OAG Testimony on the Pro Bono Legal Representation Expansion Amendment Act of 2021

Statement of Elaine L. Block

Ethics Counsel

Office of the Attorney General

Before

The Committee on the Judiciary and Public Safety

The Honorable Charles Allen, Chairperson

Public Hearing

Bill 24-0298, the “Pro Bono Legal Representation Expansion Amendment Act of 2021”

Introduction

Greetings Chairperson Allen, Councilmembers, staff, and residents of the District of Columbia. My name is Elaine Block, and I have the privilege to serve as Ethics Counsel to the Office of the Attorney General (OAG) for the District of Columbia. I am pleased to appear before the Committee on the Judiciary and Public Safety on behalf of Attorney General Karl A. Racine to testify in support of Bill 24-0298, the “Pro Bono Legal Representation Expansion Amendment Act of 2021”. This legislation would expand access to justice in the District by establishing the right of District government lawyers to appear before D.C. courts and agencies to represent low-income residents in cases in which the District is not a party.

I will begin by briefly addressing Attorney General Racine’s efforts to support pro bono work and will then discuss the importance of the legislation and suggest three amendments.

The OAG’s Pro Bono Program

In 2017, the Washington Council of Lawyers asked AG Racine if he would consider developing a Pro Bono Program and associated policy to support OAG employees who might wish to engage in volunteer work throughout the District.

Recognizing that low-income District residents were in dire need of services of all kinds, AG Racine embraced the idea of encouraging volunteer work by eliminating a single obstacle: identifying pro bono opportunities, both legal and non-legal, that would be consistent with employees’ duties and responsibilities to the OAG and the District.

OAG has found that having a Pro Bono Program works. The Program has succeeded in connecting OAG employees with local non-profit organizations in need of volunteers, and in raising employee interest in pro bono work generally. Nonetheless, it is clear from discussions we have had with many OAG lawyers that they would be more likely to volunteer if they could represent low-income clients in litigation, either because that is their area of expertise or as an opportunity for professional development. Unfortunately, appearing before a District tribunal is currently prohibited by District regulation.

The Proposed Bill

The “Pro Bono Legal Representation Expansion Amendment Act of 2021” would expressly permit District lawyers, acting in their personal capacities, to represent low-income District residents as well as organizations and businesses serving those residents before District courts and agencies, in matters that do not implicate the interests of the District. This legislation is all upside: it would support pro bono engagement by establishing that District lawyers may practice law in affiliation with non-profit organizations working with underserved communities, while protecting the public interest in ensuring that government employees do not engage in outside activities that conflict with their duties and obligations to the District. By striking this balance, the legislation would open the door to greater pro bono participation by District lawyers and increased access to justice for District residents of limited means.

Proposed Amendments to the Bill

The Office of the Attorney General supports the bill, but we propose the following three amendments:

First, although the legislation is intended to permit District employees to provide pro bono legal representation before any District court or agency, Subsection 2(e)(1) states that employees may appear before any “District agency, federal court, or federal agency.” While the D.C. Superior Court and the D.C. Court of Appeals are technically federal courts, they are rarely referred to as such in legislation or conversation. We therefore recommend that this subsection be amended to unambiguously permit employees to appear before any District court or agency. As amended, the subsection would read as follows:

“Sec. 2. Section 223 of the Board of Ethics and Government Accountability Establishment and Comprehensive Ethics Reform Amendment Act of 2011, effective April 27, 2012 (D.C. Law 19-124; D.C. Official Code § 1-1162.23), is amended by adding a new subsection (e) to read as follows:

“(e)(1) Except as provided in paragraph (2) of this subsection, an employee may provide legal representation in proceedings before any District of Columbia court, District of Columbia agency, federal court, or federal agency, if: . . . “

Second, Subsection 2(e)(1) includes several provisos, designated subparagraphs (A) – (F), including the requirement of subparagraph (E) that “[t]he representation does not violate federal or District law or any applicable rules of professional conduct.” The subsection does not, however, expressly prohibit representations that conflict with the employee’s duties and responsibilities to her agency and to the District, an oversight that we believe should be addressed.

The Office of the Attorney General rigorously screens requests by employees to engage in paid and unpaid outside activities; the screening process occasionally identifies conflicts that were not, and could not have been, evident to the employee.

We are concerned that by creating a statutory right to represent certain clients without establishing an attendant obligation to avoid conflicts of interest, the legislation could subject the screening policies of the OAG, and of other agencies with special concerns, to challenges. Accordingly, the Office of the Attorney General recommends that a new Subparagraph (D) be added to the subsection, as follows:

“(D) The representation does not conflict with the employee’s duties or responsibilities to the District of Columbia or the employer agency, as determined by that agency;”

Third, the legislation permits District employees to represent clients of “covered organizations,” a term that is defined in Subsection 2(E)(3) as “a non-profit organization located in the District of Columbia that provides legal services to” certain individuals and organizations. The Office of the Attorney General recommends that the definition be amended to include District law schools that conduct academic, experiential clinics providing services to low-income individuals and organizations serving those individuals, as follows:

“(3) For the purposes of this subsection:

“(A) The term “covered organization” means a non-profit organization located in the District of Columbia that provides legal services to:

“(I) A non-profit organization located in the District of Columbia that provides legal services to: (a) Individuals with limited means at no charge or for a nominal fee; or

“(II) (b) Other non-profit organizations or small businesses located in the District of Columbia that serve individuals with limited means.;

“(II) A law school located in the District of Columbia conducting experiential clinical courses in which students provide legal services to such individuals, non-profit organizations, or small businesses.”

Conclusion

We at the Office of the Attorney General are thrilled that the Council is considering legislation that will expand access to justice by the District’s underserved communities and residents. I appreciate the opportunity to testify in support of this important bill and am happy to answer any questions that members may have.