Guest Blog: Work in Progress – Pro bono and the In-house Counsel Population?
I have had the opportunity to serve on the Multijurisdictional Practice Task Force (a joint initiative of PBI and CPBO) for a little over a year. When the purpose of the Task Force was being explained to me, its mission sounded like an easy sell: help change states’ practice rules to allow in-house counsel operating on limited licenses to do pro bono.
Most states have practice rules that allow in-house lawyers working locally but licensed in another jurisdiction to practice solely for their employers without going through the full bar process (“in-house counsel rules”), but many of those rules don’t provide a similar pro bono exception. My initial take was that this issue arose from a simple, if wide-spread, drafting omission unintentionally preventing skilled lawyers from helping those in need. Since it is commonly known that the need for pro bono services in most jurisdictions far outstrips supply, we would point out the oversight to the states, and presto, the pool of lawyers available to do pro bono in any given state gets bigger at almost no cost to the state’s government. As Lee Corso says on ESPN’s College Gameday, “not so fast, my friend.” Seems it’s a bit more complicated than that. Were I more astute, the fact that there was a task force on the issue should have dispelled my notions of simplicity.
As the Task Force discussed its activities in various states, I learned that people deeply committed to pro bono and the important work of helping those in legal need can have very different takes on how to tackle the issue. For those states that have included some pro bono exception in their in-house counsel rules, there are roughly two camps. The Task Force endorses the approach taken by Virginia, Colorado, and Illinois, which permit lawyers practicing on in-house counsel licenses to provide pro bono assistance in the state so long as their representation is consistent with the Rules of Professional Conduct. The other approach requires that all activity be conducted through established/accredited pro bono legal services providers, and/or that the in-house lawyers are fully supervised by locally licensed lawyers.
I was recently involved in an effort to amend the in-house counsel rules in Minnesota, the headquarters of my employer and home to a surprisingly large number of Fortune 500 companies. The proposal to amend the rule was drafted by members of the Minnesota State Board of Law Examiners and the Minnesota State Bar Association, and took the approach noted above requiring in-house lawyers to work with an approved legal services provider. The proposal was approved by the Minnesota Supreme Court, with an expansion to allow all lawyers in Minnesota admitted under the in-house counsel rules to engage in pro bono (Minnesota has two in-house counsel rules, one for practice lasting less than one year and one for ongoing practice, and the proposal had only requested changes to the ongoing practice rule).
In speaking with representatives of the Minnesota State Bar Association and the Minnesota State Board of Law Examiners, as well as some of the established legal services organizations in the state, I experienced first-hand their commitment to pro bono. This led me to reflect on the difference between the two approaches to in-house counsel pro bono I’ve described. After pondering a bit, I believe that their support for the more limited approach to in-house counsel pro bono stems from two primary concerns: quality control and resource constraints. Given these organizations’ purposes and goals, this focus is both sensible and logical. Most legal services organizations suffer from an insufficient supply of lawyers to meet the needs of the populations they serve, and also have practical, experience-based insight into how best to direct their limited resources to maximize their impact. Similarly, because pro bono clients often have a number of disadvantages, it is critical to ensure that any legal services provided to that population meet the highest standards of practice and avoid any unintentional harm. By channeling the additional lawyers participating under the in-house counsel exception to accredited providers that have clear expertise in the pro bono services they offer, both of those concerns are addressed.
My experiences on the Task Force, and in my work as an in-house lawyer, however, have illustrated some challenges with this approach. One of the main ones is the type of work that legal services organizations provide to individuals in need. Most of the work is court-focused or involves direct representation or legal counseling on civil or criminal matters, and many in-house lawyers have neither the background nor interest in doing this type of legal work (it is often one of the reasons we end up drawn to in-house roles). As a result, these providers are frequently not able to leverage the broad array of skills that in-house lawyers can offer: negotiating leases or real estate deals for nonprofit organizations; completing 501(c)(3) incorporation or accompanying tax documents; advising nonprofits on compliance with regulatory requirements; or helping artists protect their intellectual property rights, to name a few. I am not arguing about the merit or value of one type of pro bono work over another, but I do believe that the conversation can be dominated by a focus on more traditional types of pro bono activity. Allowing in-house lawyers to provide pro bono assistance based on their developed skill sets helps to leverage those skills and address underserved pro bono needs. The local Rules of Professional Conduct offer strong protections for pro bono clients, and as Virginia, Illinois, and Colorado demonstrate, relying on such protections is and removing other restrictions is a viable means to expanding pro bono participation by the in-house community.
My hope is to contribute to further dialogue about this difference in approach to pro bono in in-house counsel rules. Understanding some of the factors that may underpin a contrary view can help both sides negotiate and reach a better result. And, setting aside the difference in approach to in-house pro bono, the result in Minnesota is a tremendous step forward in providing lawyers the opportunity to use their training to help others. At their core, I firmly believe that is all both sides want, and look forward to continuing this work.
Adam Hellman is a Senior Associate General Counsel in the UnitedHealth Group** Corporate Legal Department where he supports the Government Affairs function, and has oversight responsibilities for enterprise lobbying compliance and enterprise conflicts of interest disclosure and review. Prior to joining UnitedHealth Group, Hellman worked in the Washington, D.C., office of O’Melveny & Myers*.
* denotes a Signatory to the Law Firm Pro Bono Challenge®
**denotes a Signatory to the Corporate Pro Bono ChallengeSM