On January 30, 2002, President Bush unveiled his USA Freedom Corps Initiative, which is designed to encourage and assist Americans to serve their community and country. “The Federal Government did not create this civic spirit; but we do have a responsibility to help support and encourage it where we can.” Director Paulison and the Office of Chief Counsel also want to support and encourage volunteer efforts and we strongly encourage all Agency attorneys to seek out opportunities to participate in pro bono legal services and other volunteer activities.
To that end, the Federal Emergency Management Agency (FEMA) Office of Chief Counsel Pro Bono Policy reflects the strong commitment of this Agency to encourage our employees to step forward to assist our communities and young people, and, in particular, it responds to Executive Order 12988 (“Civil Justice Reform”) of February 5, 1996, which calls on Federal agencies to develop appropriate programs to encourage pro bono legal and other volunteer services by government attorneys.
Handling pro bono matters can offer valuable opportunities to acquire legal skills and training that we would not otherwise receive as part of our official duties. Given the wide range of matters in which we can engage as lawyers in a personal capacity and our overall responsibilities as officers of the legal system to ensure the quality of justice, I strongly encourage every FEMA attorney to participate in pro bono legal service opportunities that are available to us. However, all pro bono and volunteer service is subject to limitations, including certain prior approval requirements and compliance with all conflict of interest statutes and regulations and with all local unauthorized practice of law statutes. These and other restrictions on the use of one’s official position and use of agency resources are set forth in more detail below. You should consult with your ethics advisor and your supervisor prior to engaging in any pro bono activities.
A Pro Bono Services Committee will oversee the implementation of our pro bono program. The Committee will have five representatives, each from a different division or team, and it will be chaired by the Deputy Chief Counsel. The Committee is charged with developing and disseminating information about pro bono service providers and other information on opportunities for FEMA attorneys to engage in pro bono activities.
Many in the Office of Chief Counsel are already involved in volunteer activities in our community or through programs here at FEMA. Some of you already are providing much needed pro bono legal work. We hope this policy encourages many more employees to participate in these activities.
While service in the Federal Emergency Management Agency (FEMA) is itself one of the highest forms of public service, we, as attorneys, should strive to increase access to justice for all and to strengthen our communities. Given the significant unmet need for legal and other community services in the nation, it is the policy of FEMA to encourage and support efforts by FEMA employees to provide pro bono legal and volunteer services within their communities.
This Policy responds to Executive Order 12988 (“Civil Justice Reform”), which calls on Federal agencies to develop appropriate programs to encourage pro bono legal and other voluntary services by government attorneys. Because such services must be performed on their own time, the decision of a FEMA attorney to provide pro bono services remains strictly a personal one and cannot be officially influenced by FEMA. However, consistent with applicable statutory, regulatory, and administrative requirements, FEMA attorneys are encouraged to offer their professional services to help address the unmet legal needs of our communities and disadvantaged individuals.
- Definition: What are Pro Bono Legal Services?
Although there is no single definition, the American Bar Association’s Model Rules of Professional Conduct provide useful guidance. The Model Rules state that pro bono legal services are those legal services performed without compensation and include, but are not limited to, the provision of legal services to: persons of limited means; charitable, religious, civic, community, governmental, and educational organizations in matters which are designed primarily to address the needs of persons of limited means, or to further their organizational purpose; individuals, groups, or organizations seeking to secure or protect civil rights, civil liberties, or public rights; or activities for improving the law, the legal system, or the legal profession.
- Ethics Considerations
FEMA attorneys need to be aware of a number of legal constraints that may apply to outside activities, including pro bono activities. These legal constraints include:
- 18 U.S.C. §205 (prohibiting Federal employees from engaging
in the prosecution of claims against the Government or acting
as an agent or
attorney in matters in which the United States is a party or has a direct
or substantial interest).
- U.S. Office of Government Ethics’ Standards of Ethical Conduct for Employees of the Executive Branch (5 CFR Part 2635), including:
Section 2635.502 (regarding activities that appear
with the employee’s performance of his or her duties in an impartial
and unbiased manner);
Section 2635.702 (prohibiting use of Government
title or position in an
any way that suggests that the Government is sanctioning personal activities);
Section 2635.704 (prohibiting the use of real
or personal Government
property for other than authorized purposes);
- Section 2635.801 et seq. (regarding outside activities by Federal employees, including prohibitions on outside activities that would conflict with the employee’s official duties).
FEMA attorneys seeking to engage in any pro bono legal work should seek advice from
FEMA’s ethics officer.
