Subpart J—Legal Expense Funds

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 of a candidate for President or Vice President, or the employee's prior position on a Presidential Transition Team.

(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 of a candidate for President or Vice President, 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 of a candidate for President or Vice President, 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 subparts B and C 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. (i) An employee beneficiary may not knowingly participate in a particular matter involving specific parties, consistent with the periods of disqualification detailed in paragraph (c)(2)(ii) of this section, if any person described below is a party or represents a party:

(A) The trustee;

(B) An individual, entity, or organization donating pro bono legal services pursuant to § 2635.1009 (pro bono legal services provider); or

(C) An individual or entity that made a donation of $250 or more in a calendar year to the legal expense fund.

(ii) The employee beneficiary's period of disqualification from particular matters involving specific parties involving the trustee runs from the assumption of the trustee position until two years after the trustee's resignation, if the trustee resigns, or two years after the termination of the trust. The employee's period of disqualification from particular matters involving specific parties involving each pro bono legal services provider runs from the commencement of pro bono legal services until two years after the last date pro bono services were provided. The period of disqualification for each donor begins to run on the date the most recent legal expense fund donation is received from that donor until two years after the donation.

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. The employee may not participate in evaluating the disability claim because the claim falls within the two-year mandatory recusal period.

(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. The mere reference to the employee's official position in a solicitation would generally not violate subpart G of this part.

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 or otherwise imply the Government endorses the legal expense fund, or use nonpublic details of the investigation to solicit contributions to the legal expense fund. Agency seals frequently are protected by law or require licensing for use. Further, the employee may not task subordinates with any work relating to administration of the legal expense fund. However, the employee may note in a solicitation that they are an employee of TSA, and that the matter arose in the course of their official duties.

(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.

For purposes of this subpart:

Anonymous whistleblower means an employee who makes or intends to make a disclosure or report, or who engages in an activity protected under 5 U.S.C. 2302(b)(8), 5 U.S.C. 2302(b)(9), 5 U.S.C. 416, 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 the 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 the definition of “arising in connection with the employee's past or current official position”: A junior employee at the Environmental Protection Agency is challenging their proposed termination due to misuse of Government property. All of the employee's alleged misconduct occurred outside official duty hours. Because the employee would not be subject to the Standards of Conduct had the employee not held their official position, the employee 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 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 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.

(a) Structure. A legal expense fund must be established as a trust that conforms to 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 foreign national;

(6) A lobbyist as defined by 2 U.S.C. 1602(10) who is currently registered pursuant to 2 U.S.C. 1603(a); or

(7) 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 so long as the legal expense fund is created for the purpose of funding expenses in connection with the whistleblowing activity or the facts that underlie that activity.

(e) Filing and approval of legal expense fund trust document required. An employee beneficiary may not solicit or accept contributions or make 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) or (g)(3) 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. The Office of Government Ethics will not receive reports containing classified material; if needed, an OGE employee with a security clearance will review any classified documents in a secure agency space, consistent with the current practice for other ethics documents containing classified material.

(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 secondary review of the legal 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 to 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) Employees of the White House Office and the Office of the Vice President; and

(E) 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) Review for designated agency ethics officials. When the employee beneficiary is a designated agency ethics official, the Office of Government Ethics will conduct the sole review and approval. The Office of Government Ethics will review the legal expense fund trust document to determine whether it conforms to the requirements established by this subpart.

(4) Right to Appeal. If the approval of a legal expense fund has been denied, or an employee's legal expense fund request has not been acted upon within 30 days, the requester may appeal by mail or email to the Director of the U.S. Office of Government Ethics. Requests sent by mail should be addressed to the address for the Office of Government Ethics that can be found at www.oge.gov. 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 LEF@oge.gov and should indicate in the subject line that the message contains a legal expense fund appeal. Appeals should be submitted within 60 days of denial by the designated agency ethics official or 90 days of submission to the designated agency ethics official, in the case of a request that has not been acted upon. In the case of legal expense funds for anonymous whistleblowers and designated agency ethics officials, OGE staff will conduct the initial review, and the Director will serve as the appeal authority.

(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 an employee beneficiary who has an existing legal expense fund 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 February 20, 2024.

(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. Only sensitive personal information such as fee schedules, personal addresses, and account numbers will be redacted.

(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. 13104(a)(2), part 2634 of this chapter, and this part; and

(4) Notifying donors and payees whose contributions and distributions, respectively, are reportable that their names will be disclosed on the OGE website.

(b) Limitation on role of the employee beneficiary. An employee beneficiary may not exercise control over the legal expense fund property.

(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 foreign national;

(iii) A lobbyist as defined by 2 U.S.C. 1602(10) who is currently registered pursuant to 2 U.S.C. 1603(a);

(iv) Acting on behalf of, or at the direction of, another individual or entity in making a donation;

(v) Donating anonymously;

(vi) Seeking official action by the employee beneficiary's agency;

(vii) Doing business or seeking to do business with the employee beneficiary's agency;

(viii) 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)(viii): 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)(viii) of this section.

(ix) Substantially affected by the performance or nonperformance of the employee beneficiary's official duties; or

(x) 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) and (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; or

(3) An organization, established for more than two years, that is:

(i) described in section 501(c)(3) of the Internal Revenue Code and exempt from taxation under section 501(a) of the Internal Revenue Code, and

(ii) 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.

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 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 of a candidate for President or Vice President, or the employee's prior position on a Presidential Transition Team;

(2) Expenses incurred in soliciting for and administering the fund; and

(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.

