Pro Bono Program: Federal Agency Pro Bono Policies

Introduction

In view of the significant unmet need for legal and other public services throughout the nation, the Department of State is establishing a policy to encourage and facilitate efforts by its employees to provide pro bono legal and volunteer services that are consistent with applicable federal statutes and regulations governing conflicts of interest and outside activities. While service in the Department is itself an important form of public service, the Department recognizes a need to increase access to legal services for all citizens and to strengthen our communities through volunteer work. This initiative implements section 2 of Executive Order No. 12988 (February 5, 1996) which requires all federal agencies to develop appropriate programs to encourage and facilitate pro bono legal and other volunteer services by government employees, to be performed on their own time, as permitted by statute, regulation, or other rule or guideline.

With this objective in mind, Department employees are encouraged to set a voluntary, personal goal of providing 50 hours of pro bono legal work and/or volunteer services per year. This initiative extends to all Department employees, wherever they serve, and encourages all types of volunteer work, whether legal or non-legal. An aspirational target of 50 hours per year was chosen to urge employees to make a sustained commitment to public service in their communities.

The valuable contributions already being made by Department employees who volunteer their time, energy and talents in support of pro bono legal and volunteer service endeavors should not be overlooked. This initiative is intended to build upon those beneficial efforts by involving every employee in further improving the quality of life in the communities where we live and work, and creating an even greater sense of community involvement among State Department employees.
Definition of Pro Bono Legal and Volunteer Services

Pro bono legal work and volunteer services are performed free of charge and reflect a wide range of opportunities.
1. Pro bono legal work. Pro bono legal work refers to legal services provided by lawyers without compensation including the provision of such services to:
  1. Persons of limited financial means or who are otherwise disadvantaged;
  2. Charitable, religious, professional, civic, community, governmental, health and educational organizations; or
  3. Individuals, groups or organizations seeking to secure or protect civil rights, civil liberties, or public rights.
2. Volunteer Services. Volunteer services are activities, other than pro bono legal work, performed free of charge. They include the provision of services to:
  1. persons of limited financial means or who are otherwise disadvantaged; or
  2. charitable, religious, professional, civic, community, governmental, health and educational organizations.
    
    NOTE: This initiative is not intended to restrict the type of pro bono legal or volunteer activities in which employees may engage in their free time as long as the activities do not violate any statutory or regulatory restrictions.
Prior Consultation Process
1. Prior Consultation
  1. Pro Bono Legal Services. An employee seeking to engage in any pro bono legal work must consult with the Ethics Office in the Office of the Legal Adviser (L/Ethics) prior to engaging in such legal work.
    
