With California looking to ease the way for in-house attorneys to donate legal services, access to justice advocates hope rule changes in the largest U.S. legal market will put momentum behind similar reforms in other states with heavy concentrations of corporate legal teams.
The California State Bar Board
of Trustees is now considering a new allowance for registered in-house counsel — out-of-jurisdiction lawyers limited to representing their companies — to do pro bono work under the supervision of that entity or an eligible legal aid organization. The proposed changes would also eliminate the need for those in-house lawyers to separately register as a legal aid attorney and pay a fee.
Eve Runyon of the Pro Bono Institute said that, after California, her sights are set on corporate-focused Maryland and North Carolina. Both states, she argued, could help narrow the justice gap by simplifying their own rules for in-house pro bono practice and otherwise encouraging corporate teams to get involved.
“One of the problems we have with pro bono practice restrictions is jurisdictions that permit lawyers from other jurisdictions to work for sometimes multimillion dollar companies, but they can’t do pro bono without some kind of extra supervision,” she said.
Runyon said support for access to justice initiatives and pro bono work in most bar groups is running high, even as some continue to voice concerns about loosening attorney supervision requirements for matters involving vulnerable or indigent clients.
“To the extent there is controversy, it has to do with the desire for additional protection for pro bono clients and worry that the lawyer’s [corporate] client is not going to have the time or resources to do it,” she said. “But I do believe the worries are unfounded because claims [of negligence or malpractice] in a pro bono matter, whether you’re talking about an in-house lawyer or not, are practically nonexistent.”
The California bar will have to wrestle with such issues amid a broader series of possible rule revisions intended to promote access to justice, including the addition of a special admission category for military spouse attorneys. While that change has garnered the most public commentary, stakeholders are also weighing in on the best way to connect in-house attorneys with pro bono work.
Earlier this month, the Association of Corporate Counsel
and dozens of general counsel from companies including PayPal
and 3M Company
called for even more rule flexibility, including the elimination of a requirement that in-house counsel work pro bono matters only under the supervision of a California attorney.
The group, which represents about 5,000 members in the state and more than 43,000 overall, also called for a redefinition of “eligible legal aid organization” so that in-house counsel could work through a greater range of outside groups.
“We recommend that the rule be broadened to include working directly with nonprofit organizations, community services organizations, and civil rights organizations, and also to permit pro bono work on criminal justice matters,” the ACC said in a Nov. 5 letter to bar trustees.
The group’s associate general counsel, Mary Blatch, called the existing California requirements, particularly the need for two distinct registrations, among the most burdensome in the country for registered in-house lawyers.
She also applauded the bar’s willingness to consider the allowance for corporate-run and partnership programs and reforms she said would bring the state in line with Illinois, Wisconsin, and a small number of others that effectively treat so-called RINCs as in-state lawyers for many kinds of pro bono matters and programs.
“These changes would make it much easier for companies to encourage department-wide pro bono, so that would be a big boon,” Blatch told Law360. “As far as this being California, it’s a big state with a large number of lawyers and a lot of big legal departments, and we do find states tend to do what other states are doing.”
With that kind of domino effect in mind, the Pro Bono Institute’s Runyon pointed to Maryland’s heavy concentration of corporate-focused lawyers and North Carolina’s tech industry legal departments.
“The challenge is to ensure their rules encourage the broadest types of pro bono engagement as possible,” she said.
Maryland is among a minority of states that require lawyers to report pro bono hours and the disparity in output between private-firm lawyers and in-house counsel there has been stark.
In the most recent state court report for 2016, about 42 percent of 39,800 Maryland-registered attorneys contributed 1.15 million pro bono hours over the course of the year.
While 26 percent of lawyers in private practice hit the state’s “aspirational” goal of 50 hours for the year, just 7.5 percent of corporate counsel in the state reached that mark, beating only government attorneys, who were at just over 5 percent.
Like California, Maryland allows out-of-state attorneys to give legal advice as in-house counsel but requires a separate certification to do pro bono work, which must be done through a court-approved aid program.
Meanwhile, North Carolina caselaw allows room for out-of-state lawyers to work in-house or under the supervision of a legal services nonprofit, although court rules do not address the issue of in-house lawyers doing pro bono specifically.
Sylvia Novinksy, who leads the North Carolina Pro Bono Resource Center, said in-house involvement has been on the upswing since her organization began two and a half years ago, with a handful of collaborative programs recently launched with the backing of IBM
, Bank of America
But Novinksy also described the state’s pro bono “culture” as underdeveloped compared to bigger legal markets like New York, Boston and Dallas, both for private firm lawyers and in-house counsel.
“In terms of corporate engagement, there’s a lot of room for improvement,” she said.
Novinksy said she would support any rule addition that would encourage corporations to invest in their own pro bono programs. But she cautioned that getting that off the ground without the involvement of an established legal aid group is a challenge, even for a big company with deep pockets.
“The question is, does the general counsel have someone to do the follow-up, organize the projects, find the unmet legal needs, get the attorneys trained?” she said. “It’s not easy.”
Runyon said her group is in the early stages of discussions with legal teams in both states about how to promote rule changes or additions that would promote better engagement in pro bono.
Sharon Goldsmith, executive director of the Pro Bono Resource Center of Maryland, which trains lawyers in a range of legal areas in exchange for a pro bono commitment, among other services, also said she’d welcome any effort that would encourage in-house counsel to volunteer more time.
But Goldsmith said the state’s “special authorization” registration for out-of-jurisdiction pro bono work and fees are relatively low barriers for Maryland’s in-house lawyers. The real impediment, she said, is the worry that their legal skills won’t translate to areas like foreclosure prevention, immigration law, and others with the greatest need for volunteers.
Many are also concerned about committing to open-ended matters and scheduling conflicts with job responsibilities, Goldsmith added.
Ultimately, increasing pro bono work among in-house counsel will require a multifaceted solution, from showing those attorneys the ropes of such cases to making an impact on corporate culture, according to Goldsmith.
“This is a real untapped resource, but I don’t think the rules themselves are unduly restrictive,” she said. “Once we get them over that hurdle with training, and there are one or two lawyers in their departments who start to champion pro bono work, I think that’s what makes the biggest difference.”
--Editing by Pamela Wilkinson.
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