SETTING UP A PRO BONO PROGRAM: THE DEPARTMENT OF JUSTICE'S EXPERIENCE
I. Why Should Federal Agencies Have Pro Bono Programs?
- Executive Order 12988, issued by President Clinton 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."
- There is a substantial unmet need for legal services for low- and moderate-income people in this country. Only attorneys are qualified to provide this kind of assistance. Government attorneys represent a significant resource, and they should be encouraged to contribute to this effort.
- Handling pro bono cases can offer agency attorneys useful experience and skills development, to the benefit of both the agency and individuals.
II. Why Should Agencies Have a Pro Bono Policy?
It is an effective way to implement Executive Order 12988.
- An agency policy reflects the support for the program from the top of the agency that is crucial to giving the program credibility.
- This can be particularly important because of the need to overcome a long-standing and widely-held assumption that federal government attorneys could generally not do pro bono legal work.
- An agency policy provides the opportunity to offer a coherent and uniform set of guidelines, as well as a structure for involvement.
III. What is Pro Bono Legal Service?
- There is no single definition.
- The Department of Justice Policy Statement contains a definition that aims to encourage the provision of legal services to persons of limited means or other disadvantaged persons, but includes all legal services provided without compensation. See DOJ Policy at II(A).
- The DOJ Policy covers both legal pro bono activities and non-legal volunteer services.
- There are certain types of pro bono legal services that government employees may not undertake, because of conflicts of interest, for example. See § VI, below.
IV. What Makes Government Agency Pro Bono Programs Different From Private Sector Programs?
- The agency itself is not offering services; federal employees are volunteering in their individual capacities.
- Federal employees are subject to certain legal constraints on their outside activities. See § VI.
- Federal employees have potential conflicts of interest that arise because of the broad scope of the federal government's interests. These conflicts can limit the type of pro bono work they can do.
- Federal employees do not have access to support services or malpractice insurance in the same way that some private sector attorneys do.
- Private law firms and other organizations can provide secretarial, financial and other logistical support in ways that the federal government cannot.
- Federal employees have restrictions on the use of time during the work day to engage in pro bono activities.
V. What Are Possible Sources of Pro Bono Cases and How Can Employees Find Them?
- Making it as easy as possible for interested employees to volunteer is very important. An agency pro bono program can facilitate this in a way that reduces the possibility for conflicts of interest.
- The key is matching the need with those interested in providing help.
- Agencies are not set up to receive information about particular cases from individuals seeking assistance.
- The Department of Justice has tried to make it as easy as possible for individual employees to find cases that they are interested in.
- The Department's Pro Bono Program Manager has coordinated with local organized legal services providers and bar association groups to set up informal arrangements designed to accommodate DOJ concerns. This program is discussed further at § VIII, below.
- DOJ has also collected information about programs in other parts of the country, for use by U.S. Attorneys Offices and other regional components.
- Department employees are not limited to cases from these sources; they may make their own arrangements to find cases that interest them, so long as they meet applicable rules.
VI. What Are Relevant Legal Constraints to Be Aware Of?
- Federal government employees activities are governed by a number of statutes and ethical rules.
- Under Title 18 U.S.C. §205, federal employees are prohibited from engaging in representation in matters in which the U.S. is a party or has a direct or substantial interest.
- The Office of Government Ethics (OGE)'s regulations in 5 CFR Part 2635 apply.
- § 2635.702 prohibits use of a government title or position in any way that suggests that the government is sanctioning personal activities.
- This means that employees may not use agency letterhead or their government titles in connection with pro bono representations. Federal employees must make it clear to any pro bono client that they are acting in their private capacity, and not as representatives of their agency.
- § 2635.801 et seq. regulate outside activities by federal employees. Sections .801-.803 are particularly relevant. Section 2635.802 prohibits outside activity that would require recusal from significant aspects of the employee's official duties. Section 2635.803 addresses requirements for advance approval.
- § 2635.502 prohibits activity that appears to interfere with the employee performing his or her duties in an impartial and unbiased manner.
- There may be agency-specific statutes, rules or policies that relate to ethics and conflicts of interest.
- For example, the Department of Justice has specific rules requiring advance approval of some outside activities. All outside practice of law, compensated or uncompensated, must receive approval. DOJ policy does not permit participation in any criminal cases. It also has an express policy on use of government property for personal use.
- In general, it is important to keep public perceptions in mind. In some cases, there may be more of an appearance of a conflict than a legal one.
- Local bar and licensing rules also apply.
VII. How Can These Constraints Be Addressed?
- Each agency should keep in mind the nature of its mission, its individual "culture," and its agency-specific restrictions, if any.
