N.J. Bar's Pro Bono Proposal Criticized for One-Size-Fits-All Approach

Mary Pat Gallagher

New Jersey Law Journal

A New Jersey State Bar Association task force proposing to raise the roof on pro bono legal efforts is meeting opposition from an unlikely quarter -- Legal Services of New Jersey, the state's largest pro bono provider.

In a 61-page report titled "Closing the Justice Gap," the task force recommends a raft of measures, including establishment of a judiciary commission; creation of a statewide pro bono web portal; allowance of CLE credit for pro bono work; and clarification and expansion of what qualifies for exemption from mandatory pro bono service.

But LSNJ has decried the recommendations as the product of a one-size-fits-all approach that fails to assess the most pressing legal needs of the poor and the real obstacles to meeting those needs, including the economic realities at small and solo firms and the pressure at larger ones to rack up billable hours.

It also describes the report as the result of a rushed process by an Essex County-centric group with too narrow a perspective that was working to meet an arbitrary deadline.

Though two LSNJ lawyers served on the task force and took part in discussions, they "did not concur with the great majority of conclusions and associated narrative," the report notes.

Despite LSNJ's opposition, the report has won support from the State Bar Board of Trustees, which voted on May 15 to circulate it among the association's constituent groups for comment.

It also voted to create an ad hoc committee to further examine the subject, perhaps to consider concerns expressed by LSNJ.

The vote came one day after former Chief Justice Deborah Poritz, chairwoman of LSNJ's own board of trustees, had sent a letter urging the bar trustees not to give their approval.

The task force was the project of Susan Feeney, who stepped down as bar president in May. Feeney has a long-time commitment to pro bono and made it a "core mission" of her presidency to encourage lawyers to devote more time to volunteering their services.

After winning approval from the bar trustees last July, Feeney formed the 20-member task force and directed it to survey New Jersey's legal-provider landscape and make recommendations to encourage and expand pro bono participation by the private bar.

The task force was chaired by Karen Sacks, executive director of Volunteer Lawyers for Justice in Newark, and Emily Goldberg, the pro bono director at McCarter & English, also in Newark, where Feeney is a partner.

The members were meant to represent key stakeholders: groups like the ACLU-NJ (Jeanne LoCicero) and Partners for Women and Justice (Jane Hanson); companies like Verizon Wireless (Celeste Como) and Merck & Co. (Dianne Pecoraro); the state's three law schools (Rutgers-Camden's Eve Klothen, Rutgers-Newark's Jessica Kitson and Seton Hall's Kevin Kelly) and firms that ranged from Isabel McGinty's solo Hightstown practice to large firms like Roseland's Lowenstein Sandler (Catherine Weiss) and Morristown's Riker Danzig Scherer Hyland & Perretti (Brenda Liss).

LSNJ was represented by vice presidents and assistant general counsel Kristen Mateo and Akil Roper, each with half a vote.

LSNJ had concerns early on but remained on the task force. After the first meeting, its executive director, Melville Miller Jr., wrote to the task force last October criticizing what he saw as erroneous assumptions -- namely, that a new pro bono support infrastructure was needed; that added funding for pro bono should go to something other than staff who could provide direct legal representation; and that certain kinds of support and coordination for pro bono efforts were lacking in New Jersey.

The report, issued as Feeney was finishing her term, states the task force's unanimous view that more pro bono services are greatly needed and more money must be found to provide them.

How that is to be accomplished is where the disagreement arises.

It is seeking rule changes that would clarify what kinds of pro bono volunteer work qualify for exemption -- established by Madden v. Delran, 126 N.J. 591 (1992) -- from the obligation that private lawyers represent indigent defendants for free in court-appointed cases.

The task force suggests replacing the currently incomplete and scattered information with a new rule broadly defining pro bono service as legal assistance to low-income persons and to nonprofit charitable, religious, civic, community or educational organizations or government entities in matters designed to address low-income needs. The definition would cover law school clinics, civil rights groups and nonprofits "in furtherance of their purposes" where paying legal fees would be inappropriate or onerous.

Pro bono providers would have to be certified -- with exceptions for LSNJ and its regional offices, which would be deemed certified -- and the judiciary would maintain and disseminate a comprehensive list. LSNJ offices would get automatic waiver of court fees and any other group that qualified for the exemption could also seek a waiver.

