Pro Bono Custody Services in Virginia

Posted on Sep 9, 2015 by Katie Carter

Almost every single day we have someone call and ask about whether we offer pro bono services for women facing Virginia custody cases.  (Sorry, but we really don’t.)  I can understand why. There’s definitely a general presumption that pro bono is a thing that lawyers do (or are required to do), and there’s obviously a need out there for those types of services. Not everyone can afford to pay the retainer to hire an attorney, let alone continue to pay the bills once the retainer fee has been spent.

Aren’t lawyers supposed to provide free legal services?

The way pro bono really works is probably a little bit different from the way you think it works. But, in essence, you’re right. According to our legal rules of ethics in Virginia, we’re supposed to provide a certain amount of volunteer work each year. In case you’re wondering, here’s exactly what our rule says:
Rule 6.1
Voluntary Pro Bono Publico Service
(a) A lawyer should render at least two percent per year of the lawyer’s professional time to pro bono publico legal services. Pro bono publico services include poverty law, civil rights law, public interest law, and volunteer activities designed to increase the availability of pro bono legal services.
(b) A law firm or other group of lawyers may satisfy their responsibility collectively under this Rule.
(c) Direct financial support of programs that provide direct delivery of legal services to meet the needs described in (a) above is an alternative method for fulfilling a lawyer’s responsibility under this Rule.
Notice that the rule says we “should” provide pro bono services; it doesn’t say that we have to. It also doesn’t say HOW we have to meet that obligation. There are a lot of ways that we can help the community and make use of our legal skills, and the rule certainly gives us that discretion. Furthermore, it doesn’t even specifically require that we provide pro bono services at all. It’s a suggestion.
Still, most lawyers I know are very aware that their skills are in high demand, and that lots of deserving people out there could use them. Most lawyers are willing to provide some sort of service to the public, and do so on a regular basis.

I can’t afford an attorney. Will an attorney take my case on for free?

It’s actually pretty rare that an attorney would take on an entire case for free or reduced fees in order to satisfy their pro bono obligation.
Why? Doesn’t it make the most sense to just pick up a case here and there? Well, no, it doesn’t! Not to us, anyway. Taking on an entire case, especially a contested one (which, let’s face it, usually the people who call asking for help are facing serious contested cases), is a really big deal. Many attorneys are willing to take on cases to support a cause he or she believes in (like, preventing domestic violence, or something of that nature), in many cases, we’re really not just free to do whatever we like. We also don’t often know what’s involved in a case before it gets going, so it makes most lawyers a little nervous to think about taking on an entire case for free.
Most of the time, attorneys offer valuable legal services pro bono without taking on entire cases. We tend to do things like volunteering hours in Legal Aid offices or other free clinics, teaching seminars on the law, or working with nonprofit organizations to represent clients at specific points in the process. In our area, for example, if you’re a member of the Virginia Beach Bar Association you’re supposed to volunteer your time at least twice a year to work with the CLASS (Concerned Lawyers Advocating Spousal Safety) organization. When we work with CLASS, we pursue protective orders for people who in violent or abusive relationships. By doing those types of things, we can help more people and provide the types of valuable information and legal services we have to offer in a more limited way.
We DO feel like we have a responsibility to give back to our community, and there’s certainly an obligation to help provide legal information and guidance to people in need. Not everyone can afford to hire an attorney to represent them in their cases, and we’re very cognizant of that. Still, most lawyers (at least, the lawyers I know of), don’t really take on entire cases without charging a fee—unless, of course, you’re talking about a case that was taken on a contingent fee.
There are certain types of cases where a lawyer can take a case without charging you any money up front. It’s not out of the goodness of their hearts, though. In those types of cases, the attorney makes their money on the back end–sometimes, by taking as much as 40% of what you receive at the end.
In a custody case, though, it is considered unethical to take cases on a contingency fee. We could be disbarred. Not only that, but, unlike in a personal injury-type case, there is no lump sum settlement at the end. Custody cases just don’t work that way.

Can Legal Aid help me?

Maybe. If you don’t have the money to hire an attorney, Legal Aid is a great place to start. As you can probably imagine, though, there are a number of people who turn to Legal Aid offices for help.
The first thing you should know is that Legal Aid has very, very strict income requirements. If you income doesn’t fall below a certain level, they can’t help you. If your income DOES fall below that level, though, you’ll get at least some assistance.

Of course, just like with regular attorneys, Legal Aid attorneys can’t just take on entire cases for all the people who have low enough incomes to receive their assistance. There are different levels of help that Legal Aid can provide, and they vary widely from case to case. In general, Legal Aid doesn’t take on contested cases. Their reasoning is the same as the non Legal Aid attorneys: it’s too much of a dran on time and resources. Instead, Legal Aid tries to focus on providing help to the people with uncontested cases—because, for the same amount of money and time, they can help far more people.
For many people, Legal Aid can do nothing more than provide a free consultation, and try to point them in the direction of the resources they need to handle their own cases without hiring an attorney. Sometimes, though, Legal Aid does take a case and represent the client throughout. It all depends on the circumstances: specifically, your income, and whether the case is contested or uncontested.
For women who can’t afford attorneys, I always recommend starting at Legal Aid. What’s the worst that can happen?

Can I have a lawyer appointed for me?

