Anatomy of an in-house pro bono proposal

Last Friday we filed a letter supporting another plan that would expand the ability of in-house counsel to practice pro bono law.  This time, the state is Florida, and its Supreme Court is considering this proposal.  ACC filed the letter along with all four of our Florida chapters, and also with several prominent Florida chief legal officers.

The proposal will allow registered Florida in-house counsel with law licenses from elsewhere (called “authorized house counsel” in Florida) to volunteer for pro bono matters.  That’s a good thing.  It will help many people in need.  And clearing the way to permit more in-house pro bono work is a key component of ACC Advocacy’s issue of the year, which is expanding the right to practice generally for in-house lawyers.  That said, the Florida proposal isn’t perfect.  It requires the covered lawyers to work under authorized legal aid groups.  It allows judges to impose additional restrictions.  And it has a unique twist of labeling the covered in-house lawyers as “emeritus,” even though the in-house lawyers affected are fully active and employed.  Despite all that, the proposal is a step in the right direction, and so deserves our support.

This is the third letter along these lines that we’ve filed recently – earlier this month we sent in letters supporting expansions to in-house pro bono law in Minnesota and Massachusetts.  We also commented on a model American Bar Association rule that covered some in-house counsel pro bono work.  And ACC – along with hundreds of chief legal officers – supported a proposal that the Conference of Chief justices passed to encourage this sort of change to state rules.

We expect other states to solicit comment letters for possible similar rules changes soon.  So it might be helpful to have a quick lesson on the anatomy of this sort of proposal, which for this blog I’ll call Registered In-House Counsel Proposed Pro Bono Rules (if I liked acronyms, I’d say RIHCPPBRs, but I don’t so I won’t).

Like a gem or a cut of meat, these proposals have different qualities we can measure.  Some of the key ones are:

Can the lawyers work on their own?  If yes, that’s the best option, and that’s the approach that Virginia and Colorado have taken.

If not, what sort of affiliation do the registered in-house lawyers need to have?  The less restrictive, the better.  Requiring registered in-house lawyers to work under the supervision of registered legal aid providers is less helpful.  That’s what the Florida rule requires.  Requiring them to affiliate with legal aid providers, but allowing them after that to work essentially on their own, is better.  That’s what at least one other proposal we’ve seen would allow.  And a step up from there is allowing the registered in-house counsel to work with any licensed in-state lawyer.  The Massachusetts proposal takes that approach.

There are also other criteria to consider.  Does the proposal allow registered in-house counsel to choose pro bono clients, just like in-state lawyers?  Does it limit the potential pool of clients to those individuals who need help?  Or does it also allow in-house counsel to represent worthy organizations, such as small businesses or civil rights groups?  Does the rule limit clients to established legal organizations?  If yes, does that definition include the pro bono programs that many in-house legal departments have established?

Another important area is whether the rule allows registered in-house counsel to appear in court?  Virginia and Colorado lead the way here, again – they do allow registered in-house counsel to appear before courts and tribunals for pro bono clients.  If not, do normal pro hac vice requirements apply?  Even if yes, that’s a far from ideal outcome —  given the number of people and organizations who need litigation assistance, putting up barriers hardly makes sense.  Worse, though, is when special pro hac vice rules allow courts to limit registered in-house counsel more than other lawyers applying for pro hac status.  That’s arguably what some proposals we’ve seen require.

No rule is likely to be perfect – though Virginia and Colorado come closer than other states.  But we think supporting new proposals often makes sense.  Even when a proposed rule is far from ideal, it still can represent a strong and important step forward.  That’s certainly the case in Florida.  Hopefully, after a state adopts a new proposal, the state’s legal community will appreciate how much in-house counsel can help people and organizations in need of legal aid.  And then – maybe in a couple of years, maybe longer – we can return to try to persuade the state to allow in-house counsel to help even more.

Stay tuned for more news soon on this front from other states.