On the Road to MJP Reform

When PBI traveled south earlier this month to the 5^th Biennial Virginia Pro Bono Summit, we were reminded of an earlier venture down the highway to attend the Commonwealth’s first Pro Bono Summit in 2010. It was not the first road trip that PBI had undertaken in the name of improving access to justice through multijurisdictional practice (MJP) reform, nor would it be the last. The summit was an inspiring gathering that included a persuasive appeal from Randy Milch, then general counsel at Verizon Communications Inc.**, to the Virginia Supreme Court to change restrictive practice rules that prevented many of Verizon’s in-house counsel from participating in pro bono legal services. Within a year, Virginia amended its rule and adopted what has become model language with regard to non-locally licensed in-house counsel engaging in pro bono.

Over the years, PBI has worked with in-house counsel, like those at Verizon, in more than a dozen jurisdictions to change restrictive practice rules that limit participation in pro bono by in-house counsel. Currently, the practice rules in all but one state permit in-house counsel licensed in other U.S. jurisdictions to represent their in-state employer, often through a registration or similar certification process, but many of these rules limit representation to the employer-client, restricting “registered in-house counsel” participation in pro bono services for those in need.

PBI’s other road trips have included stops in St. Louis, Missouri to present to the Conference of Chief Justices and Conference of State Court Administrators a letter signed by 339 general counsel asking for rule changes to permit greater participation in pro bono by in-house counsel; Madison, Wisconsin to encourage the Wisconsin Supreme Court to adopt a proposal to expand in-house engagement; New York, New York to work with a cross-sector of the New York bar, including the New York Court of Appeals, to promote greater engagement by in-house counsel; and Hartford, Connecticut, at the invitation of the Connecticut Access to Justice Commission, to encourage a change to its rules regarding registered in-house pro bono practice. As a result of these efforts, and many others by PBI and other leaders in the legal community, thousands of in-house counsel have been empowered to engage in pro bono legal services. But more ground needs to be covered and more work needs to be done.

Current Status of In-House Pro Bono Rules
Model Jurisdictions (IL, NY, VA, WI)

Currently, there are four jurisdictions that have adopted model language – Illinois, New York, Virginia, and, most recently, Wisconsin. The rules in these states removed unnecessary restrictions and provide, simply, that registered in-house counsel may provide pro bono services and that those services be provided in a manner consistent with the local rules of professional conduct. The benefit of these rules is that they support broad participation among in-house counsel, allowing lawyers to serve the full range of needy clients while holding in-house counsel to the same high standards all lawyers practicing in the state must follow. These lawyers are also subject to the rules of discipline in both the jurisdiction in which they are licensed and the jurisdiction in which they are registered to practice.

The remaining U.S. jurisdictions impose several restrictions that often limit the source of the pro bono engagement to legal services organizations and/or mandate supervision from another lawyer, whether needed or not.

However, requiring authorized in-house counsel to work with approved legal services organizations prevents in-house counsel from fully serving communities in need. Many legal aid organizations limit the types of clients they serve (often excluding nonprofits, micro-entrepreneurs, and community economic development groups), as well as the types of cases they handle. In-house counsel are often uniquely suited to provide assistance to individuals and organizations that legal aid programs do not serve. There are many organizations, including law firms, social service agencies, foundations, and community groups that also offer pro bono opportunities for in-house counsel.

Furthermore, protections already exist that require all attorneys, including non-locally licensed in-house counsel who are authorized to work locally for their employers, to be competent and follow the rules of professional conduct. Restrictive in-house pro bono practice rules do not add more protection, instead they discourage thousands of skilled in-house counsel from providing pro bono. The result of these practice rules is that fewer clients are served and less assistance is provided.

