Pro Bono Partnership And BASF Corporation: In-House Counsel Volunteer On Their Own Terms

Wednesday, June 26, 2013 - 12:50

The Editor interviews Nancy Eberhardt, Director, New Jersey Program, Pro Bono Partnership and Melanie L. Brown, Assistant General Counsel for BASF Corporation in North America.

For 16 years, the Pro Bono Partnership has offered business and transactional legal services to its clients, which are nonprofit organizations serving the disadvantaged or enhancing the quality of life in neighborhoods in New York, New Jersey and Connecticut. Pro Bono Partnership provides these services primarily by recruiting and supporting the pro bono efforts of in-house counsel from major corporations and business attorneys from law firms.

Each year, more than 150 corporations and law firms and as many as 900 individual attorneys respond to the Pro Bono Partnership’s call for such assistance. In any given year, the dedication of some volunteers rises well above the ordinary, distinguished by the complexity or transformative nature of a pro bono project, the extraordinary responsiveness of a volun­teer or volunteers or the sheer volume of matters or time com­mitted.

In recognition of such efforts, BASF received special honors at Pro Bono Partnership’s 2012 Volunteers of the Year reception, where it was recognized as the Partnership’s Outstanding Corporate Volunteer. The BASF-Pro Bono Partnership relationship was formalized in 2009 with full support of BASF's former Senior Vice President and General Counsel David M. Stryker. Melanie L. Brown, Assistant General Counsel and a 2011 Pro Bono Partnership Volunteer of the Year, has expanded that involvement.

Editor: Melanie, please tell us why BASF Corporation ("BASF") chose to engage with Pro Bono Partnership (the “Partnership”)?

Brown:  I was not involved in the pro bono program decisions at the time but understand that BASF was interested in working with an organization that had access to pro bono opportunities. The Pro Bono Partnership was attractive to BASF because the pro bono opportunities are more related to the legal work that BASF does for its BASF clients, including contract drafting or review and matters involving employment, real estate and intellectual property. As a result, the BASF law department felt that its attorneys would be more likely to participate in opportunities available through the Pro Bono Partnership compared with other pro bono providers. In addition, the Pro Bono Partnership provides training, support resources and malpractice insurance for its volunteer attorneys. 

Editor: BASF attorneys have undertaken a large number of matters for Partnership clients. Can you describe the extent and the tenor of this work?

Eberhardt: Since 2009, 15 volunteers from the BASF legal department have undertaken 63 matters, which is impressive for both the number and the percentage of participants. Since BASF has 30 attorneys in its New Jersey headquarters, 50 percent of the BASF attorneys are volunteering for matters with the Pro Bono Partnership. BASF attorneys have contributed their expertise in all areas of the law in which the Partnership provides advice: corporate, corporate governance, contract reviews, intellectual property, employment law, real estate, website and Internet issues, insurance issues, and tax.

Touching on Melanie’s point, the Partnership really is designed to provide attorneys in  corporate legal departments with  opportunities  to take on work in their areas of expertise, and much of BASF’s pro bono work has fit that mold. But the BASF lawyers have frequently gone a step beyond. For example, Melanie’s area of expertise is intellectual property, yet she has handled applications for tax exemption, formation issues for new nonprofits and amendment of corporate documents for existing nonprofits – not typical matters for IP attorneys.

In some projects, the Partnership has stepped in to provide assistance on certain issues, but what really distinguishes the BASF volunteers is that many will simply take the initiative to learn new areas of law on their own. It’s really a wonderful partnership.

Brown: We also like working with the Partnership because they package client requests as discrete projects, categorized by legal topic. So our attorneys can simply scan a list of opportunities that the Partnership circulates every month and select something that’s either in their comfort zone … or not, if they prefer. Most projects tend to last for a defined duration, which allows us to manage our participation around BASF responsibilities.

Editor: Nancy, can you give us an example of how the Partnership might get involved in a project that involves specialized issues?

