Can a government or public-sector lawyer in North Carolina take on pro bono cases for private clients?

Plain-English summary

The opinion concludes that a government or public-sector lawyer may provide pro bono legal services to private individuals and organizations under Rule 6.1, so long as the lawyer is not otherwise prohibited by law from engaging in the private practice of law. Rule 6.1 states that every lawyer has a professional responsibility to provide legal services to those unable to pay and should aspire to render at least fifty hours of pro bono service per year. Some government lawyers, however, are barred by statute from private practice, including justices, judges, magistrates, full-time district attorneys and assistants, public defenders and assistants, clerks and deputies, registers of deeds, and sheriffs under N.C. Gen. Stat. §84-2, and administrative law judges under N.C. Gen. Stat. §7A-754.

A government lawyer who may serve remains subject to the Rules of Professional Conduct. The lawyer must provide competent and diligent representation (Rules 1.1 and 1.3), and must have the training needed for the pro bono matter even if it differs from the lawyer's government work. The lawyer must make clear to the pro bono client that the lawyer is acting in a private capacity, not on behalf of a government agency (Rules 1.2 and 1.4). The lawyer must avoid conflicts of interest: citing Arizona Opinion 93-08 for the point that a government lawyer's position warrants heightened conflict scrutiny, the opinion directs the lawyer to examine whether the employer or any public body the lawyer represents has an interest in the matter, and to decline (absent informed consent) where the private client's interests are adverse to the government or the representation would be materially limited (Rule 1.7), or where the lawyer formerly represented a public body in the same or a substantially related matter (Rule 1.9). It recommends limiting pro bono work to practice areas unrelated to the lawyer's government job.

The opinion adds confidentiality and practical points. The lawyer must abide by Rule 1.6(a); if the employer bars the lawyer from entering a confidentiality agreement with a private client, the lawyer may not provide direct pro bono representation but may still serve through law-improvement activities under Rule 6.1(b)(2). The opinion suggests consulting a malpractice carrier about coverage, and encourages government offices to adopt internal pro bono policies addressing the definition of pro bono, types of service, conflicts, use of employer resources, and whether the work occurs during or after working hours.

In practice

Under the North Carolina rules as they stood at the time of the opinion, conduct in which a government lawyer who is statutorily barred from private practice takes a private pro bono case is not permitted; for lawyers who are not so barred, the opinion holds that pro bono representation is permitted subject to the ordinary Rules. Per the opinion, the analysis turns first on the statutory bar (N.C. Gen. Stat. §84-2 and §7A-754) and then on conflicts: the lawyer must screen the matter against the interests of the government employer and any public body represented, applying Rules 1.7 and 1.9, and the opinion recommends confining pro bono work to areas unrelated to the government job.

The opinion also conditions the work on competence and diligence (Rules 1.1 and 1.3), a clear disclosure that the lawyer acts privately (Rules 1.2 and 1.4), and confidentiality (Rule 1.6(a)); where a confidentiality agreement is barred by the employer, the lawyer may serve only through law-improvement activities under Rule 6.1(b)(2).

Common questions

Q: Can a North Carolina government lawyer take pro bono cases for private clients?

A: Yes, unless barred from private practice. The opinion concludes a government lawyer may provide pro bono services under Rule 6.1 if not otherwise prohibited by law from the private practice of law.

Q: Which government lawyers are barred from doing this?

A: The opinion cites N.C. Gen. Stat. §84-2, which bars justices, judges, magistrates, full-time district attorneys and assistants, public defenders and assistants, clerks, registers of deeds, and sheriffs, among others, and §7A-754, which bars administrative law judges, from the private practice of law.

Q: How must a government lawyer handle conflicts in pro bono work?

A: The opinion says the lawyer must examine whether the employer or a public body the lawyer represents has an interest in the matter, and must decline absent informed consent where the private client is adverse to the government or the representation would be materially limited (Rule 1.7), or where the lawyer formerly represented a public body in the same or a substantially related matter (Rule 1.9); it recommends limiting pro bono to unrelated practice areas.

Q: What if the lawyer's government employer prohibits confidentiality agreements with private clients?

A: Then the lawyer may not provide direct pro bono representation. The opinion says the lawyer may still serve through activities for improving the law, the legal system, or the legal profession under Rule 6.1(b)(2).

Background and rules framework

The opinion applies North Carolina Rule 6.1 (voluntary pro bono publico service, the analogue of Model Rule 6.1), reading it to extend the pro bono responsibility to government and public-sector lawyers, subject to any statutory bar on private practice. It applies Rules 1.1 (competence), 1.3 (diligence), 1.2 and 1.4 (scope and communication) to the conduct of the representation, and Rules 1.7 (current-client conflicts) and 1.9 (former-client conflicts) to the heightened conflict screening a government lawyer must perform.

The opinion grounds the statutory limits in N.C. Gen. Stat. §84-2 and §7A-754, applies Rule 1.6(a) to confidentiality, and points to Rule 6.1(b)(2) as the alternative for lawyers who cannot agree to client confidentiality. It cites Arizona Opinion 93-08 for the heightened-scrutiny principle.