LSNJ objects that expanding the Madden exemptions to other groups "inevitably would dilute the primary focus" on assisting those of limited means and divert help elsewhere. LSNJ also predicts a significant jump in fee waivers that would shrink court revenues and possibly lead to fee hikes for other litigants. It says more information is needed to assess the impact.

Another proposed incentive would provide one hour of CLE credit for every six hours of pro bono worked up to six credits, as Delaware allows. Retired lawyers who do pro bono are already exempt from registration fees. The proposal would cause the necessary form to be automatically mailed to all lawyers over 55.

The task force seeks more than rule changes from the judiciary. It wants the state Supreme Court to set up an "Access to Justice Commission," along the lines of those in 34 other states, to provide an ongoing structure for high-level court engagement.

It also suggests that judges get more involved in promoting pro bono by recruiting and training lawyers for pro bono, recognizing their efforts and giving docket preferences to participating lawyers. It proposes adopting a version of Rule 3.7(B) of the ABA Model Code of Judicial Conduct, which spells out what judges may do to promote pro bono.

LSNJ, on the other hand, says that approach might be right in other states but not here. It cites the view of LSNJ board member Douglas Eakeley, a former board chairman of the national Legal Services Corp., that New Jersey needs no commission because of "the nationally recognized achievements and cohesion of the New Jersey Legal Services system."

That statewide system "provides assistance in every significant type of legal problem affecting the poor" as well as training, research and electronic forums, and collaborates with other groups and pro bono advocates, LSNJ says, adding that the Supreme Court already has an Advisory Committee on Access and Fairness.

LSNJ also opposes adopting the ABA rule, saying it represents "a distinctly different direction from New Jersey's most-stringent-in-the-country Codes of Judicial Conduct" and the idea requires "far more deliberation and consideration, by a group very different from the task force."

Aside from Poritz, the LSNJ board includes retired Justices James Coleman, Alan Handler, Virginia Long, John Wallace Jr. and James Zazzali.

The task force recommends a wide web portal designed to make it easier for attorneys, especially those at firms without pro bono coordinators, to find pro bono work that suits their abilities and interests and to obtain information about training and other events, download related apps and even share items of interest on social networking sites.

LSNJ already has something along those lines, as does the state bar. The task force suggests having the LSNJ site, www.probononj.org, serve as a statewide portal on a trial basis.

LSNJ's response is that it recently relaunched the site, which is now a "national paradigm" for such sites and that, like the old site, it is "open to all pro bono and kindred organizations."

An issue discussed by the task force on which LSNJ did not comment was the concern that lawyers who do pro bono bankruptcy work will run into conflicts because of creditors represented by their firms.

Ethics opinions from Boston and New York City bar associations find no conflict problem if certain conditions are met, the report says, adding that Lowenstein Sandler, representing Volunteer Lawyers for Justice pro bono, will ask the Advisory Committee on Professional Ethics for an opinion on the issue under New Jersey ethics rules.

LSNJ identified several approaches that should have been considered but were not, such as requiring reporting of pro bono hours and allowing lawyers the option to give money in lieu of time to satisfy their pro bono obligations.

Beyond the substantive criticism, LSNJ took issue with the limited role it was assigned in the task force initiative, as just another stakeholder, rather than as the state bar's full partner. It also pointed out the state bar had failed to testify in support of a pending bill, S-2062, that would raise court filing fees and funnel part of the added revenues to LSNJ, which has experienced severe funding losses in recent years.

State bar President Kevin McCann remedied that deficiency on June 18 by testifying before the Senate Appropriations Committee in support of the bill, which has now passed both houses in slightly different forms.

Miller and Goldberg decline comment. Feeney referred a call to her successor, McCann, of Chance & McCann in Bridgeton, who released a statement saying the task force report was the work of a broad-based group and would be circulated inside and outside the bar associations and would be further examined by an ad hoc committee.

McCann said the state bar has always supported LSNJ through budget advocacy and members' pro bono work, adding, "We look forward to the continued involvement of [LSNJ] in this important work to improve the delivery of legal services to the many residents and organizations of this state who are without the legal resources they need and deserve."

Poritz could not be reached for comment. Sacks did not return a call.