The Florida Supreme Court recently amended the Rules Regulating The Florida Bar to permit in-house counsel who are barred and in good standing in another jurisdiction and certified to work for their employer in Florida (“authorized house counsel”) to also provide pro bono legal services. While a step in the right direction, the amendment unfortunately imposes several limitations that make it among the most restrictive in the U.S.
Prior to the amendment, Florida did not permit authorized house counsel to provide pro bono legal services. Under the new rule, authorized house counsel may engage in pro bono but as an “emeritus attorney” who must: (i) receive approval from the Clerk of the Supreme Court, (ii) work in association with an approved legal aid organization, and (iii) work under the supervision of a Florida Bar member. If appearing in court or an administrative tribunal, the client and supervising attorney must provide written consent. In addition, the supervising attorney must sign all documents filed in any court or administrative tribunal. (Fla. Bar Reg. Rule 12)
For many reasons, these restrictions are unnecessary. They can limit the types of cases authorized house counsel may work on and can reduce the number of hours and clients volunteer lawyers can serve. Given the client protections already in place, these restrictions are not needed to promote competency. Authorized house counsel are not only bound by the rules of professional conduct in the jurisdictions in which they are barred but are subject to Florida’s rules of professional conduct. They are accountable to multiple disciplinary bodies, as well as their employers. Moreover, unlike emeritus attorneys, authorized house counsel must comply with Florida’s continuing legal education requirements as well as renew their certification on an annual basis.
Other jurisdictions have taken a broader approach, recognizing that in-house counsel are skilled and experienced counsel subject to professional rules of conduct and disciplinary rules. In April 2013, Illinois amended its existing rules by removing restrictions on registered in-house counsel’s pro bono participation, such as requiring registered in-house counsel provide pro bono services in association with a legal services organization, to permit participation subject only to the local rules of profession conduct. In December 2013, New York adopted a similar rule to allow non-locally licensed attorneys registered as in-house counsel in New York to provide pro bono legal services, subject only to the rules of professional conduct.
We applaud Florida for putting in place rules that allow authorized house counsel to engage in pro bono practice but encourage jurisdictions to support amendments similar to Illinois and New York that would allow for broad participation. In light of the tremendous need for pro bono legal services, the chilling effect of restrictions, and the existing protections, jurisdictions should eliminate and not erect barriers to pro bono practice.