United States Postal Service Law Department Policy
Statement on Pro Bono Services
- Purpose of Policy
Executive Order 12988, issued 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, including attorneys, to be performed on their own time,
as permitted by statute, regulation, or other rule or guideline."
Consistent with that Order, and because the USPS Law Department supports
increased access to justice for all, it is the policy of the Postal
Service Law Department to encourage and support efforts by USPS Law
Department employees to provide pro bono legal services within their
communities, consistent with the employee’s obligations to the Postal
Service and applicable statutes and regulations governing conflicts
of interest and outside activities.
Of course, Law Department employees who perform pro bono legal services
are subject to the same ethics laws and regulations as all other Postal
Service employees. In addition, Law Department attorneys are subject
to the codes of ethical conduct imposed by the various state bar associations
of which they are members.
The scope of this Law Department pro bono legal statement extends
to all Postal Service Law Department employees and encourages all
volunteer legal work. This inclusive structure best reflects the Law
Department’s commitment to developing a sense of community responsibility
among its lawyers and support staff.
This Policy Statement is intended only to provide the parameters for
pro bono legal activities by Law Department employees, and is not
intended to create any right or benefit, substantive or procedural,
enforceable at law by a party against the Postal Service, its officers
or employees, or any person.
- Definition of Pro Bono Services
Pro Bono Services: Pro bono services are those legal services performed
without compensation and include the provision of legal services to:
- persons of limited means;
- charitable, religious, civic, community, governmental, health
and educational organizations in matters which are designed to
assist persons of limited means;
- individuals, groups or organizations seeking to secure or protect
civil rights or;
- improve the law, legal system or the legal profession.
- Limitations on Performing Pro Bono Services
Law Department employees are encouraged to perform pro bono services
within the following limitations:
Prior Approval
Law Department employees seeking to engage in any pro bono legal work
must follow government wide procedures under the Standards of Ethical
Conduct for Employees in the Executive Branch (5 C.F.R. §2635 (1997))
and the Supplemental Standards of Ethical Conduct for Employees of
the United States Postal Service in Chapter LX. Employees should consult
with their Managing Counsel and their Ethical Conduct Officer regarding
prior approval requirements. At a minimum, an employee shall ensure
that her or his pro bono services do not:
- violate any federal statute, rule or regulation;
- interfere or conflict with the proper and effective performance
of official duties, which includes time and availability requirements
of her/his position;
- create or appear to create a conflict of interest, or;
- cause a reasonable person to question the integrity of the Postal
Service’s programs and operations.
Conflict of Interest
Employees may not engage in pro bono services that create or appear
to create a conflict of interest with their Postal Service duties.
In particular, postal employees are prohibited from engaging in matters
in which the United States or the United States Postal Service is
a party or has a direct and substantial interest. This could include
criminal defense representation in federal court, tax matters, government
contract actions, and postal labor matters. If an employee has any
question or concern about a particular pro bono service s/he wishes
to provide, that employee is responsible for checking with her/his
Managing Counsel prior to beginning such service.
Additional Considerations in Performing Pro Bono Services
Retainer Agreements: In connection with each pro bono legal
representation, postal attorneys are encouraged to provide his or
her client with a retainer letter explicitly stating that the attorney
is acting in his or her individual capacity and not on behalf of the
Postal Service. The client should countersign this agreement in acknowledgment
of this fact. A model retainer agreement can be obtained from the
Postal Service Internal Website, and may be adapted as appropriate.
Malpractice Insurance, Costs and Fees: Consistent with the
position that pro bono work is outside the scope of an employee’s
official duties, the Postal Service neither provides nor reimburses
the cost of malpractice insurance for pro bono work. Postal attorneys
who elect to provide legal services without malpractice insurance
do so at their own risk. Some legal services organizations from which
an attorney might obtain pro bono cases provide malpractice insurance
coverage to volunteer attorneys. Before accepting a pro bono case,
attorneys should check the availability of such coverage.
Any costs associated with providing pro bono assistance, including
filing fees and other litigation costs, must be paid by the attorney’s
personal finances or the legal services organization and are not reimbursable
by the Postal Service.
