Pro Bono Program: Federal Agency Pro Bono Policies

Pro Bono Legal and Volunteer Service Policy Statement

Introduction.

Pro bono legal work and other volunteer activities allow participants to assist individuals and strengthen communities, and at the same time present opportunities to enhance professional skills. Pursuant to Executive Order 12988 (February 5, 1996) and Executive Order 13254 (January 29, 2002), it is the policy of the Department of the Treasury Legal Division to facilitate voluntary participation in such activities by employees within the Legal Division.

Although Federal government attorneys face some constraints on the types of pro bono legal and other volunteer activities they may perform, many of the former barriers to their participation in these activities have been removed. This policy statement is intended as a guide for those who wish to become involved in pro bono service. The Legal Division’s goal is to increase pro bono activity by eliminating uncertainty regarding the types of pro bono legal and other volunteer activities in which attorneys may participate.

Attorneys should also consult the current Department of the Treasury General Counsel Directive No. 6 ("Outside Employment of Attorneys").
Definitions.
1. Pro Bono. Pro bono service may include the uncompensated provision of legal services to the following:
  1. persons of limited means or other disadvantaged persons;
  2. charitable, religious, civic, community, governmental, health and educational organizations in matters which are designed primarily to address the needs of persons of limited means or other disadvantaged persons, or that further their organizational purpose;
  3. individuals, groups or organizations seeking to secure or protect civil rights, civil liberties or public rights; or
  4. activities for improving the law, the legal system, or the legal profession.
2. Volunteer Services. Volunteer services are non-legal activities performed without compensation, for the benefit of:
  1. persons of limited means or other disadvantaged persons; or
  2. charitable, religious, civic, community, governmental, health and educational organizations in matters which are designed primarily to address the needs of persons of limited means or 2 other disadvantaged persons.
3. Illustrative definitions. The examples provided in sections A and B above are illustrative only, and are not intended as exhaustive lists of what may be considered pro bono or volunteer service. The definitions are modeled upon those provided in the Department of Justice Policy Statement on Pro Bono Legal and Volunteer Services which in turn is based on Rule 6.1 of the ABA Model Rules of Professional Conduct. Those sources may be consulted for further guidance on the appropriate activities which may be pursued as pro bono or volunteer service.
4. Exclusions. Partisan political activities or compensated outside employment or other activities shall not be considered pro bono service under any circumstances.
Limitations.

