This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

23769 

Vol. 87, No. 77 

Thursday, April 21, 2022 

OFFICE OF GOVERNMENT ETHICS 

5 CFR Parts 2634 and 2635 

RIN 3209–AA50 

Legal Expense Fund Regulation 

AGENCY: Office of Government Ethics. 

ACTION: Proposed rule. 

SUMMARY: The U.S. Office of 

Government Ethics (OGE) is proposing 

to add a new subpart to the Standards 

of Ethical Conduct for Employees of the 

Executive Branch (Standards). The new 

subpart contains the standards for an 

employee’s acceptance of payments for 

legal expenses through a legal expense 

fund and an employee’s acceptance of 

pro bono legal services for a matter 

arising in connection with the 

employee’s official position, the 

employee’s prior position on a 

campaign of a candidate for President or 

Vice President, or the employee’s prior 

position on a Presidential Transition 

Team. OGE is also proposing to make 

related amendments to the portions of 

the Standards that govern the 

solicitation and acceptance of gifts from 

outside sources and the portions of the 

Executive Branch Financial Disclosure 

regulation that govern confidential 

financial disclosure reports. 

DATES: Written comments are invited 

and must be received on or before June 

21, 2022. 

ADDRESSES: You may submit comments, 

in writing, to OGE on this proposed 

rule, identified by RIN 3209–AA50, by 

any of the following methods: 

Email: usoge@oge.gov. Include the 

reference ‘‘Proposed Rule: Legal 

Expense Fund Regulation’’ in the 

subject line of the message. 

Fax: (202) 482–9237. 

Mail: Office of Government Ethics, 

Suite 500, 1201 New York Avenue NW, 

Washington, DC 20005–3917, Attention: 

‘‘Proposed Rule: Legal Expense Fund 

Regulation.’’ 

Instructions: All submissions must 

include OGE’s agency name and the 

Regulation Identifier Number (RIN), 

3209–AA50, for this proposed 

rulemaking. All comments, including 

attachments and other supporting 

materials, will become part of the public 

record and subject to public disclosure. 

Comments may be posted on OGE’s 

website, www.oge.gov. Sensitive 

personal information, such as account 

numbers or Social Security numbers, 

should not be included. Comments 

generally will not be edited to remove 

any identifying or contact information. 

FOR FURTHER INFORMATION CONTACT: 

Maura Leary, Assistant Counsel, or 

Heather Jones, Senior Counsel for 

Financial Disclosure, General Counsel 

and Legal Policy Division, Office of 

Government Ethics, Suite 500, 1201 

New York Avenue NW, Washington, DC 

20005–3917; Telephone: (202) 482– 

9300; TTY: (800) 877–8339; FAX: (202) 

482–9237. 

SUPPLEMENTARY INFORMATION: 

I. Background 

There is currently no statutory or 

regulatory framework in the executive 

branch for establishing a legal expense 

fund (LEF), and the U.S. Office of 

Government Ethics (OGE) has not 

approved or disapproved any specific 

LEFs. In the legislative branch, LEFs are 

governed by House and Senate LEF 

regulations. See House Committee on 

Ethics, ‘‘Contributions to a Legal 

Expense Fund,’’ U.S. House of 

Representatives, https://

ethics.house.gov/sites/ethics.house.gov/

files/Pink%20Sheet%20With

%20Regs.pdf; Senate Select Committee 

on Ethics, Senate Ethics Manual, 

Government Printing Office, 2003, 

https://www.ethics.senate.gov/ 

downloads/pdffiles/manual.pdf, pages 

30–31. OGE’s role has been limited to 

providing guidance to help ensure that 

executive branch employees who may 

receive distributions from an LEF will 

be in compliance with existing ethics 

laws and rules, such as the gift rules, if 

they accept such a distribution. See 

OGE Legal Advisory LA–17–10 (Sept. 

28, 2017). However, this limited 

approach to LEFs lacked transparency 

and created concerns regarding the 

appearance of corruption in the creation 

and operation of LEFs for the benefit of 

executive branch employees. See Letter 

from Emory Rounds, Director, Office of 

Gov’t Ethics, to Sen. Margaret Wood 

Hassan, et al., Sept. 11, 2018, https://

www.oge.gov/Web/OGE.nsf/

Congressional%20Correspondence/

495516AF975202

A7852585B6005A1FE4/$FILE/Letter

%20to%20Senators%20Hassan,

%20Carper,%20Peters,%20Jones,

%20and%20Harris.pdf?open. As a 

result, OGE began the process of 

drafting an LEF regulation with a series 

of public input opportunities to ‘‘allow 

the creation of a regulation that will 

ensure that [LEFs] with executive 

branch employee recipients will be 

transparent, open, and accessible to the 

public.’’ Id. 

On April 15, 2019, OGE sought 

stakeholder input on issues specifically 

related to LEFs through an advance 

notice of proposed rulemaking 

(ANPRM). See Notice and Request for 

Comments: Legal Expense Fund 

Regulation, 84 FR 15146 (Apr. 15, 2019). 

In response to this ANPRM, OGE 

received written comments and heard 

testimony at a virtual public hearing on 

May 22, 2019. See https://www.oge.gov/ 

Web/oge.nsf/Resources/Rulemaking 

(providing written comments and 

hearing transcript). OGE also solicited 

and considered the views of executive 

branch agency ethics officials. On 

September 26, 2019, OGE invited all 

interested members of the public and 

agency ethics officials to share ideas, 

provide information, and express 

concerns at two public meetings about 

specific topics related to LEFs. See 

Announcement of Public Meeting: Legal 

Expense Fund Regulation, 84 FR 50791 

(Sept. 26, 2019). These meetings 

allowed interested groups to hear and 

respond to the concerns of other 

affected persons and helped OGE to 

further understand the views of various 

constituencies. See https://

www.oge.gov/Web/oge.nsf/Resources/

Rulemaking (providing meeting 

agendas, lists of attendees, and lists of 

topics discussed). OGE also provided for 

an additional comment period. See id. 

After considering this public input, 

OGE is proposing an LEF regulation that 

creates the framework to govern an 

employee’s acceptance of both 

payments for legal expenses through an 

LEF and pro bono legal services for 

matters arising in connection with the 

employee’s official position, the 

employee’s prior position on a 

campaign of a candidate for President or 

Vice President, or the employee’s prior 

position on a Presidential Transition 

Team. The proposed regulation will 


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more clearly spell out who is a 

prohibited donor, establish donation 

caps, and require transparency in the 

form of quarterly, publicly available 

reports. 

OGE has consulted with the 

Department of Justice and the Office of 

Personnel Management pursuant to 

section 201(a) of Executive Order 12674, 

as modified by Executive Order 12731, 

and the authorities contained in titles I 

and IV of the Ethics in Government Act 

of 1978. 

II. Analysis of Proposed Rule 

Amendments 

OGE is proposing to add a new 

subpart J to the Standards of Ethical 

Conduct for Employees of the Executive 

Branch (Standards). The new subpart 

contains the standards for an 

employee’s acceptance of payments for 

legal expenses through an LEF and an 

employee’s acceptance of pro bono legal 

services for matters arising in 

connection with the employee’s past or 

current official position, the employee’s 

prior position on a campaign of a 

candidate for President or Vice 

President, or the employee’s prior 

position on a Presidential Transition 

Team (hereafter referred to as ‘‘covered 

legal matters’’). OGE has authority to 

issue a legal expense fund regulation 

pursuant to title IV of the Ethics in 

Government Act of 1978; sections 201(a) 

and 403 of Executive Order 12674 (as 

modified by E.O. 12731), and 5 U.S.C. 

7301, 7351(c), and 7353(b)(1). OGE is 

also proposing to make related 

amendments to the portions of the 

Standards that govern the solicitation 

and acceptance of gifts from outside 

sources in subpart B (‘‘gift rules’’). 

Chiefly, OGE is proposing a new 

exception to the gift rules for legal 

expense payments or services for 

covered legal matters, so long as the 

payments or services are provided in 

accordance with proposed subpart J. 

Finally, OGE is proposing to make 

related amendments to the portions of 

the Executive Branch Financial 

Disclosure regulation that govern 

confidential financial disclosure reports. 

Under the proposed amendments, 

employees must comply with proposed 

subpart J to accept legal expense 

payments from LEFs or pro bono legal 

services for any covered legal matters. 

However, proposed subpart J 

contemplates that, to the extent a gift 

exclusion or exception in subpart B 

(e.g., gifts based on a personal 

relationship; gifts of discounts and 

similar benefits; employee benefits 

plans maintained by current or former 

employers) applies, an employee may 

continue to use those means to accept 

legal expense payments or services for 

covered legal matters instead of 

establishing an LEF under subpart J. The 

employee is required to comply with 

proposed subpart J or use a gift 

exclusion or exception in subpart B 

regardless of whether payments are 

given from a prohibited source or given 

because of the employee’s official 

position. 

A. Subpart J of the Standards 

Proposed subpart J contains the 

standards for the creation, 

administration, and termination of an 

LEF that is established to receive 

contributions and to make distributions 

of legal expense payments for covered 

legal matters. Proposed subpart J also 

contains the standards for an 

employee’s acceptance of pro bono legal 

services for covered legal matters. 

Proposed § 2635.1002: Applicability and 

Related Considerations 

Proposed § 2635.1002 describes the 

covered legal matters for which an 

employee must comply with proposed 

subpart J to accept legal expense 

payments or pro bono legal services. 

