The Ethics of In-House Pro Bono

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www.cpbo.org m cpbo@probonoinst.org Copyright, Pro Bono Institute 2017, All Rights Reserved

This document was developed by Corporate Pro Bono. It may not be reproduced in whole or in part without prior written consent of Corporate Pro Bono at the Pro Bono Institute.

What is Pro Bono?

q  Is Pro Bono an Ethical Obligation? ABA Model Rules of Professional Conduct. Rule 6.1 Voluntary Pro Bono Publico Service:

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.

State Rules of Professional Conduct: Voluntary Pro Bono Service: U.S. jurisdictions vary in their adoption of the ABA Model Rule 6.1. Nearly half of all U.S. jurisdictions set a specific annual goal of 50 hours while most of the others set no specific goal. The handful of jurisdictions that do not fall into either of those two categories set a different specific annual goal, such as 20 hours, or use a formula to determine the goal, considering various factors.

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What Counts? q  Defining Pro Bono

o  ABA Model Rules of Professional Conduct. Rule 6.1 o  Australian Pro Bono Centre o  State Rules of Professional Conduct o  Corporate Pro Bono Challenge® initiative o  Law Firm Pro Bono Challenge® initiative o  Company Pro Bono and Community Service Policies

q  Common Elements o  Persons of Limited Means o  Organizations that Serve Persons of Limited Means o  Financial Contributions

q  Differences o  Number of Hours Encouraged o  Legal Services v. Professional Services

§  Board Service o  Reduced Fees

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ABA Model Rules of Professional

Conduct. 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 or (2) charitable, religious, civic, community, governmental and educational organizations in matters

which are designed primarily to address the needs of persons of limited means; and

(b) provide any additional services through: (1) delivery of legal services at no fee or substantially reduced fee to 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;

(2) delivery of legal services at a substantially reduced fee to persons of limited means; or (3) participation in activities for improving the law, the legal system or the legal profession.

In addition, a lawyer should voluntarily contribute financial support to organizations that provide legal services to persons of limited means.

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Attorney-Client Relationship

q  Formation o  Explicit Formation o  Implied Relationship

ü Client’s Reasonable / Objective Belief ü Client Reasonably Relies on Advice

ABA Model Rules of Professional Conduct. Rule 1.1 Competence:

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

ABA Model Rules of Professional Conduct. Rule 1.3 Diligence: A lawyer shall act with reasonable diligence and promptness in representing a client.

ABA Model Rules of Professional Conduct. Rule 1.4 Communication: A lawyer shall: (1) promptly inform the client of any decision or circumstance with respect to

which the client's informed consent, as defined in Rule 1.0(e), is required by these Rules;

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Attorney-Client Relationship

q  Privilege and Confidentiality o  Documents o  Communications

ABA Model Rules of Professional Conduct. Rule 1.6 Confidentiality Of Information:

(a) A lawyer shall not reveal information relating to the representation of a client unless the client gives informed consent, the disclosure is impliedly authorized in order to carry out the representation or the disclosure is permitted by paragraph (b)… (c) A lawyer shall make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.

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Managing Pro Bono Matters q  Opening Matters (Potential Concerns in Advance of Formal Representation)

o  Company Policy and Procedure ü  Insurance ü  Training / Mentoring (Competence and Communications) ü  Internal Tracking (Deadlines, Conflicts)

q  Retainer Agreements (Ongoing / Direct Representation) o  Identify the Client o  Define the Scope of Representation o  Clarify Financial Arrangements o  Provide Termination Procedure o  Define Respective Role and Responsibilities o  Sign by Client and Attorney

q  Closing Matters (Potential Concerns) o  Company Policy and Procedure o  Closing Letter o  Copy for the File o  Returning Client Materials

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Common Practices Limited Scope Representation

o  Consent §  Assessment of client §  Client understanding of implications of limited scope representation §  Written agreement

o  Types of Projects §  Advising clients on procedural and strategic aspects of a pending case §  Assisting clients in completing forms §  Preparing and drafting court documents §  Coaching clients on how to present in court §  Providing clients brief advice and counsel §  Appearing in court for limited purposes

ABA Model Rules of Professional Conduct. Rule 1.2 Scope Of Representation And Allocation Of Authority Between Client And Lawyer:

(c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.