- The DOJ Pro Bono Policy discusses the relevant legal restraints, so that employees are aware of and sensitive to the issues.
- The DOJ Pro Bono program has set up procedures aimed at screening cases for ethics concerns before an employee accepts a case. DOJ requires advance approval of outside practice of law, and the approval process incorporates screening procedures at several levels.
- DOJ has established arrangements with several legal services providers and bar association pro bono programs that provide for pre-screening to identify cases that are unlikely to result in conflicts of interest.
- Each employee intending to work on a pro bono case must consult with an agency ethics official to discuss whether conflicts of interest or other ethical issues appear to exist.
- Department employees have an ongoing responsibility to look out for and avoid conflicts of interest and other ethical problems.
VIII. What Has DOJ Done To Organize Pro Bono Opportunities?
- As noted above (§ V), DOJ has developed relationships with a number of organized legal services providers, aimed at creating opportunities for DOJ employees to volunteer their services in the easiest possible way.
- DOJ and these organizations have cooperated to set up processes that address both constraints facing DOJ employees and the organizations' desire for volunteers.
- The cooperative efforts aim to address the following issues:
- Screening cases: Cases available for DOJ employees are screened to limit the chance for conflicts of interest. For example, the arrangement with the D.C. Bar's Pro Bono Clinic is that when the Clinic is staffed by DOJ attorneys, mechanisms are set up so that DOJ volunteers will get largely landlord-tenant and family law disputes. The case lists DOJ circulates from the Legal Aid Society and Legal Counsel for the Elderly are screened to eliminate certain types of federal government benefits cases. The Washington Legal Clinic for the Homeless will assign a non-government attorney to share intake sessions with a government attorney, so that cases where a conflict is likely can be handled by the non-government attorney.
- Training: Because DOJ employees generally cannot handle pro bono cases in the subject area in which they practice, the opportunity for training is particularly important so that they feel comfortable handling cases in other areas. Most of the organizations DOJ has made informal arrangements with provide some level of training. In many cases, they will make arrangements for special training sessions for government attorney volunteers.
- Malpractice insurance: The federal government provides no malpractice insurance to its employees when they are undertaking pro bono activities. All of the legal services organizations DOJ has informal arrangements with do provide such insurance to their volunteers.
- Not all pro bono opportunities come with malpractice insurance. Individual employees may decide that they are willing to accept the risk, or they may have other personal insurance that would provide coverage. It is their individual decision.
- Costs: There may be costs associated with handling a pro bono case, such as filing fees and other litigation costs. Some of the organizations with which DOJ is working have set up mechanisms to provide for coverage of such costs in the case of federal government volunteers.
- The Department has set up internal approval processes for pro bono activity designed to minimize the risk of conflicts and other problems. DOJ requires prior approval for outside uncompensated practice of law from the head of the employee's component. (Not all agencies have such a requirement.)
- The DOJ pro bono program has suggested to each of the Department's components that they "preliminarily approve" the programs that have been informally arranged with legal services organizations, as a way to simplify the approval process for cases from those programs. However, as noted above, DOJ employees are not limited to taking pro bono cases from those programs.
- General approval of pro bono programs: If a DOJ component head "generally approves" a legal services provider's pro bono program, an employee need only check with his or her supervisor and the ethics official to accept a case from the program. General approval reflects the component head's view, based in part on the recommendation of the relevant ethics official, that participation in cases from that pro bono legal services program is unlikely to create conflicts or other ethical problems.
- At DOJ, these determinations are made on a component-by-component basis, since each part of the Department may have particular types of concerns. For example, the Civil Rights Division may have more concern about possible conflicts arising from its attorneys working on cases involving the Americans with Disabilities Act than would the Environment and Natural Resources Division.
- General approval only means that further approval from the component head is unnecessary. However, for any pro bono case in which a Department employee gets involved, he or she must check with his or her supervisor and the relevant ethics official to make sure there are no conflicts or other ethical issues that arise from the individual case.
- For pro bono cases coming from sources other than generally approved programs, the employee must get individual clearance from the head of the component (or a designee), after consultation with the supervisor and the ethics official.
- One of the toughest issues is determining which types of cases may be inappropriate for an agency's attorneys to handle. The Department seeks to balance the need to ensure that there is no conflict of interest with the desire not to unduly limit pro bono assistance.
IX. How Has DOJ Organized The Management of its Pro Bono Program?
- The Department of Justice has sought to decentralize the program as much as possible, while providing support and oversight by the Pro Bono Program Manager, who is located in the Professional Responsibility Advisory Office.