Eberhardt: In many situations, the BASF attorneys have all the expertise they need, but we can offer assistance with projects that require knowledge of how issues play out in the nonprofit world versus the for-profit world. We also offer the opportunity to co-counsel with other attorneys, whom we can recruit from law firms or other companies if additional research and support are needed. Our staff attorneys are always prepared to provide backup and support on projects when appropriate.

For example, nonprofits are paying more attention to corporate governance. The IRS is asking more demanding questions of nonprofits, and the public expects more transparency and accountability; therefore, nonprofits are increasingly adopting governance policies that traditionally were adopted only by publicly traded corporations.  BASF attorneys know corporate governance in the for-profit world but may never have dealt with it in the context of a nonprofit board. A nonprofit board may consist of only ten people, but they still have responsibilities to address governance concerns, such as conflicts of interest and the development of compliant whistleblower protection policies. Here, the Partnership can step in and provide specific guidance about how these issues play out in the tax-exempt world.

Another example might involve amendments to corporate documents under state law. While state nonprofit and for-profit corporation statutes are fairly parallel, there are some differences, and we certainly can offer advice there. We are able to provide checklists, template documents, and sample cover letters to help with the process of amending the articles and notifying all relevant authorities, which enables our volunteers to focus their valuable time on the substantive issues

Editor: Let’s talk about some of the specific projects that you’ve collaborated on, for example, at the Flat Rock Brook Nature Center.

Eberhardt: Flat Rock Brook runs an urban nature center in Englewood, New Jersey, to provide environmental education programs. The center received a grant from the State of New Jersey to improve its educational programs and renovate its facilities. While the Partnership had experience in helping nonprofits work through the contract process for state agency funding, we hadn’t yet worked on a construction contract that involved public bidding.

For this project, BASF attorney and current interim general counsel Keith Ansbacher worked through the New Jersey State Green Acres funding contract requirements as well as the New Jersey Local Public Contacts Law. He assisted the organization through those processes and multiple contract negotiations in a project that lasted for several years and required significant time. The client was thrilled, and its executive director, Stephen Weissner, noted that “having an extremely competent and thoughtful attorney on our side made the project so much easier, made the contract documents stronger and protected our interests.”

Flat Rock Brook had its grand opening and has been tremendously successful. They’ve seen a surge in attendance, and the community is really taking advantage of the wonderful educational programs and interactive exhibits. The client is very happy, and so is the state.

Editor: Melanie, would you please talk about the BRICK Academy project?

Brown: BRICK, which stands for Building Responsible Intelligent Creative Kids, came up as an opportunity on one of the Partnership lists. It involved a trademark matter, so I took that on. In 2009, BRICK partnered with the Newark Public School District to turn around a consistently failing school, now known as BRICK Academy. Essentially, BRICK Academy is a K-8 school in Newark that was taken over by a group of Teach America teachers who were dissatisfied with the public school system and wanted to make a difference in the lives of these children.

It soon became clear to me that BASF, with all its human and financial resources, could bring more to this project than my limited involvement in settling a trademark dispute. Certainly, as the largest chemical company in the world and an employer of high-level technical folks, particularly chemists, BASF has a lot to offer. So we started promoting chemistry at BRICK and educating the children to get them excited about chemistry.

As part of its science education program, BASF runs a program called the BASF Kids’ Lab, where employees volunteer at elementary schools and teach chemistry at a very basic level, including demonstrations and experiments. I arranged to bring this program to BRICK the same year that I did the initial pro bono project, and I participated with my colleagues – we’re all chemists – in demonstrations for 80 second graders. To give you a sense of the school’s economic profile: 80 percent of BRICK students qualify for the federal lunch/breakfast program.

They really appreciated our efforts, and the kids enjoyed their “Kids’ Lab” aprons, goggles and notebooks, in which they wrote about the experiments and their reactions. We really felt like we had an impact; we have continued the project for the past two years and are willing to get more involved at BRICK’s discretion.

