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A proposal in Virginia to allow corporate counsel to provide pro bono services is getting mixed reviews. There is no dispute that there is a demand for pro bono services in the Commonwealth. In fact, most people would agree that the current supply of pro bono attorneys, primarily from law firms, is inadequate to meet that demand. But now many are debating what limitations, if any, should be placed on the provision of pro bono services by attorneys who are registered under a special provision for corporate counsel. Virginia was one of the first states to adopt a special provision to license attorneys who are employed in-house. The corporate counsel rule (Supreme Court Rule 1A:5) went into effect on Sept. 1, 2003. Before that time, attorneys could serve as in-house counsel in Virginia without being admitted to the Virginia State Bar. Their work as in-house counsel was not even included in the definition of the practice of law. In 2003, though, the Virginia State Bar adopted a dual registration process for in-house counsel. Attorneys practicing in-house who were not already members of the Virginia State Bar could choose to become a Virginia corporate counsel (Part I registration) or a corporate counsel registrant (Part II registration). The deadline for registration was July 1, 2004. Attorneys opting to be Virginia corporate counsel under Part I of the rule must be attorneys in good standing in another state. The corporate counsel certificate allows them to practice law in Virginia, with their practice limited to the representation of one Virginia employer. They may represent their employer in state courts without having to meet the pro hac vice requirements applicable to foreign attorneys. They must meet all the requirements for active membership in the Virginia State Bar. Attorneys seeking a corporate counsel registration under Part II also must be attorneys in good standing in another state, but they may opt out of the requirements for active membership in the Virginia State Bar. They may represent their employer in-house but may not represent their employer in court unless they associate with a Virginia-admitted attorney and move for admission pro hac vice. Attorneys registered under both parts of the rule are subject to the Virginia Rules of Professional Conduct and the Virginia State Bar’s disciplinary system. Since the corporate counsel rule went into effect two years ago, 662 attorneys have been admitted under Part I, and 455 under Part II. LIMITS ON PRO BONO One of the main unintended effects of the new rule is the limitation on pro bono work. These attorneys have experience in many areas that would be helpful to pro bono clients, and many are willing to fulfill their ethical pro bono obligation. But the very rule that allows them to practice in-house prohibits them from rendering legal assistance to anyone other than their employer. This dilemma was brought to the attention of Chief Justice Leroy Hassell Sr. by a representative of legal aid societies in Northern Virginia in July 2004. The corporate counsel section of the Virginia State Bar raised this issue with him that same month. Officials asked that the rule be amended to include language allowing attorneys certified under Part I of the rule to participate in pro bono programs operated and controlled by any Virginia-licensed legal aid society. (That language had been struck by the Virginia Supreme Court in adopting the rule out of concerns that it was too vague.) Hassell responded positively to these entreaties. According to James McCauley, ethics counsel for the Virginia State Bar, staff received word from the Supreme Court that the justices wanted a mechanism in place sooner rather than later to allow Part I attorneys to provide pro bono services. Knowing that the Supreme Court wanted additional parameters placed on the provision of pro bono services by Part I attorneys to protect the public from potential errors by attorneys untested in Virginia law, Bar staff looked for guidance from the provision in the Virginia Supreme Court rules that confers emeritus status on retiring attorneys. Bar staff believed that parameters for pro bono representation previously approved by the court for emeritus counsel would stand a good chance of being approved, and they drafted an amendment to that effect. The amendment would allow Part I attorneys to provide pro bono services through licensed legal aid societies, just the way retiring attorneys can. This proposed amendment to the corporate counsel rule will be voted on by Bar counsel at their Oct. 21 meeting. The amendment would allow, and even encourages, Part I attorneys to participate in pro bono programs operated and controlled by a Virginia-licensed legal aid society. In addition to this element, though, there are some other restrictions imposed on in-house counsel. The governing boards of both the Washington Metropolitan Area Corporate Counsel Association (WMACCA) and the corporate counsel section of the Virginia State Bar support the proposal to allow Part I attorneys to participate in pro bono programs. They also support the idea that those attorneys would provide services under the auspices of a Virginia-licensed legal aid agency � as that would provide protections for both the