Most Commonly Asked Questions about Federal Government Attorneys and Legal Staff Doing Pro Bono Work

Pro bono legal work and volunteer services are broadly defined to include many different types of activities performed without compensation. Examples include, but are not limited to, services to persons of limited means or other disadvantaged persons, assistance to charitable, religious, civic, community, governmental, health, and educational organizations, services to individuals or groups seeking to protect civil rights, civil liberties or public rights, and activities seeking to improve the law or legal system.

Any service that would conflict with your official duties is prohibited. 5 C.F.R. §2635.802. For example, federal employees, in most cases, are prohibited from representing parties before the federal government. 18 U.S.C. § 205. (See questions below on conflicts of interest.) In addition, each federal agency has its own regulatory standards of conduct which its employees must follow. For example, Department of Justice attorneys may not provide services that involve criminal or habeas corpus matters, whether federal, state, or local. 5 C.F.R. § 3801.106.

Yes, however, you must comply with the restrictions of the Hatch Act (5 U.S.C. § 7234) and the Department's policy concerning political activities by high-level and political appointees. It should be noted that the Office of Personnel Management has stated that it would be inappropriate to grant administrative leave to employees to engage in partisan political activities. Also, because partisan political activity is subject to more restrictive rules than other non-official activity, no partisan political activity may take place on government time or by using government property. See 5 C.F.R. Part 734.

No. 18 U.S.C. § 205 prohibits you from representing another person before any court or agency of the United States, in a matter in which the United States is a party or has a direct and substantial interest. There are limited exceptions for representing your immediate family (spouse, child, and parents), fellow employees in personnel administration proceedings, and certain employee organizations in limited circumstances.

Yes, in limited ways. You may provide non-representational assistance, such as filling out forms for a person seeking government benefits. However, you should be mindful that you may not contact a federal agency, with the intent to influence, on behalf of another person except those persons permitted by 18 U.S.C. § 205(e). You may not represent a third party before any government agency.

Yes, however, you are prohibited from representing another person before the IRS in connection with a tax return.

Yes, provided the services you are providing fall within the definition of pro bono and/or volunteer services and you are not receiving compensation. NOTE: There are some limited exceptions to this rule which may permit employees to represent family and friends in non-pro bono matters as long as the United States is not a party and the matter is not criminal in nature. You should contact your Deputy Designated Agency Ethics Official (DDAEO) if you would like to represent a family member or friend and the representation does not fall within the definition of pro bono or volunteer services.

No. You may not indicate or represent in any way that you are acting on behalf of your agency, or in your official capacity, when providing pro bono or volunteer services.

No. You may not use office letterhead, business cards, fax cover sheets, etc., or otherwise identify yourself as a federal government employee in any communication, correspondence, or pleading.

Yes. The incidental identification of your official position or office (for example, when a street address is not sufficient to ensure mail delivery, or when receiving a telephone call) is not prohibited.

Limited telephone and fax calls to locations within the office's commuting area, or that are charged to non-government accounts, are permissible. However, you should be mindful that such use must not interfere with official business.

Each agency has its own policy on the use of its resources and property. Some agencies will allow for the personal use of government equipment and facilities provided there is only a negligible cost to the government (such as electricity, ink, small amounts of paper, and ordinary wear and tear). You should contact your supervisor or ethics officer to find out about your agency’s policy.

No. Pro bono and volunteer services are not official duties and may not be assigned to or required of support staff. The Federal Government Pro Bono Program has a Support Staff Resource Pool to match volunteer attorneys with support. Support staff can contact the DOJ Pro Bono Program Manager to be added to the Pool.

Each agency has its own policy on this issue. Contact your supervisor or agency ethics officer to find out about your agency’s policy.

You are encouraged to seek pro bono and volunteer opportunities that can be accomplished outside of your scheduled working hours. However, activities may sometimes occur during the work day. You may be granted annual leave, leave without pay, or may be permitted to make up any time you are away from the office. Contact your supervisor or agency ethics officer to find out about your agency’s policy.

Generally, it is inappropriate to pay an employee for time engaged in pro bono or volunteer services. However, in limited circumstances, it may be appropriate to excuse an employee from duty for brief periods of time without loss of pay or charge of leave. Excused absence should be limited to those situations in which the employee's services meet one or more of the following criteria: is directly related to the agency’s mission; is officially sponsored or sanctioned by the agency; or will enhance the professional development or skills of the employee in his or her current position. See OPM Guidance at https://www.opm.gov/policy-data-oversight/pay-leave/leave-administration/fact-sheets/related-information/.

Some agencies have issued policies specifically permitting the use of administrative leave for pro bono activities, such as the Department of Justice, the Department of Labor, the Department of Energy, the Department of Homeland Security, the Department of Veterans Affairs, the National Labor Relations Board, the Pension Benefit Guaranty Corporation, and many others. Check with you agency pro bono representative to find out if your agency has such a policy.

Your Deputy Designated Agency Ethics Official (DDAEO).

Any activity that would:

1. Violate any federal statute, rule, or regulation, including for example, 18 U.S.C. § 201 et seq. and the Standards of Conduct at 5 C.F.R. § 2635;
2. Interfere with the proper and effective performance of your official duties, including time availability;
3. Cause a reasonable person to question the integrity of the Department's programs or operations;
4. Require your recusal from significant aspects of your official duties;
5. Create an appearance that your official duties are being performed in a biased or less than impartial manner; or
6. Create an appearance of official sanction or endorsement.

Each agency has its own policy regarding its employees’ outside activities. An employee seeking to engage in any pro bono legal work or volunteer services must follow his or her agency's procedures for outside activities. You should consult with your ethics officer regarding approval requirements.

Yes, in matters involving representation, your client should sign a retainer agreement acknowledging the fact that you are acting in your individual capacity and not on behalf of your agency. The Federal Government Pro Bono Program has a sample retainer agreement for volunteers to use.

The federal government does not provide malpractice coverage. Generally, volunteer programs organized by the local bar or more established referral programs provide malpractice coverage. For example, the Legal Aid Society of DC provides malpractice coverage for its volunteers. You should ask the organization through which you will be providing pro bono services whether it will provide malpractice coverage for you.

It is never too late to start doing pro bono work. There are lots of resources and support to help you. First, you can start by going to a training. Many legal services organizations host trainings throughout the year on substantive areas of law that are designed for attorneys who are new to the subject area. Second, most legal services organizations assign mentors to government attorneys to advise you on your pro bono matter. Third, www.probono.net and legal service providers have terrific manuals, sample forms, and a pleadings bank that you can use. Many attorneys start by co-counseling their first pro bono case. And you don’t have to start by taking a case – you can volunteer at a clinic or an intake site or do a range of other activities.

Yes. The Interagency Pro Bono Working Group has been established to assist federal agencies in developing pro bono policies and programs. The Working Group also organizes events to encourage more government attorneys to participate in pro bono work. The Working Group is chaired by the Department of Justice Pro Bono Program Manager and includes representatives from approximately 50 federal agencies. To find out who your agency representative is, contact Laura Klein, Laura.F.Klein@usdoj.gov.

Contact DOJ Pro Bono Program Manager, Laura Klein, at Laura.F.Klein@usdoj.gov.