(L to R) Jason Fellner and Kevin Cardona, Murphy Pearson Bradley & Feeney (Photo: Courtesy Photo)

Pro bono work offers many benefits to clients and attorneys alike. For clients without the means to afford legal fees, the obvious benefit is free legal representation. Attorneys benefit from prestige within the profession, a sense of contributing to the good of society, and especially newer attorneys may benefit from the experience along with exposure to unfamiliar practice areas. What's more, it often provides newer attorneys with flexibility in having more control over the strategy of cases than is customary with paying clients.

Despite the many learning opportunities for newer counsel, few attorneys may realize that the same standard of care applies to the legal representation of pro bono clients as it does with paying clients. Busy partners who are under pressure to spend their time on billable work may underestimate the risk and exposure of staffing inexperienced associates on pro bono cases without closely supervising their work. Concerns over effective assistance of counsel can be assuaged if the attorneys staffed on such a case have made sufficient efforts to competently represent the pro bono client through necessary study. [CRPC 3-110.] A recent malpractice lawsuit against Jones Day, one of the largest law firms in the world, provides a telling example of what happens when attorneys (allegedly) fail to exercise due care in assisting their pro bono clients even when those clients don't pay for those legal services.

According to a lawsuit filed on July 25 in the Superior Court of California, County of Orange, titled Bernier v. Jones Day, Case No. 30-2019-01085904-CU-PN-CJC, plaintiffs Zona Bernier and Gary C. Hill sued Jones Day's partner overseeing pro bono work and three current or former associates for breach of contract, legal malpractice, fraud, breach of fiduciary duty, unfair business practices and false advertising.

The complaint alleges that the plaintiffs lived in a mobile home park where they rented the parking space, but owned their home. Plaintiffs paid their rent on time for several years, which was subject to annual rent increases of about 9%. On Sept. 1, 2017, the plaintiffs renewed their three-year lease at a rent of $1,447.86. Shortly thereafter in October, the landlord sent two 90-day notices to increase the rent by approximately 43.6% to $2,080, starting Feb. 1, 2018. The plaintiffs claim to have either not seen or received these notices, and so they continued to pay the same monthly rent through the end of March 2018. In April 2018, the landlord returned their checks and provided the plaintiffs with a 60-day notice to pay or quit. On April 20, 2018, the landlord filed an unlawful detainer lawsuit. Initiall ythe plaintiffs attempted to defend themselves in the action in pro per, but on the eve of trial a legal aid clinic referred them to Jones Day.

The plaintiffs principally allege that the malpractice consists of Jones Day rushing the plaintiffs to a settlement as soon as they signed an engagement letter, Jones Day staffing inexperienced attorneys on the case without proper supervision and failing to properly analyze the facts of the case and consider a trial strategy even though the unlawful detainer action was deficient on its face.

The plaintiffs retained Jones Day as their attorneys on June 18, 2018, and while the engagement letter is signed by a Jones Day partner, he never performed any work on the case. The majority of work was completed by a first-year associate, and two summer associates, one of whom was a certified law student permitted to perform legal tasks only under the supervision of a supervising attorney.

Within 24 hours of being retained, Jones Day attorneys filed an ex parte application to continue trial, stating in their declaration that the plaintiffs needed more time to conduct discovery and prepare for trial. Jones Day conducted no discovery between the filing the ex parte and settlement. The alleged malpractice occurred when Jones Day's first-year and summer associates correctly determined that the notice to pay or quit were defective, and that the sudden rent hike was unauthorized under conflicting and confusing lease provisions, but then failed to take any action. In other words, Jones Day identified the flaws with the landlord's case, but allegedly invested no resources to win the plaintiffs' case.

On July 9, 2018, a Jones Day summer associate met with the plaintiffs at the Jones Day office in Irvine, California and allegedly pressured them to sign a settlement agreement that agreed to allow the landlord to charge the new rent of $2,080, and stated that the plaintiffs would have 60 days to sell their mobile home and move out. Smith allegedly told the plaintiffs that if they did not come to the office the following day by 5 p.m. to sign the agreement, Jones Day would drop them as clients and they would have to defend themselves at trial without assistance of counsel which they would surely lose.

According to the complaint, the plaintiffs signed the agreement, but were unable to find a buyer for the mobile home within the 60 days agreed to because the new rent was approximately $500 above market rate for the area. Only two weeks after signing the conditional settlement agreement, before the case was dismissed, Jones Day signed a disengagement letter and told the plaintiffs they could no longer help them. The plaintiffs were forced to turn over their mobile home in exchange of satisfaction of the landlord's judgment, leaving the plaintiffs homeless and unable to rent a new home with an eviction on their record.

Regardless of the veracity of the plaintiffs' allegations, this case illustrates the potential exposure pro bono representation creates to law firms where there is insufficient supervision of the work of junior attorneys and the perception (accurate or not) that the partner who signed the engagement agreement is not participating in the representation.

As a whole, the complaint, which may have the unfortunate consequence of large firms now refusing to participate in pro bono work, argues that Jones Day does not invest the same resources in representing pro bono clients as it does with paying individuals or institutional clients, contrary to the claims Jones Day makes on its website. More likely than not, with a paying client, Jones Day would have analyzed and discussed the merits of their client's case, and the partner would have had a role in supervising the work of junior attorneys. This case provides a sobering reminder that the same standard of care in providing competent legal representation applies in pro bono cases as it does with paying clients. There is no "pro bono standard" of professional legal services.

Kevin D. Cardona is a litigation associate in the San Francisco office of Murphy Pearson Bradley & Feeney. He represents businesses and individuals in all phases of civil litigation. He can be reached at [email protected].

Jason E. Fellner is a shareholder in the San Francisco office of the firm. He represents individual and corporate clients throughout California and Washington with a focus in professional liability defense, insurance and civil litigation. Fellner is a certified specialist in legal malpractice law by the State Bar of California. He can be reached at [email protected].