pro se the attorney is forced to expended substantially more time than would normally be expected. Many pro se parties refuse or fail to comply with court orders, you are required to file additional pleadings, have more hearings, and spend more time trying to resolve issues that had there been attorney on the other side you would not have to do. Another basis of awarding fees is under I.C. 34-52-1-1, which states a court may award attorney fees against a party that “…continued to litigate the action after the party’s claim or defense clearly became frivolous, unreasonable, or groundless…” or if a party “…litigated the action in bad faith…” . If a court were to deny attorney fees in this situation, such action could chill the attorneys from accepting pro bono cases if they know that they may expend substantially more time in a matter than normal. It also would reward the type of actions taken by a party who causes delays and wastes the court’s time.


By Taking a Case Pro Bono Do You Forfeit the Opportunity to Be Paid by the Other Party?

The next issue is whether a court may award attorney fees to an attorney who has taken a case pro bono. This question was answered in 1992 by the Indiana Supreme Court in Beeson v. Christian, 594 N.E.2d 441 (Ind. 1992). In Beeson, 594 N.E.2d 441, the Petitioner’s attorney took the case with the understanding that Petitioner would not be responsible for any attorney fees to her attorney. The Court in vacating the Indiana Court of Appeals and affirming the trial court’s award of attorney fees found that the statute permitting the award of attorney’s fees in dissolution actions (similar to the statute permitting the award of such fees in paternity actions) gave someone who otherwise could not afford it access to an attorney’s services and “[t]hat public policy would be undermined if we were to hold that a party must be personally obligated to pay attorney fees before the trial court could order the other party to pay those fees.” Beeson, 594 N.E.2d at 443. The Indiana Supreme Court continued:

This situation is analogous to some pro bono arrangements where an attorney agrees to represent a client and to accept a fee only if one is awarded by the trial court and paid by the other side. As here, the client is never legally obligated to pay the fee, and the attorney is paid only if the trial court awards a fee. Such an arrangement supports the process of allowing access to the courts to those with limited means.

Id. Beeson clearly supports this court’s authority to grant attorney fees in such a case.

Further support of awarding fees in a pro bono situation where the attorney undertook a case pro bono with no agreement to pursue their client for fees is Kleine-Albrandt v. Lamb, 597 N.E.2d 1310 (Ind. Ct. App. 1992). In that case the Plaintiff was represented by a nonprofit legal organization and the trial court denied an award of attorney fees to that organization as the Plaintiff did not incur any fees. The Indiana Court of Appeals citing Beeson stated, “Because we hold that the fact that Kleine-Albrandt did not incur any expense cannot act as a bar to the assessment of attorney’s fees to Student Legal Services in this action, we reverse and remand to the trial court for the award of a reasonable fee.” Kleine-Albrandt, 597 N.E.2d at 1313.

[1] The citations in this memorandum are hyperlinked for reference to the original source.


Prepared by Richard A. Mann and Paralegal Molly E. Hendricks

Richard A. Mann has been practicing Family Law for more than 37 years in the Indianapolis area and throughout the State of Indiana. He is a Certified Family Law Specialist as certified by the Family Law Certification Committee, a Registered Family Law and Civil Law Mediator and Guardian ad Litem and Parenting Coordinator. Mr. Mann and his firm, Mann Law, P.C. Attorneys at Law, are proud to have been one of the firms who represented Same-Sex couples who were successful in overturning Indiana’s ban on Same-Sex marriage. He continues to fight discrimination in the law.

While a large portion of Mr. Mann’s practice is in the Family Law area he also represents several corporations on contract, personnel and other matters. He also has a varied General Practice in wills, estates, juvenile matters, collections, probate throughout the state of Indiana. Mr. Mann has tried murder cases as well as a death penalty case.

Mr. Mann has been selected for inclusion in Super Lawyers SuperLawyers Edition consecutively from 2009 – 2017.

Follow Richard Mann on FacebookTwitter, or read more blogs by him here.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Posted in Law Blogs0 Comments

Amateur Life Coach Episode: Pro Bono & Your Practice

Amateur Life Coach Episode: Pro Bono & Your Practice

James J. Bell, ICLEF's Amateur Life Coach

Originally Posted May 2014

The Amateur Life Coach (also known as attorney James J. Bell of Bingham Greenebaum Doll) is back to dispense his unique thoughts, advice and wisdom to his real and imagined viewers…

This week our question comes from Marion County Superior Court Judge Marc Rothenberg regarding the definition of Pro Bono

Now, you can also “like” the Amateur Life Coach at Facebook!  Visit his facebook account today and catch up on his day-to-day activities.

