Notice Inviting Comment
Proposed Amendment to Rule 4:02 of the Rules of the Supreme Judicial Court
Notice As background, in 2008, Massachusetts adopted an "Authorized In-House Counsel" rule that permits in-house counsel, licensed to practice and in good standing in another jurisdiction, to practice in Massachusetts under certain restrictions. These in-house attorneys must "limit practice in Massachusetts to engaging in the practice of law as an in-house counsel" and must file an annual registration statement. S.J.C Rule 4:02(9). The existing rule does not authorize such attorneys to participate in work outside the scope of legal work on behalf of their companies, such as performing pro bono work.
The Supreme Judicial Court Standing Committee on Pro Bono Legal Services solicits comments on a proposed amendment to S.J.C. Rule 4:02
The proposed amendment would allow Massachusetts-based in-house counsel who are admitted to practice and in good standing in jurisdictions outside of the Commonwealth, to perform pro bono legal services in Massachusetts.
The proposed rule change would amend section 9(b) of S.J.C. Rule 4:02, to add the language noted in bold italics below:
As used in this section 9, "to engage in the practice of law as in-house counsel" means to provide on behalf of a single organization (including a governmental entity) or its organizational affiliates any legal services that constitute the practice of law. Notwithstanding this limitation, such in-house counsel may provide pro bono publico legal services without compensation or expectation of compensation as described in Rule 6.1 of the Massachusetts Rules of Professional Conduct (S.J.C. Rule 3:07) under the auspices of either (1) an approved legal services organization (as defined in paragraph (8)(c) above) or (2) a lawyer admitted to practice and in good standing in the Commonwealth of Massachusetts.
The first part of the proposed additional language of section 9(b) substantially tracks the language of section 8(a) (inactive Massachusetts attorneys) and (b) (retired Massachusetts attorneys) of the same rule, which allows inactive and retired attorneys to engage in pro bono representation as long as they perform such work "under the auspices of an approved legal services organization." "Approved legal services organizations" are defined in section 8(c).
The proposed amendment, however, adds an alternative means to performing pro bono work for in-house counsel. In addition to the possibility of engaging in pro bono representation "under the auspices of an approved legal services organization," these lawyers also may perform pro bono work "under the auspices of a lawyer admitted to practice and in good standing in the Commonwealth of Massachusetts." This proviso would provide more flexibility for in-house counsel to participate in pro bono work, based on feedback from other jurisdictions regarding the different types of pro bono work that in-house counsel likely may perform. For example, one could imagine a likely pro bono scenario in which in-house counsel, admitted to practice in another jurisdiction, wished to perform corporate work for a not for profit organization in Massachusetts. If the proposed rule only permitted in-house counsel to act under the auspices of "an approved legal services organization," such in-house counsel could only assist those nonprofits that been referred by a legal services organization. With the additional language, however, the opportunities for pro bono legal assistance expand, as in-house counsel would be permitted to work with a qualifying attorney, either from his or her legal department or an outside firm, to represent the nonprofit directly. Given that such direct nonprofit pro bono work would qualify under the Court's definition of pro bono legal services under Massachusetts Rule of Professional Conduct 6.1, the additional language would ensure that all Massachusetts in-house counsel would be able to undertake such representation.
Massachusetts-based in-house counsel who are admitted to practice elsewhere wishing to perform pro bono work in the Commonwealth would still have to comply with pro hac vice admission requirements. In addition, the proposed amendment to Rule 4:02(9) would not require the BBO to change its in-house counsel registration form, and thus imposes no additional administrative burden.
The Justices have approved the publication of proposed Rule 4:02(9) for comment, and welcome all comments pertaining to the amendment to the rule. Comments should be directed to The Standing Committee on Pro Bono Legal Services, c/o Carol Lev, Supreme Judicial Court, John Adams Courthouse, One Pemberton Square, Boston MA 02108 on or before Friday, November 9, 2012. Comments may also be sent to firstname.lastname@example.org.
Link to Redlined Version of Rule 4:02 with Proposed Amendment
 Section 8(c) defines an "approved legal services organization": "For purposes of this Rule, an approved legal services organization shall include a pro bono publico legal services program sponsored by a court annexed program, a bar association, a Massachusetts law school, or a not for profit organization that provides legal services to persons of limited means and that receives funding from the federal Legal Services Corporation, the Massachusetts Legal Assistance Corporation, the Massachusetts Bar Foundation, the Boston Bar Foundation, or the Women's Bar Foundation, and in addition, shall include any not for profit legal services organization designated as an approved legal services organization after petition to the Supreme Judicial Court."
 These attorneys likely would not need to pay the fee that generally accompanies pro hac vice admission because the amended version of S.J.C. Rule 3:15 provides an exception for an attorney who "is providing pro bono publico legal assistance to an indigent client." Effective September 4, 2012. See Massachusetts Trial Court Law Libraries.