Key Development: Beginning next year, lawyers seeking entry to the New
York bar will have to undertake 50 hours of pro bono service before they can get
Potential Impact: Some observers predict that the pro bono mandate
will help instill a culture of service in new lawyers, while others fear the
next step may be mandatory pro bono service for all lawyers.
What's Next: Rules will be issued in the fall to flesh out the
By Joan C. Rogers
In an unprecedented step, New York Chief Judge Jonathan Lippman May 1
announced a pro bono requirement for admission to the bar in that state.
In remarks on Law Day, Lippman said that starting next year, New York will
require “each and every applicant for admission to contribute 50 hours of
participation in law-related and uncompensated pro bono service before they can
practice in New York State.”
Lippman acknowledged in his remarks that New York is the first state in the
nation to require pro bono service as a condition for admission to the bar.
The announcement drew both praise and criticism from lawyers whom BNA
contacted for comment. Some called the requirement unfair to new lawyers and
unhelpful to needy clients. Some voiced concern that the requirement could
backfire and turn young lawyers against pro bono service, and that it could
burden legal service programs with extra supervisory responsibilities.
Others focused on potential upsides. They expressed hope that the required
pro bono service will inculcate a lifelong commitment to equal justice in new
lawyers, spur law schools to organize more pro bono opportunities, and help
fulfill unmet legal needs.
But mostly, observers are wondering exactly how the requirement will be
implemented. “The devil is in the details,” University of Tennessee law school
professor Dean Hill Rivkin told BNA.
Rules implementing the new mandate will be developed over the summer and
released sometime in the fall, Lippman told BNA.
In his Law Day remarks, Lippman said the new requirement is aimed at
“instilling and fostering a culture of service in the men and women who enter
our profession as lawyers each year.”
“If pro bono is a core value of our profession, and it is--and if we aspire
for all practicing attorneys to devote a meaningful portion of their time to
public service, and they should--these ideals ought to be instilled from the
start, when one first aspires to be a member of the profession,” he
Over his three-year tenure as chief judge, Lippman has pushed to secure
increased funding for providing legal services to the poor and disadvantaged. In
his Law Day remarks, Lippman said that with about 10,000 prospective lawyers
passing the New York bar exam every year, the new pro bono requirement in
aggregate would yield a half million hours annually to benefit New York and
those in need of legal help.
The pro bono service will do more than benefit clients in dire need of legal
assistance, Lippman said. It also will instill a commitment to service in
prospective lawyers and help them build valuable skills and acquire hand-on
experience that is crucial to becoming a good lawyer, he remarked.
In an interview with BNA, Lippman described the thrust of the new requirement
as simple: people who apply for admission are going to have to demonstrate a
commitment to the core value of pro bono service.
Among the critics of the new mandate is University of Missouri law school
professor Ben Trachtenberg, who is licensed to practice in New York.
“While I completely appreciate the motive behind Chief Judge Lippman's plan,
and there's a tremendous access to justice problem, I don't think this is a
particularly effective or fair way to solve the problem,” he told BNA.
“There won't be a tremendous amount of value added,” Trachtenberg said,
because the people providing the service will be mostly law students or recent
graduates, rather than licensed attorneys, and because most legal needs can't be
easily divided into 50-hour chunks.
Moreover, he noted, supervision will be required by law, which will shift
even more work to the overburdened staff of legal services programs. While the
law students or graduates may benefit, “it won't get people much access to
justice,” he said.
Trachtenberg also said the requirement poses a hardship for law students and
recent graduates, many of whom don't have legal employment and may be working at
Starbucks or retail stores to pay the rent. Many are starting their own firms
and need to pay bar dues and law school loans, yet will be required to provide
services without pay, he observed.
Another detractor is Susan Cartier Liebel, New Haven, Conn., the founder of
Solo Practice University. She spoke out against the requirement May 2 in the Solo
Practice University blog, calling the new requirement “indentured servitude”
for law students and new lawyers seeking admission in New York.
Speaking to BNA, Liebel characterized new lawyers as “the most vulnerable
group in our profession.” It's wrong to set up yet another hurdle for them just
as they are starting out, she contended.
Liebel disputed the idea that pro bono is a core value for lawyers. If it is,
she said, “why not go to the more established lawyers who have already made
their way,” and why hasn't the ABA endorsed mandatory pro bono? If the public
and law students would benefit from a pro bono program, law schools should take
on that responsibility, Liebel added.
Some lawyers BNA contacted expressed enthusiasm about Lippman's idea, or at
least cautious support.