Given the nature of the covered legal 

matters and their connection to the 

employee’s government position, OGE 

believes it is necessary to regulate legal 

expense payments for covered legal 

matters through proposed subpart J to 

help ensure that employees avoid any 

action that might result in or create the 

appearance of using public office for 

private gain. In contrast, OGE believes 

that the gift rules in subpart B of the 

Standards are appropriate to govern gifts 

of legal expense payments for personal 

matters. Such gifts, which are not 

distinguishable from other personal 

gifts, may be accepted, for example, 

under the personal relationship 

exception or as a discount or similar 

benefit. These gifts do not trigger the 

heightened concern of payments for 

legal expenses arising from an 

employee’s official position. Therefore, 

proposed section 1002 excludes 

payments for legal expenses arising 

from personal matters from coverage by 

this subpart. This treatment is largely 

consistent with House and Senate LEF 

regulations. 

Proposed § 2635.1002 also makes 

clear that employees may accept a 

payment for legal expenses without 

having to establish and administer an 

LEF if that payment is otherwise 

permissible under a gift exclusion or 

exception in subpart B. When soliciting 

public input, OGE received a number of 

comments expressing concern that a 

legal expense fund regulation would 

restrict employees from accessing legal 

services through other allowable means. 

To the extent that these other means are 

permissible under a gift exclusion or 

exception in subpart B (e.g., gifts based 

on a personal relationship; gifts of 

discounts and similar benefits; 

employee benefits plans maintained by 

current or former employers), an 

employee may continue to use those 

means to accept legal expense payments 

or services for covered legal matters 

instead of establishing an LEF under 

subpart J. OGE welcomes comment on 

the continued use of these exceptions 

for legal expense payments. 

Finally, proposed § 2635.1002 

reminds employees that, in addition to 

the rules set out in subpart J, other 

provisions in the Standards continue to 

apply to employees. Subpart J does not 

override these rules, and employees 

must ensure that they continue to abide 

by them. The proposed section sets out 

relevant related considerations for 

employees (e.g., gifts between 

employees, impartiality concerns) when 

accepting payments for legal expenses 

through an LEF or accepting pro bono 

legal services. For example, the creation 

and administration of an LEF may only 

be done in the employee’s personal 

capacity. As a result, the payments must 

be solicited and accepted consistent 

with the provisions in subpart G of the 

Standards relating to the use of public 

office for private gain, use of nonpublic 

information, use of government 

property, and use of government time. 

However, this section is not allinclusive, and employees are strongly 

encouraged to consult with their agency 

ethics officials on the application of 

these rules to their proposed activities. 

Proposed § 2635.1003: Definitions 

Proposed § 2635.1003 sets out the 

applicable definitions for subpart J. 

Although the definitions set forth in this 

section are largely self-explanatory, the 

importance of these terms in 

determining the coverage of this 

regulation warrants additional 

emphasis. This section defines the term 

‘‘legal expense payment,’’ which is the 

type of payment covered by this 

regulation. This section also defines 

‘‘legal expense fund,’’ a fund 

established, in accordance with subpart 

J, to receive contributions and to make 

distributions of the legal expense 

payments. The definitions of ‘‘arising in 

connection with the employee’s past or 

current official position,’’ ‘‘arising in 

connection with the employee’s prior 

position on a Presidential Transition 

Team,’’ and ‘‘arising in connection with 

the employee’s prior position on a 

campaign’’ are also threshold concepts 

in determining whether the legal matter 


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for which an employee beneficiary seeks 

to accept legal expense payments is 

covered by this subpart. Covered legal 

matters can include bringing a legal 

claim or being subject to a claim. If the 

employee’s legal matter does not fall 

within one of these three definitions, it 

will be considered to be personal and 

will not be covered by this subpart. 

Proposed § 2635.1004: Establishment 

Proposed § 2635.1004 sets out the 

standards for establishing an LEF. OGE 

is proposing to require that all LEFs be 

structured as trusts with a single 

beneficiary. OGE received many 

comments expressing a strong 

preference for LEFs to be structured 

exclusively as trusts. The commenters 

emphasized that the trust structure 

creates a fiduciary duty between the 

trustee and beneficiary that, in the 

words of one public interest 

organization, ‘‘provide[s] the best 

protection for public servants, who 

could be certain that the distributions 

will not be withheld or disbursed 

according to political pressures.’’ 

Although other structures, such as LLCs, 

partnerships, and 527 organizations, 

were considered, such entities would 

not provide similar protections. 

Additionally, most commenters strongly 

supported allowing only a single, 

named beneficiary of an LEF trust. In 

written comments and statements 

during the public meetings, commenters 

repeatedly objected to permitting group 

LEFs. Several commenters voiced an 

overriding concern about the 

appearance of corruption resulting from 

discretionary distributions from a group 

LEF to employees, as well as the 

difficulty of properly and meaningfully 

screening for prohibited donors. 

OGE shares these appearance 

concerns. Accordingly, the proposed 

regulation requires that employees who 

wish to establish a legal expense fund 

do so through a trust with a single, 

named beneficiary. OGE recognizes, 

however, that the financial costs and 

personal burdens associated with 

establishing a trust can create significant 

barriers to entry for many employees 

who are not wealthy, well-connected, or 

well-known. OGE’s proposed alternative 

mechanisms to receive or pay for legal 

services—such as pro bono legal 

services, assistance from employee 

welfare organizations, and existing gift 

rule exceptions—address some of the 

access concerns for employees who do 

not have the financial or other means to 

establish or effectively raise money 

through an LEF. However, given the 

concern that the single-beneficiary trust 

structure may prevent some executive 

branch employees from receiving 

financial assistance, OGE is soliciting 

additional comment on singlebeneficiary versus multiple-beneficiary 

trusts. 

Proposed § 2635.1004 sets out 

limitations on who may serve as an LEF 

trustee. The section requires legal 

expense funds to be administered by a 

trustee who is not: (1) The employee 

beneficiary, (2) their spouse, parent, or 

child, (3) another federal employee, (4) 

an agent of a foreign government, (5) a 

lobbyist, or (6) a person who has 

interests substantially affected by the 

performance or nonperformance of the 

employee beneficiary’s official duties. 

These limitations are proposed to 

ensure that the trustee is independent 

from the employee beneficiary and can 

perform the trustee’s fiduciary duties 

without interference. Several 

commenters emphasized the importance 

of such limitations on who may serve as 

trustee. 

Proposed § 2635.1004 further requires 

employees seeking to establish an LEF 

to submit an LEF trust document to the 

employee’s Designated Agency Ethics 

Official (DAEO) for approval, unless the 

employee is an anonymous 

whistleblower who chooses to submit 

the document to OGE for review and 

approval. The DAEO must then review 

the LEF trust document for compliance 

with the regulation. If the LEF trust 

document is compliant, the DAEO must 

approve the document. Once the DAEO 

approves the LEF trust document, the 

signed document must be forwarded to 

OGE within seven calendar days. At that 

point, the employee beneficiary may 

begin to accept contributions and 

distributions through the LEF. OGE 

believes agency ethics officials should 

initially review and approve LEF trust 

documents, as the executive branch 

ethics program has a decentralized 

structure in which agency ethics 

officials have primary responsibility for 

their agency’s ethics program. These 

ethics officials understand the work of 

the agency and are best suited to be able 

to identify potential conflicts of interest. 

However, OGE recognizes the need for 

heightened scrutiny and consistency 

across the executive branch with regard 

to the most senior executive branch 

employees. Accordingly, OGE will 

conduct a secondary review of the LEF 

trust documents of the employees 

whose financial disclosure reports are 

reviewed by OGE pursuant to the Ethics 

in Government Act, 5 U.S.C. app. 103, 

as well as the documents of all White 

House Office and Office of the Vice 

President employees. OGE will review 

the LEF trust document to determine 

whether it conforms with the 

requirements established by this 

subpart. During this review period, an 

employee beneficiary may continue to 

accept contributions and distributions 

through the DAEO-approved LEF trust. 

However, if the LEF trust document is 

defective or non-compliant, OGE will 

notify the approving agency and the 

employee beneficiary or the employee 

beneficiary’s trustee or representative, 

who will have 30 calendar days to take 

necessary corrective action. 

Additionally, OGE will review and 

approve LEF trust documents for 

anonymous whistleblowers who elect 

not to file with their agency. In that 

unusual circumstance, the agency 

DAEO will not be made aware of an 

anonymous whistleblower’s trust 

documents in order to screen for 

potential conflicts requiring recusal. 

OGE believes the importance of 

anonymity for whistleblowers 

outweighs the benefit gained by agency 

ethics officials being able to screen for 

potential conflicts, because the potential 

donors most likely to present significant 

conflicts issues are prohibited from 

donating to LEFs. In addition, OGE will 

review the trust documents of 

anonymous whistleblowers for conflicts 

of interest, which could lead to the 

employee returning donations or 

recusing from conflicts, as needed. 

Under proposed section 2635.1004, 

employee beneficiaries are required to 

have the trust document approved by 

the DAEO before being able to accept 

contributions. This step mirrors the 

procedures used by the legislative 

branch and ensures that the LEF will be 

in compliance with the proposed rule. 

All approved, signed LEF trust 

documents, except for those of 

anonymous whistleblowers, will be 

made publicly available on OGE’s 

website. Although employees may only 

establish or maintain one LEF trust at a 

time, if multiple legal matters arise at 

the same time, the scope of an existing 

trust may be amended. If a second legal 

issue arises, that employee may 

establish a second fund for that separate 

legal matter after that employee has 

terminated the first LEF. 

Proposed § 2635.1005: Administration 

Proposed § 2635.1005, in conjunction 

with proposed § 2635.1006, sets out the 

standards for the administration of an 

LEF. In response to various comments 

on the importance of having an 

independent trustee with a fiduciary 

duty to the employee beneficiary, 

proposed § 2635.1005 specifies the 

duties and powers of the trustee as the 

fiduciary for the employee beneficiary. 

This section also makes clear that an 

employee beneficiary may not exercise 

control over the LEF property, which 


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further ensures the trustee’s 

independence. 