The following statutes and regulations govern and to some degree limit the types of pro bono and volunteer activities open to Treasury Legal Division attorneys. The following descriptions are summaries only. The full text of these provisions should be consulted whenever questions arise.
1. 18 U.S.C. 205 prohibits Federal employees from engaging in certain activities in claims against and other matters affecting the United States, that would require the employee to act as an agent or attorney:
  1. for prosecuting any claim against the United States or receiving any gratuity, or share of or interest in such claim, in consideration of assistance in the prosecution of such claim; or
  2. for anyone else before the Government (including Federal courts) in connection with any covered matter in which the United States is a party or has a direct and substantial interest.
2. 5 C.F.R. 2635, Standards of Ethical Conduct for Employees of the Executive Branch, specifies that it is inconsistent with the standards of conduct to engage in any outside employment or other outside activity which would:
  1. require the recusal of the employee from significant aspects of the employee’s official duties (5 C.F.R. 2635.802(b));
  2. create an appearance that the employee’s official duties were performed in a biased or less than impartial manner (5 C.F.R. 2635.502);
  3. create an appearance of official sanction or endorsement (5 C.F.R. 2635.702(b)); or
  4. would be prohibited by statute or agency supplemental regulation (5 C.F.R. 2635.802(a)).
3. 5 C.F.R. 3101 et seq. contains supplemental regulations for Treasury employees.
  1. In particular, 5 C.F.R. 3101.107 prohibits Legal Division attorneys from engaging in the outside practice of law that might require the attorney:
    1. to take a position that is or might appear to be in conflict with the interests of the Department of the Treasury; or
    2. to interpret any statute, regulation or rule administered or issued by the Department.
  2. Employees of the Legal Division are also subject to the rules on outside employment or activities applicable to employees of the bureaus or offices in which they serve, 5 C.F.R. 3101.107(a). IRS, OCC, and USCS currently have restrictions in the Treasury Supplement on outside employment.
4. Federally Funded Programs. Treasury employees should be cognizant of the fact that their participation in cases or activities involving Federally funded programs may be inappropriate where the Department directly administers the funding for the specific program. Any questions concerning the appropriateness of participation in such a case or activity will be resolved on a case-by-case basis.
Approval and Other Procedures.
1. Approval for Non-Legal Volunteer Activities. General Counsel Directive No. 6 allows Legal Division attorneys when not on duty to participate on a non-compensated basis in the activities of civic, scout, religious, educational, fraternal, social, community, veterans and charitable organizations without prior approval. Attorneys are expected to consult with supervisors regarding activities that may cause an actual or apparent conflict of interest or if they become heavily involved (e.g., in a leadership position) in the volunteer activity and if that activity requires a significant time commitment.
2. Approval/Conflicts Check for Pro Bono Legal Activities.
  1. Attorneys may engage in pro bono legal activities upon receipt of written permission to do so from the appropriate Assistant General Counsel, Counselor to the General Counsel, Chief Counsel, Legal Counsel, or the Deputy General Counsel, or his or her respective designee. Attorneys’ direct supervisors will be responsible for consenting to the pro bono legal work and for completing a conflict of interest check before approval is given.
  2. Each request will include, as a minimum, the following information:
    1. the name, address, and telephone number of the prospective client, if appropriate;
    2. a description of the attorney’s anticipated duties;
    3. the number of hours the attorney expects to work (per day, week, or month, as applicable);
    4. the projected duration of the pro bono legal work;
    5. any relationship of the proposed client to the attorney; and
    6. any relationship of the proposed client, if a business entity, to the Treasury.
  3. Once an attorney has begun the pro bono activity, he or she is responsible for avoiding conflicts of interest, or the appearance of conflicts of interest, in the pro bono activity. Attorneys shall also be responsible for advising the official approving the outside employment or activity of any change in circumstances that may be material to continuing approval of the outside employment or activity.
3. Retainer Letter. The Department recommends that the attorney prepare a retainer letter for each pro bono legal activity, making explicit to the client that the attorney is working as an individual, and not in his or her capacity as a government lawyer. The attorney should consult with the appropriate State bar association in making a determination as to whether or not a retainer letter is necessary. Some bars, and some pro bono organizations that make referrals, require that a retainer letter be prepared when the attorney is representing a client in an individual capacity.
4. Bar Regulations. Information on requirements to practice pro bono may be obtained from State bar associations or administrative offices of the courts. As of April 9, 2002, the following is a summary of rules applicable in the Washington, D.C. area:
  1. D.C.
    1. Attorneys not admitted to the District of Columbia Bar may practice in the District on a pro bono basis under the supervision of a licensed D.C. Bar member, per D.C. Court of Appeals Rule 49(c). In these circumstances, it is necessary to file a Motion/Certificate of Practice Pro Bono Publico with the Clerk of the court where the matter will occur.
    2. The D.C. Bar licensing fee is waived for attorneys "engaged in the provision of legal services on a pro bono basis solely or in combination with government service."
  2. Virginia. Attorneys may not undertake pro bono legal representation in the Commonwealth of Virginia unless they are licensed by the Virginia State Bar. They may, however, serve in an auxiliary function (e.g., intake work) in a pro bono context.
  3. Maryland. Pursuant to Rule 15 of the Rules Governing Admission to the Bar of Maryland, a member of the Bar of another State who fulfills requirements set out in the Rule may practice under the auspices of an organized legal services program sponsored or approved by the Legal Aid Bureau.
5. Malpractice Insurance. The government is unable to provide malpractice insurance to attorneys taking pro bono cases. Prior to accepting a pro bono service, the attorney should determine whether the referring program or organization may provide malpractice insurance for the work.
6. Training. Due to conflict-of-interest issues, many of the pro bono opportunities available to Treasury attorneys will be outside of the attorney’s area(s) of expertise. Referring agencies (for example, the D.C. Bar’s pro bono division) frequently offer training seminars in fields often encountered in pro bono work.
Use of Official Position/Public Office/Agency Resources.
1. In General. Treasury Legal Division attorneys who engage in pro bono or volunteer activities do so as private individuals. The attorney is responsible for making it clear to clients and other involved parties that he or she is not acting as a representative of the Treasury Department. Identification of the individual’s position in the Treasury Department Legal Division is permissible only as long as it is merely incidental to the pro bono activity performed (e.g., information necessary to provide a mailing address or a telephone number may be revealed).
2. Hours of Work. Pro bono or volunteer service should, to the greatest extent possible, be performed outside of normal working hours. However, occasions such as court appearances may call for pro bono service-related work during the business day. Employees must request annual leave, leave without pay, or use of accumulated credit hours (if available within the organization where the attorney works) before engaging in pro bono activities during their scheduled working hours. In considering such requests, supervisors should accommodate, where possible, the efforts of their employees to do pro bono legal or volunteer work, also paying due consideration to the effect of the employee’s absence on the operations of the office. A decision to grant or deny leave or use of credit hours may not be affected by the supervisor’s personal views regarding the substance of the pro bono activity. Employees should remember when resolving any scheduling conflicts that their primary responsibility is to the Treasury Department Legal Division.
3. Use of Official Position and Other Agency Resources.
  1. Use of official titles, Treasury letterhead, business cards, etc. is prohibited.
  2. Government property may be used only for those purposes authorized in accordance with law or regulation. 5 C.F.R. 2635.704 The following personal uses of Government office and library equipment and facilities are authorized in connection with approved pro bono 6 work: (1) use of property that involves minimal time and expense (e.g., electricity, ink, small quantities of paper, and ordinary wear and tear); and (2) limited, occasional outgoing telephone/fax calls to locations within the local dialing area, or that are charged to non-Government accounts.
    
