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Multi-Jurisdictional In-House Pro Bono Practice Update

The Pro Bono Wire
November 29, 2012

Corporate Pro Bono, the global partnership of PBI and the Association of Corporate Counsel (ACC), has seen efforts in support of changing restrictive practice rules expand dramatically as numerous states have turned their attention to empowering in-house counsel to provide pro bono legal services in the jurisdictions in which they work.

This has been a key issue for CPBO and many legal departments, ACC Chapters, and individual in-house counsel. Among other steps taken to address the issue, CPBO has formed a task force on the topic, drafted model language, worked with in-house leaders to amend the rule in Virginia, and brought the topic to the attention of the Conference of Chief Justices.

This fall, CPBO worked with ACC and others in states including Florida, Iowa, Massachusetts, Minnesota, New York, and Ohio. In each of those states, in-house counsel who are in good standing in another jurisdiction but not licensed locally, may register and become authorized to practice for their employer. However, none of the jurisdictions expressly permitted such attorneys to also provide pro bono legal services.

The courts in Florida, Iowa, Massachusetts, and Minnesota have now adopted or are considering amendments, which, to varying degrees, open the door to greater pro bono participation by in-house counsel. In New York and Ohio, the bar associations have adopted proposals that they will submit to the courts. CPBO awaits consideration by the courts in those jurisdictions.

Newly Revised Rule: Iowa

Effective September 13, 2012, Iowa amended its practice rules to expressly permit registered in-house counsel to provide pro bono legal services. Now, in addition to providing legal services to their employers, registered in-house counsel may also “provide pro bono legal services through an established non-for-profit bar association, pro bono program or legal services program, or through such organization(s) specifically authorized in this state.” See Iowa Court Rule 31.16(3)(b).

Amendments Pending the Court: Florida, Massachusetts, and Minnesota

In October, the Florida State Bar, in its Petition to Amend the Rules Regulating the Florida Bar Biannual Filing 2012, proposed amendments to Chapters 12 and 17 to permit authorized in-house counsel to provide pro bono legal services by expanding the definition of “emeritus attorneys” to include registered in-house attorneys. If approved, authorized in-house counsel may provide pro bono legal services if they: (i) become certified as an “emeritus attorney”; (ii) work with approved legal aid organizations; (iii) are directly supervised by a legal aid organization attorney, who would have to sign all documents prepared by such authorized house counsel to be filed with the court and approve any court appearances by such authorized house counsel; and (iv) obtain approval from the Clerk of the Supreme Court of Florida by filing a series of certificates under Chapter 12.

The Massachusetts Supreme Judicial Court Standing Committee on Pro Bono Legal Services recently proposed an amendment to S.J.C. Rule 4:02 regarding the provision of pro bono legal services by authorized in-house counsel. The proposed amendment would allow authorized in-house counsel to provide pro bono legal services in the Commonwealth “under the auspices of either (1) an approved legal services organization (as defined in paragraph (8)(c) [of the Rule]) or (2) a lawyer admitted to practice and in good standing in the Commonwealth of Massachusetts.”

In Minnesota, the State Board of Law Examiners proposed amending Rule 10 of the Minnesota Rules for Admission to the Bar to permit “house counsel” registered under Rule 10 to provide “‘pro bono legal representation’ to a ‘pro bono client’ referred to the lawyer through an ‘approved legal services provider’” as those terms are defined in the rules regarding continuing legal education.

Bar-Endorsed Amendments: New York and Ohio

Recently, the New York State Bar Association House of Delegates approved a proposal to adopt a new §522.8 to the Rules of the Court of Appeals for the Registration of In-House Counsel that would permit New York registered in-house counsel to provide pro bono legal services.

On November 9, the Ohio State Bar Association Council of Delegates approved a proposal to amend Rule VI of the Rules for the Government of the Bar of Ohio 4 (Registration of Attorneys) and Rule 5.5 of the Ohio Rules of Professional Conduct 5 (Unauthorized Practice of Law) to allow registered in-house counsel to engage in pro bono.

CPBO Analysis

The rules above, to differing degrees, are all steps in the right direction, allowing for increased participation in pro bono by in-house counsel. While the requirements proposed in Florida are onerous and are likely to limit the impact of the rule change, they do give authorized in-house counsel opportunities to provide pro bono that did not previously exist.

In Iowa, Massachusetts, and Minnesota, the rules allow for greater participation by in-house counsel, with some limitations. By requiring registered in-house counsel to work with enumerated legal service or pro bono providers and/or mandating such lawyers to work under the supervision of another lawyer, whether needed or not, the rules proposed in these jurisdictions unnecessarily limit the source of pro bono clients, restrict the number and/or type of client served, and constrain the number of lawyers available to meet the needs of pro bono clients.

Several years ago, Colorado and Virginia adopted rules that support broader participation by in-house counsel. These rules recognize that registered in-house counsel are subject to the same rules of professional conduct and disciplinary measures as attorneys licensed in state and permit them to provide pro bono legal services to the same extent. They eliminate unnecessary restrictions while protecting clients and ensuring lawyer competency in the same way they do for all other lawyers in state.

Untapped Resources

This has been a momentous season for in-house pro bono. CPBO is encouraged by the number of jurisdictions working to further empower in-house counsel pro bono efforts and looks forward to continuing to act as a resource to legal departments, ACC Chapters, bar associations, courts, and others interested in promoting in-house pro bono services. Each step jurisdictions take to further allow in-house counsel to engage more fully in pro bono is a move in the right direction.

While the crisis in access to justice permeates the entire country, the experience of in-house counsel has not been fully tapped. Every resource is needed, and now is the time for change. As Randal S. Milch, vice president and general counsel of Verizon Communications Inc.**, wrote in an October Corporate Counsel op-ed: “This is one of the worst times for outdated rules to restrict the delivery of services across state lines.”

In-house lawyers and others interested in learning more about this issue and how to get involved should e-mail CPBO Director Eve Runyon.

** denotes a Signatory to the Corporate Pro Bono ChallengeSM