Advocating for changes to these types of barriers has been an important priority for PBI. Corporate Pro Bono, Pro Bono Institute’s partnership project with the Association of Corporate Counsel, works with hundreds of legal departments and ACC chapters across the U.S. interested in contributing to justice for all. From creating and staffing court-based hotlines and resource desks, to representing unaccompanied minors, to advising underfunded nonprofits that provide critical services to communities in need, in-house counsel are on the frontlines of providing pro bono legal services and are playing an ever increasing role in addressing the justice gap.

Here at PBI, we’re willing to put in the miles to help drive this important cause forward. Will you join us on the ride? For more information, contact us at cpbo@probonoinst.org.

** denotes a Corporate Pro Bono Challenge® signatory

Free to Practice Pro Bono in Wisconsin!

Effective January 1, the more than 225 registered in-house counsel in Wisconsin may provide pro bono legal services without unnecessary restriction. Previously, in-house counsel licensed and in good standing in other jurisdictions and registered to work for their employer in Wisconsin were permitted to provide pro bono legal services only “to qualified clients of a legal service program.” See Wis. SCR 10.03(4)(f) (cmt.).

The road to this change began several years ago when the Wisconsin ACC Chapter took up the issue. At the chapter’s urging, on October 7, 2015, the State Bar of Wisconsin filed a petition to amend the Wisconsin Supreme Court Rules. On April 13, 2016 the court held a public hearing on the rule change, where PBI President and CEO Eve Runyon provided information on the topic and answered questions about in-house legal pro bono. Following a period of deliberation, on April 28, 2016, the court voted 5-2 to adopt the petition.  On July 21, 2016, the court issued Rule Order 15-05 amending Supreme Court Rule 10.03(4)(f) to include: “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,” thereby expanding the pool of clients registered in-house counsel may serve.

Wisconsin joins Illinois, New York, and Virginia as a state that allows non-locally licensed in-house counsel to provide pro bono services free of unnecessary restrictions. The PBEye congratulates all involved in the rule change for their dedication to equal access to justice. We hope that Wisconsin, Illinois, New York, and Virginia are just the start and that it is only a matter of time until non-locally licensed in-house counsel in all states can provide pro bono legal aid to those in need without unnecessary restrictions.

Amending the local practice rules is of course only one step in increasing the role of in-house counsel in improving access to justice. Runyon returned to Wisconsin in November to speak at Quarles & Brady’s*† 2016 Annual Legal Ethics Seminar on the ethics of in-house pro bono, including the practice rules that apply to non-locally licensed in-house counsel. As discussed by all of the esteemed speakers that day, with knowledge of the rules and a bit of organization, legal departments are using their unique skills to assist those in need.

* denotes a Law Firm Pro Bono Challenge^® signatory
† denotes a Member of the Law Firm Pro Bono Project

Ohio, Spring is Here with MJP!

On April 1, new rules approved by the Ohio Supreme Court went into effect, permitting non-locally licensed in-house counsel registered to work in state for their employer to also provide pro bono legal services in Ohio. Under the amended Supreme Court Rules for the Government of the Bar of Ohio (Gov.Bar R. VI, Section 3) and Ohio Rules of Professional Conduct (Prof.Cond.R. 5.5.), registered in-house counsel in Ohio may provide pro bono to “either a person of limited means or a charitable organization” and the legal service is assigned or verified by an approved organization. This is an important step in the right direction, empowering approximately 350 registered in-house counsel to use their legal skills to assist those who cannot afford legal services.

The passing of the amended rules is the result of a near three year effort by the Ohio in-house community, CPBO, the Association of Corporate Counsel (ACC)**, and others to lift restrictions on non-locally licensed in-house counsel’s engagement in pro bono. Leading the charge was Phil Smith, senior counsel, GE Aviation, a subsidiary of General Electric Company**, who, in collaboration with legal services organizations and others, proposed the rule change to the Ohio State Bar, which in turn recommended the amendment to the Ohio Supreme Court.

