FEDERAL DEPOSIT INSURANCE CORPORATION POLICY STATEMENT ON PRO BONO LEGAL ACTIVITIES
Executive Order 12988 (1996) encourages pro bono and other volunteer services by certain federal employees. White this Order is not binding on the FDIC, the Corporation supports its goals and voluntarily establishes the following policy to encourage pro bono legal activities by its employees.
Given the significant unmet need for legal and other community services in the nation, it is the policy of the FDIC to encourage and support efforts by employees of the Legal Division to provide pro bono legal services within their communities that are consistent with applicable federal statutes and regulations governing conflicts-of-interest and outside activities. While service in the FDIC is itself one of the highest forms of public service, there is a need to increase access to legal services for all persons in our communities and to that end the FDIC hereby encourages its attorneys to volunteer their time in delivery of legal services.
I. DEFINITION OF PRO BONO LEGAL ACTIVITIES AND
ESTABLISHMENT OF POSITION OF PRO BONO COORDINATOR
A. Pro bono legal activities are those legal activities performed without compensation and include, but are not limited to, the provision of legal services to:
1. persons of limited means or other disadvantaged persons;
2. charitable, religious, civic, community, governmental, health and educational organizations in matters which are designed primarily to address the needs of persons of limited means or other disadvantaged persons, or to further their organizational purpose;
3. individuals, groups or organizations seeking to secure or protect civil rights, civil liberties or public rights; or
4. activities for improving the law, the legal system or the legal profession.
Statutory or regulatory restrictions may prohibit government lawyers from performing certain pro bono services. See Section II. The FDIC does not seek to restrict the type of volunteer activities employees may engage in during their free time provided that such activities do not violate any statutory or regulatory restrictions.
B. The Legal Division hereby establishes the position of Pro Bono Coordinator to act as a clearinghouse for information on pro bono legal opportunities and as a point of contact for the interagency working group on pro bono initiatives within the government.
II.. LIMITATIONS ON PRO BONO LEGAL SERVICES
A. Prior Approval
1. An employee seeking to engage in any pro bono legal work must follow agency procedures for outside activities, and must consult with his or her designated Deputy Ethics Counselor regarding prior approval requirements. See 5 C.F.R. sections 2635.801, Standards of Ethical Conduct for Employees of the Executive Branch, Outside Activities, and section 3201.107, Supplemental Standards of Conduct for Employees of the Federal Deposit Insurance Corporation, outside employment and other activities. The Pro Bono Coordinator will designate some pro bono legal activities as preapproved such that the employee need only give advance notice to a designated supervisor before undertaking the outside activity. In general, approval of an employee's request to engage in pro bono legal work shall be granted if the work would not:
(1) violate any federal statute, rule or regulation, including, for example, 18 U.S.C. sec. 205, Activities of officers and employees in claims against and other matters affecting the Government, and 5 C.F.R. Pt. 2635, 3201.107;
(2) interfere with the proper and effective performance of the employee's official duties (including time and availability requirements of his or her position);
(3) create or appear to create a conflict of interest, see Sections II B, II and IV;
(4) cause a reasonable person to question the integrity of the Agency's programs or operations.
B. Conflicts Of Interest
1. General Standard. Agency employees may not engage in pro bono legal activities that create or appear to create a conflict of interest with their work for the FDIC. Under the Standards of Ethical Conduct, 5 C.F.R. Part 2635, a conflict of interest generally exists where the services would:
a. require the recusal of the employee from significant aspects of the employee's official duties, see 5 C.F.R. sec. 2635.802, Conflicting outside employment and activities;
b. create an appearance that the employee's official duties were performed in a biased or less than impartial manner, see 5 C.F.R. sec. 2635.502, Personal and business relationships;
c. create an appearance of official sanction or endorsement, see 5 C.F.R. sec. 2635.502.
2. 18 U.S.C. section 205. With limited exceptions, outside activities may not include the representation of third parties before the federal government, see 18 U.S.C. section 205.
3. Criminal representation. Agency attorneys are prohibited by statute from providing pro bono legal assistance in any case in which the United States is a party or has a direct and substantial interest -- which includes criminal defense representation in federal court or in courts within the District of Columbia. See 18 U.S.C. section 205.
4. Insured institutions. Agency attorneys may not provide legal assistance that would result in an action against an insured financial institution or any subsidiary of an insured financial institution.
5. Responsibility for Conflicts Check.
a. The Pro Bono Coordinator will be responsible for completing the conflicts check for pro bono legal activities prior to approving such activities. Work on behalf of the union is governed by the agency collective bargaining agreement and is not covered by this Pro Bono policy.
b. The employee will be responsible for ensuring that his or her legal services do not present a conflict of interest and do not otherwise violate any applicable statute or regulation.
COMMENT: The issue of conflicts should be determined by reference to the government-wide standards of conduct, 5 C.F.R. sec. 2635, and any subsequently published agency supplemental regulations, see 5 C.F.R. Part 3201.
Application of these standards of conduct necessarily will involve the exercise of judgment. These judgments will likely differ from one situation to another. For this reason, each office will be asked to work with the Pro Bono Coordinator and the Agency's Ethics official. The Designated Agency Ethics Official is available for consultation on conflicts questions as is the Pro Bono Coordinator.
Hatch Act policy: Outside activity by FDIC employees must comport with the regulations implementing the Hatch Act, 5 C.F.R. Part 734, and with all memoranda concerning FDIC policy on compliance with the Hatch Act.
Non-representational assistance: Agency employees may provide nonrepresentational assistance without compensation, such as assistance in the filling out of forms for person seeking governmental benefits, and may assist in the preparation of tax returns without compensation (e.g., through the Voluntary income tax program) provided that the services satisfy the prior approval requirements of Section II. A of this Policy Statement and do not present a conflict of interest as addressed in Section II. B.
