1. Ethics of In-House Pro Bono February 2, 2017 Pennsylvania
1025 Connecticut Avenue, N.W., Suite 205  Washington, DC 20036
(202)  (202) fax 
Copyright 2017 Pro Bono Institute

2. Presenter
Eve Runyon
President and CEO
Pro Bono Institute

3. Topics Overview of In-House Pro Bono in Pennsylvania
Engaging in Pro Bono Matters
Conflicts of Interest
Limited Scope Representation
Common Questions and Lessons Learned

4. In-House Pro Bono Ethical Obligation
ABA Model Rules of Professional Conduct. Rule 6.1 Voluntary Pro Bono Publico Service:
Every lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should aspire to render at least (50) hours of pro bono publico legal services per year.
State Rules of Professional Conduct: Voluntary Pro Bono Service:
U.S. jurisdictions vary in their adoption of the ABA Model Rule Nearly half of all U.S. jurisdictions set a specific annual goal of 50 hours while most of the others set no specific goal. The handful of jurisdictions that do not fall into either of those two categories set a different specific annual goal, such as 20 hours, or use a formula to determine the goal, considering various factors.
Pennsylvania does not specify an annual goal.

5. In-House Pro Bono Definition of Pro Bono Common Elements Differences
ABA Model Rules of Professional Conduct. Rule 6.1
Pennsylvania Rules of Professional Conduct. Rule 6.1.
Corporate Pro Bono Challenge® Initiative
Company Pro Bono and Community Service Policies
Common Elements
Persons of Limited Means
Organizations that Serve Persons of Limited Means
Financial Contributions
Differences
Number of Hours Encouraged
Legal Services v. Professional Services
Board Service
Reduced Fees
What Isn’t Pro Bono
Legal Services for which Payment is Uncollectible, Do Not Qualify as Pro Bono Legal Services
Attending Continuing Education Seminars
Fundraising for Organizations
Free Advice to Friends and Family

6. Pennsylvania Rules of Professional Conduct. Rule 6.1
Voluntary Pro Bono Publico Service
A lawyer should render public interest legal service. A lawyer may discharge this responsibility by providing professional services at no fee or a reduced fee to persons of limited means or to public service or charitable groups or organizations, by service in activities for improving the law, the legal system or the legal profession, and by financial support for organizations that provide legal services to persons of limited means.
Comment:
[1] The ABA House of Delegates has formally acknowledged “the basic responsibility of each lawyer engaged in the practice of law to provide public interest legal services” without fee, or at a substantially reduced fee, in one or more of the following areas: poverty law, civil rights law, public rights law, charitable organization representation and the administration of justice. This Rule expresses that policy but is not intended to be enforced through disciplinary process.
[2] The rights and responsibilities of individuals and organizations in the United States are increasingly defined in legal terms. As a consequence, legal assistance in coping with the web of statutes, rules and regulations is imperative for persons of modest and limited means, as well as for the relatively well-to-do.
[3] The basic responsibility for providing legal services for those unable to pay ultimately rests upon the individual lawyer, and personal involvement in the problems of the disadvantaged can be one of the most rewarding experiences in the life of a lawyer. Every lawyer, regardless of professional prominence or professional workload, should find time to participate in or otherwise support the provision of legal services to the disadvantaged. The provision of free legal services to those unable to pay reasonable fees continues to be an obligation of each lawyer as well as the profession generally, but the efforts of individual lawyers are often not enough to meet the need. Thus, it has been necessary for the profession and government to institute additional programs to provide legal services. Accordingly, legal aid offices, lawyer referral services and other related programs have been developed, and others will be developed by the profession and government. Every lawyer should support all proper efforts to meet this need for legal services.
[4] Law firms should act reasonably to enable and encourage all lawyers in the firm to provide the pro bono legal services called for by this Rule.
     