Proposed § 2635.1006: Contributions 

and Use of Funds 

Proposed § 2635.1006 provides that 

an LEF may only accept contributions of 

payments for legal expenses from 

permissible donors, and lists the types 

of donors who are prohibited. OGE 

modeled this section after the House 

and Senate LEF rules, which list the 

types of donors who are (and are not) 

permitted to donate. OGE believes that 

providing a list of prohibited donors 

will assist the trustee in complying with 

this section, and will result in increased 

transparency for the public about who is 

a prohibited donor. Inherent in this 

process is the expectation that the 

trustee will need to consult with the 

DAEO as needed. 

Many commenters shared similar 

views on the types of donors most likely 

to raise potential appearance of 

corruption concerns. Several 

commenters also sought a prohibition 

on donations from organizations 

because the source of an organization’s 

funding may be unknown to an 

employee beneficiary and the agency 

ethics official. Although the House and 

Senate LEF rules do not prohibit most 

donations from organizations, OGE 

nonetheless believes that limiting the 

donors to individuals will provide 

additional safeguards against corruption 

and the appearance of corruption, as 

well as provide for easier screening by 

the trustee. Currently, OGE has 

proposed only a narrow exception 

permitting donations from a national 

committee of a political party or 

donations from campaigns, in the case 

of former members of a campaign of a 

candidate for President or Vice 

President. This narrow exception only 

applies if the donation is not otherwise 

prohibited by law and the entity is not 

substantially affected by the 

performance or nonperformance of an 

employee beneficiary’s official duties. 

OGE believes that existing campaign 

finance rules provide sufficient 

transparency. However, OGE is 

soliciting additional comment on 

expanding the exception to allow 

certain nonprofit organizations, such as 

501(c)(3) and 501(c)(4) organizations, to 

donate to an employee’s LEF. 

With regard to individual 

contribution limits, commenters 

proposed amounts ranging from $5,000 

to $250,000. House LEF rules limit 

contributions to $5,000 per year, while 

Senate LEF rules limit contributions to 

$10,000 per year. OGE is proposing a 

contribution limit of $10,000 per year 

from any single permissible donor. 

OGE’s proposed annual limit is 

consistent with the annual limit 

imposed by the Senate. OGE believes 

that this limit, combined with the 

proposed requirement that contributions 

generally must come from individuals, 

adequately balances an employee 

beneficiary’s need for legal expense 

payments with potential appearance of 

corruption concerns. The proposed 

approach, which places no limit on the 

number of donors, prevents employees 

from relying on any single source for 

donations. OGE welcomes comment on 

this proposed approach. 

Proposed § 2635.1006 also sets out the 

permissible uses of funds. Several 

commenters emphasized the importance 

of limiting the use of LEF payments to 

those uses related to defraying the 

employee’s legal costs, and not allowing 

use for other reasons, such as partisan 

political purposes. OGE agrees, and 

included this requirement in the 

regulation in order to clarify the 

fiduciary responsibilities of the trustee 

and to reassure the public and donors 

that the donations are being used for 

legal expenses as defined in this 

subpart. 

Proposed § 2635.1007: Reporting 

Requirements 

Proposed § 2635.1007 sets out the 

quarterly and employment termination 

reporting requirements. OGE received 

many comments stating that 

contributions and distributions through 

LEFs should be made publicly available 

on a regular basis. Most of the 

comments OGE received suggested that 

OGE make quarterly reports available to 

the public, which mirrors the LEF 

reporting requirements of the legislative 

branch. OGE has incorporated this 

requirement into the proposed 

regulation, and set the proposed 

reporting threshold at $250, which is 

the threshold set in the House LEF rules 

and higher than the $25 threshold set in 

the Senate LEF rules. 

The proposed regulation requires 

agency ethics officials to review the 

quarterly reports of most employees for 

compliance with the regulation. The 

proposed regulation also requires OGE 

to conduct a secondary review of the 

quarterly reports of the most senior 

employees, as well as anonymous 

whistleblowers who elect not to file 

with their agency. As with the initial 

certification, trustees filing quarterly 

reports should consult with agency 

ethics officials when necessary. When 

approving a report filed under this 

section, agency ethics officials will 

make determinations to the best of their 

ability based on the information they 

have been provided. If an improper 

donation is discovered in the course of 

the review or by the public at a later 

time, the beneficiary, with the 

assistance of the trustee, must return the 

donation. 

Under the proposed rule, all quarterly 

reports, except for those of anonymous 

whistleblowers, will be made publicly 

available on OGE’s website. The 

primary goal of the public posting 

requirement is transparency. In 2004, 

OGE issued a letter stating that the 

public reporting provisions of the Ethics 

in Government Act (EIGA) constitute 

the exclusive authority under OGE’s 

jurisdiction to require public financial 

disclosure. OGE Inf. Adv. Op. 04x3 

(Apr. 19, 2004). This statement stems 

from the following language in EIGA: 

‘‘[T]he provisions of this title [title I] 

requiring the reporting of information 

shall supersede any general requirement 

under any other provision of law or 

regulation with respect to the reporting 

of information required for purposes of 

preventing conflicts of interest or 

apparent conflicts of interest.’’ 5 U.S.C. 

app. 107(b) (emphasis added). OGE does 

not consider the proposed LEF reporting 

requirement to be a ‘‘general’’ public 

financial disclosure reporting 

requirement that would be superseded 

by EIGA. The reporting provision is not 

‘‘applicable to the occupants of 

positions . . . that are categorized by 

the provision in general terms.’’ See 4B 

Op. O.L.C. 566 (Apr. 11, 1980) 

(discussing the prerequisites for the 

supersession by EIGA of a statutory or 

regulatory reporting requirement). 

Rather, the requirement to report only 

applies to employees who choose to 

establish an LEF pursuant to these 

regulations. 

In proposed § 2635.1007, OGE also 

recognizes the need for penalties for 

noncompliance with the standards set 

forth in the proposed regulation. If an 

LEF receives an impermissible 

contribution, that contribution must be 

returned to the donor as soon as 

practicable but no later than the next 

reporting due date. If a report is filed 

after a due date, the employee may not 

accept contributions or distributions 

until the report is filed. Additionally, 

OGE will retain the authority to 

indefinitely prohibit employees from 

accepting contributions or distributions 

from an LEF if there is continuing or 

significant noncompliance. 

Proposed § 2635.1008: Termination of a 

Legal Expense Fund 

Proposed § 2635.1008 sets out the 

reasons an employee beneficiary may 

terminate an LEF and provides 

requirements for distributing excess 

funds. OGE received comments 


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suggesting that unused funds should be 

returned to the donors on a pro rata 

basis or donated to a 501(c)(3) 

organization upon termination of an 

LEF, consistent with the House and 

Senate rules. Because of the difficulties 

inherent in returning funds to donors 

(i.e., locating donors and ensuring 

timely return of funds), proposed 

§ 2635.1008 requires a trustee to 

distribute excess funds to a 501(c)(3) 

organization within 90 days of 

termination. The organization must not 

be one that is established by the 

employee beneficiary, nor an 

organization with which the employee 

has a covered relationship within the 

meaning of § 2635.502(b)(1), nor can the 

beneficiary or the beneficiary’s spouse 

or child be an officer, director, or 

employee of the organization. 

Additionally, the proposed regulation 

requires a trust termination report that 

serves as a final quarterly report and 

indicates the organization to which the 

excess funds were donated. OGE 

requests comment on whether the 

501(c)(3) should or should not be named 

at the formation of the trust, or whether 

the selection of the 501(c)(3) should be 

left to the discretion of the trustee. 

Proposed § 2635.1009: Pro Bono Legal 

Services 

Proposed § 2635.1009 addresses 

employees’ acceptance of pro bono legal 

services. Most commenters were in 

favor of permitting acceptance of 

appropriate pro bono legal services by 

employees, with sufficient limitations. 

Moreover, several commenters 

identified problems inherent in overly 

restricting acceptance of pro bono 

services, including potential 

interference in attorney/client 

relationships and curtailing access to 

needed legal assistance for government 

employees. Accordingly, OGE has 

proposed rules specifically governing 

the acceptance of pro bono legal 

services, including pro bono services 

from public interest organizations. 

Proposed § 2635.1009 would prohibit 

employees from accepting pro bono 

services from lobbyists, foreign 

governments or agents, or persons 

substantially affected by the 

performance or nonperformance of the 

employees’ duties. The proposed rule 

otherwise permits employees to accept 

pro bono services in connection with 

covered legal matters. Additionally, 

OGE’s rule as drafted allows employees 

to accept pro bono services directly 

from entities providing the legal 

services (such as law firms or 

nonprofits). However, OGE is soliciting 

comments on whether employees may 

accept legal services at a reduced cost or 

free of charge when the legal services 

are paid for by a nonprofit organization, 

such as a 501(c)(3) or 501(c)(4), but the 

services are provided by attorneys 

outside of that organization. 

B. Regulatory Amendments to Subpart B 

of the Standards 

OGE is proposing to make related 

amendments to the portions of the 

Standards that govern the solicitation 

and acceptance of gifts from outside 

sources, subpart B. Specifically, OGE is 

proposing a new exception for certain 

legal expense payments and pro bono 

legal services provided in accordance 

with proposed subpart J. OGE is also 

proposing to revise § 2635.204(c) of the 

gift rules to clarify that an established 

employee organization may provide 

legal services pursuant to this section. 

Proposed § 2635.204(n): Exception for 

Legal Expense Funds and Pro Bono 

Legal Services 

OGE is proposing a new exception to 

the gift rules for legal expense payments 

or services for covered legal matters, so 

long as the payments or services are 

provided in accordance with proposed 

subpart J. However, regardless of 

whether an employee’s legal expense 

payments or services for covered legal 

matters are from a prohibited source or 

given because of official position, that 

employee will still be subject to the 

requirements and safeguards established 

in subpart J. 