    Employees wishing to use more than a small amount of office supplies must provide their own or pay for its cost. Employees should contact their ethics officer and supervisor if there is any question whether an intended use involves minimal expense or small amounts of office supplies.
    
    This policy does not authorize the personal use of commercial electronic databases when there is an extra cost to the government; personal use is only allowed when the contract permits unlimited use. Research using the library’s books or microfiche is authorized, as it involves only negligible additional expense to the government.
    
    Any such personal use must not interfere with official business, and supervisors should be consulted if there is any question over whether such use is "minimal." The policy 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.
  3. Work related to volunteer service may not be assigned to clerical or support staff. Asking clerical or support staff if they wish to participate in volunteer activities may violate 5 C.F.R. 2635.705.
Pro Bono Policy and Ethics Requirements.

Senior Counsel for Ethics in the Office of the Assistant General Counsel (General Law and Ethics) will serve as a general resource for ethics issues arising from pro bono and volunteer activities of Legal Division attorneys. Chief Counsel and Legal Counsel also may designate an attorney who deals with ethics issues on their staff to serve as a general resource for ethics issues arising from pro bono and volunteer activities for their attorneys.
Voluntary Participation.

This policy statement is intended to remove existing policy barriers which currently inhibit the performance of pro bono service, and to serve as a guide for those who voluntarily wish to participate in pro bono legal or volunteer service. It is not intended to require such participation, nor is such service to be made a rating element of any Treasury Department Legal Division employee.
Disclaimer.

This policy statement is intended only to encourage pro bono legal and volunteer activities by Treasury 7 Department Legal Division 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.

The United States and the Department of the Treasury 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 Treasury Department employee engaged in any pro bono or volunteer activity. While the Treasury Department permits pro bono and volunteer activities by its employees, it 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.
Effective Date, Duration and Cancellation.

This policy statement is effective April 18, 2002. It is intended to be read in conjunction with General Counsel Directive No. 6, and not to supplant General Counsel Directive No. 6. It remains in effect until superseded. All previous delegations in conflict with the provisions herein are hereby superseded.

David D. Aufhauser
General Counsel