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Letter Regarding Proposed Revisions to D.C. App. R. 49

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May 20, 2014

Clerk, D.C. Court of Appeals
430 E Street, N.W.
Suite 209
Washington, DC 20001

Re: Proposed Revisions to D.C. App. R. 49, Legal Assistance by Internal Counsel

Dear Chief Judge Washington:

Washington Council of Lawyers writes in response to the D.C. Court of Appeals’ request for comments regarding the proposed revisions to D.C. Court of Appeals Rule 49. Although we strongly support the goal of increasing access to justice by allowing internal counsel who are not admitted to the D.C. Bar to perform pro bono work, we are concerned that the supervisory language of the proposed revisions imposes greater burdens on attorneys who supervise pro bono work performed by internal counsel than are required when supervising similarly-situated government lawyers. To avoid this anomaly, and to ensure that internal counsel do not face unduly restrictive requirements for performing pro bono service, we urge the Court to revise the proposed rule to make it consistent with the rules governing pro bono service by government lawyers.

Since our founding as a voluntary bar association in 1971, Washington Council of Lawyers has promoted pro bono service and the public interest practice of law. Today, we continue to seek and recommend strategies for all lawyers to engage in meaningful ways to provide legal services to low-income people in our community. We encourage attorneys in all practices to make pro bono service a regular part of their careers, and we promote solutions that increase the availability of high-quality legal representation for persons in need in the District of Columbia.

The proposed amendment to Rule 49 permits internal counsel, who are not admitted in D.C., to perform pro bono work in the District, if in good standing of the highest court of a state or territory and supervised by a D.C. Bar member. In addition, the proposed rule change would require that the work the counsel is doing be assigned or referred by an organization that provides pro bono legal services to the public without fee.

We support allowing internal counsel to perform pro bono work, even if they are not admitted in the District of Columbia. First, we recognize the need for more pro bono counsel in the District to promote the access to justice for the significant population of economically disadvantaged and vulnerable persons in need of legal help. Second, it has been our experience that a similar provision applicable to government attorneys Rule 49(c)(9)(C) has been very effective in making available additional quality legal representation to persons who otherwise could not afford an attorney. Finally, it is our understanding that the legal services community is willing and able to make the additional referrals of cases upon which the success of this amendment depends.

We have significant concerns, however, regarding the amendment’s language addressing supervision by a D.C. Bar member. We recommend that this language be modified to track the parallel provision governing pro bono service by govermnent attorneys. The proposed language in Rule 49 for internal counsel not admitted in D.C. providing pro bono services differs from the parallel language governing government lawyers who are not admitted in D.C., but provide pro bono legal services pursuant to Rule 49. The proposed amendment provides that internal counsel may provide pro bono services when, among other conditions, the “individual is supervised by an active member of the District of Columbia Bar who takes responsibility for the quality of the work and complaints concerning the services, and that the practitioner or the District of Columbia Bar member gives notice to the public of the member’s supervision and the practitioner’s bar status.” In contrast, the supervisory language in the current Rule 49(c)(9)(C), covering government attorneys, requires that, among other things, the attorney “is supervised by an enrolled, active member of the District of Columbia Bar.”

We are especially concerned that the differing language might be interpreted to suggest that distinct standards apply to the two categories of similarly-situated lawyers, and that the perception of a higher standard of supervision required for internal counsel could have a chilling effect on the willingness of some D.C. Bar members to supervise pro bono cases. To avoid unduly deterring lawyers from supervising pro bono work by internal counsel, the Court should apply the existing language of Rule 49(c)(9)(C) to internal counsel, so that the provisions will be uniform. See also Opinion 12–2 of the District of Columbia Court of Appeals Committee on Unauthorized Practice of Law (September 16, 2002) (“The same standard governs the supervision requirement in Rule 49 as in the District of Columbia Rules of Professional Conduct … to make reasonable efforts to ensure conformity with, among other Rules, Rule 1.1 requiring competent representation and Rule 1.3 requiring zealous and diligent representation within the bounds of the law.”).

We commend everyone involved in the process of drafting the proposed changes to Rule 49, and we appreciate the opportunity to submit comments on this important issue.

Respectfully submitted,

Elizabeth L. Howe
President
Washington Council of Lawyers