client and the volunteer attorney. But these groups take issue with three additional limitations on this pro bono service. SUPERVISING ATTORNEY The first limitation states that the pro bono service must be “under the direction of a supervising attorney.” The supervising attorney only needs to meet minimal qualifications. He or she must be “an active member of the Virginia State Bar in good standing, employed by or participating as a volunteer for the licensed legal aid society.” The supervising attorney assumes personal professional responsibility for supervising the conduct of the Part I attorney and directs and assists the attorney in his or her preparation. There is no requirement that the supervising attorney have litigation or other experience; in fact, the supervisor could have less experience as an attorney than the Part I attorney he is supervising. Even if the supervising attorney is experienced, the requirement that, in effect, two attorneys share in the pro bono representation makes it more likely that scheduling and other coordination problems will arise. It also limits the ability of the legal aid society to offer a robust program, since its experienced attorneys must be co-counsel on all matters handled by Part I attorneys, thus restricting their availability to carry their own caseloads. AGREE IN WRITING The second limitation is a requirement that the client and the supervising attorney agree in writing to the Part I attorney’s representation of the client in court or in an administrative proceeding. Legal aid clients already sign written representation agreements. Asking them to sign a second agreement that authorizes their pro bono attorney to enter an appearance on their behalf and requires the supervising attorney to give written permission for the appearance could cause clients to question the competency of their pro bono attorney. The client’s written authorization of the pro bono representation is to be filed with the case and brought to the attention of the presiding judge or presiding officer in an administrative or arbitration proceeding. PENDING APPROVAL The third restriction is that the judge or presiding officer may determine the extent of the Part I attorney’s participation. It is presumed that the client will be told that the corporate counsel’s representation is contingent upon this approval. This raises another opportunity for the client to doubt the ability of the pro bono attorney. It also adds another step in the proceedings, increasing the administrative burden on courts and administrative agencies in pro bono cases. Since the proposed amendment places the corporate counsel’s pro bono service within the context of a licensed legal aid society, assurance is already given that the corporate counsel will receive training, mentoring, and malpractice insurance coverage, and will use tested forms to provide a high-quality legal product for the pro bono client. The WMACCA stated in its comments that the three restrictions on pro bono service are “unnecessary and propose significant obstacles to pro bono participation by in-house counsel.” The additional hoops that Part I attorneys must jump through to provide pro bono service could easily have a chilling effect on those interested in volunteering. The Virginia Supreme Court included the additional limitations because it is concerned that volunteers with licensed legal aid societies may not be adequately prepared to represent pro bono clients. In fact, though, that could be true for all attorneys who volunteer for these programs. The member of a law firm whose practice is limited to patent or construction law may be just as ill prepared to handle a health care, education, or domestic matter as an in-house attorney. As the WMACCA noted, there is “no compelling reason to view in-house attorneys differently from full Virginia Bar members with respect to their ability to perform pro bono work.” Instead of placing additional restrictions on one group of attorneys, the goal should be to provide a minimum level of training, mentoring, and support for all volunteers of legal aid programs. Many in-house attorneys in Virginia believe that the Bar Council should approve the amendment to allow corporate counsel admitted under Part I of the rule to participate in pro bono programs under the auspices of licensed legal aid societies � but reject all other proposed restrictions. The Bar Council should instead ensure that licensed legal aid societies receive the funding they need and adequately prepare all attorneys who volunteer with their programs to provide the type of quality legal representation that the citizens of Virginia have a right to expect. It is difficult enough to motivate attorneys to provide pro bono services. Placing unnecessary obstacles in their path that continually raise questions about their ability to give pro bono service is not the way to encourage volunteers.
Eileen Johnson is in her final year on the board of governors of the corporate counsel section of the Virginia State Bar, and served as chair last year. She was in-house counsel to the National Wildlife Federation for 19 years, the last eight as general counsel. Currently, she runs her own practice focused on the needs of nonprofit organizations.

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