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David Bobzien would really like to do pro bono work. But he can’t. Nor can the 37 attorneys whom he supervises at the Fairfax County attorney’s office. The reason: When County Attorney Bobzien and his deputies joined the government, they agreed to a clause in their employment contracts specifying that their positions require “full time employment and preclude the private practice of law.” So when Bobzien and a handful of his deputies wanted to do some work for the Fairfax Bar Association’s Neighborhood Outreach Program, he put on the brakes. Although Bobzien’s assistants have malpractice insurance for their usual jobs of chasing tax delinquents, resolving zoning battles, handling employment issues regarding the county’s 10,000-person work force, and defending the county in private suits, they have no protection for pro bono work. In addition, there are many types of pro bono assignments that would put them squarely in conflict with the county’s interests. So Bobzien, who for several years as an attorney in the U.S. Justice Department’s Office of Professional Responsibility enforced the rules guiding government lawyers, is looking to change them. He and Senior Assistant County Attorney Peter Andreoli Jr. are drawing up a proposal to present to the county’s human resources department that would rework the language, using the Justice Department’s rules on pro bono as a benchmark. “We should not rely on feeling that we’re doing the public’s work without also doing pro bono,” says Bobzien. “We should also go to the shelters and family service centers and be meeting with clients.” STATEWIDE PROBLEM Attorneys in other Virginia cities and counties say they are in the same bind, though it hasn’t entirely stopped folks from pitching in. For example, some of Bobzien’s attorneys screen potential clients at the intake stage for the Neighborhood Outreach Program. Bobzien acknowledges that “one could say we’re practicing law, but I don’t feel it’s the same as going to court” or drafting documents. William Hackworth, Roanoke city attorney and president of the Local Government Attorneys of Virginia, says he’s been volunteering for private civic organizations and clubs for many years. “I don’t think I’ve ever been in an organization that didn’t ask me to work on the bylaws,” he says. “If you’re a lawyer, they ask you to do the bylaws.” The tension between work rules and pro bono “is just something we live with as government attorneys,” he says. In D.C. the corporation counsel’s office policy prohibits attorneys from doing pro bono work without written consent from the corporation counsel. Permission is normally granted only for work outside the District on behalf of family members. Ignacio Pessoa, who recently became Alexandria city attorney after serving 14 years in the office, says attorneys there have traditionally found ways to pitch in “outside of the legal context,” such as by acting as mentors in the public schools. He says he is not so concerned with the conflicts issue. “There’s plenty of work you can do that doesn’t involve claims against your government entity,” Pessoa says. “Landlord-tenant disputes, domestic relations efforts, none of that would present a conflict.” But, he adds, “Malpractice insurance is a valid concern.” That is something that the Fairfax County Bar began addressing last year. In the middle of 1999 the nonprofit Fairfax Bar Foundation decided to get its own malpractice liability insurance to cover lawyers working under its auspices. The policy has a $690 annual premium, according to Bobzien, and would pay out as much as $250,000 per case or $500,000 in the aggregate. But events this year spurred Bobzien, who is also president of the bar foundation, to push harder. In January, the Virginia State Bar altered its rules on public service. Previously, Bobzien says, the bar had “some aphorism about how it’s nice to do pro bono work.” The rule now reads that every lawyer has “a personal responsibility to provide legal services to those unable to pay” and that the bar “urges all Virginia lawyers to contribute two percent of their professional time annually to pro bono services.” Says Bobzien: “It’s still not mandatory. But it’s better than before.” Unfortunately, it is also in even greater tension with county rules. So he is determined to alter that language in the coming weeks. He says he’s run into no opposition thus far and is wary of expanding the rules to the degree that lawyers might find themselves facing conflicts with the county. He plans to make a presentation on the subject at a mid-September conference of the Local Government Attorneys of Virginia, in Charlottesville. When and if he gets the green light, he would still have to prohibit his attorneys from getting tangled up in housing beefs involving the Fairfax County Redevelopment and Housing Authority or other county agencies. But Bobzien sees plenty of opportunity to help those seeking to obtain federal benefits such as Social Security. He repeatedly mentions doing work for Fairfax County’s sizable group of day laborers, who wait at markets and shopping malls to get picked up by locals for construction and cleanup jobs and have no recourse if they get burned by a private employer. As a blueprint for his office, Bobzien is using an 11-page policy issued by the Justice Department in 1996, which includes a section on avoiding the appearance of conflict, disapproves of doing criminal defense work, and requires an internal conflicts check before going forward with pro bono work. Bobzien says what he plans to develop in Fairfax County will probably not be as comprehensive. But, he says, “It’s time we looked at it, instead of getting around it.”

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