D.C. Court of Appeals Committee on Unauthorized Practice of Law

August 14, 2015

Cynthia G. Wright

Chair

D.C. Court of Appeals Committee on Unauthorized Practice of Law

Room No. 123

430 E Street, NW

Washington, DC 20001

Via email:

Dear Ms. Wright:

We are writing to share our perspectives as in-house counsel on the potential amendment of D.C. App. Rule 49 to expand the ability of non-locally licensed in-house counsel authorized to work for their employer (“Internal Counsel”) to provide pro bono legal services. As you know, Rule 49 was amended in 2014 to include Rule 49(c)(9)(D),whichexpanded Internal Counsels’ authorization, allowing them to provide pro bono legal services in the District. While this new rule was a step in the right direction, it includes two key restrictions that limitInternal Counsels’ engagement in pro bono: (i) cases must be assigned by a legal services provider, and (ii) attorneys must be supervised by an active member of the D.C. Bar. We respectfully recommend that these restrictions be removedand Internal Counsel be permitted to provide pro bono legal services, subject to the Rules of Professional Conduct and the enforcement procedures applicable to members of the D.C. Bar. We also propose that additional amendments be made to support in court and administrative agency appearances by Internal Counsel on behalf of pro bono clients. Theserevisions will better address the needs of the underserved in the District, and are consistent with the professionalism and experience of Internal Counsel active in D.C. Please seeEnclosure A for suggested language for the amendments.

Why Revisit the Rule for Internal Counsel Providing Pro Bono?

Whileit is true that the expanded authorization in 49(c)(9)(D) was recently added, as detailed below, there are many compelling reasons to further improve upon therule.

Supporting and expanding the ability of Internal Counsel to engage in pro bono without undue restrictions not only contributes to access to justice by increasing the pool of volunteers, it also engagescorporate legal departments interested in developing pro bono programs that allow all of their lawyers to be involved. In addition, Internal Counsel influence the profession as a whole, strengthening the community of lawyers involved in pro bono services.

Unnecessary Restrictions

Currently, Rule 49(c)(9)(D) limits opportunities for Internal Counsel to engage in pro bono by restricting eligible matters to those assigned by legal services organizations and requiring supervision, regardless of necessity. D.C. is fortunate that there are many legal services organizations offering pro bono opportunities ranging from traditional litigation-based pro bono to those involving transactional expertise. However, even in a market as robust as D.C., working only with legal services organizations limits opportunities for engagement; demand for services exceeds available supply. For example, there area limited number of legal services organizations offering transactional pro bono opportunities, which are often well suited for InternalCounsel. Constraints on time, resources, focus, and capacity of the legal servicesorganizations further restrictopportunities. This is especially true for a legal department seeking to engage its entire staff in pro bono. Removing this restriction would supplement existing opportunities with legal services organizations and permit legal departments to work with other worthy organizations, like the beneficiaries of their foundations or public interest organizations that provide valuable services to D.C. residents and organizations, but are not focused on legal services.

Requiring supervision is also unnecessary and is detrimental to increasing available legal pro bono assistance as it requires two competent lawyers to work on one matter,limiting the number of hours and clients volunteer lawyers can help. Internal Counsel should, and will, seek support when needed and as required by other rules, but requiring unnecessary supervision wastes time and diminishes opportunities for assistance.

Client Protections

We understand the concerns inherentin expanding practice rules: protecting the public, ensuring those who hold themselves out as lawyers are subject to the D.C. disciplinary system, and maintaining the efficacy and integrity of the administration of justice and the regulation of lawyers. Fortunately, Rule 49’sother provisions address these concerns.

Rule 49(c)(9)(D) requires Internal Counsel to be members in good standing of the highest court of a state or territory, not disbarred or suspended for disciplinary reasons, and not resigned with charges pending in any jurisdiction or court. In addition, Rule 49(c)(9) states that attorneys practicing under that section shall be subject to the D.C. Rules of Professional Conduct and its enforcement procedures to the same extent as enrolled, active members of the D.C. Bar. Consequently, they are held to the identical standards regarding competency, zealous advocacy, training, and supervision, when needed.

There are many incentives for Internal Counsel to comply with these requirements. Not only are Internal Counsel subject to the potential action of the D.C. Court of Appeals Committee on Unauthorized Practice of Law (“CUPL”), but also the jurisdictions in which they are barred. Furthermore, they must consider the consequences of improper actions with their employers. It is important to keep in mind that we are discussing attorneys who are volunteering; they are providing free legal services because they want to help.