“I applaud the pro bono requirement,” professor Deborah L. Rhode of Stanford
Law School told BNA. Rhode is a longtime advocate of mandatory pro bono service
with an option for a buyout. She received the ABA's Pro Bono Publico award for
her work on expanding public service opportunities in law school.
For law graduates who are working in law firms pending bar admission, Rhode
said, “this ramps up the pressure on firms” to allow pro bono service.
The new requirement, she said, “gives leverage to a lot of lawyers who would
like to do pro bono work but are in unsupportive environments.” The period
before bar admission is a time when some lawyers are underused, she pointed
Another academic who likes the idea is professor Michael Millemann of the
University of Maryland Francis King Carey School of Law in Baltimore.
“Chief Judge Lippman's decision to require 50 hours of pro bono service for
admission to the bar is a good step in the right direction,” he said. Millemann
helped develop the law school's clinical law program, and has long been active
in efforts to increase the delivery of legal services to the poor and middle
While noting that the scope and effect of the requirement will depend on its
terms, Millemann said he thinks “the general principle is good for all of the
reasons that the Chief Judge suggests.”
Millemann told BNA that when the University of Maryland law school made a
decision in 1988 to require students to provide legal services to the poor, the
reaction among students mirrored the mixed reaction now being expressed to
The majority of students thought the requirement was fine, while some
complained. But within a year, he said, “it became part of the culture, and
complaints disappeared.” The requirement has bolstered the law school's public
interest reputation and has attracted students to the law school, he added.
In light of that experience, Millemann said he believes although there may be
some ripples now, Lippman's pro bono mandate “will become part of the culture of
the New York bar.”
Robert N. Weiner of Arnold & Porter, Washington, D.C., told BNA he sees
“major upsides and potential downsides” to the new requirement. Weiner has
headed the District of Columbia bar's pro bono committee as well as the ABA's
Standing Committee on Pro Bono and Public Service.
“The goal is laudable,” Weiner said, emphasizing the serious gap between
legal needs and legal services. He expressed hope that the new requirement will
help get people the representation they need and will lead some people into
legal services work. But “we'll have to see how it works out,” he said.
“The issue is whether there will be enough resources to ensure that the
people doing the pro bono are getting supervised, and getting to represent the
right clients, and actually serving their clients,” Weiner said. “The existing
infrastructure will need to be supplemented dramatically to have the capacity to
accommodate all this pro bono service,” he said.
Weiner noted that if there is not enough supervision of these “absolutely
green” attorneys, the results could be unfortunate for both the clients and the
Although in some instances clients are better off with any type of lawyer
assisting them in their legal trouble, he said, that's not so in every
circumstance. Poor people are entitled to effective legal services, he said, and
“we can't relegate them to something less than the level of legal services that
will protect their rights.”
Tennessee professor Rivkin said he sees potential value in the new
requirement--but many details to work out.
“To the extent that this might promote more structured pro bono programs in
law schools that don't have them, that's a positive,” Rivkin commented.
He served as director of the Association of American Law Schools Equal
Justice Project, which explored ways that law schools could become more
effectively involved in equal justice issues. The project concluded that law
schools' infrastructure could and should be mobilized for equal justice, and
should collaborate more with programs that serve the poor and disadvantaged. The
University of Tennessee law school recently hired a full-time pro bono
coordinator, Rivkin noted.
New York's new requirement is also positive, Rivkin said, to the extent it
generates more meaningful pro bono service to meet legal needs. “But it's got to
be meaningful,” he emphasized, because if law students see it as just another
hurdle, “it won't have the desired effect of creating a bar with a genuine
consciousness about public service lawyering.”
How the new requirement will be implemented is the central question, Rivkin
said. Where will the pro bono service be done, and under whose supervision? What
malpractice insurance will be available? What matters are suitable for bar
applicants to do in that phase of their career? “This is a long-haul
proposition,” he said.
Esther Lardent, who heads the Pro Bono Institute in Washington, D.C., told
BNA she favors a pro bono requirement for law students because it is only one of
many requirements they must meet. But she opposes mandatory pro bono for
practicing lawyers for pragmatic reasons, “because experience demonstrates it
cannot be effectively implemented and the sturm and drang that accompany it
often result in a backlash against pro bono.”