In support of the proposal, ACC, working with its three chapters in Ohio, submitted letters to the Court, signed by chief legal officers in Ohio, encouraging the Court to adopt the proposed amendment. Smith, working with CPBO and others, also submitted letters and emails in support from more than 125 in-house counsel throughout Ohio.

Ohio joins 10 other jurisdictions that have changed their practice rules in the past three years to allow non-locally licensed in-house counsel who are authorized or registered to work for their employer to also provide pro bono legal services. Together, these rule changes have empowered more than 5,000 in-house counsel to engage in pro bono legal services, growing the pool of volunteer lawyers able to assist in closing the gap in access to justice.

With the amended rules, Ohio has widened the entry for greater pro bono engagement by in-house counsel. The PBEye hopes that other jurisdictions also will move in this direction, and will adopt language that supports broad participation in pro bono by in-house counsel similar to Illinois, New York, and Virginia. For more information about this issue, see CPBO’s webpage dedicated to Multijurisdictional In-House Pro Bono. To learn more about efforts to change the rules in other jurisdictions, please contact CPBO Director Eve Runyon.

**denotes a Corporate Pro Bono Challenge^® signatory

New Jersey, New Year, New In-House MJP Rule!

Effective January 1, the New Jersey Supreme Court adopted Rule 1:27-2(g), which empowers non-locally licensed in-house counsel registered to work in-state for their employers to also provide pro bono services as volunteers with approved organizations. Previously, non-locally licensed lawyers in New Jersey could provide pro bono services under a practice rule that authorized all out-of-state lawyers to engage in pro bono. However, this rule required not only that the volunteer attorney work with an approved organization, but that the lead attorney of the organization file a letter with the New Jersey Supreme Court and that the volunteer be supervised by a member of the New Jersey bar. Now, more than 1,300 registered in-house counsel are specifically empowered to provide pro bono legal services more freely.

New Jersey joins nine other jurisdictions that have amended their practice rules in the past two and a half years to empower nearly 5,000 in-house counsel to engage in pro bono legal services.  We at The PBEye certainly hope this trend continues throughout 2015!

For more information about this issue, see CPBO’s webpage dedicated to Multi-Jurisdictional In-House Pro Bono. To join the effort to change the rules in other jurisdictions, contact CPBO Director Eve Runyon.

Florida Announces New Authorized House Counsel Pro Bono Practice Rule

The Florida Supreme Court recently amended the Rules Regulating The Florida Bar to permit in-house counsel who are barred and in good standing in another jurisdiction and certified to work for their employer in Florida (“authorized house counsel”) to also provide pro bono legal services. While a step in the right direction, the amendment unfortunately imposes several limitations that make it among the most restrictive in the U.S.

Prior to the amendment, Florida did not permit authorized house counsel to provide pro bono legal services. Under the new rule, authorized house counsel may engage in pro bono but as an “emeritus attorney” who must: (i) receive approval from the Clerk of the Supreme Court, (ii) work in association with an approved legal aid organization, and (iii) work under the supervision of a Florida Bar member. If appearing in court or an administrative tribunal, the client and supervising attorney must provide written consent. In addition, the supervising attorney must sign all documents filed in any court or administrative tribunal. (Fla. Bar Reg. Rule 12)

For many reasons, these restrictions are unnecessary. They can limit the types of cases authorized house counsel may work on and can reduce the number of hours and clients volunteer lawyers can serve. Given the client protections already in place, these restrictions are not needed to promote competency. Authorized house counsel are not only bound by the rules of professional conduct in the jurisdictions in which they are barred but are subject to Florida’s rules of professional conduct. They are accountable to multiple disciplinary bodies, as well as their employers. Moreover, unlike emeritus attorneys, authorized house counsel must comply with Florida’s continuing legal education requirements as well as renew their certification on an annual basis.