Impracticality of Pro Hac Vice Admission

Many Internal Counsel have the competency and willingness to go to court to assist the numerous unrepresented litigants address critical legal issues, such as eviction and custody. In order to empower them to do so, we also encourage the committee to consider proposing an amendment to Rule 49(c)(9)(D) so that Internal Counsel need not acquire pro hac vice admission when providing pro bono legal services before a court or administrative agency in D.C. D.C. App. Rule 49(c)(7) permits attorneys who are not admitted to practice in D.C. to obtain permission to make appearances before a court in D.C., but requires a payment and limits such admission to five times per year.Requiring Internal Counsel to seek pro hac vice admission before each representation and pay a fee is unduly prohibitive. Since Rule 49(c)(9)(D)holds Internal Counsel to the same ethical and professional standards as other licensed lawyers in D.C., this provision should sufficiently protect pro bono clients.As noted in our suggested text, instead, Internal Counsel could be required to simply notify the court or agency of their bar status prior to each representation. Absent a ruling by the relevant court or administrative agency to the contrary, the Internal Counsel may appear, easing administration, allowing the courts and agencies to exercise their discretion, and encouraging participation in pro bono service.

Jurisdictions with Suggested Language

Illinois, New York, and Virginia have adoptedin-house pro bono practice rules similar to the one we propose,empowering more than 2,600 non-locally licensed in-house counsel to provide pro bono legal services without unnecessary restrictions, all while remaining subject to the ethical rules and disciplinary oversight applicable to all attorneys. To date, no issues have arisen under these less restrictive regimes. Instead, legal departments have developed new pro bono programs for their legal staff, in-house counsel have collaborated with each other, law firms, legal services organizations, and public interest organizations to expand in-house pro bono engagement, and in-house pro bono culture has advanced.

The need for pro bono legal services in the District is great. We applaud the CUPL’s willingness to consider amendments to Rule 49 to expand the pool of available volunteers in D.C. While contemplating permitting special groups of paralegals or law students to assist, we ask that Internal Counsel, who are licensed, actively practicing attorneys, and are already subject to the D.C. Rules of Professional Conduct and the discipline of the CUPL,be at the forefront. We are cognizant that there are similar groups for whom these arguments could be made, namely lawyers employed by the federal government, and we leave it to the CUPL to consider amendments to Rule 49(c)(9)(C) concerning these groups. However, this does not change Rule 49(c)(9)(D)’sunnecessarily restrictive approach,nor the fact that our recommendation would increase the ability of Internal Counsel to provide needed pro bono services. We encourage the CUPL to propose the amendments reflected in Enclosure Ato the D.C. Court of Appeals, thus opening the door to greater pro bono opportunities in the future and making Rule 49 a model for other jurisdictions.

Sincerely,

Enclosure A

Suggested Amendments

Rule 49(c)(9)(D):

Where the person is an Internal Counsel, is a member in good standing of the highest court of a state or territory, is not disbarred or suspended for disciplinary reasons, and has not resigned with charges pending in any jurisdiction or court, and is assigned or referred by an organization that provides legal services to the public without fee; provided that the individual is supervised by an active member of the District of Columbia Bar. Lawyers practicing under this provision are not required to obtain pro hac vice admission in pro bono legal service matters that require appearance in courts or administrative agencies, either in person or by signing pleadings.

Commentary to § 49 (c)(9):

Section (c)(9) consolidates the provisions of former sections (c)(5) and (c)(7) relating to practice by attorneys for legal services organizations and the Public Defender Service. It adds a provision, on request of the United States Department of Justice, allowing government lawyers to participate in providing legal services pro bono publico and a provision allowing Internal Counsel to participate in providing legal services pro bono publico. Where persons practice under this exception, they should give formal notice to the court and the parties of doing so.

A form of certificate for such notice is appended to the Rule, addressing the four alternatives under (c)(9) and adding a certificate for pro bono representation under the limited duration supervision exception of (c)(8).

In all circumstances the conduct and practice privileges of counsel are subject to the full authority of the courts in which they practice.

Commentary to § 49 (c)(9)(D):

Recognizing the increased need for attorneys to serve as pro bono counsel and given the importance of access to justice, the purpose of this rule is to permit individuals who are members in good standing of the highest court of a state or territory and who are appropriately supervised by a licensed D.C. Bar member to perform pro bono work in the District of Columbia, provided the work is assigned or referred by an organization that provides pro bono legal services to the public without fee. Consistent with its purpose to encourage the provision of pro bono services, the exception in Rule 49(c)(9)(D) does not impose additional obligations on internal counsel to provide pro bono services in the District of Columbia. Clients who obtain services on a pro bono basis from lawyers practicing under the (c)(9)(D) exception are protected to the same extent as clients who employ active members of the D.C. Bar, namely the District of Columbia Rules of Professional Conduct and the enforcement procedures applicable thereto. A lawyer who provides pro bono service under the (c)(9)(D) exception must give notice of his or her bar status to the client and to the courts in those matters that require court appearance.

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