Questions for the Amateur Life Coach?  Email them to scottking@iclef.org or @JamesJBell on Twitter.

Written and performed by James J. Bell. Produced by the Indiana Continuing Legal Education Forum.
This video is for informational purposes only and should not be used as a substitute for professional advice.


James focuses his practice in the areas of criminal defense; attorney discipline defense and health care law. As a Marion County Public Defender, he represented clients in numerous jury and bench trials. James also represents clients in juvenile delinquency, appeals and post-conviction proceedings. James is a frequent ICLEF speaker on ethics, trial practice and criminal procedure. James just completed his first semester as an adjunct professor at the Indiana University Robert H. McKinney School of Law where he teaches a course on professional responsibility. To date, no student has yet stood on their desk and shouted “Oh captain, my captain!” Follow James on Twitter @jamesjbell

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN


Posted in Amateur Life Coach, Sale/Featured Items0 Comments

Law Tips: Pro Bono in Indiana 2014 – A Snapshot From An Expert

Are you in the midst of re-examining your pro bono commitments? Or, should you be? Maybe you’ve been wondering about the status of pro bono in Indiana. Fortunately, we have Scott Wylie to provide information on where Indiana’s pro bono path has led and the current state of affairs. Mr. Wylie is presently a plan administrator with the Volunteer Lawyer Program of Southwestern Indiana. He has directly observed the country’s pro bono developments for more than two decades, having also held the position of Director of the Public Law Center in Orange County California for a number of years. Scott is a nationally recognized commentator on attorney pro bono efforts, nonprofit governance, and poverty law. I am pleased to share with Law Tips readers his overview of Pro Bono in Indiana 2014.

Indiana is a deliberative place. We aren’t known for being on the cutting edge and change is something that we look at with a skeptical eye. It is rare that we jump in the pool first, typically waiting until others have tested the waters. Indiana was the last state in the nation to adopt a system of using interest on lawyer trust accounts (commonly referred to as IOLTA) to help fund the provision of legal services to low income residents. Our system, which went into effect in 1998, primarily funds pro bono programs in the state.1 Similarly, we have been cautious in our development of self-help services and clinical programs to address the needs of those for whom the legal aid and pro bono system just can’t fully serve. That cautious beginning served the state very well for a number of years, creating a well-planned, albeit modestly-funded, pro bono delivery system in every jurisdiction of Indiana. Pro Bono Plan Administrators working with the state’s Pro Bono Commission, worked to implement locally-developed pro bono plans to serve low income Hoosiers. These programs in turn often worked closely with other agencies in the delivery system, such as Indiana Legal Services, to maximize representation of the poor. 2 That system, however, is now greatly stressed after years of low interest rates sapping it of resources and high demand created by the Great Recession.

Even with strong programs and partnerships, our legal services delivery system was not able to meet the legal needs of every low income litigant before the Great Recession- not to mention the needs of the near-poor who aren’t served through the pro bono or legal aid system under any circumstance.

Since 2008, the gap has increased rapidly as programs have had to restrict services. To deal with this reality, law school clinics, legal services programs, courts, and each of our pro bono programs have worked to create new delivery models that attempt to meet the needs of clients who can’t otherwise be served through direct representation from our remaining pro bono programs. These litigants often have to navigate the system alone without services, and, while not ideal, these self-help services do address part of the litigants’ needs. They also assist the courts by increasing judicial efficiency and by ensuring more accurate and better prepared pleadings and legal documents when dealing with unrepresented litigants. 3 Court based clinics, law school clinics, and the encouragement of discrete task or limited scope representation have complemented the efforts of courtroom attorneys in increasing access to justice.

Professional Conduct Rule 6.5

Indiana wasn’t the first to undertake such efforts, but the state did ensure that our Rules of Professional Conduct facilitated these new models. Specifically, the courts adopted Rule 6.5 to make it easier for attorneys to provide limited scope and brief advice services at both court-based and nonprofit clinics (often run by law schools or pro bono programs). Perhaps the best known is our annual Talk to a Lawyer program offered each Martin Luther King Day throughout the state. Dozens of other clinics occur each month, some assisting pro se litigants with court forms and others providing guidance on specific subject matters. In all environments, participating volunteer attorneys can provide the service without having to do full conflict of interest checks. Rule 6.5 allows a pro bono attorney in these controlled environments to provide legal information or services to unrepresented litigants unless she specifically recognizes that she or a member of her firm has a conflict. The commentary provided with the rules provide guidance to both attorneys and program developers to ensure these limited scope services are offered in an appropriate manner and that litigants understand the limited nature of the legal relationship.

