5 C.F.R. § 2635.1009

Current through September 30, 2024

Section 2635.1009 - Pro bono legal services

(a)Acceptance of permissible pro bono legal services. An employee may solicit or accept the provision of pro bono legal services for legal matters 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 from:

(1) Any individual who:

(i) Is not an agent of a foreign government as defined in 5 U.S.C. 7342(a)(2) ;

(ii) Is not a foreign national;

(iii) Is not a lobbyist as defined by 2 U.S.C. 1602(10) who is currently registered pursuant to 2 U.S.C. 1603(a) ; and

(iv) Does not have interests that may be substantially affected by the performance or nonperformance of the employee's official duties; and

(2) An organization or entity that does not have interests that may be substantially affected by the performance or nonperformance of an employee's official duties.

Note 1 to paragraph (a): Pursuant to § 2634.907(g) of this chapter, an employee who is a public or confidential filer under part 2634 of this chapter must report gifts of pro bono legal services on the employee's financial disclosure report, subject to applicable thresholds and exclusions.

(b)Provision of outside legal services. An employee may solicit or accept payment for legal services for legal matters 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 from an organization, established for more than two years, that is described in section 501(c)(3) of the Internal Revenue Code and exempt from taxation under section 501(a) of the Internal Revenue Code. The organization, the legal services provider that the organization pays for legal services, and the individual attorney providing legal services must meet the requirements described in paragraph (a) of this section. The term " pro bono services" includes the provision of outside legal services as described in this section.

(c)Role of designated agency ethics official. The designated agency ethics official must determine whether the organization, the legal services provider that the organization pays for legal services, and the individual attorney providing legal services meet the requirements described in paragraph (a) of this section.

Example 1 to paragraph (c): A Department of Justice employee is an eyewitness in an Inspector General investigation and is called to testify before Congress. A local law firm offers to represent the employee at no cost. The employee consults with an agency ethics official, who determines that the attorney who would represent the employee is neither an agent of a foreign government nor a lobbyist. However, the law firm is representing a party in a case to which the employee is assigned. The ethics official determines that the law firm is a person who has interests that may be substantially affected by the performance or nonperformance of the employee's official duties. Accordingly, the employee may not accept the offer of pro bono legal services from the law firm.

Example 2 to paragraph (c): A Securities and Exchange Commission employee is harassed by a supervisor and files a complaint. A nonprofit legal aid organization focusing on harassment cases offers pro bono legal services to the employee at no cost. The employee consults with an agency ethics official, who determines that the attorney who would represent the employee is neither an agent of a foreign government nor a lobbyist, and neither the attorney nor the nonprofit legal aid organization has interests that may be substantially affected by the performance or nonperformance of the employee's official duties. Accordingly, the employee may accept the offer of pro bono legal services from the nonprofit legal aid organization.

Example 3 to paragraph (c): A registered 501(c)(3) organization whose mission focuses on assisting those experiencing workplace harassment offers to pay for legal services for the Securities and Exchange Commission employee from the preceding example. The legal services themselves are performed by attorneys outside the organization. The employee confers with an agency ethics official who determines that the 501(c)(3) organization has been in operation for more than two years, neither the organization nor the attorneys performing legal services have interests that may be substantially affected by the performance or nonperformance of the employee's official duties, and the attorneys performing the legal services are neither agents of foreign governments nor lobbyists. Accordingly, the employee may accept the legal services even though they are provided by attorneys outside of the 501(c)(3) organization.

Example 4 to paragraph (c): A Department of State employee is asked to testify in a legal proceeding relating to a prior position at the Department of Justice. An attorney at a large national law firm offers pro bono services to the employee. The employee confers with an agency ethics official who determines that although the attorney offering representation is neither an agent of a foreign government nor a lobbyist, the law firm is currently registered pursuant to 2 U.S.C. 1603(a) , some members of the firm are registered lobbyists, and the firm has business before other parts of the Department of State. However, neither the attorney nor the law firm has interests that may be substantially affected by the performance or nonperformance of the employee's official duties. Accordingly, the employee may accept the offer of pro bono legal services.

(d)Appeal process. An employee may appeal to the Office of Government Ethics in matters when the agency is the party opponent in the legal action. An employee may appeal the designated agency ethics official's determination that the pro bono legal services are prohibited; or a failure by the designated agency ethics official to provide a determination regarding whether the pro bono legal services are prohibited within 30 days. Appeals should be submitted within 60 days of denial by the designated agency ethics official, or within 90 days of submission to the designated agency ethics official, in the case of a request that has not been acted upon.

5 C.F.R. §2635.1009

88 FR 33809, 11/21/2023