    NOTE: In general, an employee may engage in pro bono legal work if the work would not violate any federal statute, rule or regulation (including the Foreign Affairs Manual). Such restrictions include 18 U.S.C. 205, 18 U.S.C. 208 and 5 CFR 2635.502; 5 CFR 2635.705; 3 FAM 4120; and the Hatch Act and State Department’s Political Activities Guidance.
  2. Volunteer Services. Department employees interested in volunteer services will not have to consult with L/Ethics before performing such services, but they will be responsible for ensuring that their volunteer services do not present a conflict of interest and do not otherwise violate any applicable statute or regulation. If the Department employee has any questions in this regard, the employee should consult L/Ethics. The standards governing volunteer services are the same as those set forth above for volunteer legal services.
2. Conflicts of Interest
  1. General Standard. Department employees may not engage in pro bono legal or volunteer services that create or appear to create a conflict of interest with their work for the Department. Under the Standards of Ethical Conduct for Employees of the Executive Branch, 5 CFR 2635, a conflict of interest generally exists where the services would:
    1. require the recusal of the employee from significant aspects of the employee’s official duties, see 18 U.S.C. 208 and 5 CFR 2635.802(b);
    2. create an appearance that the employee’s official duties were performed in a biased or less than impartial manner, see 5 CFR 2635.502; or
    3. create an appearance of official sanction or endorsement, see 5 CFR 2635.702(b).
  2. Representation in Cases Involving the Federal Government. With limited exceptions, Department employees are prohibited by statute from providing pro bono representational legal assistance before certain Federal and other entities in any case in which the United States is a party or has a direct and substantial interest. See 18 U.S.C. 205. This prohibition would encompass, for example, representation of a criminal defendant in federal court or the representation of petitioners in asylum proceedings.
  3. Responsibility for Conflicts Check
    1. Pro Bono Legal Service. Prior to engaging in pro bono legal service, the employee is responsible for consulting with L/Ethics in order to ensure that the employee’s service does not present a conflict of interest, and does not otherwise violate any applicable statute or regulation. The Ethics Office will review the proposed pro bono legal service with the employee. The employee will be responsible for providing the necessary information to L/Ethics during this consultation process.
    2. Volunteer Service. The Department employee will be responsible for ensuring that his or her volunteer service does not present a conflict of interest, and does not otherwise violate any applicable statute or regulation.
3. Outside Political Activities: Outside political activity by Department employees must comport with the regulations implementing the Hatch Act Reform Amendments of 1993 (see 5 CFR Part 734) and with the Department’s guidance concerning political activities by employees. The Department’s guidance is contained in "Political Activities Guidance" (dated January 24, 2000). If you have any questions in this area, please contact the Ethics Office in the Office of the Legal Adviser.
4. Non-Representational Assistance: Department employees may provide non -representational assistance without compensation, such as advice not involving appearances or communications prohibited by 18 U.S.C. 205, or assistance in the filling out of forms for persons seeking government benefits, and may assist in the preparation of tax returns without compensation, provided that the services satisfy the prior approval requirements of Section III.A of this Policy Statement, and do not present a conflict of interest as addressed in Section III.B.
5. Additional Considerations
  1. Retainer Agreement. The Office of the Assistant Legal Adviser for Employment Law will have available a model retainer letter making explicit to a pro bono legal client that the attorney is acting in his or her own individual capacity and not on behalf of the Department.
  2. Malpractice Coverage. Before agreeing to meet with or accept a pro bono legal client, an attorney who works at the Department should determine whether the referring pro bono program or organization has a malpractice insurance policy which covers volunteer attorneys. The Department of State does not provide malpractice coverage for pro bono work.
    
    NOTE: Generally, volunteer programs organized by the local bar or the more established referral programs do provide malpractice coverage. The Office of the Assistant Legal Adviser for Employment Law will have information regarding which programs provide malpractice insurance coverage for volunteer attorneys. Attorneys who choose to provide legal services without malpractice insurance coverage are acting at their own risk.
  3. Local Bar and Licensing Rules. Department employees should be aware that local bar and professional licensing rules, including those regarding the unauthorized practice of law, apply to pro bono legal services.
Use of Official Position or Public Office
1. State Department employees 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 Department, or in their official capacity. 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 calls - is not prohibited.
2. A State Department employee may not use office letterhead, agency or office business cards, or otherwise identify himself or herself as a Department employee in any communication, correspondence, or pleading connected with pro bono legal activities or other volunteer services.
3. An attorney who works at the State Department is responsible for making it clear to the client, any opposing parties, the court 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, the Department.
Use of the Department’s Time and Resources
1. Official Time. Department employees should seek volunteer and pro bono legal opportunities that can be accomplished outside their scheduled working hours. It is recognized, however, that such activities may sometimes occur during work hours. Supervisors are therefore urged to be flexible and to accommodate, where feasible, the efforts of their employees to do pro bono legal or volunteer work. For example, an employee whose volunteer activity takes place during the first hour of a workday or requires an extra hour at lunch time should be allowed to make up the hour at the end of the day if it would not be disruptive to normal business operations. Employees seeking to participate in pro bono legal or volunteer activities during work hours may also be granted leave without pay, annual leave, or, in very limited circumstances, administrative leave, as explained below.
  
  When considering employee requests for leave to engage in pro bono legal or volunteer activities, supervisors must give due attention to the effect of the employee’s absence on office operations. Therefore, while this policy asks supervisors to be flexible in dealing with employees seeking to engage in pro bono legal or volunteer activities, it also recognizes that supervisors must be able to judge whether such accommodations would interfere with the operation of the office due to budgetary constraints and heavy workloads. Supervisory approval may be rescinded if necessary to meet workload demands.
  