- The DOJ Pro Bono program is overseen by the Pro Bono Program Manager. The Pro Bono Program Manager is responsible for working with legal services and bar association programs to facilitate opportunities for Department employees, to chair the Department's Pro Bono and Volunteer Services Committee, and to provide support to the pro bono representatives in each component.
- Each Department component has a representative on the Department's Pro Bono and Volunteer Services Committee; the component representatives are charged with communicating with the employees in their components, consulting with the component head and the ethics official concerning general approval of pro bono programs, and generally serving as a point person on pro bono issues for the component.
- DOJ chose a decentralized structure because each component has some of its own concerns, including the types of cases that are most likely to create ethical issues, and resource and time constraints. Moreover, some components are geographically dispersed, such as the United States Attorneys Offices, the FBI and the INS.
- The decentralized structure also facilitates information dissemination across the agency.
- The Department addressed a series of administrative issues in its Pro Bono Policy, and sought to create a balance between uniformity and discretion.
- The Department applies the same rules and policies to the pro bono program as to other Department programs; there were no special rules developed.
- Leave issues: Pro bono projects are intended to be done on an employee's own time. However, individual situations may require actions during the work day; e.g., court appearances. Supervisors are encouraged to be flexible, but the discretion is theirs. Administrative leave may be available in limited amounts where the pro bono or volunteer service is directly related to the Department's mission; is officially sponsored or sanctioned by the Attorney General; or will enhance the professional development or skills of the employee in his or her current position.
- Use of office equipment: As a general rule, government employees may use government property only for official business or as authorized. The Department of Justice's policy allows personal use of equipment and facilities only if it involves negligible additional expense to the government, such as electricity, ink, small amounts of paper, ordinary wear-and-tear. Limited local phone and fax calls are also permitted.
- Each agency may have its own policy on these matters.
- Retainer agreements: The Department asks its employees who take on pro bono cases to sign a retainer agreement with their client, to clarify that the individual and not the Department is the representative. The DOJ Pro Bono program has prepared a model retainer agreement.
X. What Are Some of the Barriers That Agencies May Face?
- Since federal government service is in itself public service, employees may feel that they are already fulfilling any obligation they may have.
- While fully recognizing that federal employment is important public service, the President and the Attorney General believe that federal employees are a valuable resource and that through pro bono legal and volunteer services, such employees can increase access to justice for all and strengthen local communities.
- Many attorneys interested in contributing to their communities prefer to participate in non-legal activities.
- There is a great need in our communities for all sorts of volunteer contributions. The DOJ policy encourages both volunteer and pro bono legal activities. However, only attorneys are in a position to address the significant unmet needs for legal services.
- Attorneys may be concerned about undertaking pro bono projects in subject areas about which they are not highly knowledgeable.
- Many organized pro bono programs offer training for volunteers. Many also provide mentoring or other sources of expert advice and assistance. This may be an opportunity for government attorneys to learn about other areas of the law.
- Many government attorneys are not members of local bar associations.
- Although most pro bono programs have required membership in local bar associations, the District of Columbia Court of Appeals adopted a rule that allows government attorneys to provide pro bono legal services in the District of Columbia so long as they are members of a bar of another state, get the cases on referral from an organization providing pro bono legal services, and are supervised by an active member of the D.C. Bar. See D.C. Rule 49(c)(9)(C) (unauthorized practice of law).
XI. How Can a Pro Bono Program Be Promoted?
- Pro bono programs need to be promoted. They are not likely to be successful without active encouragement.
- Employees need to be made aware of the agency's pro bono program. There are a number of ways to publicize such a program.
- In smaller agencies, every employee might be given a copy of a written pro bono policy, and/or could be invited to a meeting to describe the program. In larger departments like the Department of Justice, this is not feasible.
- The Department of Justice included a notice of the pro bono program in the paychecks of all employees.
- The Department relies on its component representatives to publicize activities, through e-mail and electronic bulletin boards.
- A pro bono bulletin has been developed.
- The Department sponsors an annual Pro Bono Fair, which brings together representatives of pro bono legal services organizations and Department employees to discuss pro bono opportunities.
XII. How Do You Know Whether the Pro Bono Program is Working?
- Determining whether and how well a pro bono program is working is not necessarily easy. Agencies have to decide how to balance any desire to collect information against administrative costs and employees' interest in privacy for their volunteer, outside activities.
- The Department of Justice's current plan is to recognize those who want their pro bono activities recognized, and rely otherwise on component representatives to provide general information on participation to the extent available.
For further information, call Laura Klein, Pro Bono Program Manager, (202) 353-7529.