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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 in.
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 details.
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 declared.
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 out.
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 class.
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 Lippman's announcement.
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 lawyers.
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,” Lardent said.
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 justice gap.
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 infrastructure.
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 clients:
• Carefully 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.
• With 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 licensed.
• Make sure that legal services and pro bono programs have the additional resources they need to train and supervise these volunteers.
• Acknowledge that applicants are in differing situations and will need differing arrangements to satisfy the requirement.
• “Evaluate, 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, Millemann said.
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 the poor.
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 bono.”
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 added.
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 requirement.
“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 service.
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 bar.
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 legal services.
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 New York.
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.
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