Office of Legal Affairs External Opinions
Gary W. Dart, Esq.
Legal Services of Eastern Oklahoma
P.O. Box 8110
Tulsa, OK 74101-8110
Dear Mr. Dart:
I am writing in response to your January 13, 1999 e-mail inquiry regarding the ability of one of your full-time staff attorneys to work for an outside attorney in order to supplement her income. You stated that the proposed work would not involve client contact, and require only ten to fifteen hours of her own time per month. Her prospective outside work would apparently involve no court appearances nor would her name appear on any pleadings. You also stated that none of the resources of the Legal Services of Eastern Oklahoma would be used by her while working for the outside attorney. Unfortunately, at this time our regulations prohibit this arrangement. As you may know, attorneys employed by recipients are generally prohibited from engaging in the outside practice of law. 45 CFR §1604.2 defines the outside practice of law as:
[T]he provision of legal assistance to a client who is not entitled to receive legal assistance from the employer of the attorney rendering assistance but does not include, among other activities, teaching, consulting, or performing evaluation.
Part 1604 implements a strict underlying statutory provision, Section 1007(a) (4) of the LSC Act, which reads:
The Corporation shall . . . (4) insure that attorneys employed full time in legal assistance activities supported in major part by the Corporation refrain from (A) any compensated outside practice of law and (B) any uncompensated outside practice of law except as authorized in guidelines promulgated by the Corporation.
42 U.S.C. § 2996f (a) (4). "Within the context of such a strict statutory prohibition, the type of consulting that would not violate the strict Congressional intent would be quite limited. Otherwise, an attorney could avoid the restriction by providing representation in a case and simply labeling the work in the case as consulting." LSC OGC Op., July 29, 1997. Consulting has been interpreted by the Corporation as "providing advice or sharing . . . expertise in a particular area of law to other attorneys in a law school setting, as long as [the] activities are not within an attorney client relationship." LSC OGC Op., September 2, 1994. In order to qualify as a consultant, the prospective outside employer must seek the services of the attorney for her expertise and knowledge in one specific area and not hire the attorney to provide general litigation assistance. Further, our analysis of consulting turns on the extent the prospective work will invlove client representation. Although you state that the attorney's work will not involve "representation of the client vis a vis third parties," the ostensible goal of her research would be to assist in a client's case. Even though she would not be personally retained by a client, her efforts would serve to aid in that client's representation and therefore cannot be characterized as consulting. The limited scope of her outside work and the amount of time she would spend working for an outside employer are not factors which indicate that she would be serving as a consultant.
Despite her economic need, the work proposed cannot be characterized as consulting and, if undertaken, would violate the regulation's proscription on the outside practice of law.
I hope this adequately responds to your inquiry. Please let me know if you need additional assistance.
Very truly yours,
/s/ Lane H. Nemirow
Office of the General Counsel