Pro Bono Legal Services Provided by Government and Public Sector Lawyers
Opinion encourages government lawyers to engage in pro bono representation unless prohibited by law from doing so.
May a lawyer who works for the government or the public sector (hereafter “government lawyer”) provide pro bono legal services to private individuals and organizations pursuant to Rule 6.1?
Yes, if the government lawyer is not otherwise prohibited by law from engaging in the private practice of law.
All lawyers have a professional responsibility to provide legal services to those who are unable to pay as stated in Rule 6.1:
Every lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should aspire to render at least (50) hours of pro bono publico legal services per year. In fulfilling this responsibility, the lawyer should:
(a) provide a substantial majority of the (50) hours of legal services without fee or expectation of fee to:
(1) persons of limited means;
(2) charitable, religious, civic, community, governmental, and educational organizations in matters that are designed primarily to address the needs of persons of limited means; or
(3) individuals, groups, or organizations seeking to secure or protect civil rights, civil liberties, or public rights, or charitable, religious, civic, community, governmental, and educational organizations in matters in furtherance of their organizational purposes, where the payment of standard legal fees would significantly deplete the organization’s economic resources or would be otherwise inappropriate.
Some government lawyers, however, are prohibited by statute from engaging in the private practice of law. See, e.g., NC Gen. Stat. §84-2 (“No justice, judge, magistrate, full-time district attorney, full-time assistant district attorney, public defender, assistant public defender, clerk, deputy, or assistant clerk of the General Court of Justice, register of deeds, deputy, or assistant register of deeds, sheriff, or deputy sheriff shall engage in the private practice of law.”) and NC Gen. Stat. §7A-754 (“Neither the chief administrative law judge nor any administrative law judge may engage in the private practice of law...”).
A government lawyer is subject to the requirements of the Rules of Professional Conduct when providing pro bono legal services. Although the pro bono legal services may be very different from the legal work that the government lawyer performs for his or her employer, the government lawyer must provide competent and diligent representation. See Rule 1.1 and Rule 1.3. Therefore, the government lawyer must ensure that he or she has the training necessary to represent the pro bono client competently. In addition, the government lawyer must communicate to the pro bono client that, in the course of providing pro bono legal services, the lawyer is not acting on behalf of a government agency or office but in his or her private capacity. See Rule 1.2 and Rule 1.4.
A government lawyer must also avoid conflicts of interests that may arise when providing pro bono legal services to private persons or entities. See Rule 1.7. The Arizona State Bar opined that the unique position of a lawyer employed by the government suggests that a heightened level of scrutiny for possible conflicts of interest is warranted when a government lawyer engages simultaneously in the private practice of law, albeit on a pro bono basis. Az. State Bar, Ethics Op. 93-08 (1993). The government lawyer must examine whether his or her employer and/or any public body that the government lawyer represents has an interest in the pro bono matter. If so, and the interests of the prospective private client are adverse to the government, or the government lawyer’s representation of either the government or the prospective private client will be materially limited, the lawyer must decline the representation unless both the government and the prospective client give informed consent. See Rule 1.7. Similarly, if the government lawyer formerly represented a public body in the same matter or a matter that is substantially related to the proposed pro bono representation, the government lawyer is prohibited from taking on the pro bono representation if it would be adverse to formerly represented public body unless this former client gives informed consent. See Rule 1.9. Because of the potential for conflicts to arise, it is recommended that a government lawyer limit his or her pro bono activities to practice areas that are unrelated to the lawyer’s government work.
Government and public sector lawyers must abide by the confidentiality rule. Rule 1.6(a) provides that a lawyer shall not reveal information acquired during the professional relationship with a client unless the client gives informed consent, the disclosure is impliedly authorized to carry out the representation, or the disclosure is permitted by an exception set forth in paragraph (b) of the rule. If the government lawyer is prohibited by his or her employer from entering into a confidentiality agreement with a private person or entity, the lawyer may not provide pro bono legal services to private clients. Nevertheless, the government lawyer may still find opportunities to provide pro bono service by participating in activities for improving the law, the legal system, or the legal profession. See Rule 6.1(b)(2).
If a government lawyer intends to provide pro bono services outside the context of a legal services organization or a nonprofit organization, before doing so the lawyer would be wise to consult with a liability insurance carrier to determine whether to carry malpractice insurance. If the government lawyer will be providing pro bono services under the auspices of a legal services organization or other nonprofit or charitable organization, the government lawyer would be wise to determine whether the legal services or nonprofit organization has liability insurance that will cover the government lawyer’s pro bono activities.
Government agencies and public sector offices are encouraged to adopt internal policies that will facilitate pro bono legal service by government lawyers. These policies should address, inter alia, the definition of pro bono, the types of pro bono services to be performed, conflicts of interests, use of the employer’s resources such as support staff and office equipment, and whether pro bono legal services are to be provided during working hours or after.