GENERAL SERVICES ADMINISTRATION
OFFICE OF GENERAL COUNSEL POLICY STATEMENT
ON PRO BONO LEGAL AND VOLUNTEER SERVICES
Executive Order 12988, issued by the President on February 5, 1996, provides that "all federal agencies should develop appropriate programs to encourage and facilitate pro bono legal and other volunteer service by Government employees to be performed on their own time, including attorneys, as permitted by statute, regulation, or other rule or guideline." Given the significant unmet need for legal and other community services in the nation, it is the policy of the General Services Administration's (GSA) Office of General Counsel (OGC) to encourage and support efforts by OGC employees to provide pro bono legal and volunteer services within their communities that are consistent with applicable federal statutes and regulations governing conflicts of interest and outside activities. While working for GSA is itself public service, GSA supports increased access to justice for all and other services to strengthen our communities. This policy statement encourages OGC employees to provide pro bono legal and other volunteer services to persons of limited means or other disadvantaged persons, so long as such service is consistent with applicable laws and regulations and the OGC employee's obligation to the agency.
OGC employees who perform pro bono legal and volunteer services are subject to the same ethics laws and regulations as all other GSA employees. These include the criminal conflicts of interest laws which prohibit an employee from representing any party before the U.S. Government, with or without compensation, as well as the Office of Government Ethics (OGE) standards of ethical conduct regulations which prohibit the misuse of position, title, time and Government property. See III.B below. In addition, OGC attorneys are subject to the codes of ethical conduct imposed by the various state bar associations of which they are members. The scope of the OGC pro bono legal and volunteer services program extends to all OGC employees and encourages all volunteer work, legal or non-legal. This inclusive structure best reflects OGC's commitment to developing a sense of community responsibility, not only among lawyers but among all citizens.
To this end, the Office of General Counsel encourages OGC employees to set a goal of at least 50 hours per year of pro bono legal and volunteer services. In the context of pro bono legal services, the 50-hour aspirational goal is in accord with the American Bar Association's (ABA) Model Rule 6.1, and falls within the range adopted by several state bar associations.
II. DEFINITION OF PRO BONO LEGAL AND VOLUNTEER
Definition. Pro bono legal and volunteer services are broadly defined to include many different types of activities performed without compensation.
A. Pro Bono Legal Services. Pro bono legal services are those legal services 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 (collectively, "charitable") organizations in matters which are designed primarily to address the needs of persons of limited means or other disadvantaged persons or to further charitable organizational purposes;
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.
COMMENT: This definition is based on Rule 6.1 of the ABA Model Rules of Professional Conduct, with some modifications that, among other things, make clear that pro bono legal services must be provided without fee. This definition of pro bono legal services includes a broad range of activities, the listed activities are intended as examples only. OGC recognizes, however, that statutory or regulatory restrictions may prohibit Government lawyers from performing certain pro bono legal services. See Section III below.
B. Volunteer Services. Volunteer services are those activities, other than the practice of law, performed without compensation. They include, but are not limited to, the provision of services to:
1. persons of limited means or other disadvantaged persons; or
2. charitable organizations in matters which are designed primarily to address the needs of persons of limited means or other disadvantaged persons.
COMMENT: OGC does not seek to restrict the type of volunteer activities in which employees may engage in their free time, provided that the activities do not violate any statutory or regulatory restrictions. See Section III below. The General Counsel encourages OGC employees to participate in the GSA-sponsored mentoring programs and volunteer activities. For example, the strong leadership skills of many OGC employees would be valuable in helping at-risk youths in classrooms, youth clubs, shelters, and sports programs.
III. LIMITATIONS ON PRO BONO LEGAL AND VOLUNTEER
A. Prior Approval.
Employees seeking to engage in any pro bono legal work or provide volunteer services must follow government-wide procedures under subpart H of the Standards of Ethical Conduct for Employees of the Executive Branch (5 C.F.R. Part 2635) and the agency procedures for outside activities under the Supplemental Standards of Conduct for Employees of the General Services Administration (5 C.F.R. 6701.106), and should consult with their Deputy Standards of Conduct Counsellor regarding prior approval requirements. In general, an employee shall ensure that his or her pro bono legal and volunteer services do not:
1. violate any Federal statute, rule or regulation, including, for example, l8 U.S.C. §§ 201 et seq., 5 C.F.R. Part 2635, and 5 C.F.R. Part 6701;
2. interfere or conflict with the proper and effective performance of their official duties (including time and availability requirements of their position) (see 5 C.F.R. § 2635.705);
3. create or appear to create a conflict of interest (see Section III.B. below); or
4. cause a reasonable person to question the integrity of GSA's programs or operations.