In a custody case, no. It may seem unfair, and also counterintuitive, but in custody cases, attorneys are never appointed. Attorneys are appointed for defendants in criminal cases who can’t afford to retain their own counsel.
Why? Well, don’t shoot the messenger here, but it’s because our legal system is based on a belief that a person who faces criminal charges (especially charges that come with the risk of jail time) deserves to have a lawyer to defend against those charges. Other types of cases are considered less fundamental.
I agree that it doesn’t make sense, and I understand that you’re probably feeling that our Founding Fathers never experienced the situation you’re in—if your liberty isn’t at stake, then whose is? Still, though—that’s the way the law works. Lawyers aren’t appointed in non-criminal (otherwise known as civil) cases. Custody is not criminal; it’s civil.

What do YOU do for your pro bono work?

It’s a fair question. I’ve been talking to you all about the things lawyers do and don’t do when it comes to pro bono work, but I haven’t talked about myself. What do I do?
At my law firm, Hofheimer Family Law, we teach monthly divorce seminars on what Virginia women need to know about divorce (if your custody case is also part of an underlying divorce, you can get good information there), and quarterly custody seminars, designed to help teach Virginia moms how to represent themselves in their custody cases. I speak regularly at these seminars, as do all the other attorneys in my firm, and we consider that to be our pro bono service. We provide a great deal of free legal information to the women who attend our seminars. It’s an excellent program, and one that I’m proud to be affiliated with.
There is a fee to attend our seminars (just so that we can afford to rent the space and print the materials; we don’t actually make any profit ourselves), but we keep it low so that any woman who needs the information can afford to attend.
Our Second Saturday divorce seminars are held on the Second Saturday of each month (hence the name) in both Newport News and Virginia Beach, and on the Third Tuesday of the month in Virginia Beach. Each seminar is taught by one of our licensed and experienced divorce attorneys, and covers many of the most frequently asked questions we hear. The cost is $40 to attend if you pre-register online, and $50 at the door.

I can’t even afford that much! What can I do?

We do sometimes accept fee waiver requests from therapists, social workers, and victim advocates, so, if money is really an issue, it might be a good idea to talk to your therapist (or whoever you’re working with), and see if they can arrange a fee waiver for you based on your financial need. For more information about Second Saturday, or to register to attend, click here.
Custody Bootcamp for Moms, on the other hand, is specifically designed to help moms prepare for their custody and visitation cases in the juvenile courts. Whether you’ve already hired an attorney, or plan to go at it on your own, Custody Bootcamp for Moms is full of Virginia-specific, up to date information about Virginia custody cases. It’s an intense, all day seminar, covering pretty much everything you need to know—including how to make opening and closing arguments, prepare a trial notebook, question and cross examine witnesses, and get your evidence in (while keeping his out). The cost to attend is $197. We offer one scholarship per seminar, and take applications from therapists, social workers, and victim advocates, again, based on the financial need of the applicant. For more information about Custody Bootcamp for Moms, or to register online to attend, click here.

Surely you know SOMEONE who takes cases pro bono!

I really, really don’t. I wish I could tell you that I know someone, but I don’t. It’s not a bad idea to call around and see what different answers you get from different law firms, but I think it’s fairly unlikely. If you find an attorney who offers a free consultation, it can’t hurt to meet with them just to see what advice you get. Of course, many family law attorneys don’t offer free consultations (like our firm), but, if you can find one, why not take advantage of it?
I hope you’re not discouraged, even though I know that this answer probably isn’t the one you were hoping for. You’re welcome to try to call around and see whether you can find an answer that’s more like what you wanted to hear, but I think it’s probably pretty unlikely that you’ll find an attorney (particularly an experienced one) willing to take on an entire case for little or no fee. Manage your expectations, and come up with a plan—your time will probably be better spent that way.
I don’t have a magical answer for the question of what to do if you really can’t afford to hire an attorney. It’s a tricky situation. I can’t make money appear where it doesn’t already exist, and I don’t have any magic tricks up my sleeve that make affording an attorney any easier for people who can’t just do it on their own. I’m sorry; I wish I could.

I literally don’t have any money. What can I do?

I don’t have a magic wand. I don’t have an awesome answer that will cure all evils, or create extra cash flow. It’s really difficult, and there’s no way around it. I’m sensitive to what you’re going through, but that doesn’t mean I have the answer. Still, we see lots of people who say they can’t afford an attorney—but they have a friend, family member, or neighbor who can help, at least temporarily. Sometimes, our clients take out credit cards, or qualify for financing some other way. It’s not perfect, and it may not be the answer you’re looking for, but it’s something worth considering, especially if your divorce is contested. You’ll want support however you can get it.
After reading this article, I hope you have better understanding of how pro bono services work, and how to take advantage of the options available to you. If you’re afraid that the money really just isn’t there to hire an attorney, it’s a good idea to have a realistic perspective so that you can begin to make plans that keep your best interests at heart. Worst case scenario? Have one consultation, come to a seminar, or meet with someone at Legal Aid—just to get an idea of what you should be doing. A lot of it you can probably do yourself, anyway, especially with a little bit of guidance. Of course, it’s not a perfect solution—if there’s not money, there’s just not money, but hopefully you have a better idea now of the options available to you so that you can start to make the best decisions for your case.
Good luck to you. As always, if you have questions, feel free to give our office a call at (757) 785-9761.