Professional Conduct Rule 1.2

Further guidance on providing services in these new environments is contained in Rule 1.2, specifically in subsection c, which along with the rule’s commentary specifically allows limited scope services. This method of providing legal services, often times referred to as unbundling, has been a hot topic in legal services for years. Since the framework of the profession’s conduct rules has always been based upon a full representational model, carving out these specific exceptions to allow limited scope services has been instrumental in allowing clinics, hotlines, and other self-help services to join the other tools available to the poor in obtaining legal help. These have become increasingly important tools as pro bono programs have had to limit services due to funding cuts. Attorneys participating in such programs should familiarize themselves with these rules and their commentary and participate only with reputable programs which follow the prescribed procedures for offering such. 4

By adopting new delivery methods and opening new avenues of service, facilitated by the ethics rules discussed above, Indiana continues its efforts to increase access to justice for the most vulnerable residents of the state, even during a time of very limited resources. For information on volunteering in your home jurisdiction, and for what innovative programs are offered in your community, contact your local Pro Bono Plan Administrator. 5

Thank you to Scott Wylie for sharing this Indiana pro bono snapshot. His ICLEF faculty presentation also includes specific instruction on areas such as allocation of authority between client and lawyer, independence from clients’ views and criminal and prohibited transactions. This training session is a portion of the 2014 Indiana Law Update program available currently by Video Replay around the state or as an On Demand Seminars, Click Here to learn more.

Indiana’s pro bono program structure in its entirety is described throughout Rule 6 of the Indiana Rules of Professional Conduct.

1 Historical information on the development of IOLTA programs throughout the country and historical data on Indiana’s IOLTA program can be found at www.nlada.org.

2 Information on pro bono services in Indiana, including information on each of Indiana’s pro bono programs can be found at www.in.gov/judiciary/probono.

3 In 2008, Indiana undertook an extensive survey of the legal needs of low income Hoosiers. The executive summary of that report can be found at the Indiana Legal Services website.

4 Detailed information on pro se assistance programs and limited scope representation can be found at http://www.abanet.org/legalservices/delivery/delunbund.html.

5 Information on pro bono efforts in Indiana, including a list of local Plan Administrators, can be found at www.in.gov/judiciary/probono.


About our Law Tips faculty participant:
Robert Scott Wylie: Before returning to the Evansville area in 2005, Mr. Wylie spent seventeen years practicing and teaching law in Southern California. He is a nationally recognized commentator on attorney pro bono efforts, nonprofit governance, and poverty law. From 1999 until 2005, Mr. Wylie served as the Associate Dean of Extemal Affairs and held the John Fitz Randolph Director of Clinical Education Chair at Whittier College School of Law. This work was preceded by a seven year stint as Executive Director of the Public Law Center in Orange County California. For over fifteen years, Mr. Wylie has been active with the American Bar Association Center for Pro Bono. Presently, he is the Director of the Vanderburgh Community Foundation and a Plan Administrator with the Volunteer Lawyer Program of Southwestern Indiana. Mr. Wylie serves on the Board of Directors of a variety of charities including the Legal Aid Society of Evansville.

About our Law Tips blogger:
Nancy Hurley has long-standing connections with Indiana lawyers. She was formerly a member of the ISBA and IBF staffs for over 30 years. Nancy’s latest lifestyle venture is with ICLEF. We are utilizing her exceptional writing and interviewing skills while exploring how her Indiana-lawyer background fits with ICLEF’s needs. When she isn’t ferreting out new topics for Law Tips, her work can be found in our Speaker Spotlight blogs, postings on the ICLEF Facebook and Twitter pages, and other places her legal experience lends itself.

Thank you for reading Law Tips. You may subscribe to this weekly blog through the RSS link at the top of this page.  Also, you are encouraged to comment below or email Nancy. She welcomes your input as she continues to sift through the treasure trove of knowledge of our CLE faculty to share with you.

ICLEF • Indiana Continuing Legal Education Forum, Indianapolis, IN

Posted in Law Tips, News0 Comments