B. Conflicts of Interest
1. Statutory Restrictions. Under 18 U.S.C. § 205 Federal employees are prohibited from engaging in representations before the U.S. in matters in which the U.S. is a party or has a direct and substantial interest. In particular, OGC attorneys are prohibited from providing pro bono legal assistance in any case in which the U.S. is a party or has a direct and substantial interest if the legal assistance requires representation before the U.S. This would include criminal defense representation in Federal court.
Section 205 does not preclude employees from representing: (1) their immediate family (spouse, child, parents or any person for whom, or for any estate for which, they are serving as a guardian, executor, administrator, or trustee subject to the limitations identified under 18 U.S.C. § 205(e)); and (2) any person who is a subject of disciplinary, loyalty and other personnel administration proceedings, so long as the representation is not inconsistent with the faithful performance of the employee's duties in connection with those proceeding. See 18 U.S.C. 205(d).
Also, outside activity by OGC employees must comply with the regulations implementing the Hatch Act Reform Amendments of 1993 and 5 C.F.R. Part 734.
2. Regulator Restrictions. OGC employees may not engage in pro bono legal or volunteer services that create or appear to create a conflict of interest with their official duties at GSA. Under the Standards of Ethical Conduct, a conflict of interest generally exists where the services would:
a. require the recusal (disqualification) of a employee from significant aspects of the employee's official duties that the employee's ability to perform the duties of his or her position would be materially impaired (see 5 C.F.R. § 2635.802(b));
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. § 2635.502); or
c. create an appearance of official sanction or endorsement (see 5 C.F.R. § 2635.702(b) and (c)).
3. Non-representational Assistance. OGC employees may provide non-representational assistance without compensation, such as assistance in the filling out of forms for persons seeking Government benefits, and may assist in the preparation of tax returns without compensation (i.e., through the Voluntary Income Tax Program), provided that the services do not present a conflict of interest as described in this section.
4. Local Bar and Licensing Rules may also apply.
C. Additional Considerations.
1. Retainer Agreement. In connection with each pro bono legal representation, an OGC attorney shall provide his or her clients with a retainer letter making explicit that the attorney is acting in his or her own individual capacity and not on behalf of GSA. The client must countersign a retainer letter in acknowledgment of this fact. A model retainer agreement is attached and should be adapted as appropriate.
2. Malpractice Coverage. Before agreeing to meet with or accept a pro bono legal client, OGC attorneys should determine whether the referring pro bono program or organization has a malpractice insurance policy which covers volunteer attorneys. GSA does not provide malpractice coverage for pro bono legal work. Generally, volunteer programs organized by the local bar or established referral programs do provide malpractice coverage. OGC attorneys who choose to provide legal services without malpractice insurance coverage are acting at their own risk.
3. Costs. There may be costs associated with handling a pro bono case, such as filing fees and other litigation costs. Some organizations have established mechanisms to provide for coverage of such costs in the case of Federal Government volunteers.
4. The District of Columbia Professional Licensing Fee. The D.C. Code has been amended to provide that members of the District of Columbia Bar "engaged in the provision of legal services, on a pro bono basis solely or in combination with Government service," are exempted from the requirement to pay the District of Columbia professional licensing fee of $250. D.C. Act 10-304.
5. Restrictions on the Unauthorized Practice of Law. OGC attorneys not licensed in the District of Columbia do not need to pay the District of Columbia licensing fee, but may only practice subject to the constraints of the District of Columbia's local rule regarding the unauthorized practice of law. D.C. Court of Appeals Rule 49. Rule 49 permits Federal Government attorneys to provide pro bono legal services in the District of Columbia so long as they are members in good standing of a bar association of some state, get the cases in referral from an organization providing pro bono legal services, and are supervised by an active member of the D.C. Bar. See D.C. Court of Appeals Rule 49(c).
OGC attorneys in other jurisdictions are advised to consult their local rules and regulations regarding professional fees and practice restrictions that may exist.
IV. USE OF OFFICIAL POSITION OR PUBLIC OFFICE
OGC employees who provide pro bono legal services or who participate in volunteer activities may not indicate or represent in any way that they are acting on behalf of GSA, or in their official capacity.