Other jurisdictions have taken a broader approach, recognizing that in-house counsel are skilled and experienced counsel subject to professional rules of conduct and disciplinary rules. In April 2013, Illinois amended its existing rules by removing restrictions on registered in-house counsel’s pro bono participation, such as requiring registered in-house counsel provide pro bono services in association with a legal services organization, to permit participation subject only to the local rules of profession conduct. In December 2013, New York adopted a similar rule to allow non-locally licensed attorneys registered as in-house counsel in New York to provide pro bono legal services, subject only to the rules of professional conduct.

We applaud Florida for putting in place rules that allow authorized house counsel to engage in pro bono practice but encourage jurisdictions to support amendments similar to Illinois and New York that would allow for broad participation. In light of the tremendous need for pro bono legal services, the chilling effect of restrictions, and the existing protections, jurisdictions should eliminate and not erect barriers to pro bono practice.

For more information about this issue or to join the effort to change the rules in other jurisdictions, contact CPBO Director Eve Runyon.

VIDEO: New York Adopts In-House Pro Bono Practice Rule

The PBEye applauds the New York Court of Appeals for adopting an amendment to its practice rules that permits in-house counsel barred in other jurisdictions and registered in New York to provide desperately needed pro bono legal services. Prior to its adoption, practice rules in New York allowed non-locally licensed in-house counsel to register to work for their employer in New York but did not authorize them to also engage in pro bono legal services.

New York Court of Appeals Chief Judge Jonathan Lippman, joined by CPBO, representatives from ACC, and others announced the adoption of this new rule, which opens the door to greater in-house pro bono participation and became effective December 4. Other jurisdictions have adopted rules that permit in-house counsel to engage in pro bono but subject them to a number of unnecessary restrictions that can discourage participation. New York’s provision is cutting-edge. Similar only to Colorado, Illinois, and Virginia, New York adopted model language that eliminates unnecessary limitations.

As more jurisdictions consider this issue, The PBEye hopes New York will serve as a prime example. Many states still do not expressly permit registered in-house counsel to provide pro bono services or only permit registered in-house counsel to provide pro bono services subject to several unnecessary limitations.

CPBO provides a number of resources related to in-house pro bono as part of its multijurisdictional practice initiative, including an interactive map that details practice rules in the U.S. Watch the video below to get more information about the new rule in New York and its larger impact.

CPBO Provides Updates on MJP for CCJ and COSCA

Has it been a year already? Last summer, PBI President and CEO Esther F. Lardent, CPBO Director Eve Runyon, and Walgreen Co.** General Counsel Thomas Sabatino presented at the annual meeting of Conference of Chief Justices (CCJ) and the Conference of State Court Administrators (COSCA) to the CCJ Professionalism and Competence of the Bar Committee and the CCJ/COSCA Access, Fairness and Public Trust Committee on the burdensome multijurisdictional practice (MJP) rules that restrict some in-house lawyers from providing pro bono services.  At that meeting, the CCJ and COSCA adopted Resolution 11, which asks CCJ members to “consider promoting the expansion of pro bono legal services, including by amending the practice rules to allow non-locally licensed in-house counsel who are permitted to work for their employer to also provide pro bono legal services subject to the local rules of professional conduct.”

Since then, CPBO provided updated information regarding MJP for the CCJ’s January 2012 meeting and the CCJ/COSCA annual meeting last month.  Highlights from the most recent update included:

• An overview of growing efforts in support of changing restrictive practice rules and empowering in-house counsel to provide pro bono legal services;
• A summary of recent amendments adopted in Connecticut, Massachusetts, and Minnesota that open the door to greater pro bono participation by in-house counsel;
• A description of a Illinois Supreme Court amendment that removes unnecessary restrictions on limited license in-house attorneys providing pro bono legal services, allowing for even broader participation in pro bono;
• Mention of several jurisdictions, such as Arizona, Florida, New York, and Ohio, where the courts are considering amendments to current practice rules; and
• Mention of the District of Columbia and Wisconsin, where the D.C. Court of Appeals Committee on the Unauthorized Practice of Law and the State Bar of Wisconsin, respectively, are working on amendments to recommend to the courts.

