Contributions to a Legal Expense Fund
Contributions to a Legal Expense Fund, and Pro Bono Legal Services
A Member, officer, or employee may accept “a contribution or other payment to a legal expense fund established for the benefit of [the official] that is otherwise lawfully made in accordance with the restrictions and disclosure requirements of the Committee on Standards of Official Conduct” (House Rule XXV, clause 5(a)(3)(E)). However, such a contribution or other payment may not be accepted from a registered lobbyist or an agent of a foreign principal (House Rule XXV, clause 5(e)(3)).50
The Committee issued Legal Expense Fund Regulations in an advisory memorandum dated June 10, 1996, which is reprinted in revised form in the appendix of the House Ethics Manual. Those regulations generally prohibit Members and staff from soliciting or receiving donations to pay legal expenses without the prior written permission of the Committee.51 It should be noted that this prohibition generally applies to in-kind donations – including pro bono legal services – as well as cash donations. However, as detailed below, Members and staff may accept pro bono legal assistance for certain purposes without Committee permission.
Under the Committee’s regulations, a fund may be established only when the legal expenses arise in connection with one of the following matters:
- The individual’s candidacy for or election to federal office;
- The individual’s official duties or position in Congress (including a matter before the Standards Committee);
- A criminal prosecution; or
- A civil matter bearing on the individual’s reputation or fitness for office.
The Committee will not grant permission to establish a fund when legal expenses arise in connection with a matter that is primarily personal in nature, such as a matrimonial action.
The rules governing the operation of a Legal Expense Fund include the following. A fund must be established as a trust, administered by a trustee who is entirely independent of the Member or staff person who is the trust’s beneficiary. No contribution may be solicited for or accepted by a fund prior to the Committee’s written approval of the completed trust document and the trustee. Trust funds can be used only to pay legal expenses, or the expenses incurred in soliciting for or administering the trust. Excess funds must be returned to the contributors. A fund may not accept more than $5,000 in a calendar year from any individual or organization, but in accordance with the gift rule, no contribution may be accepted from a registered lobbyist or foreign agent. A fund may not pay for legal services for anyone other than the named beneficiary except with the Committee’s written permission. Written Committee permission is also required for any amendment of the trust document and any change in the trustee.
The regulations also require extensive public disclosure regarding each Legal Expense Fund. After the Committee has approved a trust document, the beneficiary must file a copy of it with the Legislative Resource Center (Room 135, Cannon House Office Building) for public disclosure. In addition, reports on contributions to and expenditures from a fund must be filed with both the Committee and with the Legislative Resource Center on a quarterly basis. Contributions exceeding $335 in a calendar year from any source (other than a relative of the beneficiary) must also be reported on Schedule VI of the beneficiary’s annual Financial Disclosure Statement.
As to pro bono legal assistance, a Member, officer, or employee may accept such assistance without limit for the following purposes:
- To file an amicus brief in his or her capacity as a Member of Congress;
- To participate in a civil action challenging the validity of any federal law or regulation; or
- To participate in a civil action challenging the lawfulness of an action of a federal agency, or an action of a federal official taken in an official capacity, provided that the action concerns a matter of public interest, rather than a matter that is personal in nature.
Acceptance of pro bono legal assistance for any other purpose is permissible only with Committee authorization pursuant to an advisory opinion, or as a contribution to a Committee-approved legal expense fund.
In certain circumstances, campaign funds may also be used to pay legal expenses. The Federal Election Commission has issued a number of advisory opinions on this matter pursuant to its rules barring personal use of campaign funds (11 C.F.R. Part 113). Both the Ethics Committee and the FEC should be consulted before campaign funds are used to pay any legal expenses.