“Judge Lippman's proposal falls somewhere between these two categories,”
In a May 7 op-ed piece in the
National Law Journal, Lardent applauded Lippman's “boundless” efforts in
support of access to justice for the poor and disadvantaged, and she
characterized his announcement as a “wake-up call” about the seriousness of the
Lardent noted that exposing lawyers to pro bono service in law school or
early practice appears to result in a passionate, lifelong commitment to public
service, but “negative pro bono experiences can have the opposite effect and
create lifelong pro bono skeptics.” She also mentioned the pressure that
Lippman's initiative will place on an already underfunded pro bono
Based on her experience at the institute in developing pro bono at major law
firms and in-house legal departments, Lardent offered several concrete
suggestions in her op-ed piece for implementing a pro bono program to make sure
that it works well for the lawyers, the courts, the legal profession, and the
define what qualifies as “pro bono service” and frame the definition to be
relevant to the underlying problems--legal assistance for low-income persons and
other eligible clients.
input from key players, map out a detailed regulation that addresses practical
challenges such as how candidates for admission will secure pro bono clients,
how out-of-pocket expenses and other costs related to pro bono work will be
covered, where unemployed attorneys will meet with their pro bono clients, and
what professional liability coverage will be available for those who are not yet
sure that legal services and pro bono programs have the additional resources
they need to train and supervise these volunteers.
that applicants are in differing situations and will need differing arrangements
to satisfy the requirement.
evaluate, evaluate” to gauge the impact and efficiency of the program and the
satisfaction of those involved, including the pro bono clients.
Millemann said he would encourage the New York State Bar Association to
respond to the challenge with a “teamwork” model that recruits private mentors
for applicants, with the applicants paired in teams. “The goal would be to have
10,000 teams, not just 10,000 applicants, providing services,” he explained.
The teams would provide services in a wide range of matters, thus ensuring
that the supervising lawyers practice within their areas of competence and are
true mentors, Millemann said. In the aggregate, he explained, the teams would
have some features of a post-J.D. apprenticeship program.
Given that there are 75,000 members of the NYSBA and 10,000 applicants
annually, it should be possible for the bar to meet the supervisory need if
eligible lawyers provide mentoring services once every four or five years,
He also noted that by participating in an access to justice team, lawyers
could comply with New York Rule of Professional Conduct 6.1, which strongly
encourages lawyers to provide at least 20 hours of pro bono services a year to
This teamwork approach would be a “win-win,” Millemann said. If the state bar
embraces the idea, he remarked, “it would make New York a national leader in pro
Millemann also said his suggestion “provides a partial answer to the big
question that, like the proverbial 500 pound elephant, hangs over the Chief
Judge's decision: if bar applicants, why not barred lawyers (or law professors,
for that matter)?”
The bar could keep the focus on Lippman's decision--rather than the question
of mandatory pro bono for lawyers already admitted to the bar--by undertaking a
major recruitment campaign for volunteer lawyers to meet the need for
supervisors and mentors required by Lippman's decision, Millemann said. If
lawyers don't respond, “they will invite discussion of the big question,” he
Many of those contacted by BNA for this story raised the same two questions:
Will pro bono service to the needy and disadvantaged count if performed in
clinical courses taken for credit in law school? Will pro bono service outside
New York qualify?
Most who raised these points expressed hope that the answer to both questions
would be yes. On the issue of where the pro bono service is performed, Rivkin
commented, “I can't imagine that a student who does pro bono in a structured
program would somehow be excluded because the site was not in New York.”
Regarding service in for-credit clinical courses, Millemann said that
“supporting more clinical courses is a good approach.” Even though students get
course credit, that should not matter if the goal is bridging the access gap, he
said, adding: “Indeed, it should be applauded since it provides an enduring
structure for delivering indigent legal services.”
Clinical students usually spend considerably more time than the credit
allotments, and provide “pure” pro bono hours between semesters and after the
courses are over, he pointed out.
In speaking with BNA, Lippman did not provide a definite answer to these
questions. He did say that they will be given serious consideration while the
New York court system formulates rules to implement the new pro bono
“Obviously we're focused on narrowing the justice gap here in New York,”
Lippman said, but “we're not going to be inflexible.”
Concerning service in other states, Lippman noted that one law school in New
York sends students to help those victimized by Hurricane Katrina. “What could
demonstrate more graphically that an applicant embraces the core value of
service to others?” he asked.
As for clinical courses, Lippman pointed out that they vary widely. “We're
not going to give credit for sitting in class,” he said. More likely, he added,
the time students spend out in the field helping the poor and disadvantaged
would be within the general parameters of the requirement.
Regarding service by those seeking admission on motion based on practice
elsewhere, Lippman said it's possible that there would be some flexibility in
satisfying the pro bono requirement.