C. Additional Considerations.
1. Retainer agreement. The Pro Bono Coordinator will have available a model retainer letter making explicit to a pro bono legal client that the attorney is acting in his or her own individual capacity and not on behalf of the FDIC. The client must countersign a retainer letter in acknowledgement of this fact.
2. Malpractice coverage. Before agreeing to meet with or accept a pro bono legal client, the attorney should determine whether the referring pro bono program or organization has a malpractice insurance policy which covers volunteer attorneys. The FDIC does not provide malpractice coverage for pro bono work.
COMMENT: Generally, volunteer programs organized by the local bar or the more established referral programs do provide malpractice coverage. The Pro Bono Coordinator will have information regarding which programs provide malpractice insurance coverage for volunteer attorneys. Attorneys who choose to provide legal services without malpractice coverage do so at their own risk.
3. Restrictions on the unauthorized practice of law. Attorneys not licensed in the District of Columbia may only practice subject to the constraints of the D.C. local rule regarding the unauthorized practice of law D.C. Court of Appeals Rule 49.
COMMENT: D.C. Court of Appeals Rule 49 currently exempts federal government attorneys who are members in good standing of another state bar and who accept pro bono cases assigned or referred by an organization that provides legal services to the public without fee, provided that the attorney is supervised by an enrolled, active member of the D.C. Bar. If the matter requires a court appearance, such an attorney shall file with the court having jurisdiction over the matter and with the D.C. Court of Appears Committee on Unauthorized Practice a certificate that the attorney is providing representation in that particular case without compensation. The Pro Bono Coordinator will have information regarding the revision of Rule 49 for FDIC attorneys who are not members of the D.C. Bar but who wish to accept pro bono cases. Agency attorneys licensed to practice in other jurisdictions are advised to consult their local rules and regulations regarding any professional fees and practice restrictions that may exist.
III. USE OF OFFICIAL POSITION OR PUBLIC OFFICE
The Policy: FDIC employees who provide pro bono legal services may not indicate or represent in any way that they are acting on behalf of the FDIC or in their official capacity. The incidental identification of an employee's position or office -- for example, when an office number and street address are not sufficient to ensure mail delivery or when receiving a phone call -- is not prohibited. The use of franked mail in the performance of pro bono services is prohibited. Out of pocket expenses incurred by an employee in the performance of pro bono or volunteer work will not be reimbursed by the FDIC.
A. An employee of the FDIC may not use office letterhead, agency or business cards, or otherwise identify himself or herself as an agency employee in any communication, correspondence, or pleading connected with pro bono legal activities.
B. An attorney at the FDIC is responsible for making it clear to the client, any opposing parties, or others involved in a pro bono case that the attorney is acting in his or her individual capacity as a volunteer and is not acting as a representative of or on behalf of the FDIC.
IV. USE OF AGENCY RESOURCES
A. Hours of Work. FDIC employees are encouraged to seek pro bono legal opportunities that can be accomplished outside their scheduled working hours. However, pro bono legal activities may sometimes occur during work hours. Supervisors are urged to be flexible and to accommodate where feasible the efforts of their employees to do pro bono legal work. Employees seeking to participate in pro bono legal activities during work hours may also be granted leave, or in very limited circumstances administrative leave as explained below. When considering employee requests for leave to engage in pro bono legal activities supervisors should give due attention to the effect of the employee's absence on office operations. See 5 C.F.R. sec. 2635.705, Use of official time.
B. Administrative leave. As a general rule, it is inappropriate to pay an employee for time engaged in pro bono legal services. However, in limited circumstances, it may be appropriate to excuse an employee from duty for brief periods of time without loss of pay or charge to leave to participate in pro bono legal activities. Administrative leave may be granted under unusual circumstances, such as for example where a court appearance or some other pro bono related activity can only be performed within work hours. Administrative leave will not be granted for volunteer or pro bono legal activities that directly benefit an employee or those with whom an employee has a personal relationship.
C. Use of Office Equipment. As a general rule, employees may use government property only for official business as authorized by the government. See 5 CFR 2635.101(b)(9), Basic obligation of public service, .704(a), Use of government property. FDIC policy authorizes the following personal uses of government office and library equipment and facilities:
1. personal uses that involve only negligible expense (such as electricity, ink, small amounts of paper, and ordinary wear and tear); and
2. limited personal telephone/fax calls to locations within the office's commuting area, or that are charged to non-government accounts.
This policy does not authorize the personal use of commercial electronic databases when there is an extra cost to the government. This policy does not override statutes, rules or regulations governing the use of specific types of government property such as electronic mail. Any employee who has questions about the application of this section of the policy should consult the Pro Bono Coordinator.
D. Clerical Support. Pro bono legal work is not part of official duties and may not be assigned to or otherwise required of support staff. However, any support staff who wish to volunteer to support pro bono activities may contact the Pro Bono Coordinator to be added to a list of persons willing to volunteer to support pro bono legal projects. Any persons volunteering for such work will be subject to the same standards as attorneys when engaged in pro bono activities.
This Policy Statement is intended only to encourage increased pro bono legal activities by FDIC employees and is not intended to create any right or benefit, substantive or procedural, enforceable at law by a party against the United States, its agencies, its officers or any person. The FDIC will not be responsible in any manner or to any extent for any negligent or otherwise tortious acts or omissions on the part of any employee engaged in any pro bono activity. While the FDIC encourages pro bono activities by its employees, the FDIC exercises no control over the services and activities of employees engaged in pro bono activities nor does it control the time or location of any pro bono activity. Each employee is acting outside the scope of his or her employment whenever he or she participates, supports or joins in any pro bono activity.
November 8, 1999