Pro Bono Volunteering: Federal Government Attorneys Can and Do Make a Difference

By Andrew J. Doyle

“As early as the 1970’s, efforts have been made to encourage federal government attorneys to engage in pro bono work. Perceived conflicts of interest and other obstacles have been slowly removed or refined by each Administration to facilitate attorneys’ involvement in this professional duty.”1 To better understand more recent efforts to promote federal government attorneys’ pro bono engagement―and to demystify volunteering for current or prospective federal government attorneys―I interviewed Laura Klein, the Pro Bono Program Manager of the United States Department of Justice’s (DOJ) Office for Access to Justice (ATJ).

Q: In a nutshell, what is the mission of ATJ pertaining to pro bono legal services, and how do you and the Pro Bono Program go about fulfilling it?

One of the guiding principles of the Department of Justice’s newly re-established Office for Access to Justice is increasing access to legal assistance for all. Expanding pro bono legal services is a key tool in this pursuit. The Federal Government Pro Bono Program, which has been led by DOJ since the 1990’s, fits perfectly into ATJ’s mission and therefore was moved there in 2022. In the short time that the Pro Bono Program has been a part of ATJ, it has more than doubled its resources and has new support for expansion to involve more federal government attorneys than ever before. Perhaps the most exciting news is that ATJ has hired an additional attorney to manage the Pro Bono Program. With this new support, the Pro Bono Program is poised to launch branches in more cities around the country and to explore innovative tools and policies which will make it easier for federal government attorneys to engage in pro bono activity.

Q: Can you comment generally on the state of pro bono in the United States? How dire are the needs?

The need for pro bono legal assistance in our country cannot be overstated. The numbers are shocking. The Legal Services Corporation’s most recent report announced that 92% of low-income Americans’ legal needs go unmet every year.2 Without access to legal information and assistance, people may be evicted from their homes, lose custody of their children, face domestic violence, are harassed by creditors, and more, all without knowing their rights.

Q: While there are thousands of federal government attorneys throughout the United States, they are but a fraction of the bar at large. How much difference can federal government attorneys really make?

Federal government attorneys can make an enormous difference both on a large and small scale. If thousands of attorneys who are not currently doing pro bono work started to engage, it would be very impactful for the thousands of people receiving their assistance. While we do focus on increasing actual numbers of volunteers and reaching as many people as possible, it is not just about volume. Each case is important, and the assistance to one person which saves them from eviction or provides a safe and stable home for a child is the essence of pro bono assistance. When someone receives legal assistance, it increases their odds for a better outcome and helps to restore their faith in our system as a whole. Every volunteer who contributes to that effort makes a tremendous difference.

Q: What skills can federal government attorneys sharpen by providing pro bono services?

Pro bono work makes us better attorneys by allowing us to expand our skill set. Whether it is by learning a new subject matter, like housing or family law, or practicing new skills, like interviewing clients or drafting wills, we have the opportunity to develop professionally. We have access to the expertise of the legal services organizations which provide training and mentoring, giving us the chance to break out of our everyday legal routine with the benefit of guidance and advice. Beyond our legal skills, pro bono work gives us a window into our own communities, giving us a unique opportunity to meet people outside of our daily circles. In addition to the clients who we help, we meet other attorneys in our legal community and gain exposure to organizations and services we might not otherwise find.

Q: In terms of internal processes, is it cumbersome for federal government attorneys to obtain approval to provide pro bono legal services in their personal capacity?

While the process varies from agency to agency, most agencies have created a straightforward process for internal approval. It usually involves approval from the attorney’s supervisor and/or ethics officer. Most agencies have a pro bono coordinator who can help facilitate the process as well. Getting approval is a safeguard to be sure attorneys are not engaging in work which will create a conflict of interest with their federal employment, so it benefits both the volunteer and the agency.

Q: How does it work if some volunteering can only be done during business hours (e.g., court hearings)?

