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AMERICAN BAR ASSOCIATION
ADOPTED BY THE HOUSE OF DELEGATES
AUGUST 11-12, 2014
RESOLUTION
RESOLVED, That the American Bar Association urges the highest appellate courts in each
jurisdiction to adopt a rule permitting and encouraging in-house counsel already authorized to
engage in the practice of law, while in the exclusive employment of an organization in a
jurisdiction in which they are not licensed, to provide pro bono legal services in that jurisdiction
subject to applicable rules, including rules of professional conduct, and other law.
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“[I]n a time when the need for legal services among the poor is growing and public funding for
such services has not kept pace, lawyers’ ethical obligation to volunteer their time and skills pro
bono publico is manifest.”
Mallard v. U.S. Dist. Court for S. Dist. of Iowa, 490 U.S. 296, 310 (1989).
REPORT
ABA Model Rule of Professional Conduct 6.1 provides that: “Every lawyer has a
professional responsibility to provide legal services to those unable to pay.” 1 To date, forty-nine
states, the Virgin Islands and the District of Columbia have adopted the ABA Model Rules of
Professional Conduct.2 In so doing, they have demonstrated an understanding of the importance
of delivering pro bono legal services and have accepted the responsibility of urging attorneys
within their boundaries to deliver these services. In fact, many attorneys regularly donate their
skills and time to their local communities in an effort to aid those in need of but unable to afford
legal services. These attorneys should be commended and their efforts applauded.
But what about the attorneys whose practice, by its very nature, precludes their
engagement in any pro bono legal services in the state in which they work and reside? This
group of attorneys – in-house counsel with a multijurisdictional practice – has the time, skills,
resources and desire to give back to the communities in which they practice but, in many states
around the country, is precluded from doing so because of a lack of authorization in their
resident state’s rules of professional conduct. This Resolution aims to fill that gap to allow inhouse counsel already authorized to engage in the practice of law, while in the exclusive
employment of an organization in a state in which they are not licensed, to participate in the
delivery of pro bono legal services in that state. This Resolution serves as a critical step toward
the ultimate goal of facilitating the provision of pro bono legal services by all attorneys,
regardless of the nature of one’s practice.
The Need for Pro Bono Legal Services
The need for pro bono legal services is tremendous. Statistics show at least 40% of lowand moderate-income households nationwide experience a legal problem each year.3
Approximately half of low- and moderate-income American households are facing one or more
Model Rule 6.1, Voluntary Pro Bono Publico Service. It also provides that “a lawyer
should aspire to render at least 50 hours of pro bono public legal services per year” and that “a
substantial majority of the 50 hours” should be to persons of limited means or to organizations
that support the needs of persons of limited means. See id.
2
See
http://www.americanbar.org/groups/professional_responsibility/publications/
model_rules_of_professional_conduct/alpha_list_state_adopting_model_rules.html (last visited
on Nov. 22, 2013). California is the only state that has not modeled its rules of professional
responsibility and conduct after the ABA Model Rules of Professional Conduct. Id. Thirty-nine
jurisdictions have adopted a version of Model Rule 6.1, with an additional six jurisdictions
adopting other policy that encourages the provision of pro bono legal services. See
http://www.americanbar.org/groups/probono_public_service/policy/state_ethics_rules.html.
3
See Probono.net, at http://www.probono.net/ (last visited on Nov. 25, 2013).
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situations that could be addressed by the civil justice system each year.4 Almost 71% of these
situations faced by low-income households are not finding their way to the justice system.5 In
moderate-income households, that number is closer to 61%.6 The most common legal needs of
low- and moderate-income American households pertain to personal finances, consumer issues,
housing (both owned and rental), and other real property.7 Low- and moderate-income
households most often try to handle their legal needs on their own as self-represented litigants.8
Indeed, as has been noted recently by the Attorney-in-Chief of Legal Aid Society in New York
City, “It’s a very real problem that confronts low-income families and individuals. The need
really is limitless.”9
Despite this overwhelming need for legal services, studies show that the collective civil
legal aid effort is meeting only about 20% of the legal needs of low-income people.10 Allowing
multijurisdictional in-house counsel to serve this need will help improve the access to justice for
those in low- and moderate-income households.
