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3 Geo. J. Legal Ethics 719 (1989-1990)
When Helping Others Is a Crime: Section 205's Restriction on Pro Bono Representation by Federal Attorneys

handle is hein.journals/geojlege3 and id is 729 raw text is: When Helping Others Is a Crime: Section 205's
Restriction on Pro Bono Representation
by Federal Attorneys
CAROLYN ELEFANT*
... IT]he basic responsibility for providing legal services for those unable
to pay ultimately rests upon the individual lawyer, and personal involve-
ment in the problems of the disadvantaged can be one of the most re-
warding experiences in the life of a lawyer. Every lawyer, regardless of
professional prominence or professional workload should find time to par-
ticipate in serving the disadvantaged. The rendition of free legal services to
those unable to pay reasonable fees continues to be an obligation of each
lawyer ... I
The Model Code of Professional Responsibility eloquently recognizes that
providing free legal services to those unable to afford them is an important
ethical obligation required of all lawyers. Yet federal attorneys who aspire to
fulfill this ethical obligation under the Model Code may find themselves sub-
ject to criminal sanctions under the Federal Conflict of Interests Statute.2
Section 205 of the Conflicts Statute3 prohibits federal attorneys, under
threat of fine or imprisonment4 from participating in actions in which the
United States or District of Columbia is either an opposing party, or has a
substantial interest in the matter, regardless of whether the attorney receives
monetary compensation for services, or whether an actual conflict of interest
exists.5 Section 205, which was added to the Conflicts Statutes in 1961, was
intended to prevent both actual and perceived misuse of sensitive inside in-
formation by federal employees in cases against the government for personal
and pecuniary gain. Yet at the same time, section 205 prohibits federal attor-
* J.D. 1988, Cornell Law School; Federal Energy Regulatory Commission, 1988 to present. Spe-
cial thanks to Mark A. Sindler for the insightful critique of the first draft. The views expressed in
this article are those solely of the author and are in no ways representative either directly or indi-
rectly of the Federal Energy Regulatory Commission.
1. MODEL CODE OF PROFESSIONAL RESPONSIBILITY EC 2-25 (1985) [hereinafter MODEL
CODE].
2. 18 U.S.C. § 201 et seq. (Supp. 1 1987) [hereinafter Conflicts Statute]. The Federal Conflict of
Interest Statute is an omnibus statute encompassing seven provisions relating to illegal payments,
restrictions on post-government employment, and congressional practice in Court of Claims.
3. 18 U.S.C. § 205 (1987).
4. Section 205 provides for criminal penalties of not more than $10,000 or imprisonment for not
more than two years or both for statutory violations. 18 U.S.C. § 205 (1988).
5. Section 203, a companion provision to section 205, prohibits federal employees from receiving
compensation for performance of outside activities involving governmental interests. 18 U.S.C.
§ 203 (Supp. 1 1987).

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