Proposed § 2635.204(c): Discounts and 

Similar Benefits 

OGE proposes revising § 2635.204(c) 

of the gift rules to clarify that an 

established employee organization may 

pay legal expenses pursuant to this 

section. The question of whether 

employees may accept free or 

discounted legal services through 

established employee organizations, 

such as unions or employee welfare 

organizations, arose during this 

regulatory process. OGE is aware that 

agencies have used § 2635.204(c)(2)(ii) 

to accept gifts of services (e.g., financial 

counseling, visiting nurses) from 

employee benefit organizations. 

However, the language of this exception 

as currently written is ambiguous. 

Accordingly, OGE proposes language 

under new § 2635.204(c)(2)(iv) to clarify 

that employees may properly accept 

opportunities and benefits (including, 

but not limited to, legal services) offered 

by an established employee 

organization, when eligibility is based 

on the employee’s status as an agency 

employee. OGE added a new 

§ 2635.204(c)(2) exception rather than 

amend existing § 2635.204(c)(2)(ii) 

because OGE did not want to confuse 

the intended purposes of the separate 

exceptions or link employee acceptance 

of benefits from employee organizations 

to similar benefits offered to the general 

public by outside groups. The proposed 

new exception is limited to 

‘‘established’’ employee organizations, 

such as employee welfare groups for 

Federal employees, because the purpose 

of this exception is to allow employees 

to accept opportunities and benefits 

from pre-existing employee 

organizations with a general mission of 

providing assistance to agency 

employees, rather than from 

organizations established as a response 

to a specific investigation or established 

to help a specific employee. An 

employee organization need not be 

established before this regulation going 

into effect; rather, the organization 

should be established before a legal 

matter arises. 

C. Regulatory Amendments to 

Confidential Financial Disclosure 

Reporting Requirements 

OGE is proposing to revise 

§ 2634.907(g)(5) of part 2634 to remove 

the requirement that anonymous 

whistleblowers who happen to be 

confidential financial disclosure report 

filers report gifts for payment of legal 

expenses related to the whistleblowing 

activity. Confidential financial 

disclosure reports are always reviewed 

by the ethics office of a filer’s agency 

and are often reviewed by the filer’s 

supervisor. The disclosure of the 

payment of legal expenses as gifts may 

reveal the whistleblower, which would 

undermine the protections that 

whistleblowers are provided under the 

various whistleblower protection 

statutes. See 5 U.S.C. 2302(b)(8), 

(b)(9)(C); see also 5 U.S.C. app. II, 8H; 

50 U.S.C. 3033, 3517; 28 CFR 27.1. OGE 

believes the possible harm to an 

anonymous whistleblower outweighs 

the value of disclosing the information, 

particularly given requirements in 

proposed subpart J. In addition, during 

OGE’s information gathering process 

several public interest groups expressed 

support for maintaining the anonymity 

of whistleblowers. At this time, OGE is 

unable to propose a similar exception 

for public financial disclosure filers 

because there is no such exception in 

the Ethics in Government Act, 5 U.S.C. 

app. 102(a)(2). 

III. Matters of Regulatory Procedure 

Regulatory Flexibility Act 

As Director of the Office of 

Government Ethics, I certify under the 

Regulatory Flexibility Act (5 U.S.C. 


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chapter 6) that this proposed rule will 

not have a significant economic impact 

on a substantial number of small entities 

because it primarily affects current 

Federal executive branch employees. 

Paperwork Reduction Act 

The Paperwork Reduction Act (44 

U.S.C. chapter 35) applies because this 

regulation creates information collection 

requirements that require approval of 

the Office of Management and Budget. 

The information collection requirements 

imposed by the proposed regulation are 

directed at beneficiaries of legal expense 

funds, who are current executive branch 

employees. OGE notes that an employee 

beneficiary who is leaving executive 

branch employment is required to file 

an employment termination report no 

later than their last day of employment. 

At the same time, a 30-day filing 

extension may be granted for good cause 

shown. Although it is possible that a 

beneficiary may file a termination report 

after leaving government service after 

having received an extension, the 

information collection requirement is 

directed toward current employees. 

OGE also notes that there are no 

independent information collection 

requirements on trustees. 

In fulfilling the regulatory 

requirements, employee beneficiaries 

must in turn collect information from 

(1) donors who contribute to the legal 

expense fund for the payment of legal 

expenses and (2) payees who receive 

payments distributed from the legal 

expense fund. Together, this 

information collection is titled ‘‘OGE 

Legal Expense Fund Information 

Collection.’’ 

OGE plans to seek Paperwork 

Reduction Act approval of this new 

information collection. The purposes of 

the OGE Legal Expense Fund 

Information Collection include, but are 

not limited to, obtaining information 

relevant to a conflict-of-interest 

determination, and disclosing on the 

OGE website information submitted 

pursuant to 5 CFR part 2635, subpart J. 

The authority for this information 

collection is addressed in the 

Supplementary Information section. 

OGE estimates that there will be 

approximately 110 Respondents 

annually. It is anticipated that there may 

be an average of five legal expense fund 

trusts in existence each year. Each trust 

is anticipated to have approximately 20 

donors, whose reporting requirements 

are tied to the frequency with which 

they donate, and approximately two 

payees, who will submit information 

each time they receive a distribution. 

OGE estimates that the total annual 

burden will be approximately 9 to 10 

hours. OGE estimates the estimated time 

per response to be an average of 5 

minutes, with respect to each donor or 

payee communication to an employee 

beneficiary. 

These estimates are based in part on 

OGE’s knowledge of several legal 

expense funds that have been 

established for Executive branch 

employees, as well as OGE’s 

consultation with the U.S. House of 

Representatives and the U.S. Senate 

regarding the legal expense funds that 

they oversee. 

Request for Comments 

Agency and public comment is 

invited specifically on the need for and 

practical utility of this information 

collection, the accuracy of OGE’s 

burden estimate, the enhancement of 

quality, utility, and clarity of the 

information collected, and the 

minimization of burden (including the 

use of information technology). OGE is 

currently exploring methods for 

collecting this information, and is 

seeking public comment. Potential 

methods may include, for example, the 

use of standard forms. 

Unfunded Mandates Reform Act 

For purposes of the Unfunded 

Mandates Reform Act of 1995 (2 U.S.C. 

chapter 5, subchapter II), this proposed 

rule will not significantly or uniquely 

affect small governments and will not 

result in increased expenditures by 

State, local, and tribal governments, in 

the aggregate, or by the private sector, of 

$100 million or more (as adjusted for 

inflation) in any one year. 

Executive Order 13563 and Executive 

Order 12866 

Executive Orders 13563 and 12866 

direct agencies to assess all costs and 

benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select the regulatory 

approaches that maximize net benefits 

(including economic, environmental, 

public health and safety effects, 

distributive impacts, and equity). 

Executive Order 13563 emphasizes the 

importance of quantifying both costs 

and benefits, of reducing costs, of 

harmonizing rules, and of promoting 

flexibility. This proposed rule has been 

designated as a ‘‘significant regulatory 

action’’ although not economically 

significant, under section 3(f) of 

Executive Order 12866. Accordingly, 

this rule has been reviewed by the 

Office of Management and Budget. 

Currently, executive branch 

employees may accept gifts to pay for 

legal expenses from others directly and 

can also establish funds to accept 

donations for such expenses, as long as 

the employee remains in compliance 

with the gift restrictions in subparts B 

and C of the Standards of Conduct and 

the criminal conflict of interest statutes. 

See, e.g., OGE Legal Advisory LA–18–11 

(Sept. 12, 2018); OGE Legal Advisory 

LA–17–10 (Sept. 28, 2017). In other 

words, there are currently costs for 

employees who establish an LEF in 

order to ensure compliance with ethics 

rules even in the absence of OGE’s new 

proposed framework in subpart J, but 

compliance can be difficult and 

confusing as the current rules do not 

address these types of gifts specifically. 

OGE’s role is currently limited to 

providing an LEF trust template or to 

providing technical assistance to help 

ensure that executive branch employees 

who may receive distributions from an 

LEF will be in compliance with existing 

ethics laws and rules. 

Based on OGE’s current experience 

under the status quo, it is estimated that 

approximately five executive branch 

employees may seek to establish or 

maintain an LEF annually. The 

proposed new framework will consist of 

the following activities: Establishment 

of the LEF trust; submission of trust 

documentation for agency review and 

approval; review and approval by OGE 

(where applicable); LEF trustee 

soliciting and accepting donations; LEF 

trustee screening donations to ensure 

the donor is permissible; LEF trustee 

overseeing distributions from the trust 

for the employee’s legal expenses; 

preparing quarterly reports of 

contributions to and distributions from 

the LEF; submission of quarterly reports 

for agency review; review by OGE 

(where applicable); preparation of trust 

termination reports and/or employment 

termination reports; submission of those 

reports for agency review and OGE 

review (where applicable); and 

communications regarding all of the 

above. OGE estimates that the annual 

time burden for all of the above is 100 

hours. Using an estimated rate $325 per 

hour for the services of a professional 

trust administrator or private 

representative, the estimated annual 

cost burden is $32,500. See Clio, Legal 

Trends Report 55 (2019), https://

www.clio.com/resources/legal-trends/ 

2019-report/ (calculating an average 

hourly rate of $319 for trust lawyers 

nationally). However, OGE estimates 

that the annual time burden under the 

status quo, if an employee establishes a 

legal expense fund that needs to comply 

with existing ethics rules, is 75 hours 

with an annual cost burden of $24,375. 

Thus, the net increase from the status 

quo is approximately $8,125 per fund. 


