The PBEye

Pro Bono As We See It
April 12, 2011

Arkansas Decision Good, But Not Good Enough

Unnecessary Restrictions on In-House Pro Bono
While in-house pro bono has grown considerably in the past few years, state restrictions on multijurisdictional practice are still a significant hurdle. CPBO, with PBI, ACC, and a taskforce of in-house counsel, is working to address this important issue and has drafted model language to help.

The rules in most states allow in-house counsel who are admitted to practice and are in good standing in one or more jurisdictions, but are not licensed in the state in which they are working, to provide legal services to their in-state employer. However, many of these states are silent on whether these same lawyers may also provide free legal help to low-income clients.

For states that have addressed the issue, most have adopted rules that impose unnecessary restrictions that in-house attorneys must meet in order to provide pro bono services to needy communities. These restrictions result in fewer attorneys providing pro bono services and fewer low-income people receiving help.

Recent Changes In the Rule Don’t Go Far Enough  
In late March, the Supreme Court of Arkansas adopted language that allows non-admitted attorneys, including in-house counsel, to provide legal services to persons of limited means. Certainly, a step in the right direction, this rule provides guidelines that permit in-house pro bono practice.

Unfortunately, the rule also imposes restrictions that limit the impact and value that these lawyers can bring. Most notably, Arkansas’ new rule restricts the number of needy people that can be served by requiring in-house counsel to work only in association with an approved legal service provider.  This may seem like a good solution. However, 80 percent of the legal needs of low-income people go unmet and only a small percentage of low-income people seek help from legal service providers.  By restricting in-house counsel from working with the array of organizations that serve low-income communities, including law firms that have vibrant pro bono programs, many low-income people are left unserved.

In addition, approved legal service providers often restrict the type of cases they handle, leaving other needy clients without assistance.

Easing Access and Increasing Capacity Should Be the Goal
States may adopt rules that limit in-house pro bono participation for a variety of reasons, including wanting to ensure competent representation. However, given the current crisis in legal needs and the increased number of in-house lawyers interested in pro bono, creating hurdles that restrict the number of lawyers who are able to help or the clients they can serve is not the answer.

The language CPBO has drafted states simply that providing pro bono services by in-house counsel is “the practice of law,” subjecting the attorneys who provide it to the same disciplinary, conduct, and competency rules that other lawyers practicing in state must follow. A viable option for states, the Supreme Court in Virginia approved this type of language just last week and eliminated the previous restrictions it had placed on in-house pro bono. Check back with us to learn more about these exciting changes!

Ultimately, practice rules should ease the ability of in-house lawyers to provide pro bono representation. They should:

• increase the number of lawyers able to assist low-income communities;
• add capacity to and lessen the burden on legal service providers;
• ensure that underserved individuals and the nonprofits that serve them receive support;
• lower the burden on the courts; and
• bring efficiencies to the justice system.

Unfortunately, many of the current in-house pro bono practice rules fail to meet these goals.

Bottom Line
The impact of such restrictive rules is not that work is being done by another lawyer, it is that the work is not being done. Needy people are going without help even when there are lawyers who want to help them. This needs to change.

For more information on these rules or to engage the task force in your state’s effort to address multijurisdictional practice, please contact Eve Runyon, director of Corporate Pro Bono.

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