Mandatory Pro Bono: Not Only an Oxymoron, But at Cross-Purposes with its Goal

May 3rd, 2012 by Susan Hackett

New York State, via a Law Day Announcement  (covered by the New York Times) by State Court of Appeals Chief Judge Jonathan Lippman, has instituted a new rule that requires  applicants to the bar in New York to demonstrate that they have provided at least 50 hours of pro bono legal service in order to gain admission.   This rule is in support of a great and needy cause, but it’s bad on so many levels, I’m not sure where to begin.

First off, pro bono requirements are only applicable to those who wish to be admitted to the bar going forward – Really?  While some of those folks might be seeking an admission in New York after being admitted and experienced elsewhere, the majority of those regulated by this rule are the least qualified, experienced, or financially capable of representing the poor as volunteers.  In addition, let’s remember since this is a qualification for admission, the vast majority therefore aren’t members of the bar anywhere yet, but are being required to demonstrate legal pro bono hours.  We all know how they could get them, but let’s be frank: are we really doing a service for the poor of New York by requiring that a bunch of untrained and even unhappy-about-being-there future lawyers are going to handle their legal work for the first 50 hours required of them before they drop the matter?

Second, if the goal is to make pro bono a lifelong commitment for future generations of New York lawyers, the worst way to kindle that kind of spirit is to require that the work be done: it’s been demonstrated over and over that pro bono and other kinds of legal volunteerism are commitments that some lawyers are inspired to do no matter what, and that other lawyers will never do no matter how much time, talent, or treasury they have at hand.  Statistically, the busiest lawyers are the ones who volunteer to provide the most public interest service – those who are not inclined to volunteer for anything won’t be suddenly “turned on” by a requirement that they demonstrate they’ve done 50 hours of legal pro bono sometime previously in their life.

You can see all of the arguments on both sides of this issue, written by actual New York lawyers (since I’m not one), on posts such as Scott Greenfeld’s  on the Simple Justice blog, and Carolyn Elefant’s post on myShingle.com.

Here’s what I’d add to what others have said better than I could: I respectfully push back on this rule, based on my work with top pro bono groups, such as the Pro Bono Institute, which don’t like mandatory pro bono for a very important reason: the end result is a net “lowering” of the number of hours donated by lawyers. It’s proven from looking at the experience in states with mandatory systems.

I predict that this rule will be famous for having set the ceiling on the number of “authorized” hours or credits for pro bono participation allowed by every firm of some size in NY.  And given how much work is done by firm programs (more than can be done or supported by solo & small firm practitioners), pro bono service just got dealt a losing hand.  In New York firms with great and established pro bono programs, lawyers book many many more hours than 50 a year, nonetheless 50 in a lifetime.

Further, given my experience as a former bar exec, here’s one last reason to dislike this requirement that most folks who’ve never worked in bars don’t think much about: the administrative time and costs that will be spent enforcing this rule and arguing over what constitutes qualifying service will be enormous.  What if that bar time and money were dedicated instead to pro bono work in the state?  Might we have funded a significant group of full time public interest lawyers to work at the best legal services organizations, rather than a small army of full time bar application reviewers?  Dedicated pro bono lawyers funded by the bars could have provided skilled, efficient, consistent, holistic, and ongoing direct service to the needy, across the state.  In addition, the work such lawyers do, by developing initiatives that allow others to volunteer and participate, would have brought in/facilitated the meaningful delivery of service from ad hoc, shorter term, and less expert volunteer law firm lawyers around the state.

I know that I’m slipping down the slope of a conversation about how we can force funding of pro bono work, rather than finding ways to drive more lawyers to provide the pro bono services we are professionally obligated to offer when we are granted the privileges of practice.  But just spend a moment to think about how many public-interest-minded new lawyers (who are without paying jobs as they graduate, and without the prospect that there are ANY funded jobs in pro bono service on the market) might do great work as full-time pro bono lawyers funded by the bar or by other great organizations such as Equal Justice Works (EJW) or New York Lawyers for the Public Interest (NYLPI)?  I know this is all pie in the sky, but as we take on the responsibility for creating systems to drive greater pro bono service toward those who need it, perhaps we could consider ways we can better invest the large sums of time and money that will be spent to administer this rule by funding meaningful legal service for the poor.  I give credit to Judge Lippman and the Court for wanting to take a step – goodness knows, a step is needed! – and for trying to address this huge need.  But I don’t think this rule is a step that puts us on the right path.

-Susan

 

ADDENDUM – May 8, 2012, by Susan Hackett:

There’s a great article by Esther Lardent in the New York Law Journal today on some of the practical issues that arise and must be considered as this rule moves toward implementation, especially if other states are reading this rule as a new model to be considered in their jurisdictions …