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The estimate of 75 hours is based, in 

part, on the estimated time burden for 

OGE’s qualified trust program. See 84 

FR 67743. That number was reduced 

because the status quo does not require 

review and approval of trusts or 

submission of reports to agencies and 

OGE. Under the status quo, a significant 

time burden does exist because the lack 

of a detailed framework requires 

additional research by employee 

representatives, consultation with 

agency ethics officials and OGE, and a 

more detailed review of each LEF donor 

in the absence of an enumerated list of 

permissible donors. The additional 25- 

hour estimate is based on the specific 

submissions required by proposed 5 

CFR part 2635, subpart J. Specifically, 

submission of LEF trust fund 

establishing documents, quarterly 

reports, and termination reports; review 

by agencies and OGE of those 

submissions; and corresponding 

communications will increase the cost 

burden in comparison to the status quo. 

The burden on LEF donors specifically 

is unchanged because they would need 

to provide the same level of information 

under the status quo. 

The benefits from implementing this 

new regulatory structure are significant. 

Employees’ acceptance of payments for 

legal expenses relating to their official 

duties has triggered concerns from 

outside groups, Congress, and the 

media, in terms of appearance of 

corruption/corruption issues and a 

desire for transparency. Creating this 

regulation will provide a framework for 

screening for conflicts of interest and 

transparency, which will serve to 

protect both the agency and the 

employee. Further, the regulation will 

provide clarity to executive branch 

employees by articulating the process 

for establishing an LEF and the 

requirements in maintaining one, 

including: Defining prohibited donors, 

donation caps, review and approval of 

trust fund documents, and the 

submission of quarterly, publicly 

available reports. As a result of these 

requirements, as well as the increased 

public reporting requirements, the 

public will have increased confidence 

in the decision making of executive 

branch employees who accept gifts of 

legal expenses consistent with the new 

proposed subpart J. 

Executive Order 12988 

As Director of the Office of 

Government Ethics, I have reviewed this 

proposed rule in light of section 3 of 

Executive Order 12988, Civil Justice 

Reform, and certify that it meets the 

applicable standards provided therein. 

Executive Order 13175 

The Office of Government Ethics has 

evaluated this proposed rule under the 

criteria set forth in Executive Order 

13175 and determined that tribal 

consultation is not required as this 

proposed rule has no substantial direct 

effect on one or more Indian tribes, on 

the relationship between the Federal 

Government and Indian tribes, or on the 

distribution of power and 

responsibilities between the Federal 

Government and Indian tribes. 

List of Subjects 

5 CFR Part 2634 

Certificates of divestiture, Conflict of 

interests, Financial disclosure, 

Government employees, Penalties, 

Privacy, Reporting and recordkeeping 

requirements, Trusts and trustees. 

5 CFR Part 2635 

Conflict of interests, Executive branch 

standards of ethical conduct, 

Government employees. 

Approved: April 12, 2022. 

Emory Rounds, 

Director, U.S. Office of Government Ethics. 

For the reasons set forth in the 

preamble, the U.S. Office of Government 

Ethics proposes to amend 5 CFR parts 

2634 and 2635 as follows: 

PART 2634—EXECUTIVE BRANCH 

FINANCIAL DISCLOSURE, QUALIFIED 

TRUSTS, AND CERTIFICATES OF 

DIVESTITURE 

■ 1. The authority citation for part 2634 

continues to read as follows: 

Authority: 5 U.S.C. app.; 26 U.S.C. 1043; 

Pub. L. 101–410, 104 Stat. 890, 28 U.S.C. 

2461 note, as amended by Sec. 31001, Pub. 

L. 104–134, 110 Stat. 1321 and Sec. 701, Pub. 

L. 114–74; Pub. L. 112–105, 126 Stat. 291; 

E.O. 12674, 54 FR 15159, 3 CFR, 1989 Comp., 

p. 215, as modified by E.O. 12731, 55 FR 

42547, 3 CFR, 1990 Comp., p. 306. 

■ 2. Amend § 2634.907 by: 

■ a. Revising paragraph (g)(5); and 

■ b. Designating the example following 

paragraph (g)(5) as Example 1 to 

paragraph (g). 

The revision reads as follows: 

§ 2634.907 Report contents. 

* * * * * 

(g) * * * 

(5) Exceptions. Reports need not 

contain any information about: 

(i) Gifts and travel reimbursements 

received from relatives (see 

§ 2634.105(o)). 

(ii) Gifts and travel reimbursements 

received during a period in which the 

filer was not an officer or employee of 

the Federal Government. 

(iii) Any food, lodging, or 

entertainment received as ‘‘personal 

hospitality of any individual,’’ as 

defined in § 2634.105(k). 

(iv) Any payments for legal expenses 

from a legal expense fund or the 

provision of pro bono legal services, as 

defined in subpart J of part 2635 of this 

chapter, or any payments for legal 

expenses or the provision of pro bono 

legal services that otherwise qualify for 

a gift exclusion or gift exception in 

subpart B of part 2635 of this chapter, 

if the confidential filer is an anonymous 

whistleblower as defined by § 2635.1003 

of this chapter. 

(v) Any exclusions specified in the 

definitions of ‘‘gift’’ and 

‘‘reimbursement’’ at § 2634.105(h) and 

(n). 

* * * * * 

PART 2635—STANDARDS OF 

ETHICAL CONDUCT FOR EMPLOYEES 

OF THE EXECUTIVE BRANCH 

■ 3. The authority citation for part 2635 

continues to read as follows: 

Authority: 5 U.S.C. 7301, 7351, 7353; 5 

U.S.C. App. (Ethics in Government Act of 

1978); E.O. 12674, 54 FR 15159, 3 CFR, 1989 

Comp., p. 215, as modified by E.O. 12731, 55 

FR 42547, 3 CFR, 1990 Comp., p. 306. 

■ 4. Amend § 2635.203 by adding 

paragraphs (h) and (i) to read as follows: 

§ 2635.203 Definitions. 

* * * * * 

(h) Legal expense fund has the 

meaning set forth in § 2635.1003. 

(i) Pro bono legal services has the 

meaning set forth in § 2635.1003. 

■ 5. Amend § 2635.204 by: 

■ a. Removing the word ‘‘or’’ at the end 

of paragraph (c)(2)(ii); 

■ b. Removing the period at the end of 

paragraph (c)(2)(iii) and adding ‘‘; or’’ in 

its place; and 

■ c. Adding paragraph (c)(2)(iv), 

example 4 to paragraph (c)(2), and 

paragraph (n). 

The additions read as follows: 

§ 2635.204 Exceptions to the prohibition 

for acceptance of certain gifts. 

* * * * * 

(c) * * * 

(2) * * * 

(iv) Offered to employees by an 

established employee organization, such 

as an employee welfare group for 

Federal employees, because of the 

employees’ Government employment, 

so long as the employee is part of the 

class of individuals eligible for 

assistance from the employee 

organization as set forth in the 

organization’s governing documents. 

* * * * * 


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Example 4 to paragraph (c)(2): A 

military relief society provides access to 

financial counseling services, loans, and 

grants to all sailors and Marines. Service 

members may accept such benefits 

because the services are offered by an 

employee organization that was 

established before the matter arose and 

in which membership is because of the 

employees’ Government employment. 

* * * * * 

(n) Legal expense funds and pro bono 

legal services. An employee who seeks 

legal representation for a matter arising 

in connection with the employee’s 

official position, the employee’s prior 

position on a campaign of a candidate 

for President or Vice President, or the 

employee’s prior position on a 

Presidential Transition Team may 

accept: 

(1) Payments for legal expenses paid 

out of a legal expense fund that is 

established and operated in accordance 

with subpart J of this part; and 

(2) Pro bono legal services provided in 

accordance with subpart J of this part. 

■ 6. Add subpart J to read as follows: 

Subpart J—Legal Expense Funds 

Sec. 

2635.1001 Overview. 

2635.1002 Applicability and related 

considerations. 

2635.1003 Definitions. 

2635.1004 Establishment. 

2635.1005 Administration. 

2635.1006 Contributions and use of funds. 

2635.1007 Reporting requirements. 

2635.1008 Termination of a legal expense 

fund. 

2635.1009 Pro bono legal services. 

§ 2635.1001 Overview. 

This subpart contains standards for an 

employee’s acceptance of payments for 

legal expenses through a legal expense 

fund and an employee’s acceptance of 

pro bono legal services. Legal expenses 

covered by this subpart are those for a 

matter arising in connection with the 

employee’s past or current official 

position, the employee’s prior position 

on a campaign, or the employee’s prior 

position on a Presidential Transition 

Team. 

§ 2635.1002 Applicability and related 

considerations. 

(a) Applicability. This subpart applies 

to an employee who seeks to accept 

payments for legal expenses from a legal 

expense fund or the provision of pro 

bono legal services. The legal expenses 

or the provision of pro bono legal 

services must be for a matter arising in 

connection with the employee’s past or 

current official position, the employee’s 

prior position on a campaign, or the 

employee’s prior position on a 

Presidential Transition Team. 

(b) Not covered by this subpart. The 

following types of payments for legal 

expenses or pro bono legal services are 

not covered by this subpart: 

(1) Personal matters. Payments for 

legal expenses or the provision of pro 

bono legal services related to matters 

that do not arise in connection with the 

employee’s past or current official 

position, the employee’s prior position 

on a campaign, or the employee’s prior 

position on a Presidential Transition 

Team, such as a matter that is primarily 

personal in nature, are not covered by 

this subpart. Personal matters include, 

but are not limited to, tax planning, 

personal injury litigation, protection of 

property rights, family law matters, and 

estate planning or probate matters. 

Example 1 to paragraph (b)(1): A 

Department of Homeland Security 

employee wants to set up a legal 

expense fund in connection with the 

employee’s divorce and custody 

proceeding. This is a personal matter 

and the employee may not establish a 

legal expense fund under this subpart, 

but may use other gift exceptions and 

exclusions in accordance with subparts 

B and C of this part as appropriate. 

