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Pro Bono Volunteering: What about Government Attorneys?

Saige Smith

Summary

  • Government attorneys face challenges in taking on pro bono work due to restrictions on using government resources for non-government purposes and concerns about malpractice insurance.
  • While some states have adopted policies supporting pro bono work by government attorneys, many offices lack clear policies on the issue.
  • Non-direct pro bono representation, such as providing free legal advice or assisting charitable groups, is a good option for government attorneys. Such representation does not typically require the use of government resources or staff, and many of these resources offer their own malpractice insurance.
Pro Bono Volunteering: What about Government Attorneys?
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Many state bars and private practice attorneys are inundated with information pertaining to volunteering to take on pro bono casework, but government and public defenders seem to be omitted from these discussions. With some help and guidance, their participation could further support people with legal problems and limited means.

Government Attorneys and Pro Bono: Between a Rock and a Hard Place

Attorneys in practice under the government umbrella face challenges to taking pro bono opportunities not faced by their private practice colleagues. For example, government employees may not use their resources for nongovernment purposes. These attorneys may also have concerns about malpractice insurance. But this puts government attorneys in a difficult position—many states, as well as the American Bar Association (ABA), have adopted statements, resolutions, and ethical rules that all attorneys are responsible for completing pro bono work. Where does this leave government attorneys?

It isn’t uncommon for offices to vary widely—some government attorney’s offices have policies that do not allow or highly limit the amount of legal pro bono work completed by its employees. Many offices don’t even have any clear policies on the topic. As a former prosecuting attorney, I found little to no guidance on this issue. This lack of transparency may have contributed to the lack of pro bono work by my colleagues.

ABA and Wyoming Offer Fixes and Resolutions

In an ideal world, every state and jurisdiction would adopt clear policies for government attorneys and their participation in pro bono work. But that is often simply not the case. The ABA has made its opinions known on the topic, passing at least two relevant resolutions: Resolution 102B in 2009 and Resolution 121A in 2006. Both resolutions support each jurisdiction enacting policies for pro bono work and government attorneys’ related participation.

In Wyoming, the office of the attorney general (AG) recently adopted an informal policy that supports attorneys within the AG’s office taking up to 50 hours of pro bono work per year in any form that does not present an obvious conflict of interest and does not involve direct representation. This type of policy seems to be trending across many states and for good reason.

Seeking Middle Ground: Non-Direct Pro Bono Representation

Non-direct pro bono representation is a good move for government attorneys interested in pro bono work. This type of representation can include providing free legal advice in-person or remotely; assisting charitable groups and organizations with legal advice or general needs; and addressing community, governmental, or educational best practices regarding representation for people with limited needs. Most of these resources don’t require the use of resources from the government’s office or the other human power from staff, which might worry the most ethical among us. Many of these resources often offer their own malpractice insurance, and some free legal advice clinics often fall under a pro bono or state-run equal justice agency with its own primary malpractice insurance.

Government Attorneys Can Help Close the Justice Gap

Many attorneys begin their careers in the government sector, but even in the best of circumstances, attorneys receive little or no guidance on their roles and responsibilities with pro bono work. Regardless of where you might practice in the government sector, opportunities for non-direct pro bono representation offer a great service to the community to begin closing the justice gap. With additional guidance from the ABA and your own jurisdiction, the argument for such a large group of attorneys providing such a needed service is utterly undeniable.

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