Citations and references

Rules of Professional Conduct:

• MR 6.1 / NC Rule 6.1 (voluntary pro bono publico service; Rule 6.1(b)(2))
• MR 1.7 / NC Rule 1.7 (conflict of interest: current clients)
• MR 1.9 / NC Rule 1.9 (duties to former clients)
• MR 1.6 / NC Rule 1.6(a) (confidentiality)
• NC Rules 1.1 (competence), 1.3 (diligence), 1.2 and 1.4 (scope and communication)

Statutes:

• N.C. Gen. Stat. §84-2 (officials barred from the private practice of law)
• N.C. Gen. Stat. §7A-754 (administrative law judges barred from the private practice of law)

Other opinions cited:

• Ariz. State Bar Ethics Op. 93-08 (1993): a government lawyer's position warrants heightened conflict scrutiny when engaging in private practice.

See also

• NY State Bar Op. 1148: Former Government Lawyer Adverse to a Former Employer
• NY State Bar Op. 1012: Conflicts in Limited Pro Bono Legal Services

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/2014-formal-ethics-opinion-3/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Inquiry:

May a lawyer who works for the government or the public sector (hereafter “government lawyer”) provide pro bono legal services to private individuals and organizations pursuant to Rule 6.1?

Opinion:

Yes, if the government lawyer is not otherwise prohibited by law from engaging in the private practice of law.

All lawyers have a professional responsibility to provide legal services to those who are unable to pay as stated in Rule 6.1:

Every lawyer has a professional responsibility to provide legal services to those unable to pay. A lawyer should aspire to render at least (50) hours of pro bono publico legal services per year. In fulfilling this responsibility, the lawyer should:

(a) provide a substantial majority of the (50) hours of legal services without fee or expectation of fee to:

(1) persons of limited means;

(2) charitable, religious, civic, community, governmental, and educational organizations in matters that are designed primarily to address the needs of persons of limited means; or

(3) individuals, groups, or organizations seeking to secure or protect civil rights, civil liberties, or public rights, or charitable, religious, civic, community, governmental, and educational organizations in matters in furtherance of their organizational purposes, where the payment of standard legal fees would significantly deplete the organization’s economic resources or would be otherwise inappropriate.

...

Some government lawyers, however, are prohibited by statute from engaging in the private practice of law. See, e.g., NC Gen. Stat. §84-2 (“No justice, judge, magistrate, full-time district attorney, full-time assistant district attorney, public defender, assistant public defender, clerk, deputy, or assistant clerk of the General Court of Justice, register of deeds, deputy, or assistant register of deeds, sheriff, or deputy sheriff shall engage in the private practice of law.”) and NC Gen. Stat. §7A-754 (“Neither the chief administrative law judge nor any administrative law judge may engage in the private practice of law...”).

A government lawyer is subject to the requirements of the Rules of Professional Conduct when providing pro bono legal services. Although the pro bono legal services may be very different from the legal work that the government lawyer performs for his or her employer, the government lawyer must provide competent and diligent representation. See Rule 1.1 and Rule 1.3. Therefore, the government lawyer must ensure that he or she has the training necessary to represent the pro bono client competently. In addition, the government lawyer must communicate to the pro bono client that, in the course of providing pro bono legal services, the lawyer is not acting on behalf of a government agency or office but in his or her private capacity. See Rule 1.2 and Rule 1.4.

A government lawyer must also avoid conflicts of interests that may arise when providing pro bono legal services to private persons or entities. See Rule 1.7. The Arizona State Bar opined that the unique position of a lawyer employed by the government suggests that a heightened level of scrutiny for possible conflicts of interest is warranted when a government lawyer engages simultaneously in the private practice of law, albeit on a pro bono basis. Az. State Bar, Ethics Op. 93-08 (1993). The government lawyer must examine whether his or her employer and/or any public body that the government lawyer represents has an interest in the pro bono matter. If so, and the interests of the prospective private client are adverse to the government, or the government lawyer’s representation of either the government or the prospective private client will be materially limited, the lawyer must decline the representation unless both the government and the prospective client give informed consent. See Rule 1.7. Similarly, if the government lawyer formerly represented a public body in the same matter or a matter that is substantially related to the proposed pro bono representation, the government lawyer is prohibited from taking on the pro bono representation if it would be adverse to formerly represented public body unless this former client gives informed consent. See Rule 1.9. Because of the potential for conflicts to arise, it is recommended that a government lawyer limit his or her pro bono activities to practice areas that are unrelated to the lawyer’s government work.

Government and public sector lawyers must abide by the confidentiality rule. Rule 1.6(a) provides that a lawyer shall not reveal information acquired during the professional relationship with a client unless the client gives informed consent, the disclosure is impliedly authorized to carry out the representation, or the disclosure is permitted by an exception set forth in paragraph (b) of the rule. If the government lawyer is prohibited by his or her employer from entering into a confidentiality agreement with a private person or entity, the lawyer may not provide pro bono legal services to private clients. Nevertheless, the government lawyer may still find opportunities to provide pro bono service by participating in activities for improving the law, the legal system, or the legal profession. See Rule 6.1(b)(2).

If a government lawyer intends to provide pro bono services outside the context of a legal services organization or a nonprofit organization, before doing so the lawyer would be wise to consult with a liability insurance carrier to determine whether to carry malpractice insurance. If the government lawyer will be providing pro bono services under the auspices of a legal services organization or other nonprofit or charitable organization, the government lawyer would be wise to determine whether the legal services or nonprofit organization has liability insurance that will cover the government lawyer’s pro bono activities.

Government agencies and public sector offices are encouraged to adopt internal policies that will facilitate pro bono legal service by government lawyers. These policies should address, inter alia, the definition of pro bono, the types of pro bono services to be performed, conflicts of interests, use of the employer’s resources such as support staff and office equipment, and whether pro bono legal services are to be provided during working hours or after.