The Professionalism and Competence of the Bar Committee of the CCJ expressed its appreciation for the update.

CPBO is encouraged by the progress made so far, but there are still many states that either do not expressly permit registered in-house counsel to provide pro bono services or permit registered in-house counsel to provide pro bono services but subject them to several unnecessary limitations.

For more information or to join our effort to change the rules in other jurisdictions, contact CPBO Director Eve Runyon.

**denotes a Signatory to the Corporate Pro Bono Challenge^SM

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 Challenge^SM

Illinois In-House Pro Bono Rule Now Effective

On April 8, the Illinois Supreme Court made effective a new rule that empowers more than 400 limited license in-house attorneys in the state to provide pro bono legal services free from unnecessary restrictions. As The PBEye recently reported, the Court approved an amendment to its practice rules in March regarding limited license in-house attorneys providing pro bono legal services.

The Illinois action is striking for two reasons. First, like Virginia two years ago, Illinois amended an existing rule that allowed non-locally licensed in-house counsel to provide pro bono but imposed various restrictions to their participation, such as only providing pro bono services in association with a legal services organization and making annual filings. Many states do not have any provision, even one with unnecessary restrictions. Now, Illinois joins two other jurisdictions, Colorado and Virginia, that permit broad participation in pro bono by registered in-house counsel and allow registered in-house counsel to provide pro bono services subject to the same rules of professional conduct and disciplinary measures as all other attorneys licensed in state.

The Illinois amendment is also striking because of the collaborative effort that brought about this amendment in a timeframe that, by rule change standards, is a blink of the eye. As reported in the November edition of The Pro Bono Wire, a number of jurisdictions have been working on the right to practice in-house pro bono. Illinois was not in the Wire article at the time because the effort by various committees of the Illinois State Bar Association and the Illinois Supreme Court Commission on Access to Justice did not start in earnest until December. At that time, CPBO, ACC, in-house leaders, including Lisa McCraw at Deere & Company**, public services organizations, including the Public Interest Law Initiative (PILI) and the Chicago Bar Foundation, and others took up the mantle. With universal support, the amendment was approved by all involved within a few months. It is no exaggeration to say that representatives from different sectors of the legal community expressed their support for this amendment and it was adopted with lightning speed.

As more jurisdictions consider this issue, we hope Illinois will serve as a shining example. For more information about this issue or to join the effort to change the rules in other jurisdictions, contact Eve Runyon, director, Corporate Pro Bono.

**denotes a Signatory to the Corporate Pro Bono Challenge^SM

Massachusetts Joins the Club!

As reported in the November edition of The Pro Bono Wire, a few months ago the Massachusetts Supreme Judicial Court Standing Committee on Pro Bono Legal Services proposed an amendment to S.J.C. Rule 4:02 to allow authorized in-house counsel to provide pro bono legal services in certain circumstances.  The PBEye is pleased to report that the Massachusetts Supreme Judicial Court has just issued an order adopting the proposed amendment, effective March 1, 2013.  Now, Massachusetts authorized in-house counsel may provide pro bono under the auspices of either (1) an approved legal services organization or (2) a lawyer admitted to practice and in good standing in the Commonwealth of Massachusetts.

Massachusetts joins jurisdictions Minnesota, Iowa, and Connecticut, which have all amended their practice rules in the past year to allow authorized in-house counsel (those attorneys permitted to work for their local employers although licensed only in other jurisdictions) to also provide pro bono legal services.  We certainly hope this trend continues in 2013!

For more information about this issue, see Multi-Jurisdictional In-House Pro Bono Practice Update.  In addition, we hope you will attend the session “Ethics: Right to Practice Pro Bono” at the 2013 PBI Annual Conference on March 15 in Washington, D.C. To join the effort to change the rules in other jurisdictions contact CPBO Director Eve Runyon.