(2) Gifts acceptable according to a gift 

exclusion or exception. Payments for 

legal expenses or the provision of pro 

bono legal services that otherwise 

qualify for a gift exclusion or exception 

other than § 2635.204(n) are not covered 

by this subpart. 

Example 1 to paragraph (b)(2): A 

Central Intelligence Agency employee is 

facing administrative disciplinary action 

due to an issue with the employee’s 

security clearance and would like to 

seek financial assistance to pay for an 

attorney. Even though this matter arose 

in connection with their official 

position, if the employee’s parents offer 

to cover the legal expenses, that 

donation is not subject to this subpart, 

as it would be subject to the gift 

exception at § 2635.204(b). 

Note 1 to paragraph (b): Acceptance 

of legal expense payments or pro bono 

legal services not covered by this 

subpart must be analyzed under subpart 

B of this part. 

(c) Related considerations—(1) Gifts 

between employees. Acceptance of legal 

expense payments or the provision of 

pro bono legal services from another 

employee must be analyzed under 18 

U.S.C. 205 and subpart C of this part. 

(2) Impartiality. An employee 

beneficiary will be treated as having a 

covered relationship for one year within 

the meaning of § 2635.502(b)(1) with a 

legal expense fund’s trustee and donors, 

as well as any pro bono legal services 

providers. The one-year period of 

disqualification for each donor begins to 

run on the most recent date the legal 

expense fund donation is received from 

that donor or, in the case of pro bono 

services, the last date pro bono services 

were provided. The employee 

beneficiary must take appropriate steps 

to avoid an appearance of loss of 

impartiality in the performance of their 

official duties in accordance with 

§ 2635.502. 

Example 1 to paragraph (c)(2): A 

donor contributed to a Social Security 

Administration (SSA) employee’s legal 

expense fund. Three months after this 

contribution was made, the donor 

submitted a disability claim. Under the 

circumstances, the SSA employee 

would be correct in concluding that a 

reasonable person would be likely to 

question the employee’s impartiality if 

the employee were to participate in 

evaluating that disability claim. 

(3) Misuse of position. Legal expense 

fund payments must be solicited and 

accepted consistent with the provisions 

in subpart G of this part relating to the 

use of public office for private gain, use 

of nonpublic information, use of 

Government property, and use of 

Government time. 

Example 1 to paragraph (c)(3): A 

Transportation Security Administration 

(TSA) employee retains legal counsel 

due to an investigation into 

inappropriate behavior in their 

department, and the employee 

establishes a legal expense fund in 

accordance with this subpart. Neither 

the employee nor the legal expense 

fund’s trustee may use the TSA agency 

seal in materials to imply the 

Government endorses the legal expense 

fund, or use nonpublic details of the 

investigation to solicit contributions to 

the legal expense fund. Further, the 

employee may not task subordinates 

with any work relating to administration 

of the legal expense fund. 

(4) Financial disclosure. In addition to 

the legal expense fund reporting 

requirements outlined in § 2635.1007, 

an employee beneficiary who is a public 

or confidential filer, other than a 

confidential filer who is an anonymous 

whistleblower, under part 2634 of this 

chapter must report gifts of legal 

expense payments accepted from 

sources other than the United States 

Government, including gifts of pro bono 

services, on the employee’s financial 

disclosure report, subject to applicable 

thresholds and exclusions. 

§ 2635.1003 Definitions. 

For purposes of this subpart: 

Anonymous whistleblower means an 

employee who makes or believes to be 

making a protected report or disclosure 

under 5 U.S.C. 2302(b)(8), 5 U.S.C. 


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2302(b)(9)(C), 5 U.S.C. app. II, 8H, 50 

U.S.C. 3517, 50 U.S.C. 3033, or 28 CFR 

27.1, and who seeks to remain 

anonymous. 

Arising in connection with the 

employee’s past or current official 

position means the employee’s 

involvement in the legal matter would 

not have arisen had the employee not 

held the status, authority, or duties 

associated with the employee’s past or 

current Federal position. 

Example 1 to this definition of 

‘‘arising in connection with the 

employee’s past or current official 

position’’: A Department of 

Transportation employee is being 

investigated by the Inspector General for 

potential misuse of Government 

resources while on official travel. The 

Internal Revenue Service (IRS) is 

separately investigating the employee 

for misreporting household income on 

the employee’s personal taxes. The 

employee may use this subpart to 

establish a legal expense fund 

concerning the Inspector General 

investigation because the legal matter 

arose in connection with their official 

position. However, this subpart would 

not apply to the unrelated IRS 

investigation because that legal matter 

did not arise in connection with the 

employee’s official position. 

Example 2 to this definition of 

‘‘arising in connection with the 

employee’s past or current official 

position’’: A senior military officer faces 

court-martial charges for sexual 

harassment of a junior officer. All of the 

charged misconduct occurred outside 

official duty hours. Because the officer 

would not be subject to the Uniform 

Code of Military Justice had the officer 

not held their official position, the 

officer may establish a legal expense 

fund in accordance with this subpart. 

Arising in connection with the 

employee’s prior position on a 

campaign means the employee’s 

involvement in the legal matter would 

not have arisen had the employee not 

held the status, authority, or duties 

associated with the employee’s prior 

position on a campaign of a candidate 

for President or Vice President. 

Arising in connection with the 

employee’s prior position on a 

Presidential Transition Team means the 

employee’s involvement in the legal 

matter would not have arisen had the 

employee not held the status, authority, 

or duties associated with the employee’s 

prior position as a member of the staff 

of a Presidential Transition Team. 

Employee beneficiary means an 

employee as defined by § 2635.102(h) 

for whose benefit a legal expense fund 

is established under this subpart. 

Legal expense fund means a fund 

established to receive contributions and 

to make distributions of legal expense 

payments. 

Legal expense payment or payment 

for legal expenses means anything of 

value received by an employee under 

circumstances that make it clear that the 

payment is intended to defray costs 

associated with representation in a 

legal, congressional, or administrative 

proceeding. 

Pro bono legal services means legal 

services provided without charge to the 

employee beneficiary or for less than 

market value as defined in § 2635.203(c) 

to an employee who seeks legal 

representation for a matter arising in 

connection with the employee’s official 

position, the employee’s prior position 

on a campaign, or the employee’s prior 

position on a Presidential Transition 

Team. 

§ 2635.1004 Establishment. 

(a) Structure. A legal expense fund 

must be established as a trust that 

conforms with the requirements of this 

part and applicable state law. To the 

extent the requirements of this part and 

applicable state law are incompatible, 

the Director of the Office of Government 

Ethics may permit such deviations from 

this part as necessary to ensure 

compatibility with applicable state law. 

(b) Grantor. The legal expense fund 

must be established by the employee 

beneficiary. 

(c) Trustee. A legal expense fund must 

be administered by a trustee who is not: 

(1) The employee beneficiary; 

(2) A spouse, parent, or child of the 

employee beneficiary; 

(3) Any other employee of the Federal 

executive, legislative, or judicial 

branches; 

(4) An agent of a foreign government 

as defined in 5 U.S.C. 7342(a)(2); 

(5) A lobbyist as defined by 2 U.S.C. 

1602(10) who is currently registered 

pursuant to 2 U.S.C. 1603(a); or 

(6) A person who has interests that 

may be substantially affected by the 

performance or nonperformance of the 

employee beneficiary’s official duties. 

(d) Employee beneficiary. (1) Except 

as provided in paragraph (d)(2) of this 

section, a legal expense fund must be 

established for the benefit of a single, 

named employee beneficiary. 

(2) A legal expense fund for the 

benefit of an anonymous whistleblower 

may be established without disclosing 

the identity of the anonymous 

whistleblower to anyone other than the 

trustee. 

(e) Filing and approval of legal 

expense fund trust document. An 

employee beneficiary may not solicit or 

accept contributions or distributions 

through a legal expense fund before: 

(1) Filing the legal expense fund 

document in accordance with paragraph 

(f) of this section; and 

(2) Receiving approval for the legal 

expense fund in accordance with 

paragraph (g)(1) of this section. 

(f) Filing of legal expense fund trust 

document. (1) The employee 

beneficiary, or the trustee or 

representative of the employee 

beneficiary, must file the legal expense 

fund trust document with the 

designated agency ethics official at the 

agency where the employee beneficiary 

is employed. 

(2) An employee beneficiary who is 

an anonymous whistleblower may 

choose to file a legal expense fund trust 

document anonymously through the 

employee beneficiary’s trustee or 

representative with the Office of 

Government Ethics only. If the Office of 

Government Ethics receives a legal 

expense fund trust document from a 

covert employee of the Intelligence 

Community, the Office of Government 

Ethics will handle the document as 

classified, according to procedures 

agreed upon with the employee’s 

agency. 

(g) Approval of legal expense fund 

trust document—(1) Designated agency 

ethics official approval. The designated 

agency ethics official must determine, 

based on the submitted trust document 

and information regarding the trustee, 

whether to approve a legal expense fund 

trust document filed by an employee 

beneficiary, other than an anonymous 

whistleblower choosing to file with the 

Office of Government Ethics, within 30 

calendar days of filing. 

(i) Standard for approval. The 

designated agency ethics official must 

approve a legal expense fund that is, 

based on the submitted trust document 

and information regarding the trustee, in 

compliance with this subpart. 

(ii) Transmission of trust documents 

to the Office of Government Ethics. 

Following approval, the signed legal 

expense fund trust document must be 

forwarded to the Office of Government 

Ethics within seven calendar days. 

(iii) Exception for anonymous 

whistleblowers. The Office of 

Government Ethics will serve as the 

approving authority for anonymous 

whistleblowers who choose to file a 

legal expense fund trust document 

anonymously with the Office of 

Government Ethics only. 

