Section 2635.1002 - Applicability and related considerations(a)Applicability. This subpart applies to an employee who seeks to accept payments for legal expenses from a legal expense fund or the provision of pro bono legal services. The legal expenses or the provision of pro bono legal services must be for a matter arising in connection with the employee's past or current official position, the employee's prior position on a campaign of a candidate for President or Vice President, or the employee's prior position on a Presidential Transition Team.(b)Not covered by this subpart. The following types of payments for legal expenses or pro bono legal services are not covered by this subpart: (1)Personal matters. Payments for legal expenses or the provision of pro bono legal services related to matters that do not arise in connection with the employee's past or current official position, the employee's prior position on a campaign of a candidate for President or Vice President, or the employee's prior position on a Presidential Transition Team, such as a matter that is primarily personal in nature, are not covered by this subpart. Personal matters include, but are not limited to, tax planning, personal injury litigation, protection of property rights, family law matters, and estate planning or probate matters. Example 1 to paragraph (b)(1): A Department of Homeland Security employee wants to set up a legal expense fund in connection with the employee's divorce and custody proceeding. This is a personal matter and the employee may not establish a legal expense fund under this subpart, but may use other gift exceptions and exclusions in accordance with subparts B and C of this part as appropriate.
(2)Gifts acceptable according to a gift exclusion or exception. Payments for legal expenses or the provision of pro bono legal services that otherwise qualify for a gift exclusion or exception other than § 2635.204(n) are not covered by this subpart. Example 1 to paragraph (b)(2): A Central Intelligence Agency employee is facing administrative disciplinary action due to an issue with the employee's security clearance and would like to seek financial assistance to pay for an attorney. Even though this matter arose in connection with their official position, if the employee's parents offer to cover the legal expenses, that donation is not subject to this subpart, as it would be subject to the gift exception at § 2635.204(b) .
Note 1 to paragraph (b): Acceptance of legal expense payments or pro bono legal services not covered by this subpart must be analyzed under subparts B and C of this part.
(c)Related considerations -(1)Gifts between employees. Acceptance of legal expense payments or the provision of pro bono legal services from another employee must be analyzed under 18 U.S.C. 205 and subpart C of this part. (2)Impartiality.(i) An employee beneficiary may not knowingly participate in a particular matter involving specific parties, consistent with the periods of disqualification detailed in paragraph (c)(2)(ii) of this section, if any person described below is a party or represents a party: (B) An individual, entity, or organization donating pro bono legal services pursuant to § 2635.1009 (pro bono legal services provider); or(C) An individual or entity that made a donation of $250 or more in a calendar year to the legal expense fund.(ii) The employee beneficiary's period of disqualification from particular matters involving specific parties involving the trustee runs from the assumption of the trustee position until two years after the trustee's resignation, if the trustee resigns, or two years after the termination of the trust. The employee's period of disqualification from particular matters involving specific parties involving each pro bono legal services provider runs from the commencement of pro bono legal services until two years after the last date pro bono services were provided. The period of disqualification for each donor begins to run on the date the most recent legal expense fund donation is received from that donor until two years after the donation. Example 1 to paragraph (c)(2): A donor contributed to a Social Security Administration (SSA) employee's legal expense fund. Three months after this contribution was made, the donor submitted a disability claim. The employee may not participate in evaluating the disability claim because the claim falls within the two-year mandatory recusal period.
(3)Misuse of position. Legal expense fund payments must be solicited and accepted consistent with the provisions in subpart G of this part relating to the use of public office for private gain, use of nonpublic information, use of Government property, and use of Government time. The mere reference to the employee's official position in a solicitation would generally not violate subpart G of this part. Example 1 to paragraph (c)(3): A Transportation Security Administration (TSA) employee retains legal counsel due to an investigation into inappropriate behavior in their department, and the employee establishes a legal expense fund in accordance with this subpart. Neither the employee nor the legal expense fund's trustee may use the TSA agency seal in materials or otherwise imply the Government endorses the legal expense fund, or use nonpublic details of the investigation to solicit contributions to the legal expense fund. Agency seals frequently are protected by law or require licensing for use. Further, the employee may not task subordinates with any work relating to administration of the legal expense fund. However, the employee may note in a solicitation that they are an employee of TSA, and that the matter arose in the course of their official duties.
(4)Financial disclosure. In addition to the legal expense fund reporting requirements outlined in § 2635.1007 , an employee beneficiary who is a public or confidential filer, other than a confidential filer who is an anonymous whistleblower, under part 2634 of this chapter must report gifts of legal expense payments accepted from sources other than the United States Government, including gifts of pro bono services, on the employee's financial disclosure report, subject to applicable thresholds and exclusions.