It is important to recognize that pro bono work is done in an attorney’s individual capacity, not their official capacity as a federal employee. Therefore, the work should generally be done on the attorney’s personal time. There are many pro bono opportunities which do not interfere with the regular workday. However, there are some situations where that isn’t possible, like court appearances. Volunteers have a few options, depending on their agencies’ pro bono policies. Over 20 agencies have policies which allow for administrative leave for pro bono activity which cannot be accomplished outside of business hours. For example, the Departments of Justice and Labor allow for 30 hours of administrative leave per year and the Departments of Homeland Security and Energy allow for 40 hours.

Q: Are there pro bono volunteer opportunities for federal government attorneys regardless of what type of law they practice?

Absolutely. It does not matter what type of law an attorney practices for the government. We can volunteer at legal clinics, handle litigation, assist with transactional matters, draft wills, and more. Our attorneys assist with housing, family law, employment, consumer debt, domestic violence, and many other issues. As I mentioned earlier, the legal services organizations provide training and mentoring so that volunteers can provide competent advice outside of their usual area of expertise.

The only restrictions on the type of pro bono work a federal government attorney can do involve conflicts of interest. We cannot engage in any pro bono activity in which the federal government has a direct and substantial interest pursuant to 18 U.S.C. § 205. In short, if a federal agency is involved in a matter, our volunteers should not provide assistance related to that matter. Examples of areas of law which our volunteers should avoid include immigration, federal public benefits such as Social Security and Medicare, federal tax matters, and veterans’ benefits. Additionally, agencies have their own supplemental regulations that restrict providing assistance in areas specifically related to that agency’s work. For example, Department of Justice employees are prohibited from providing assistance on criminal matters, whether federal, state, or local. 5 C.F.R. § 3801.106. Therefore, while an attorney at the Department of Housing and Urban Development can assist with a criminal issue like expungement, a DOJ attorney cannot. These are just a few examples of conflicts. It is important that any federal employee seeking to do pro bono work contact their agency pro bono coordinator and/or ethics office for guidance before starting any pro bono project.

Q: During the COVID-19 pandemic, there have been opportunities to volunteer remotely. Do you expect that to continue?

The development of remote legal services and pro bono opportunities during the pandemic has made it easier for attorneys to volunteer and for some clients to access assistance, so I do think they will continue in some form. However, it is far from a settled issue. First, remote services are not always easier for pro bono clients. If a client lacks access to technology, they should not be shut out of services. Second, during the pandemic, courts held hearings remotely and made it very easy for pro bono volunteers to represent clients. Many courts now have returned to in-person evidentiary hearings, although some have kept status conferences and other appearances remote. Similarly, many pro bono clinics became remote during the pandemic and have remained that way, but others are now returning to in-person services to be sure clients have access even without technology. As the courts and legal services organizations experiment and explore these options, we will continue to see a mix of in-person and remote pro bono opportunities.

Q: The District of Columbia Court of Appeals conditionally allows federal government (and other) attorneys who are licensed elsewhere to provide pro bono legal services in D.C. under the supervision of a D.C.-licensed attorney.3 Do many states have similar rules?

Yes, other states have similar rules which allow out-of-state attorneys to do pro bono work and they, like D.C. Court of Appeals Rule 49, have allowed many attorneys to do pro bono work and many clients to get help who would otherwise have not. In D.C. alone, hundreds of clients get help from attorneys licensed in other states every year. Currently, Arizona, Colorado, Illinois, Maryland, New Jersey, and Texas have such rules. Compliance procedures vary in each jurisdiction, but they are all fairly simple. The Federal Government Pro Bono Program has information about each rule and can provide guidance to interested attorneys.

Q: In the absence of such a policy, do you have any advice for federal government attorneys who find themselves in a state or other jurisdiction that does not have a policy like D.C.’s? Can it still be feasible to provide pro bono legal services in such locations?

For attorneys who are not licensed where they are practicing, and have no exception like D.C.’s rule, their pro bono options will be more limited. They can partner with an attorney who is licensed in the jurisdiction and provide behind-the-scenes assistance to a client. They can volunteer for law-related education programs that need attorneys, such as Street Law, mock trial, and moot court programs. They may also be able to volunteer remotely in the state where they are licensed. Before doing so, they need to check on the rules of the jurisdiction where they live to be sure that providing the remote assistance will not qualify as the unauthorized practice of law in that state even though the advice is being provided out of state.