(2) Office of Government Ethics 

review. Following approval by the 

designated agency ethics official, the 

Office of Government Ethics will 

conduct a second review of the legal 


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expense fund trust documents of the 

employee beneficiaries listed in 

paragraph (g)(2)(ii) of this section within 

30 calendar days of receipt. 

(i) Standard for review. The Office of 

Government Ethics will review the legal 

expense fund trust document to 

determine whether it conforms with the 

requirements established by this 

subpart. If defects are ascertained, the 

Office of Government Ethics will bring 

them to the attention of the approving 

agency and the employee beneficiary or 

the employee beneficiary’s trustee or 

representative, who will have 30 

calendar days to take necessary 

corrective action. 

(ii) Employee beneficiaries requiring 

secondary Office of Government Ethics 

review. The Office of Government Ethics 

will review the legal expense fund trust 

documents of the following employee 

beneficiaries: 

(A) The Postmaster General; 

(B) The Deputy Postmaster General; 

(C) The Governors of the Board of 

Governors of the United States Postal 

Service; 

(D) A designated agency ethics 

official; 

(E) Employees of the White House 

Office and the Office of the Vice 

President; and 

(F) Officers and employees in offices 

and positions which require 

confirmation by the Senate, other than 

members of the uniformed services and 

Foreign Service Officers below the rank 

of Ambassador. 

(3) Right to Appeal. If the approval of 

a legal expense fund has been denied, 

the requester may appeal the denial 

within 60 days by mail or email to the 

Director of the U.S. Office of 

Government Ethics. Requests sent by 

mail should be addressed to 1201 New 

York Avenue NW, Suite 500, 

Washington, DC 20005–3917. The 

envelope containing the request and the 

letter itself should both clearly indicate 

that the subject is a legal expense fund 

appeal. Email requests should be sent to 

usoge@oge.gov and should indicate in 

the subject line that the message 

contains a legal expense fund appeal. 

(h) Amendments. The trust document 

may only be amended if the trustee and 

employee beneficiary file the amended 

legal expense fund trust document in 

accordance with paragraph (f) of this 

section and seek approval in accordance 

with paragraph (g) of this section. 

(i) One legal expense fund. No 

employee beneficiary may establish or 

maintain more than one legal expense 

fund at any one time. An employee may 

not later establish a second legal 

expense fund for the same legal matter. 

(j) Conforming existing legal expense 

funds. In order for employee 

beneficiaries who have existing legal 

expense funds to receive legal expense 

payments from the existing legal 

expense fund, the employee beneficiary 

must comply with §§ 2635.1005(b), 

2635.1006, and 2635.1007 by [90 

calendar days after the effective date of 

the final rule]. 

(k) Public access. Approved legal 

expense fund trust documents will be 

made available by the Office of 

Government Ethics to the public on its 

website within 30 calendar days of 

receipt. The trust fund documents will 

be sortable by employee beneficiary’s 

name, agency, and position, as well as 

type of document and document date. 

Legal expense fund trust documents 

filed by anonymous whistleblowers will 

not be made available to the public. 

Legal expense fund trust documents that 

are made available to the public will not 

include any information that would 

identify individuals whose names or 

identities are otherwise protected from 

public disclosure by law. 

§ 2635.1005 Administration. 

(a) Trustee’s duties and powers. A 

trustee of a legal expense fund is 

responsible for: 

(1) Operating the legal expense fund 

trust consistent with this part and 

applicable state law; 

(2) Operating as a fiduciary for the 

employee beneficiary in relation to the 

legal expense fund property and the 

legal expense fund purpose; 

(3) Providing information to the 

employee beneficiary as necessary to 

comply with the Ethics in Government 

Act, 5 U.S.C. app. 102(a)(2), part 2634 

of this chapter, and this part; and 

(4) Notifying donors and payees that 

their names will be disclosed on the 

OGE website. 

(b) Limitation on role of employee 

beneficiary. An employee beneficiary 

may not exercise control over the legal 

expense fund property. 

§ 2635.1006 Contributions and use of 

funds. 

(a) Contributions. A legal expense 

fund may only accept contributions of 

payments for legal expenses from 

permissible donors listed in paragraph 

(b) of this section. 

(b) Permissible donors. A permissible 

donor includes: 

(1) An individual who is not: 

(i) An agent of a foreign government 

as defined in 5 U.S.C. 7342(a)(2); 

(ii) A lobbyist as defined by 2 U.S.C. 

1602(10) who is currently registered 

pursuant to 2 U.S.C. 1603(a); 

(iii) Acting on behalf of, or at the 

direction of, another individual or entity 

in making a donation; 

(iv) Donating anonymously; 

(v) Seeking official action by the 

employee beneficiary’s agency; 

(vi) Doing business or seeking to do 

business with the employee 

beneficiary’s agency; 

(vii) Conducting activities regulated 

by the employee beneficiary’s agency 

other than regulations or actions 

affecting the interests of a large and 

diverse group of persons; 

Example 1 to paragraph (b)(1)(vii): A 

donor contributed to a Department of 

State employee’s legal expense fund. 

The donor has recently applied to renew 

their United States Passport. Because 

the Department of State’s passport 

renewal office affects the interests of a 

large and diverse group of people, the 

donation is permissible under paragraph 

(b)(1)(vii) of this section. 

(viii) Substantially affected by the 

performance or nonperformance of the 

employee beneficiary’s official duties; or 

(ix) An officer or director of an entity 

that is substantially affected by the 

performance or nonperformance of the 

employee beneficiary’s official duties. 

(2) A national committee of a political 

party as defined by 52 U.S.C. 30101(14), 

(16) or, for former members of a 

campaign of a candidate for President or 

Vice President, the campaign, provided 

that the donation is not otherwise 

prohibited by law and the entity is not 

substantially affected by the 

performance or nonperformance of an 

employee beneficiary’s official duties. 

Note 1 to paragraph (b): Acceptance 

of a legal expense payment from another 

employee must be analyzed under 

subpart C of this part. 

(c) Contribution limits. A legal 

expense fund may not accept more than 

$10,000 from any single permissible 

donor per calendar year of the fund. 

Note 2 to paragraph (c): As discussed 

in § 2635.1002(b)(2), payments for legal 

expenses or the provision of pro bono 

legal services that otherwise qualify for 

a gift exclusion or exception other than 

§ 2635.204(n) in subpart B of this part 

are not covered by this subpart. 

(d) Use of funds. Legal expense fund 

payments must be used only for the 

following purposes: 

(1) An employee beneficiary’s legal 

expenses related to those legal 

proceedings arising in connection with 

the employee’s past or current official 

position, the employee’s prior position 

on a campaign, or the employee’s prior 

position on a Presidential Transition 

Team; 

(2) Expenses incurred in soliciting for 

and administering the fund; and 


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(3) Expenses for the discharge of 

Federal, state, and local tax liabilities 

that are incurred as a result of the 

creation, operation, or administration of 

the fund. 

Example 1 to paragraph (d): An 

employee beneficiary’s attorney 

determines it is necessary to employ an 

expert witness related to a legal 

proceeding arising in connection with 

the employee beneficiary’s official 

position. Funds may be distributed from 

the legal expense fund to pay fees and 

expenses for the expert witness. 

§ 2635.1007 Reporting requirements. 

(a) Quarterly reports. An employee 

beneficiary must file quarterly reports 

that include the following information 

until the trust is terminated or an 

employment termination report is filed 

as set forth in paragraph (d) of this 

section. 

(1) Contributions. An employee 

beneficiary must report the donor’s 

name, employer, date(s) of contribution, 

and amount for each donor that makes 

a contribution exceeding $250 during 

the quarterly reporting period. For the 

report due January 30, an employee 

beneficiary must also disclose 

contributions from a single donor that 

exceed $250 for the prior calendar year 

unless the contributions have been 

disclosed on a prior quarterly report. 

(2) Distributions. An employee 

beneficiary must report the payee’s 

name, date(s) of distribution, amount, 

and purpose of any distribution from 

the legal expense fund exceeding $250 

during the quarterly reporting period. 

For the report due January 30, an 

employee beneficiary must also disclose 

distributions to a single source that 

exceed $250 for the prior calendar year 

unless the distributions have been 

disclosed on a prior quarterly report. 

(b) Filing of reports. (1) The employee 

beneficiary must file all reports required 

in this section with the designated 

agency ethics official at the agency 

where the employee beneficiary is 

employed. The trustee or a 

representative of the employee 

beneficiary may file a report on behalf 

of the employee beneficiary. 

(2) An employee beneficiary who is 

an anonymous whistleblower may 

choose to file reports anonymously 

through the employee beneficiary’s 

trustee or representative with the Office 

of Government Ethics. If the Office of 

Government Ethics receives a quarterly 

report from a covert employee of the 

Intelligence Community, the Office of 

Government Ethics must handle the 

document as classified, according to 

procedures agreed upon with the 

employee’s agency. 

(c) Reporting periods and due dates. 

Quarterly reports must cover the 

reporting periods and comply with the 

following due dates: 

(1) January 1 to March 31, with the 

report due on April 30. 

(2) April 1 to June 30, with the report 

due on July 30. 

(3) July 1 to September 30, with the 

report due on October 30. 

(4) October 1 to December 31, with 

the report due on January 30 of the 

following year. 

(5) If the scheduled due date falls on 

a Saturday, Sunday or Federal Holiday, 

the report will instead be due the next 

business day. 