Without limiting the generality of the preceding sentence, OGC employees may not use office letterhead, agency or office business cards (whether or not purchased with appropriated funds), or otherwise identify themselves as GSA employees in any communication, correspondence, or pleading connected with any pro bono legal or volunteer services. In addition, OGC attorneys are responsible for making it clear to their clients, opposing parties, or others involved in a pro bono case, that they are acting in their individual capacities as volunteers, and are not acting as representatives of, or on behalf of, GSA.
V. USE OF AGENCY RESOURCES
A. Hours of Work. OGC employees are encouraged to seek pro bono legal and volunteer service opportunities that can be accomplished outside their scheduled working hours. Such projects are intended to be performed on employees' own time. However, pro bono legal or volunteer activities may sometimes occur during work hours, i.e., court appearances. Supervisors are urged to be flexible and to accommodate, where feasible, the efforts of their employees to do pro bono legal or volunteer work. Employees seeking to participate in pro bono legal or volunteer activities during work hours may also be granted leave without pay, annual leave, or, in very limited circumstances, administrative leave. As a general rule, it is inappropriate to pay an employee for time engaged in pro bono legal or volunteer 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 volunteer activities. See (for guidance only) Federal Personnel Manual System, FPM Letter 992-1 (April 19, 1991). Excused absence should be limited to those situations in which the employee's volunteer service meets one or more of the following criteria: is directly related to GSA's mission; is officially sponsored or sanctioned by the Administrator; or will enhance the professional development or skills of the employee in his or her current position. Id.
Administrative leave should not be granted for pro bono legal or volunteer activities that directly benefit an employee or those with whom an employee has a personal relationship.
When considering requests for leave to engage in pro bono legal or volunteer activities, supervisors should give due attention to the effect of the employee's absence on office operations.
The decision to grant an employee's request to engage in pro bono legal or volunteer services during hours of work may not be affected by a supervisor's personal views regarding the substance of the pro bono legal activity.
COMMENT: The General Counsel recognizes the serious budgetary constraints and heavy workloads that can be placed on the office. Therefore, while this Policy Statement asks supervisors to be flexible in dealing with employees seeking to engage in pro bono legal or volunteer services, it also recognizes that supervisors are entitled to exercise their discretion and judgment in determining whether any such accommodation would interfere with the operation of the office.
B. Clerical Support. Pro bono legal and volunteer work are not official duties and may not be assigned to or otherwise required to be performed by support staff. In addition, it may be coercive to ask subordinate employees if they will volunteer to help perform pro bono legal or volunteer services, i.e., the typing of briefs or documents. See 5 C.F.R. § 2635.705. On the other hand, support staff may wish to volunteer their services. LA will maintain a list of support staff, if any, who are willing to volunteer to support pro bono legal or volunteer projects.
C. Use of Office Equipment. As a general rule, employees may use Government property only for official business or as authorized by the Government. See 5 C.F.R. § 2635.101(b) (9), 2635.704(a). GSA Order ADM 7800 (Personal Use of Agency Office Equipment) authorizes the personal use of agency office equipment (such as office supplies, telephones and other telecommunications equipment, computers and reproduction machines) by GSA employees in the office or official duty station on an occasional basis provided that the use involves minimal additional expense to the Government (such as electricity, ink, small amounts of paper, and ordinary wear and tear) and does not interfere with official business. The personal use of agency office equipment shall normally take place on the employees' personal time.
The personal use of agency office equipment may be revoked or limited at any time by the General Counsel or the appropriate Associate General Counsel or Regional Counsel for any legitimate business reason.
VI. ADMINISTRATION OF PRO BONO LEGAL AND
VOLUNTEER SERVICE PROGRAM
Any management activities required to support pro bono legal and volunteer services within OGC shall be carried out as directed from time to time by the General Counsel.
The Policy Statement is intended only to encourage increased pro bono legal and volunteer activities by OGC 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 United States and GSA will not be responsible in any manner or to any extent for any negligent or otherwise tortuous acts or omissions on the part of any OGC employee engaged in any pro bono legal or volunteer activity. While GSA encourages pro bono legal and volunteer activities by its employees, GSA exercises no control over the services and activities of employees engaged in pro bono legal or volunteer activities nor does it control the time or location of any pro bono legal or volunteer activity. Each employee is acting outside the scope of his or her employment whenever the employee participates, supports or joins in any pro bono legal or volunteer activity.
Emily C. Hewitt