In-House Counsel to the Rescue
ABA Model Rule 5.5 was amended in 2002 to allow for the temporary multijurisdictional
practice by in-house counsel in any state their employer-client wishes as long as they are in good
standing in their home state of bar admission and do not take on any other representations.11
Specifically, it provides:
(d) A lawyer admitted in another United States jurisdiction or in a foreign jurisdiction, and
not disbarred or suspended from practice in any jurisdiction or in a foreign jurisdiction, may
provide legal services through an office or other systematic and continuous presence in this
jurisdiction that:
4
American Bar Association, Consortium on Legal Services and the Public, Legal Needs
and Civil Justice: A Survey of Americans – Major Findings from the Comprehensive Legal
Needs Study (1994). Although this study was published in 1994, it remains the only national
study performed examining the nature and number of unmet legal needs across the country. It is
still widely respected and its findings are still relevant and accurate even today, nearly twenty
years later. See Legal Services Corporation, Documenting the Justice Gap in America: The
Current Unmet Civil Legal Needs of Low-Income Americans (Sept. 2009), at http://www.lsc.gov/
sites/default/files/LSC/pdfs/documenting_the_justice_gap_in_america_2009.pdf.
5
See supra note 4, Legal Needs and Civil Justice. This percentage reflects those issues
and situations not addressed in court at all.
6
See supra note 4, Legal Needs and Civil Justice.
7
See supra note 4, Legal Needs and Civil Justice.
8
See supra note 4, Legal Needs and Civil Justice.
9
James C. McKinley, Jr., Rule Change Could Ease “Justice Gap” for the Poor, NEW
YORK TIMES, Dec. 2, 2013, at http://www.nytimes.com/2013/12/03/nyregion/rule-change-couldease-justice-gap-for-the-poor.html?_r=1& (last visited Dec. 6, 2013).
10
See supra note 3.
11
Corporate Pro Bono, Multijurisdictional Practice: In-House Counsel Pro Bono, at page
1, at http://www.cpbo.org/wp-content/uploads/2012/03/MJP-Article-April-2013.pdf (last visited
on Nov. 22, 2013).
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(1) are provided to the lawyer’s employer or its organizational affiliates; are not
services for which the forum requires pro hac vice admission; and, when
performed by a foreign lawyer and requires advice on the law of this or another
jurisdiction or of the United States, such advice shall be based upon the advice of
a lawyer who is duly licensed and authorized by the jurisdiction to provide such
advice; or
(2) are services that the lawyer is authorized by federal or other law or rule to
provide in this jurisdiction.
Model Rule 5.5 (d). Subsection (e) of Rule 5.5 requires that the foreign lawyer “be a member in
good standing of a recognized legal profession in a foreign jurisdiction, the members of which
are admitted to practice as lawyers or counselors at law or the equivalent, and are subject to
effective regulation and discipline by a duly constituted professional body or a public authority.”
Many states have adopted Model Rule 5.5 or similar language, effectively allowing for
the multijurisdictional practice of in-house counsel in their borders.12 The problem is that not all
of these provisions include an exception allowing those attorneys to perform pro bono legal work
in their resident employer-client state. This Resolution looks to solve this problem by asking the
ABA to encourage all appropriate bodies in states containing such multijurisdictional provisions
to adopt an exception allowing pro bono legal work by in-house counsel.
Summary of Current Practice Rules
Currently, thirty-one (31) jurisdictions provide for the provision of pro bono legal
services by in-house counsel not licensed in the jurisdiction. The following is a summary13 of
practice rules applicable to in-house counsel providing pro bono legal services:
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18 jurisdictions allow attorneys licensed out-of-state or in-house counsel working under
the state’s unauthorized practice of law exception or in-house admission rules to perform
pro bono legal work, if those attorneys are “associated with” or “affiliated with”
approved legal services organizations.
7 jurisdictions allow attorneys licensed out-of-state or in-house counsel working under
the state’s unauthorized practice of law exception or in-house admission rules to perform
pro bono legal work, if those attorneys are “associated with” or “affiliated with”
approved legal services organizations and with the supervision of a locally-licensed
attorney.
4 jurisdictions allow in-house counsel working under the state’s unauthorized practice of
law exception or in-house admission rules to perform pro bono legal work, if “associated
with” or “affiliated with” approved legal services or with the supervision of a locallylicensed attorney.
3 jurisdictions allow registered in-house counsel to perform pro bono work under their
limited licenses without restriction other than the local professional rules of conduct.
12
See supra note 2, at page 1.
This information can be found at Corporate Pro Bono, Pro Bono Institute,
Multijurisdictional Practice: In-House Counsel Pro Bono (2013), at http://www.cpbo.org/wpcontent/uploads/2012/01/MJP-Article-March-20131.pdf.
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
19 jurisdictions are silent with regard to in-house counsel who are not locally licensed
providing pro bono legal services.