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Common Practices q  Limited Scope Representation

o  Conflicts of Interest

ABA Model Rules of Professional Conduct. 6.5 Nonprofit And Court-Annexed Limited Legal Services Programs:

(a) A lawyer who, under the auspices of a program sponsored by a nonprofit organization or court, provides short-term limited legal services to a client without expectation by either the lawyer or the client that the lawyer will provide continuing representation in the matter: (1) is subject to Rules 1.7 and 1.9(a) [Conflicts of Interest: Current Clients and Duty to

Former Clients] only if the lawyer knows that the representation of the client involves a conflict of interest; and

(2) is subject to Rule 1.10 [Imputation of Conflicts of Interest: General Rule] only if the lawyer knows that another lawyer associated with the lawyer in a law firm is disqualified by Rule 1.7 or 1.9(a) with respect to the matter.

(b) Except as provided in paragraph (a)(2), Rule 1.10 is inapplicable to a representation governed by this Rule.

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Common Practices q  Involving Non-lawyer Legal Staff

o  Supervision §  92% Programs Include Non-lawyers (CPBO 2016 Benchmarking Report)

ABA Model Rules of Professional Conduct. Rule 5.3 Responsibilities Regarding Nonlawyer Assistance:

With respect to a nonlawyer employed or retained by or associated with a lawyer: (a) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person's conduct is compatible with the professional obligations of the lawyer; (b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person's conduct is compatible with the professional obligations of the lawyer; and (c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if: (1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or

(2) the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

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Co-counseling and Partnerships q  In-House Pro Bono Partnerships

o  Law Firms §  87% Enter into Partnerships with Law Firms (CPBO 2016 Benchmarking Report)

o  Legal Services Organizations §  81% Enter into Partnerships with Legal Services Organizations (CPBO 2016

Benchmarking Report) o  Other Legal Departments

§  55% Enter into Partnerships with Other Legal Departments (CPBO 2016 Benchmarking Report)

q  Ethical Advantages o  Training and Expertise o  Administrative Support o  Malpractice Insurance o  Additional Resources

q  Practical Considerations o  Define Expectations (MOU) o  Clear Communications

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Avoiding Unauthorized Representation

For Your Employer Most states permit in-house counsel, who are licensed to practice in another jurisdiction but not in the state where their employer is located, to work for their employer.

q  Registration or Certification Process q  Model Rule 5.5 q  No Exceptions

v  Hawaii, Mississippi, Montana, West Virginia

ABA Model Rules of Professional Conduct. Rule 5.5 Unauthorized Practice Of Law:

(d) A lawyer admitted in another United States jurisdiction or in a foreign jurisdiction, and not disbarred or suspended from practice in any jurisdiction or the equivalent thereof, may provide legal services through an office or other systematic and continuous presence in this jurisdiction that:

(1) are provided to the lawyer’s employer or its organizational affiliates; are not services for which the forum requires pro hac vice admission; and, when performed by a foreign lawyer and requires advice on the law of this or another jurisdiction or of the United States, such advice shall be based upon the advice of a lawyer who is duly licensed and authorized by the jurisdiction to provide such advice; or

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Avoiding Unauthorized Representation

For Your Pro Bono Client

Almost half of the states ARE SILENT on whether non-locally licensed in-house counsel permitted to work for their employer are also able to provide pro bono services. Those states that do, often impose restrictions.

q  In Association with an Approved Legal Organization

q  Under Supervision

Model Provisions

Ø  Illinois Ø  New York Ø  Virginia Ø  Wisconsin

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Avoiding Unauthorized Representation Model Provisions Illinois A lawyer licensed and employed as provided by this Rule has the authority to act on behalf of

his or her employer for all purposes as if licensed in Illinois…. A lawyer licensed under this rule shall not offer legal services or advice to the public or in any manner hold himself or herself out to be engaged or authorized to engage in the practice of law, except such lawyer may provide voluntary pro bono public services as defined in Rule 756(f). Illinois Rule 716. Limited Admission Of House Counsel

Virginia Notwithstanding the restrictions set out in Part I(f) above on the scope of practice, a lawyer certified pursuant to Part I of this rule may, and is encouraged to, provide voluntary pro bono publico services in accordance with Rule 6.1 of the Virginia Rules of Professional Conduct. Virginia Rule 1A:5. Virginia Corporate Counsel & Corporate Counsel Registrants

Wisconsin Counsel not admitted to the practice of law in this jurisdiction . . . who is employed as a lawyer in Wisconsin on a continuing basis and employed exclusively by a corporation, association, or other nongovernmental entity . . . shall register as in-house counsel within 60 days after the commencement of employment as a lawyer. . . . A lawyer registered under this subsection may provide pro bono legal services without fee or expectation of fee as provided in SCR 20:6.1. Wisconsin Supreme Court Rule 10.03(4)(f). Membership.