This project expanded even further in connection with BASF’s support for the Arbor Foundation and its program to plant trees. BASF volunteers were planting trees near BRICK Academy, so I reached out and asked if any children were interested to help me plant trees. I took about 10 kids plus 2 parents. We learned how to plant trees and why trees should be planted.

And it all started with the original Partnership opportunity, which has grown into additional community service efforts and benefits that reach well beyond pro bono work.

Eberhardt: Of course, Melanie glossed over her own trademark work, so let me just note the extraordinary effort she made to find a company that agreed to donate the search, which otherwise would have been very expensive for the client. When the search revealed that there was a pending trademark application from another organization with a similar name, she contacted the other organization with a compromise offer that allowed both organizations to use their names.

Editor: Let’s talk more broadly about why companies should make pro bono work a priority.

Brown: From BASF’s perspective, it’s the right thing to do. As a corporation, we are encouraged to participate in community outreach programs, and it’s the most natural extension for members of the legal department to participate by doing pro bono work. Our former general counsel, David Stryker, was very supportive and had a recognition program for participants. Our current GC, Keith Ansbacher, also encourages this work and, as Nancy mentioned, has been substantially involved in doing pro bono work himself.

Eberhardt: Corporate legal departments want to do pro bono work, which is evidenced by the fact that in-house lawyers founded Pro Bono Partnership to provide manageable opportunities to their attorneys. Legal departments often don’t have the same resources as law firms, for instance, junior associates available for pro bono research, and may not have the same formal pro bono program and expectations as law firms. So the Partnership was specifically designed to provide volunteer opportunities to in-house lawyers in their existing areas of expertise.

While some in-house lawyers are willing to work on a death penalty case, for example, if you are a trademark lawyer, that may involve learning a whole new area of law, and the time commitment is huge. In-house lawyers don’t usually have the time to leave their jobs and do that kind of work, and corporations don’t traditionally have a pro bono infrastructure to support the attorneys’ efforts. So Partnership volunteers can maximize their time by contributing in an area where they’re already experts, and having easily accessible opportunities facilitates making pro bono work a priority.

Editor: Do you have any final comments for our readers?

Brown: I wanted to mention some of the excellent training programs that the Partnership offers. For example, this year’s HR Boot Camp was a two-day program run by the Partnership in collaboration with Jackson Lewis. The agenda covered the main areas of concern when practicing employment law for nonprofits. It was outstanding training that provided useful materials and in-person examples. Participating attorneys from BASF reported that it was a great opportunity to learn the basics and, as a result, feel more qualified to work with the Partnership going forward on basic employment issues.

Another program is called SmorgasbonoSM, a Legal Q&A Program for Nonprofits. Christine Duffy of the Pro Bono Partnership and I worked together to develop this program where clients could select from a menu of subject matter attorneys, including those with expertise in contracts, corporate governance, HR, IP, EHS, litigation and real estate. BASF was pleased to host this event at its Florham Park headquarters. At this event, the Partnership first trained volunteers on working with nonprofits – including nonprofit law and some of the ethical concerns – again, to increase our comfort level with this work. For this event, the Partnership also invited attorneys from Becton Dickinson, Medco, Paul Weiss, and Jackson Lewis to participate. Some matters were more complex and had to be handled later, but this experience really energized the BASF attorneys and was well received. We really appreciate the Partnership for being open to this kind of program. We have decided to hold this event on an annual basis.

Eberhardt: SmorgasbonoSM was developed  to provide nonprofits with one-on-one advice on a variety of legal issues. Topics included contracts; corporate governance; environmental, health and safety; insurance; intellectual property; website and Internet; labor and employment; privacy; and real estate.

And let me add a nod of appreciation to Melanie for coming up with that name!

For more information on volunteering with Pro Bono Partnership, visit www.probonopartnership.org or email Nancy Eberhardt at neberhardt@probonopartner.org.