(d) Employment termination report. If 

the employee beneficiary is leaving 

executive branch employment, the 

employee beneficiary must file an 

employment termination report no later 

than their last day of employment. No 

contributions may be accepted for or 

distributions paid by the legal expense 

fund between the date of the filing and 

the employee beneficiary’s termination 

date. The report must include the 

following: 

(1) A report of contributions received 

and distributions made as required by 

paragraph (a) of this section between the 

end of the last quarterly reporting 

period and the date of the report; and 

(2) A statement as to whether the trust 

will be terminated or remain in force 

after the employee beneficiary 

terminates their executive branch 

employment. 

(e) Extensions. For each quarterly or 

employment termination report, a single 

extension of 30 calendar days may be 

granted by the Director of the Office of 

Government Ethics, or the employee 

beneficiary’s designated agency ethics 

official if filing with agency, for good 

cause upon written request by the 

employee beneficiary or the trustee. 

(f) Review of reports—(1) Designated 

agency ethics official review. The 

designated agency ethics official must 

review reports within 30 calendar days 

of filing. 

(i) Standard for review. The 

designated agency ethics official will 

review the report to determine that: 

(A) The information required under 

paragraph (a) of this section is reported 

for each contribution and distribution; 

and 

(B) Contributions to and distributions 

from the trust are in compliance with 

§ 2635.1006. 

(ii) Transmission of reports to the 

Office of Government Ethics. Following 

review, all reports must be forwarded in 

unclassified format to the Office of 

Government Ethics within seven 

calendar days. 

(iii) Office of Government Ethics 

review for anonymous whistleblowers. 

The Office of Government Ethics will 

serve as the reviewing authority for 

anonymous whistleblowers who choose 

to file reports anonymously with the 

Office of Government Ethics only. 

(2) Office of Government Ethics 

review. Following review by the 

designated agency ethics official, the 

Office of Government Ethics will 

conduct a second review of the reports 

of the employee beneficiaries listed in 

paragraph (f)(2)(ii) of this section within 

30 calendar days of the receipt. 

(i) Standard for review. The Office of 

Government Ethics will review the 

report to determine whether it conforms 

with the requirements established by 

this subpart. If defects are ascertained, 

the Office of Government Ethics will 

bring them to the attention of the 

reviewing agency and the employee 

beneficiary or the employee 

beneficiary’s trustee or representative, 

who will have 30 calendar days to take 

necessary corrective action. 

(ii) Employee beneficiaries requiring 

secondary Office of Government Ethics 

review. The Office of Government Ethics 

will review the reports of the following 

employee beneficiaries: 

(A) The Postmaster General; 

(B) The Deputy Postmaster General; 

(C) The Governors of the Board of 

Governors of the United States Postal 

Service; 

(D) A designated agency ethics 

official; 

(E) Employees of the White House 

Office and the Office of the Vice 

President; and 

(F) Officers and employees in offices 

and positions which require 

confirmation by the Senate, other than 

members of the uniformed services and 

Foreign Service Officers below the rank 

of Ambassador. 

(g) Public access. Quarterly and 

employment termination reports will be 

made available by the Office of 

Government Ethics to the public on its 

website within 30 calendar days of 

receipt. The reports will be sortable by 

employee beneficiary’s name, agency, 

and position, as well as type of 

document and document date. Quarterly 

and employment termination reports 

that are made available to the public by 

the Office of Government Ethics will not 

include any information that would 

identify individuals whose names or 

identities are otherwise protected from 

public disclosure by law. The reports 

filed by anonymous whistleblowers will 

not be made available to the public. 

(h) Noncompliance—(1) Receipt of 

impermissible contributions. If the legal 

expense fund receives a contribution 


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23780 Federal Register / Vol. 87, No. 77 / Thursday, April 21, 2022 / Proposed Rules 

that is not permissible under 

§ 2635.1006, the contribution must be

returned to the donor as soon as

practicable but no later than the next

reporting due date as described in

paragraph (c) of this section.

(2) Late filing of required documents

and reports. If a report is filed after the 

due date, the employee beneficiary 

forfeits the ability to accept 

contributions or distributions through 

the trust until the report is filed. 

Example 1 to paragraph (h)(2): A 

Department of Labor employee 

establishes a legal expense fund in 

accordance with this subpart. Because 

the employee filed the trust document 

on February 15, the first quarterly report 

is due on April 30. However, the 

employee did not submit the first 

quarterly report until May 15. The 

employee is prohibited from accepting 

contributions or distributions through 

the trust from May 1 until May 15. Once 

the employee files the quarterly report, 

the employee may resume accepting 

contributions and distributions. 

(3) Continuing or other significant

noncompliance. In addition to the 

remedies in paragraphs (h)(1) and (2) of 

this section, the Office of Government 

Ethics has the authority to determine 

that an employee beneficiary may not 

accept contributions and distributions 

through the trust if there is continuing 

or other significant noncompliance with 

this subpart. 

§ 2635.1008 Termination of a legal

expense fund.

(a) Cause. A legal expense fund may

only be terminated for the following 

reasons: 

(1) The purpose of the trust is fulfilled

or no longer exists; or 

(2) At the direction of the employee

beneficiary. 

(b) Excess funds. Within 90 calendar

days of termination of the legal expense 

fund, the trustee must distribute any 

excess funds to an organization or 

organizations described in section 

501(c)(3) of the Internal Revenue Code 

and exempt from taxation under section 

501(a) of the Internal Revenue Code. 

Funds from the legal expense fund may 

not be donated to an organization that 

was established by the employee 

beneficiary, an organization in which 

the employee beneficiary, their spouse, 

or their child is an officer, director, or 

employee, or an organization with 

which the employee has a covered 

relationship within the meaning of 

§ 2635.502(b)(1). The trustee has sole

discretion to select the 501(c)(3)

organization.

(c) Trust termination report. After the

trust is terminated, the employee 

beneficiary must file a trust termination 

report that contains the information 

required by § 2635.1007(d) for the 

period of the last quarter report through 

the trust termination date. The report 

also must indicate the organization to 

which the excess funds were donated. 

The report is due 30 calendar days 

following the termination date of the 

trust. 

(d) Exception for anonymous

whistleblowers. An employee 

beneficiary who is an anonymous 

whistleblower may choose to file the 

trust termination report anonymously 

through the employee beneficiary’s 

trustee or representative with the Office 

of Government Ethics. 

§ 2635.1009 Pro bono legal services.

(a) Acceptance of permissible pro

bono legal services. An employee may 

solicit or accept the provision of pro 

bono legal services for legal matters 

arising in connection with the 

employee’s past or current official 

position, the employee’s prior position 

on a campaign, or the employee’s prior 

position on a Presidential Transition 

Team from: 

(1) Any individual who is not:

(i) An agent of a foreign government

as defined in 5 U.S.C. 7342(a)(2); 

(ii) A lobbyist as defined by 2 U.S.C.

1602(10) who is currently registered 

pursuant to 2 U.S.C. 1603(a); or 

(2) A person who does not have

interests that may be substantially 

affected by the performance or 

nonperformance of an employee’s 

official duties. 

Note 1 to paragraph (a): Pursuant to 

§ 2634.907(g) of this chapter, an

employee beneficiary who is a public or

confidential filer under part 2634 of this

chapter must report gifts of pro bono

legal services on the employee’s

financial disclosure report, subject to

applicable thresholds and exclusions.

(b) Role of agency ethics official. An

employee must confer with an agency 

ethics official to seek a determination as 

to whether the legal services are from a 

prohibited pro bono legal services 

provider before accepting the pro bono 

legal services. 

Example 1 to paragraph (b): A 

Department of Justice employee is an 

eyewitness in an Inspector General 

investigation and is called to testify 

before Congress. A local law firm offers 

to represent the employee at no cost. 

The employee consults with an agency 

ethics official, who determines that the 

attorney who would represent the 

employee is neither an agent of a foreign 

government nor a lobbyist. However, the 

law firm is representing a party in a case 

to which the employee is assigned. The 

ethics official determines that the law 

firm is a person who has interests that 

may be substantially affected by the 

performance or nonperformance of the 

employee’s official duties. Accordingly, 

the employee may not accept the offer 

of pro bono legal services from the law 

firm. 

Example 2 to paragraph (b): A 

Securities and Exchange Commission 

employee is sexually harassed by a 

supervisor and files a complaint. A 

nonprofit legal aid organization focusing 

on sexual harassment cases offers pro 

bono legal services to the employee at 

no cost. The employee consults with an 

agency ethics official, who determines 

that the attorney who would represent 

the employee is neither an agent of a 

foreign government nor a lobbyist, and 

neither the attorney nor the nonprofit 

legal aid organization has interests that 

may be substantially affected by the 

performance or nonperformance of the 

employee’s official duties. Accordingly, 

the employee may accept the offer of 

pro bono legal services from the 

nonprofit legal aid organization. 

Example 3 to paragraph (b): A 

Department of State employee is asked 

to testify in a legal proceeding relating 

to a prior position at the Department of 

Justice. An attorney at a large national 

law firm offers pro bono services to the 

employee. The employee confers with 

an agency ethics official who 

determines that although the attorney 

offering representation is neither an 

agent of a foreign government nor a 

lobbyist, the law firm is currently 

registered pursuant to 2 U.S.C. 1603(a) 

and has business before other parts of 

the Department of State. However, 

neither the attorney nor the law firm has 

interests that may be substantially 

affected by the performance or 

nonperformance of the employee’s 

official duties. Accordingly, the 

employee may accept the offer of pro 

bono legal services. 

[FR Doc. 2022–08130 Filed 4–20–22; 8:45 am] 

BILLING CODE 6345–03–P 

DEPARTMENT OF TRANSPORTATION 

National Highway Traffic Safety 

Administration 

[Docket No. NHTSA–2022–0036] 

RIN 2127–AM45 

Uniform Procedures for State Highway 

Safety Grant Programs 

AGENCY: National Highway Traffic 

Safety Administration (NHTSA), 

Department of Transportation (DOT). 


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