by Cynthia Montoya
On August 16, 2022, the Pro Bono Legal Representation Expansion Amendment Act of 2022 went into effect in Washington, DC, permitting local government lawyers to participate in pro bono subject to certain restrictions. This legal change in our hometown inspired PBEye to do a deeper dive on government lawyer pro bono.
Pro bono work is an ethical obligation that should be easily accessible for every legal professional, including those who work in all levels of the government. Yet, participating in pro bono work can be complicated for some government lawyers. Some offices have policies restricting the type of pro bono work government lawyers can participate in, while others lack easily accessible and straightforward guidelines on what is appropriate work for government lawyers.
The primary guideline for government lawyers is generally that they can participate in appropriate pro bono opportunities that do not impose conflicts of interest (or perceived conflicts) with their day jobs. They can provide legal services during their own time outside of the office, and they cannot use government resources to provide services. They must be aware of possible conflicts of interest. Further, policies often restrict the type of pro bono work that government lawyers can do.
The American Bar Association (ABA) and The Government and Public Sector Lawyers Division created a guide for government lawyers called the Pro Bono Project Development: A Deskbook For Government and Public Sector Lawyers. The deskbook was published in 1998, and is currently undergoing revisions. The deskbook helps explain the restrictions that government lawyers face. For example, judicial branch lawyers have restrictions to maintain an unbiased environment while doing pro bono work. Therefore, such lawyers could not use their titles, resources from work, or office space to do pro bono work. Government lawyers can only offer their expertise during their personal time to organizations and clinics after it is approved by the head of their department.
For decades, federal government lawyers advocated for the right to do pro bono work, and that paid off in 1996 with Executive Order 12988, which directed federal agencies to develop policies for volunteer work, including legal pro bono. The Interagency Pro Bono Working Group, which is the steering committee for the Federal Government Pro Bono Program, developed pro bono policies and now serves as a resource on federal attorney pro bono work. More than fifty agencies participate and most have written pro bono policies to for their attorneys and legal staff. The Program operates in Washington, DC, Maryland, Chicago, New York City, San Francisco, Los Angeles, Denver, and Dallas. Example of federal agencies that participate in pro bono include the Department of Justice, and the Internal Revenue Service.
Some states and local counties have followed the lead of the federal government by creating policies and programs to permit government lawyers and legal staff to participate in appropriate pro bono work, including:
- Washington, DC. DC recently passed a law allowing government employees to do pro bono work before any DC court, DC agency, federal court, or federal agency if it does not create a conflict of interest, authorized by an employer, and through an approved organization. This program builds on work by the Office of the Attorney General of DC, which adopted a pro bono program several years ago.
- Illinois. Government attorneys in Illinois may participate in pro bono work with a sponsoring entity: a legal aid organization or law clinic approved by the Illinois Attorney Registration & Disciplinary Commission (ARDC). Attorneys must annually register with the ARDC, complete any required training, and comply with Illinois Supreme Court Rule 756.
- West Virginia. In West Virginia, a policy permits government lawyers to do pro bono to fulfill their responsibilities under Rule of Professional Conduct 6.1. Examples of permissible work include providing brief advice to people of limited means in family law cases, domestic violence protective order cases, landlord/tenant disputes, public benefits and veterans’ benefits cases, consumer protection and bankruptcy; drafting wills, handling simple probates, drafting guardianships; assisting a non-profit organization in the process of incorporation and filing for 501(c)(3) status; and volunteering through West Virginia Free Legal Answers.
- Pennsylvania. The Pennsylvania Bar Association has a Government Lawyers Committee alongside the Pennsylvania Bar Institute co-sponsors, “To Help or Not To Help: Pro-Bono Work for Government Attorneys.” This training discusses the types of legal and non-legal pro bono work government lawyers can do.
- Baltimore County, Maryland. The Office of Law Pro Bono Program has a “Public Lawyers Pro Bono Program” where lawyers can take on pro bono cases on their own time by referral to the office, in the areas of divorce, custody, child support, and bankruptcy, and drafting of simple wills and general powers of attorney. They only accept referrals from Maryland Volunteer Lawyers Service and Legal Aid Bureau, Incorporated.
We hope that more state and local jurisdictions will put clear policies in place to maximize the opportunities for government lawyer pro bono. These lawyers know the communities they serve and have personal knowledge of the many issues affecting low-income and underserved communities. Having clear guidelines and policies will allow government lawyers and legal staff easy access to volunteer to use their unique skills to give back to their local communities.