A chart providing a jurisdiction-by-jurisdiction analysis is appended to this Report.14 It should
be noted that Hawaii and Montana do not make exceptions or allowances for non-locally
licensed in-house counsel.15 There are, however, other states that do not make these types of
exceptions but do have rules allowing non-locally-licensed out-of-state attorneys, under certain
circumstances, to provide pro bono legal assistance.16 Therefore, the fact that a state does not
make an exception for non-locally licensed in-house counsel does not preclude that state from
14
See supra note 13. The chart indicates that there are 2 jurisdictions that allow
registered in-house counsel to perform pro bono work without restriction and 20 jurisdictions
that are silent. This recently has changed with New York’s adoption in December 2013 of a rule
permitting in-house counsel to perform pro bono work without restriction. See McKinley, Jr.,
supra note 9 (New York Times article). The statistics here reflect this recent change.
The nineteen states that currently have no rules regarding whether in-house counsel who
are not locally licensed may engage in pro bono legal services are:

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













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Alabama
Alaska
Hawaii
Idaho
Indiana
Kansas
Kentucky
Louisiana
Maine
Michigan
Montana
Nevada
New Hampshire
Oklahoma
South Dakota
Texas
Utah
Vermont
Wyoming
15
See supra note 13.
See supra note 13, listing West Virginia as not allowing for non-locally licensed inhouse counsel to practice within its borders, but allowing out-of-state attorneys, upon
application, to provide pro bono legal assistance in all cases in which he or she is associated with
an organized legal services or public defender program sponsored, approved or recognized by the
Board of Law Examiners. An attorney can only practice under this rule for 36 months. Id.; see
also W. VA. ADMISSION TO THE PRACTICE, Rule 9.0.
16
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enacting a rule allowing non-locally licensed in-house counsel from performing pro bono legal
work within its borders under certain circumstances.
Conclusion
There is undeniably an overwhelming need to provide pro bono legal services in this
country and statistics show that it is not being met. In-house attorneys have the desire, the skills
and the opportunities to provide pro bono legal assistance; they simply need the authorization to
do so. This Resolution provides at least a partial solution to addressing this unmet need by
encouraging uniformity among states in allowing non-locally-licensed in-house counsel
authorized to engage in the practice of law with their corporate employer to further engage in and
deliver pro bono legal services in their communities
Summary
This Resolution will enable the ABA to facilitate and urge the appropriate governing
bodies of American states and territories to enact rules permitting non-locally-licensed in-house
counsel already authorized to engage in the practice of law to engage in pro bono legal services
in their communities.17
Respectfully submitted,
Mario A. Sullivan, Chair, ABA Young Lawyers Division
and
Mary Ryan, Chair, ABA Standing Committee on Pro Bono and Public Service
August 2014
17
The intent of this Resolution is not to propose a specific Model Rule or a specific
approach to developing a Model Rule nor to repeal existing ABA policy. Rather, the intent is to
encourage jurisdictions to consider expanding pro bono legal services by further engaging in pro
bono through non-locally licensed in-house counsel who are permitted to provide legal work for
their corporation and by removing obstacles and barriers to their being able to participate in pro
bono within that jurisdiction. This intent is consistent with Resolution 11: In Support of Practice
Rules Enabling In-House Counsel to Provide Pro Bono Legal Services, adopted on July 25, 2012
by the Conference of Chief Justices and the Conference of State Court Administrators, which has
influenced rule changes to expand in-house pro bono participation in a number of jurisdictions,
including Illinois and New York. For related ABA policy, see the Model Rule for Registration
of In-House Counsel and the Model Court Rule on Provision of Legal Services Following
Determination of Major Disaster.
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GENERAL INFORMATION FORM
Submitting Entities: ABA Young Lawyers Division and
ABA Standing Committee on Pro Bono and Public Service
Submitted By:
Mario A. Sullivan, Chair, ABA Young Lawyers Division, and
Mary Ryan, Chair, ABA Standing Committee on Pro Bono and Public
Service
1.
Summary of Resolution: This Resolution will enable the ABA to facilitate and urge the
appropriate governing bodies of American states and territories to enact rules permitting
non-locally-licensed in-house counsel already authorized to engage in the practice of law
to engage in pro bono legal services in their communities.
2.
Approval by Submitting Entities: This Resolution was adopted by the ABA Standing
Committee on Pro Bono and Public Service at its February 2014 Meeting and by the
ABA Young Lawyers Division during the meeting of the YLD Assembly at the 2014
ABA Midyear Meeting.
3.
Has this or a similar resolution been submitted to the House or Board previously? No.
4.