Lippman noted that his comments on applying the new requirement are
necessarily preliminary and “visceral” because the details have not been worked
out. He reiterated that the rules will be grounded on the idea that people
applying for admission must demonstrate a commitment to the core value of public
In developing the new rules, Lippman said, “we're going to reach out to every
constituency, in a cohesive way,” to get a good feel for the issues. “We're
going to work out a flexible system that makes some sense” with rules that “will
be widely accepted as fair,” he said.
In light of the wide input that will be solicited to develop the rules, “I
don't think it will be necessary to put it out for comment,” he said.
In formulating the new rules, Lippman will have input from the organized
NYSBA President Vincent E. Doyle III has created a working group of members
to examine issues related to implementation of the requirement, and the bar
association has also solicited comments from its members via social media and
email, according to Gloria Herron Arthur, the state bar's director of pro bono
affairs. The bar will share the insights from the working group and the outreach
to members with the court system, Arthur told BNA.
The NYSBA's Young Lawyers Section is involved with that process and is
polling its members about implementation issues, section chairman James R.
Barnes told BNA. He practices with Burke & Casserly in Albany, N.Y.
Does the new requirement crack the door open to require pro bono service from
all lawyers in New York? “Some of our lawyers here in New York are scared to
death what this portends,” Lippman told BNA.
“My view is that it should not be necessary to institute mandatory pro bono
for members of our profession,” Lippman said.
The track record of the New York bar indicates that mandatory pro bono is not
necessary, he said, referring to the wide array of pro bono programs and
extensive pro bono services that New York lawyers already provide. Lippman said
the bar's pro bono activities inspired his desire to transfer that commitment to
a generation of lawyers.
Beyond that, Lippman said, “I'm not sure that mandatory pro bono is
workable,” given the great variation among lawyers' circumstances.
Stanford law professor Rhode, a longtime advocate for mandatory pro bono,
told BNA she hopes the pro bono requirement for bar applicants will spread to
existing bar members, “which would be a much more significant contribution by
lawyers with more expertise.”
In a May 13 New York Timesop-ed
piece explaining his opposition to the new pro bono requirement,
Trachtenberg suggested that as an alternative to Lippman's plan the state could
impose a small annual pro bono requirement on all licensed lawyers, charge
additional fees when lawyers reregister every two years, or raise taxes to fund
Trachtenberg told BNA that after the op-ed piece was published, some lawyers
sent him emails protesting the idea of mandatory pro bono for all licensed
lawyers. The idea of mandatory pro bono would face tremendous opposition, he
acknowledged, but he said “that should ring an alarm bell” about whether it is
fair to require 50 hours of pro bono service from a group that has little voice
in the debate.
Weiner, of Arnold & Porter, took the position that the new requirement
Lippman announced is not necessarily a step to mandatory pro bono. He said he
would like to see all lawyers do pro bono voluntarily.
Weiner spoke against mandatory pro bono when the ABA Ethics 2000 Commission
floated the idea a dozen years ago while it was formulating recommendations to
update the Model Rules of Professional Conduct. Bowing to heavy criticism, the
commission decided not to follow through on its tentative proposal to require
pro bono service under Model Rule of Professional Conduct 6.1, or on its
fallback proposal to require reporting of pro bono service voluntarily
performed. See 16 Law. Man. Prof. Conduct 370.
No jurisdiction in the United States has ever mandated pro bono service,
although some require lawyers to report how many hours they have devoted to it,
and some require lawyers to accept appointments to represent indigent defendants
in criminal cases.
Lippman told BNA that his proposal is “an idea whose time has come.” He said
“it's my hope that states around the country will replicate what we are doing in
New York.” If that happens, he said, it would mean two and one-half million
hours of additional pro bono work around the country.
Weiner suggested that the idea could spread because New York is influential.
But he predicted that many jurisdictions will wait to see how things work out in
In her opinion piece, Lardent sounded a note of caution to other
jurisdictions that may be considering a similar step. New York is pioneering an
ambitious approach that it hopes will succeed in reducing the unmet need for
legal assistance and enhancing the pro bono commitment of young lawyers, “but we
must acknowledge that the approach is untested,” she said.
The experience in New York needs to be rigorously assessed, and other
jurisdictions must thoughtfully analyze whether that approach or some variation
of it will work in other places, Lardent wrote.
Full text of Lippman's remarks at http://www.courts.state.ny.us/whatsnew/Transcript-of-LawDay-Speech-May1-2012.pdf.