Finally, many states require attorneys to pay a yearly licensing fee
for the privilege of practicing law in that state. Some jurisdictions,
such as the District of Columbia, waive the licensing fee for government
attorneys who perform pro bono work. A particular state’s licensing
fees should be researched by the postal attorney prior to accepting
pro bono work in that state. Such fees are not reimbursable by the
Postal Service beyond the current practice of reimbursing attorneys
for the bar dues for a single jurisdiction.
Unauthorized Practice of Law: Postal attorneys must become knowledgeable
about the rules of practice in the particular state where they will
be performing pro bono activities. Some jurisdictions allow government
attorneys who are not licensed or admitted to practice in that state
to perform pro bono work as long as the pro bono work is supervised
by an attorney admitted to that bar. Postal attorneys are advised
to research this particular issue prior to accepting a pro bono case.
- Use of Official Position or Public Office
Postal Service Law Department employees who provide pro bono services
may not indicate or represent in any way that they are acting on behalf
of the Postal Service, or in their official, employee capacity.
For example, Law Department employees may not use office letterhead,
agency or office business cards, or otherwise identify themselves
as a postal employee in any communication, correspondence, or pleading
connected with any pro bono or other volunteer services. Law Department
employees are responsible for making it clear to their pro bono clients,
opposing parties or anyone else 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, the Postal
Service. The incidental identification of an employee’s position or
office, such as a business address or office phone number, is not
prohibited.
In keeping with the separation and distinction between a postal employee’s
official duties and his or her pro bono activities, the United States
and the United States Postal Service are not responsible in any manner
or to any extent for any negligent or other tortious act or omission
on the part of any USPS employee engaged in pro bono or volunteer
services. Each employee performing pro bono services is acting outside
the scope of her or his employment at all times when s/he participates
in or supports any pro bono activity.
- Use of Agency Resources
Hours of Work
Law Department employees are encouraged to seek pro bono legal opportunities
that can be accomplished outside their scheduled working hours. However,
pro bono legal activities may sometimes occur during work hours. Managing
Counsels are urged to be flexible and to accommodate, where feasible,
the efforts of their employees to do pro bono legal work.
When considering employee requests for leave to engage in pro bono
legal activities, Managing Counsels 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 activities
during hours of work may not be affected by a Managing Counsel’s personal
views regarding the substance of the pro bono activity.
As a general rule, it is inappropriate to pay an employee for time
engaged in pro bono legal services. See 5 C.F.R. §2635.705 (1997).
However, at the discretion of the employee’s Managing Counsel, 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
legal activities.
Use of Office Equipment
Generally, 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) (1997). However, employees performing pro bono legal
services may use office equipment in a manner consistent with Management
Instruction EL-660-2000-5, Limited Personal Use of Government Office
Equipment.
This policy may be revoked or limited at any time by any Managing
Counsel for any business reason. Any employee who has questions about
the application of this section to any particular situation should
consult his or her Managing Counsel. In using government property,
employees must be mindful of their responsibility to protect and conserve
such property and to use official time in an honest effort to perform
official duties. See 5 C.F.R. §2635.101(b)(9), §2635.704(a), §2635.705(a)(1997).
Support Staff
In providing services on a volunteer basis, employees are expected
to perform their own clerical and support work. Pro bono activities
are not official duties, and may not be assigned to or otherwise required
of support staff. It is 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 (1997).
On the other hand, support staff may wish to volunteer their services.
To avoid the appearance of coercion, all requests for pro bono support
staff assistance should be funneled through the Managing Counsel.
A Managing Counsel may authorize support staff to provide pro bono
support only if such service:
- is entirely voluntary on the part of participating employees;
- will not interfere with or detract from the successful completion
of postal business and;
- is scheduled far enough in advance to avoid disruption of postal
business.
- Administration of Pro Bono Program
Any management activities required to support pro bono services within
the Law Department shall be carried out as directed from time to time
by the General Counsel. There is a pro bono committee that reports
to the General Counsel, which can give more specific information about
pro bono opportunities.
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