- 18 U.S.C. §205 (prohibiting Federal employees from engaging in the prosecution of claims against the Government or acting as an agent or
- Use of Official Position
FEMA attorneys 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 the Federal Emergency Management Agency, or in their official capacity. A FEMA employee may not use office letterhead or fax cover pages, agency or office business cards (whether or not purchased with appropriated funds), or otherwise identify himself or herself as a FEMA employee in any communication, correspondence, or pleading connected with pro bono legal activities or other volunteer services. (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 telephone call—is, however, permissible).
Also, a FEMA attorney 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, FEMA. It is strongly urged that a FEMA attorney and his or her client in a pro bono case both sign a retainer letter making explicit that the FEMA attorney is acting in his or her own individual capacity and not on behalf of FEMA. A model retainer letter is available on the FEMA Office of Chief Counsel web site.
- Scheduling Volunteer Activities
As noted above, pro bono activities are to be done on an employee’s own time outside his/her scheduled working hours. In recognition that some of an employee’s pro bono activities may require actions during the workday (e.g., court filings or appearances), supervisors are encouraged to be flexible.
A memorandum issued by the Director, Office of Personnel Management (OPM), concerning “Participation of Federal Employees in Volunteer Activities,” dated April 23, 1998, provides guidance on scheduling work and granting time off to permit Federal agency employees to participate in volunteer activities. A copy of this memorandum is available on the OPM web site (see www.opm.gov/oca/compmemo
/1998/cpm98-v.htm ) and on the FEMA Office of Chief Counsel web site. Consistent with guidance issued in conjunction with the OPM Memorandum, supervisors should give consideration to allowing a limited amount of administrative leave where the pro bono work is directly related to the agency’s mission or will enhance the professional development or skills of the employee in his or her current position.
- Use of Office Equipment
As stated above, Federal employees may not use Government property for other than official purposes. However, it is reasonable to allow attorneys de minimis use of office equipment (including use of fax machines and telephones only within the local area codes) in connection with pro bono activities. Thus, use of Government offices and equipment (including library facilities and equipment but not on-line legal research services) is permissible only if it involves negligible additional expense to the Government.
- Use of Clerical Support
Agency support staff may not be assigned or otherwise be required to perform unofficial duties, such as pro bono legal or volunteer work. However, support staff may volunteer their services to support pro bono legal or other volunteer activities.
- Malpractice Insurance
The Federal Government does not provide malpractice insurance to its employees when they are undertaking pro bono activities. However, in some cases, legal services organizations do have umbrella malpractice insurance that covers pro bono work by volunteers.
- Additional Considerations for Attorneys Not Licensed to Practice
in the District of Columbia
The District of Columbia Court of Appeals’ Rule 49 allows government attorneys to provide pro bono legal services in the District of Columbia so long as they are members of the bar of a state, get cases on referral from an organization providing pro bono legal services, and are supervised by an active member of the District of Columbia Bar.
- Administration of the FEMA Office of Chief Counsel Pro Bono Policy
and Dissemination of Pro Bono Opportunities
The Pro Bono Services Committee will over see the implementation of the FEMA Office of Chief Counsel Pro Bono Policy. The Committee will be chaired by the Deputy Chief Counsel.
The Committee will develop and disseminate information about pro bono service providers and other information on opportunities for FEMA attorneys to engage in pro bono services in the Washington, D.C. area and in areas where FEMA non-headquarters facilities are located. FEMA attorneys are not limited to selecting pro bono opportunities disseminated by the Pro Bono Services Committee and are free to explore other pro bono options.
The Pro Bono Policy is intended only to encourage pro bono activities by FEMA attorneys, 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 offices, or any person.
Neither the United States nor the Federal Emergency Management Agency will be responsible in any manner or to any extent for any negligence or otherwise tortious acts or omissions on the part of any FEMA employee while engaged in any pro bono activity. While the Federal Emergency Management Agency encourages pro bono activities by its employees, it 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 federal employment whenever the employee participates, supports or joins any pro bono activity.
APPROVED: David A. Trissell, Chief Counsel
Federal Emergency Management Agency
DATE: November 8, 2006
One source of guidance that may help inform individual choices
in providing pro bono legal services is Rule 6.1 (“Voluntary Pro
Bono Publico Service”) of the American Bar Association’s
Model Rules of Professional Conduct (1993) which states: “A lawyer
should aspire to render at least fifty (50) hours of pro bono publico
legal services per year.” The Model Rule also suggests that a
lawyer voluntarily contribute financial support to organizations that
provide legal services to persons of limited means. FEMA attorneys,
as well as other employees, are of course free to make voluntary contributions
to legal services organizations and other organizations through the
Combined Federal Campaign, or otherwise.
See Memorandum for Heads of Executive Departments and Agencies from the Director, OPM, “Guidance on Volunteer Activities,” April 23, 1998.
See “Recommended Executive Branch Model Policy/Guidance on Limited Personal Use of Government Office Equipment Including Information Technology,” May 19, 1999.