7. Avoiding Unauthorized Representation
For Your Employer
Most states permit in-house counsel, who are licensed to practice in another jurisdiction but not in the state where their employer is located, to work for their employer.
Registration or Certification Process
Model Rule 5.5
No Exceptions
Hawaii, Mississippi, Montana, West Virginia
Pennsylvania Rule Rule 5.5. Unauthorized Practice of Law; Multijurisdictional Practice of  Law:
(d)  A lawyer admitted in another United States jurisdiction, and not disbarred or suspended from practice in any jurisdiction, may, subject to the requirements of Pa.B.A.R. 302, provide legal services in this jurisdiction that:
(1)  are provided to the lawyer’s employer or its organizational affiliates and are not services for which the forum requires pro hac vice admission, except that this paragraph (d) does not authorize a lawyer who is not admitted in this jurisdiction and who is employed by the Commonwealth, any of its political subdivisions or any of their organizational affiliates to provide legal services in this jurisdiction; or

8. Avoiding Unauthorized Representation
For Your Pro Bono Client
Almost half of the states ARE SILENT on whether non-locally licensed in-house counsel permitted to work for their employer are also able to provide pro bono services. Those states that do often impose restrictions.
In Association with an Approved Legal Services Organization
Under Supervision
Pennsylvania Bar Admission Rule Limited In-House Corporate Counsel License:
(b) Scope of Legal Activities. Attorneys issued a Limited In-House Corporate Counsel License may provide advice or legal services to the employer named in the application subject to the following qualifications:
(3) Notwithstanding the fact that the practice of law by a lawyer licensed under this rule is limited to the practice of law for the employer furnishing the statement required by this rule, a lawyer licensed under this rule may participate in the provision of pro bono services offered under the auspices of organized legal aid societies or state/local bar association projects, or provided under the supervision of an attorney licensed to practice law in Pennsylvania who is also working on the pro bono representation.

9. In-House Pro Bono Opportunities for Engagement
Sources for Opportunities
ACC Western Pennsylvania Chapter
Law Firms
Other Legal Departments
Legal Services Organizations
Types of Opportunities
Wide Variety of Matters (e.g., transactional, litigation)
Range of Time Commitments (e.g., ongoing representation, limited scope)
Need for All Practice Areas (e.g., tax, family law, real estate, IP, employment)
Many Clients Groups (e.g., children, seniors, veterans, nonprofits)

10. Engaging in Pro Bono Matters
Serving Pro Bono Clients
Attorney-Client Relationship
Policy and Procedure
Recordkeeping
Formation
Explicit Formation
Implied Relationship
Client’s Reasonable / Objective Belief
Client Reasonably Relies on Advice
Retainer Agreements (Ongoing / Direct Representation)
Closing Matters
Closing Letter
Returning Client Materials

11. Engaging in Pro Bono Matters
Partnerships and Co-Counseling
In-House Legal Departments (CPBO 2014 Benchmarking Report)
79% Enter into Partnerships with Law Firms
86% Enter into Partnerships with Legal Services Organizations
55% Enter into Partnerships with Other Legal Departments
Ethical Advantages
Training and Expertise
Administrative Support
Malpractice Insurance
Additional Resources
Practical Considerations
Defining Expectations
Clear Communications

12. Conflicts of Interest Actual or Direct Conflicts
Positional or Business Conflicts
Pennsylvania Rules of Professional Conduct. Rule 1.7 Conflict of Interest: Current Clients:
(a) Except as provided in paragraph (b), a lawyer shall not represent a client if the representation involves a concurrent conflict of interest. A concurrent conflict of interest exists if:
(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer's responsibilities to another client, a former client or a third person or by a personal interest of the lawyer.
Practical Considerations
Frequency

13. Conflicts of Interest Informed Consent Clear Internal Policies
Avoid Certain Cases / Matters
Pennsylvania Rules of Professional Conduct. Rule 1.7 Conflict of Interest: Current Clients:
(b)  Notwithstanding the existence of a concurrent conflict of interest under paragraph (a), a lawyer may represent a client if:
(1)  the lawyer reasonably believes that the lawyer will be able to provide competent and diligent representation to each affected client;
(2)  the representation is not prohibited by law;
(3)  the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal; and
(4)  each affected client gives informed consent.

14. Limited Scope Representation
Definition
Generally refers to attorneys assisting a client on a limited basis, with regard to a portion of a legal matter, not its entirety, and performing only specified legal services.
Types of Projects
Advising clients on procedural and strategic aspects of a pending case
Assisting clients in completing forms
Preparing and drafting court documents
Coaching clients on how to present in court
Providing clients brief advice and counsel
Appearing in court for limited purposes
Informed Consent
Assessment of client
Client understanding of implications of limited scope representation
Written agreement
Pennsylvania Rules of Professional Conduct. Rule 1.2 Scope of Representation and Allocation of Authority Between Client and Lawyer:
(c) A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.