  NOTE: The decision to grant an employee’s request to engage in pro bono legal or volunteer activities, regardless of whether the activity takes place during scheduled hours of work; shall not be influenced by a supervisor’s personal views regarding the merits of the activity or the organization.
2. Administrative Leave
  1. As a general rule, it is inappropriate to provide administrative leave for an employee for time engaged in pro bono legal or volunteer services. However, in limited circumstances, 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 activities. Excused absences may include situations in which the employee’s volunteer service is directly related to the Department’s mission or is officially sponsored or sanctioned by the Department of State. Requests for administrative leave should be made in advance of the planned activity.
  2. Administrative leave should not be granted for volunteer or pro bono legal activities that directly benefit an employee or those with whom an employee has a personal relationship.
3. Use of Office Equipment and Services and of Nonpublic Information
  1. As a general rule, employees may use government property only for official business or as authorized by the government. See 5 CFR 2635.101(b)(9), .704(a). In accordance with the Departmental Notice of February 2, 1999, the following uses of government office and library equipment and facilities by Department employees are authorized for pro bono legal work and other volunteer services:
    1. Uses that involve only negligible expense such as electricity, ink, toner, small amounts of paper, and ordinary wear and tear; and
    2. Limited local telephone/fax calls to locations within the Department’s general commuting area and calls that are charged to non-government accounts (e.g. personal telephone credit cards).
    3. Use of the Internet in moderation, on personal time, and, with respect to email, the employee should make it clear, in an appropriate place in the message, that his or her e-mail is not being used for official business.
  2. Employees should contact their supervisor if there is any question whether an intended use involves a "negligible expense" or "small amounts" of paper or "limited" use of the phone lines. Uses in all cases should not interfere with official business, and employees should be mindful of their responsibility to protect and conserve government property and to use official time in an honest effort to perform official duties.
  3. This policy does not authorize the use of commercial electronic databases such as LEXIS or WESTLAW when there is an extra cost to the government. On the other hand, research using the library’s books, CD-ROM’s or microfiche generally would be authorized, as it involves only negligible expense to the government.
  4. This policy does not override statutes, rules or regulations governing the use of specific types of government property, such as electronic mail, and 41 CFR 20121.601 (governing the ordinary use of long-distance telephone services). It may be revoked or limited at any time by any supervisor for any business reason. Any employee who has questions about the application of this section to any particular situation should consult his or her supervisor.
  5. In using government property, employees always 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 CFR 2635.101(b)(9), .704(a), .705(a).
  6. Use of nonpublic information is restricted by law and regulation. See 5 CFR 2635.703.
4. Use of Support Staff. Pro bono legal and volunteer activities may not be assigned to or otherwise required of subordinate employees. For example, it is inappropriate for a staff attorney who is handling a pro bono case to ask a paralegal for assistance with legal research for the case as part of the paralegal’s official duties. However, the paralegal may volunteer his or personal time to assist with a pro bono case. See 5 CFR 2635.705(b).
Employee Recognition

Each office is encouraged to develop ideas for recognizing and thanking employees who perform pro bono or volunteer services. As an example, an office may wish to recognize employee efforts during National Volunteer Week, usually the last week in April, in some appropriate form.
Administration of Pro Bono Volunteer Services
1. Pro Bono Legal Services. The Office of the Assistant Legal Adviser for Employment Law will be responsible for answering questions, distributing information, and undertaking other appropriate activities in support of pro bono legal services by Department employees.
2. Volunteer Services. The Office of Employee Relations in the Bureau of Human Resources will be responsible or providing guidance to managers and supervisors on leave policy and alternate work schedules that may be available in connection with employees’ volunteer activities, increasing employee awareness of federally sponsored volunteer efforts, and circulating government policies or statements regarding volunteer services.
Disclaimer
1. This Policy Statement is intended only to encourage increased pro bono legal and volunteer activities by Department employees, 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 officers, or any person.
2. The United States and the Department of State will not be responsible in any manner or to any extent for any negligent or otherwise tortious acts or omissions on the part of any employee engaged in any pro bono or volunteer activity. While the Department encourages pro bono and volunteer activities by its employees, the Department exercises no control over the services and activities of employees engaged in pro bono or volunteer activities nor does it control the time or location of any pro bono or volunteer activity. Each employee is acting outside the scope of his or her employment whenever the employee participates, supports or joins in any pro bono or volunteer activity.