(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. For contributions of $250 or more during the quarterly reporting period, an employee beneficiary must report the donor's name, city and state of residence, employer, date(s) of contribution, and contribution amount. For the report due January 30, an employee beneficiary must also disclose contributions from a single donor of $250 or more for the prior calendar year unless the contributions have been disclosed on a prior quarterly report.

(2) Distributions. For distributions of $250 or more during the quarterly reporting period, an employee beneficiary must report the payee's name, date(s) of distribution, amount, and purpose of the distribution. For the report due January 30, an employee beneficiary must also disclose distributions to a single source of $250 or more 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. The Office of Government Ethics will not receive reports containing classified material; if needed, an OGE employee with a security clearance will review any classified documents in a secure agency space, consistent with the current practice for other ethics documents containing classified material.

(c) Reporting periods and due dates. Quarterly reports must cover the following 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 report, a single extension of 30 calendar days may be granted by the employee beneficiary's designated agency ethics official, or the Director of the Office of Government Ethics if filing with the Office of Government Ethics, 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 secondary review of the reports of the employee beneficiaries listed in paragraph (f)(2)(ii) of this section within 30 calendar days of receipt.

(i) Standard for review. The Office of Government Ethics will review the report to determine whether it conforms to 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) Employees of the White House Office and the Office of the Vice President; and

(E) 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) Review for designated agency ethics official. When the employee beneficiary is a designated agency ethics official, the Office of Government Ethics will conduct the sole review. OGE will review the report to determine that:

(i) The information required under paragraph (a) of this section is reported for each contribution and distribution; and

(ii) Contributions to and distributions from the trust are in compliance with § 2635.1006.

(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 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. If the donation cannot be returned to the donor due to the donor's death or the trustee's inability to locate the donor, then the contribution must be donated to a 501(c)(3) organization meeting the requirements in § 2635.1008(c).

(2) Late filing of required documents and reports. If a report or other required document is filed after the due date, the employee beneficiary forfeits the ability to accept contributions or make distributions through the trust until the report or other required document 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 making distributions through the trust from May 1 until May 15. Once the employee files the quarterly report, the employee may resume accepting contributions and making 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 make distributions through the trust or terminate the trust if there is continuing or other significant noncompliance with this subpart.

(a) Voluntary termination. A legal expense fund may be voluntarily terminated only 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) Mandatory termination. An employee's legal expense fund must be terminated within 90 days of the resolution of the legal matter for which the legal expense fund was created or within 90 days of the last expenditure made in relation to the legal matter for which it was created, whichever is later.

(c) 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 trustee or the employee beneficiary, an organization in which the trustee or 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. If practicable, the trustee may return the excess funds to the donors on a pro-rata basis rather than donating the funds to a 501(c)(3) organization.

(d) 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)(1) 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 or if the excess funds were returned to donors. The report is due 30 calendar days following the termination date of the trust. Trust termination reports should be filed in accordance with the procedures outlined in § 2635.1007(b).

(e) 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.

(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 of a candidate for President or Vice President, or the employee's prior position on a Presidential Transition Team from:

(1) Any individual who:

(i) Is not an agent of a foreign government as defined in 5 U.S.C. 7342(a)(2);

(ii) Is not a foreign national;

(iii) Is not a lobbyist as defined by 2 U.S.C. 1602(10) who is currently registered pursuant to 2 U.S.C. 1603(a); and

(iv) Does not have interests that may be substantially affected by the performance or nonperformance of the employee's official duties; and

(2) An organization or entity that 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 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) Provision of outside legal services. An employee may solicit or accept payment for 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 of a candidate for President or Vice President, or the employee's prior position on a Presidential Transition Team from an organization, established for more than two years, that is described in section 501(c)(3) of the Internal Revenue Code and exempt from taxation under section 501(a) of the Internal Revenue Code. The organization, the legal services provider that the organization pays for legal services, and the individual attorney providing legal services must meet the requirements described in paragraph (a) of this section. The term “pro bono services” includes the provision of outside legal services as described in this section.

(c) Role of designated agency ethics official. The designated agency ethics official must determine whether the organization, the legal services provider that the organization pays for legal services, and the individual attorney providing legal services meet the requirements described in paragraph (a) of this section.

Example 1 to paragraph (c): 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 (c): A Securities and Exchange Commission employee is harassed by a supervisor and files a complaint. A nonprofit legal aid organization focusing on 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 (c): A registered 501(c)(3) organization whose mission focuses on assisting those experiencing workplace harassment offers to pay for legal services for the Securities and Exchange Commission employee from the preceding example. The legal services themselves are performed by attorneys outside the organization. The employee confers with an agency ethics official who determines that the 501(c)(3) organization has been in operation for more than two years, neither the organization nor the attorneys performing legal services have interests that may be substantially affected by the performance or nonperformance of the employee's official duties, and the attorneys performing the legal services are neither agents of foreign governments nor lobbyists. Accordingly, the employee may accept the legal services even though they are provided by attorneys outside of the 501(c)(3) organization.

Example 4 to paragraph (c): 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), some members of the firm are registered lobbyists, and the firm 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.

(d) Appeal process. An employee may appeal to the Office of Government Ethics in matters when the agency is the party opponent in the legal action. An employee may appeal the designated agency ethics official's determination that the pro bono legal services are prohibited; or a failure by the designated agency ethics official to provide a determination regarding whether the pro bono legal services are prohibited within 30 days. Appeals should be submitted within 60 days of denial by the designated agency ethics official, or within 90 days of submission to the designated agency ethics official, in the case of a request that has not been acted upon.