15. Limited Scope Representation
Conflicts of Interest
Pennsylvania Rules of Professional Conduct. Rule 6.5 Nonprofit and Court Appointed Limited Legal Services Programs:
(a) A lawyer who, under the auspices of a program sponsored by a nonprofit organization or court, provides short-term limited legal services to a client without expectation by either the lawyer or the client that the lawyer will provide continuing representation in the matter:
(1) is subject to Rules 1.7 and 1.9(a) only if the lawyer knows that the representation of the client involves a conflict of interest; and
(2) is subject to Rule 1.10 only if the lawyer knows that another lawyer associated with the lawyer in a law firm is disqualified by Rule 1.7 or 1.9(a) with respect to the matter.
(b) Except as provided in paragraph (a)(2), Rule 1.10 is inapplicable to a representation governed by this Rule.

16. Common Questions and Lessons Learned
Insurance
Work with a Legal Services Organization that Provides Coverage
Obtain Coverage Directly from an Insurer
Self-Insured
Combination
Training & Support
Competence and Diligence
Pennsylvania Rules of Professional Conduct. Rule 1.1 Competence:
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
Pennsylvania Rules of Professional Conduct. Rule 1.3 Diligence:
A lawyer shall act with reasonable diligence and promptness in representing a client.

17. Common Questions and Lessons Learned
Involving Non-lawyer Legal Staff
87% of In-House Programs Include Non-lawyers (CPBO 2014 Benchmarking Report)
Pennsylvania Rules of Professional Conduct. Rule 5.3 Responsibilities Regarding Nonlawyer Assistance:
With respect to a nonlawyer employed or retained by or associated with a lawyer:
(a) a partner and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm shall make reasonable efforts to ensure that the firm has in effect measures giving reasonable assurance that the person’s conduct is compatible with the professional obligations of the lawyer.
(b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the person’s conduct is compatible with the professional obligations of the lawyer; and
(c) a lawyer shall be responsible for conduct of such a person that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if:
the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or
the lawyer is a partner or has comparable managerial authority in the law firm in which the person is employed, or has direct supervisory authority over the person, and in either case knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action.

18. Common Questions and Lessons Learned
Policies
Adopt a proactive approach to address ethical issues, including consent and conflicts, as well as confidentiality, document management, and the like.
Legal Department of One: no need for a written policy, but issues must still be considered and decisions made
Small Law: FAQs, coordinator
Large Law: formal policy, committee
“Navigating ethical considerations may seem daunting but for the detail-oriented lawyer the task is manageable. It is important for in-house counsel to consult the local ethical rules, and for legal departments and ACC chapters to put in place an appropriate review process. However, a calm and commonsense approach to the engagement, the substantive work and matter administration will permit in-house counsel to address the details required of ensuring ethical representation.”
Elizabeth Bluestein, general counsel of Public Counsel Law Center, and Michael Sposato, deputy general counsel of Caterpillar Inc., in The Ethics of Pro Bono (

19. Pro Bono Resources Eve Runyon  President and CEO, Pro Bono Institute (202)  (202) fax
CPBO offers a number of resources on its website ( including the following:
The Business Case for In-House Pro Bono:
Pro Bono Development Guide: How to Start an In-House Pro Bono Program:
Best Practices Profiles:
Guide to Multijurisdictional Practice Rules:
Professional Liability Insurance for In-House Pro Bono:
Pro Bono Opportunities and Ideas:
CPBO Clinic in a Box® Program:
Pro Bono Marketplace of Ideas:
Benchmarking In-House Pro Bono:
2014 Benchmarking Survey Report:
The Corporate Pro Bono Challenge® Initiative:
Corporate Pro Bono
Who We Are:

20. Ethics of In-House Pro Bono
The information contained in this presentation has been prepared as a service to the community and is not intended to constitute legal advice. Reasonable efforts were used in collecting, preparing, and providing this information, but Pro Bono Institute, CPBO, and the presenter do not guarantee the accuracy, completeness, adequacy, or currency of the information contained in this presentation. The publication and distribution of this presentation are not intended to create, and receipt does not constitute, an attorney-client relationship.  Participants are encouraged to seek independent legal counsel for their specific legal needs. 
Corporate Pro Bono (CPBO) is a global partnership project of the Association of Corporate Counsel and Pro Bono Institute. Through on-line services ( technical assistance to the in-house community, and educational outreach, CPBO seeks to encourage and support the participation of in-house counsel in pro bono legal services. For more information, please visit us at or contact Eve Runyon, Pro Bono Institute President and CEO, at or
Copyright 2017 Pro Bono Institute