Q: What would you say to a federal government attorney who is interested in volunteering but hesitates because of the time commitment or just a general fear of the unknown?

I encourage everyone to give it a try. For those with limited time, we have a wide range of opportunities, including short-term commitments, which only take a few hours. Many legal clinics are during lunch, an evening, or a weekend day. Volunteers provide brief advice and do not take a case or agree to any ongoing services. Some states have online opportunities where a client posts a question and attorneys can post a response whenever they have time. Even for matters that involve representation, there are opportunities that are done within a couple of weeks, such as drafting wills. Some litigation lasts longer than a few weeks, but it may not involve a lot of work throughout, such as adoption cases. Whatever an attorney’s schedule may be, there is a pro bono opportunity that will fit.

For attorneys who are nervous about engaging in a new area of law or trying an unfamiliar legal skill, there are numerous resources that provide training and mentoring. The organizations which the Federal Government Pro Bono Program publicizes have been screened to be sure that they offer that support.

Q: What is the best way for federal government attorneys to learn more about the Federal Government Pro Bono Program?

Most agencies have a pro bono coordinator. That person is the best source of guidance for opportunities available to their agencies’ employees. A list of agency coordinators is posted on www.probono. net/governmentprobono/, which also has a lot of other great information about how to get involved, such as volunteer guides for each branch of our Pro Bono Program. Finally, government attorneys are welcome to contact me directly at Laura.F.Klein@usdoj.gov. I am always happy to help! 

Endnotes

1U.S. Dep’t of Justice, Office of Access to Justice, Pro Bono Program, About the Program, available at https://www.justice.gov/ atj/pro-bono-program (last visited Feb. 20, 2023).

2The Justice Gap: The Unmet Civil Legal Needs of Low-Income Americans. Legal Services Corporation Report (May 2022), available at https://justicegap.lsc.gov/ (last visited Mar. 4, 2023).

3D.C. Ct. App. R. 49(c)(9) provides:

(9) Pro Bono.

(A) Attorneys Working Pro Bono. A person who is not a D.C. Bar Member may provide pro bono legal services, and may hold out as authorized to provide those services, if the person:

(i) is or was admitted in another United States jurisdiction, or previously was a D.C. Bar Member;

(ii) was not disbarred or suspended for disciplinary reasons, and has not resigned with charges pending, in any United States jurisdiction or court;

(iii) is supervised by a D.C. Bar Member on each pro bono matter;

(iv) gives prominent notice in all business documents specifically concerning each pro bono matter that the person’s work on the matter is supervised by a D.C. Bar Member and that the person is not a D.C. Bar Member;

(v) if the matter involves appearance in the District of Columbia

Court of Appeals or the Superior Court of the District of Columbia, the person, in the first pleading or other paper filed with the court, identifies the supervising D.C. Bar Member by name, address, e-mail address, telephone number, and D.C. Bar number;

(vi) is not employed by the Public Defender Service or a non-profit organization that provides pro bono legal services; and

(vii) provides services on each pro bono matter in affiliation with either:

(a) a non-profit organization in the District of Columbia that routinely provides pro bono legal services; or

(b) the legal pro bono program of the person’s employer, if the employer is not a law firm.

(B) Law School Graduates Seeking Admission to a Bar. A person who is not a D.C. Bar Member may provide pro bono legal services and may hold out as authorized to provide pro bono legal services if:

(i) the person graduated from an American Bar Association-approved law school; (ii) the person’s first application to be admitted in a United States jurisdiction is pending;

(iii) the person is trained and supervised by a D.C. Bar Member who is affiliated with the Public Defender Service or a non-profit organization that provides pro bono legal services on each pro bono matter; and

(iv) the person gives prominent notice in all business documents specifically concerning each pro bono matter that the person’s work on the matter is supervised by a D.C. Bar Member and that the person is not admitted to practice law in any United States jurisdiction.

(C) Applicability of Rules of Professional Conduct. A person practicing under Rule 49(c)(9) is subject to the power and jurisdiction of the courts of the District of Columbia, and must abide by the District of Columbia Rules of Professional Conduct.

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