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Avoiding Unauthorized Representation

Foreign Lawyer Status

Some countries have adopted regulations that govern the practice of law by foreign lawyers within that jurisdiction. Many of these countries restrict or prohibit foreign lawyers from practicing the law of that country.

Ø  Canada

Ø  Germany

Ø  Hong Kong

Ø  Japan

Ø  South Africa

Ø  United States

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Conflicts of Interest q  Actual or Direct Conflicts q  Positional or Business Conflicts ABA Model Rules of Professional Conduct. Rule 1.7 Conflict Of Interest: Current Clients:

(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be

materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.

q  Practical Considerations o  Frequency

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Resolving Conflicts of Interest q  Informed Consent q  Clear Internal Policies q  Avoid Certain Claims / Matters ABA Model Rules of Professional Conduct. Rule 1.7 Conflict Of Interest: Current Clients:

(b) Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent

and diligent representation to each affected client; (2) the representation is not prohibited by law; (3) the representation does not involve the assertion of a claim by one client against

another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and

(4) each affected client gives informed consent, confirmed in writing.

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Global Pro Bono q  Common Challenges

o  Defining Pro Bono o  System of Legal Services o  Pro Bono Culture o  Identifying Intermediaries o  Multijurisdictional Practice Concerns o  Malpractice Insurance

q  Resources

o  A Survey of Pro Bono Practices and Opportunities In 84 Jurisdictions Prepared by Latham & Watkins LLP for the Pro Bono Institute (see materials)

o  Global Due Diligence Manual, Prepared by Latham & Watkins LLP for the Pro Bono Institute (see materials).

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Pro Bono Resources Eve Runyon m President and CEO, Pro Bono Institute

(202) 729-6699 m (202) 296-0303 fax erunyon@probonoinst.org

CPBO offers a number of resources on its website (www.cpbo.org), including the following:

o  The Business Case for In-House Pro Bono: www.cpbo.org/businesscase

o  Pro Bono Development Guide: How to Start an In-House Pro Bono Program: www.cpbo.org/getstarted

o  Best Practices Profiles: http://www.cpbo.org/resources/best-practice-profiles/

o  Guide to Multijurisdictional Practice Rules: http://www.cpbo.org/MJP-Guide

o  Professional Liability Insurance for In-House Pro Bono: www.cpbo.org/insurance

o  Pro Bono Opportunities and Ideas: •  CPBO Clinic in a Box® Program: http://www.cpbo.org/initiatives/clinic-in-a-box/

•  Pro Bono Marketplace of Ideas: www.cpbo.org/Marketplace

o  Benchmarking In-House Pro Bono: •  2016 Benchmarking Survey Report: http://www.cpbo.org/benchmarking2016

•  The Corporate Pro Bono Challenge® Initiative: http://www.cpbo.org/cpbo-challenge/

o  Corporate Pro Bono •  Who We Are: http://www.cpbo.org/about-us/

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Corporate Pro Bono (CPBO) is a global partnership project of the Association of Corporate Counsel and Pro Bono Institute. Through on-line services (www.cpbo.org), technical assistance to the in-house community, and educational outreach, CPBO seeks to encourage and support the participation of in-house counsel in pro bono legal services. For more information, please visit us at

www.cpbo.org, or contact Eve Runyon, Pro Bono Institute President and CEO, at erunyon@probonoinst.org or 202.729.6699.

Copyright 2017 Pro Bono Institute

Ethics of In-House Pro Bono The information contained in this presentation has been prepared as a service to the community and is not

intended to constitute legal advice. Reasonable efforts were used in collecting, preparing, and providing this information, but Pro Bono Institute, CPBO, and the presenter do not guarantee the accuracy, completeness,

adequacy, or currency of the information contained in this presentation. The publication and distribution of this presentation are not intended to create, and receipt does not constitute, an attorney-client relationship.

Participants are encouraged to seek independent legal counsel for their specific legal needs.