The National Law Journal
May 2, 2011

The need for pro bono legal services is immense and growing, but it is not enough to simply ask for more volunteers. The crisis in the courts and the precipitous drop in resources for legal services, combined with increased demand for legal assistance, have changed how we must approach pro bono legal services. Among the essential changes is amending the rules that govern in-house attorneys providing pro bono. In many states, in-house attorneys are an untapped resource. We know firsthand that in-house lawyers are committed to making a difference, while their companies are increasingly supporting and encouraging them to engage in pro bono. Corporate Pro Bono, a Washington-based organization, has spent the past 10 years developing tools and providing support to maximize this resource.

If only it were that simple. Many state rules allow in-house attorneys licensed in another jurisdiction to work for an employer-client, but do not allow those same attorneys to provide pro bono legal services. Those states that expressly permit nonlocally admitted attorneys to undertake pro bono often handcuff them with restrictions that are unnecessary, insulting and unjustifiable in the face of the crisis in access to justice.

Unnecessary Restrictions
Although restrictions vary by jurisdiction, there are several common to a significant number of states. The most common requirement is that nonlocally admitted in-house attorneys work with an approved legal aid organization. Legal aid programs across the United States are stretched thin as it is. Requiring already overworked legal aid lawyers to act as supervisors unnecessarily increases the burden on legal aid organizations. Instead of providing increased capacity to these organizations, such rules limit the number of cases they take. Moreover, by restricting in-house attorneys to only providing assistance to clients served by legal aid programs, these provisions limit the avenues through which those in need are able to receive legal assistance. It is our belief that to best meet the needs of low-income clients, in-house counsel should have the ability to work with all potential pro bono sources, including community groups and law firms with established pro bono programs.

Additionally, in a number of jurisdictions, nonlocally admitted in-house ­attorneys must be supervised in their pro bono work by an active member of the bar, thus unduly limiting the number of hours lawyers can provide pro bono. These rules are insulting and frustrating for in-house attorneys who are already practicing in the state for their employers. Companies get the benefit of their in-house attorneys’ skills, knowledge and experience, while our neediest clients are deprived of the same. The result is not that the pro bono work is getting done by other lawyers; it is simply not getting done.

Beacons of Hope
Fortunately, we are seeing exceptions. Since 2006, in-house attorneys in Colorado who are not admitted in the state but are registered to provide legal services to their employer may also provide legal services to indigent persons and organizations serving indigent persons. More recently, effective as of April 15, Virginia strengthened its in-house pro bono rules. This change is the result of a task force composed of lawyers from the Virginia State Bar and the Virginia Bar Association, which, with assistance from Corporate Pro Bono, drafted language to remove these obstacles – language which was recently approved by the Virginia Supreme Court.

At last year’s summit on pro bono coordinated by the Virginia Bar, Randal Milch, executive vice president and general counsel of Verizon Communications Inc., one of the largest corporations in Virginia, spoke passionately about the importance of pro bono work and underscored the obstacles faced by in-house counsel in Virginia who seek to do pro bono work. Whereas, previously, the state allowed certified in-house attorneys to provide pro bono with several restrictions, certified in-house attorneys in Virginia are now able to provide pro bono, subject only to the same conditions that apply to the services they provide their employer and that all Virginia attorneys must abide by – the Virginia Rules of Professional Conduct. This change enables and empowers the more than 800 certified in-house attorneys in Virginia to provide desperately needed assistance to low-income individuals and organizations.

It is our great hope that other states will see the wisdom in Colorado and Virginia’s rules creating a sea change in in-house pro bono. While pro bono assistance alone cannot fill the widening gap between the legal needs of the poor and disenfranchised and the available assistance, there is strong potential to improve and expand pro bono legal services.
MJP-NEWS