What existing Association policies are relevant to this Resolution and how would they be
affected by its adoption? Resolution 121A – adopted at the 2006 Annual Meeting: Urges
solo and small firm attorneys, larger law firms, corporate law departments and
government and military law offices to encourage their lawyers, partners as well as
associates, to serve their communities through pro bono and public service activities
consistent with applicable rules of professional conduct and adopts Pro Bono Policies
and Procedures, dated August 2006, to provide their lawyers with opportunities to do pro
bono work and to adopt specific internal policies and procedures to support such work.
Resolution 102A – Adopted at the 2009 Annual Meeting: Urges corporate counsel
to work with the corporation and outside counsel to waive certain limited positional
conflicts in areas related to mortgage, bankruptcy and consumer finance in order to
reduce the number of pro bono matters declined by outside counsel due to conflicts, so
long as the waivers are not inconsistent with applicable rules of professional conduct.
Resolution 107B – Adopted at the 2013 Midyear Meeting amends the 2008 ABA
Model Rule for Registration of In-House Counsel. The Rule as originally adopted and as
amended provides in Section C for pro bono practice by in-house counsel.
Resolution 104 – Adopted at the 2007 Midyear Meeting. This rule allows out-ofstate lawyers to provide pro bono legal services in a jurisdiction affected by a disaster.
Lawyers in the affected jurisdiction whose legal practices had been disrupted by a major
disaster would also be allowed to practice law on a temporary basis in an unaffected
jurisdiction.
None of these policies would be affected by this Resolution’s adoption.
5.
If this is a late report, what urgency exists which requires action at this meeting of the
House? Not applicable.
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6.
Status of Legislation (if applicable): Not applicable.
7.
Brief explanation regarding plans for implementation of the policy, if adopted by the
House of Delegates: The Standing Committee on Pro Bono and Public Service will work
to implement the recommended policy in rule changes in each jurisdiction pursuant to the
proper channels. The Young Lawyers Division will implement educational programs at
its quarterly conferences to educate young lawyers as to this policy and its significant
impact on pro bono legal services across the country.
8.
Cost to the Association (Both direct and indirect costs): None.
9.
Disclosure of Interest:
No interests of the Standing Committee, its members, the Young Lawyers Division or its
members are implicated by this resolution.
10.
Referrals:
ABA Section on Litigation
National Conference of Bar Presidents
National Association of Bar Executives
ABA Center for Professional Responsibility
ABA Business Law Section
11.
Contact Name and Address Information. (Prior to the meeting. Please include name,
address, telephone number and e-mail address):
Dana M. Hrelic
ABA YLD Resolutions Team
90 Gillett Street
Hartford, CT 06105
860/522-8338
dhrelic@hortonshieldsknox.com
Michael G. Bergmann
ABA YLD House of Delegates Representative
321 North Clark Street, 28th Floor
Chicago, IL 60654
312/832-5129
mbergmann@pili.org
12.
Contact Name and Address Information. (Who will present the report to the House?
Please include name, address, telephone number, cell phone number and e-mail address.)
Michael G. Bergmann
(see above)
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EXECUTIVE SUMMARY
1.
Summary of the Resolution
This Resolution will enable the ABA to facilitate and urge the appropriate governing
bodies of American states and territories to enact rules permitting non-locally-licensed inhouse counsel already authorized to engage in the practice of law to engage in pro bono
legal services in their communities. It offers that such engagement in pro bono legal
services be under the supervision of others who are locally-licensed to foster teamwork
and to provide guidance and advice regarding local custom and law, although the intent
of this Resolution is not to propose a specific Model Rule or a specific approach to
developing a Model Rule. Rather, the intent is to encourage jurisdictions to consider
expanding pro bono legal services within their borders.
2.
Summary of the Issue that the Resolution Addresses
This Resolution attempts to address the tremendous need for pro bono legal services
across the country. Through the adoption of the ABA Model Rules of Professional
Conduct, nearly every state, the Virgin Islands, and the District of Columbia have
demonstrated an understanding of the importance of delivering pro bono legal services
and have accepted the responsibility of urging attorneys within their boundaries to deliver
these services. While commendable, however, studies show that this collective civil
legal aid effort is meeting only about 20% of the legal needs of low-income people.
Allowing multijurisdictional in-house counsel to serve these legal needs will help
improve the access to justice for those in low- and moderate-income households. This
Resolution ultimately serves as a critical step toward the ultimate goal of facilitating the
provision of pro bono legal services by all attorneys, regardless of the nature of one’s
practice.
3.
Please Explain How the Proposed Policy Position will address the issue
See Answer to Question 2.
4.
Summary of Minority Views
Concern has been expressed as to opening the practice of law in a jurisdiction to those
not-locally-licensed. The enclosed report addresses this concern.
8