FAQs About DOT's Pro Bono and Volunteer Services Policy
I. Definitions and Limitations
What types of services may I provide under the policy?
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.
What types of pro bono and volunteer services are prohibited?
You may not provide services that involve criminal or habeas corpus matters, or the representation of a third party before the federal government. In addition, any service that would conflict with your official duties is also prohibited. (See questions below on conflicts of interest.)
May I provide services to political organizations?
Yes, however, you must comply with the restrictions of the Hatch Act (5 U.S.C. § 7234) and any Departmental 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.
May I represent someone in an action against the United States?
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.
May I assist persons seeking government benefits?
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.
May I prepare income tax returns?
Yes, however, you are prohibited from representing another person before the IRS in connection with a tax return.
May I assist family and friends?
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: Some components 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.
II. Use of Position and Agency Resources
May I use my official position in connection with my pro bono and/or volunteer services?
No. You may not indicate or represent in any way that you are acting on behalf of the Department, or in your official capacity, when providing pro bono or volunteer services.
May I use office letterhead or my business cards?
No. You may not use office letterhead, business cards, fax cover sheets, etc., or otherwise identify yourself as a Department employee in any communication, correspondence, or pleading.
May I give out my office address and telephone number?
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.
May I use the telephone and fax machine?
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.
May I use e-mail or the internet?
You may use internal e-mail to consult with your pro bono committee representative or other DOT employees with whom you are working on a case or program. Occasional individual e-mails to colleagues on a question related to a pro bono matter are permitted, but no group or broadcast e-mails are permitted. Reasonable use of external e-mail is also permitted as long as you indicate that the e-mail is sent in your personal, rather than official, capacity. You may also use the Internet but should first familiarize yourself with the Department's policies concerning Internet use since there are security, confidentiality and other considerations that may apply.
May I use government property in connection with my services?
Consistent with DOT's Pro Bono Policy, it is reasonable to allow attorneys de minimus use of office equipment (including use of fax machines and telephones only within the local are codes) in connection with pro bono activities. Thus, use of Government offices and equipment (including library facilities and equipment but not on-line legal research services) is permissible only if it involves negligible additional expense to the Government.
May I ask my secretary to assist me?
No. Pro bono and volunteer services are not official duties and may not be assigned to or required of support staff. However, support staff may volunteer their services.
May I participate in pro bono and/or volunteer services on government time?
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 workday. Supervisors are urged to be flexible and to accommodate, where feasible, efforts of employees to do volunteer work. Supervisors should give consideration to allowing a limited amount of administrative leave where the pro bono work is directly related to the agency's mission or will enhance the professional development skills of the employee in his or her current position. You may be granted annual leave, leave without pay, or may be permitted to make up any time you are away from the office. Please see April 23, 1998, OPM Memorandum on Participation of Federal Employees in Volunteer Activities at www.opm.gov/oca/compmemo/1998/cpm98-v.htm.
III. Conflicts of Interest
What constitutes a conflict of interest?
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.
Must I get approval to provide pro bono and/or volunteer services?
An employee seeking to engage in any pro bono legal work or volunteer services should notify his or her supervisor to ensure that there isn't any conflict of interest or ethical concerns.
Must my client sign a retainer?
It is recommended that you have all clients sign a retainer letter acknowledging the fact that you are acting in your individual capacity and not on behalf of the Department. The Pro Bono Services Committee Chairperson and each Chief Counsel's Representative has a sample retainer.
What about malpractice coverage?
The Department does not provide malpractice coverage. Generally, volunteer programs organized by the local bar or more established referral programs provide malpractice coverage. The Pro Bono Representative will have information regarding which programs provide coverage.
May I participate if I am not a member of the D.C. Bar?
Under a recent amendment to D.C. App. Rule 49, federal government attorneys who are not members of the D.C. Bar may provide legal counsel without fee provided that such a matter is assigned or referred to the attorney by an organization that provides legal services to the public without fee, the attorney is a member in good standing of another bar, the attorney provides the service without fee, and the attorney is supervised by an enrolled, active member of the District of Columbia Bar. The Pro Bono Committee is working to identify legal services organizations that provide the required supervision. Please contact your Pro Bono committee representative.
What happens if I leave the Department while I am engaged in a pro bono case?
When you take a pro bono case, you enter an attorney-client relationship. If you leave the Department, you are required to either take the case with you or make arrangements for continuity of representation. You should contact the referring organization or your pro bono representative if you feel that you need to transfer the case. They may be able to assist you.
Is there a committee within the Department to oversee this program?
Yes. A Pro Bono and Volunteer Services Committee has been established to oversee the implementation of the program. The committee is chaired by a representative from the General Counsel's Office and includes representatives from each mode. In addition, each component has been asked to appoint a pro bono representative to publicize and coordinate activities in the component.