Responding to concerns from several bar groups, state court officials have expanded their definition of legal services under a new pro bono disclosure mandate.
Effective May 1, New York attorneys must report on their biennial disclosure forms the number of hours spent on pro bono "to poor and underserved clients."
Within weeks of the new disclosure mandate, at least three organizations wrote to Chief Judge Jonathan Lippman, voicing concern that the definition of pro bono was too narrow because it appeared to exclude free legal services to nonprofit groups that serve the poor and would discourage pro bono work for these groups.
A major concern was that transactional attorneys who frequently advise nonprofit clients in their pro bono practice would be deterred.
"This Rule could have a chilling effect on our corporate lawyers' commitment to pro bono work," the Association of Pro Bono Counsel wrote to Lippman last month.
In response to the objections, the court amended its definition of pro bono for the disclosure rule: lawyers should now use the pro bono interpretation under Rule 6.1 of the Rules of Professional Conduct to report their hours, according to a June 7 letter from John McConnell, chief counsel of the Unified Court System.
That rule encourages lawyers to provide pro bono service to people who cannot afford lawyers; activities related to simplifying the legal process for poor persons; and to "charitable, religious, civic and educational organizations in matters designed predominantly to address the needs of poor persons."
In addition to the Association of Pro Bono Counsel, letters to Lippman came from the New York City Bar's Pro Bono and Legal Services Committee and Lawyers Alliance for New York.
The city bar committee and the pro bono counsel association said they strongly supported the new reporting rule but requested that the court adopt the broader definition of pro bono under Rule 6.1.
The city bar committee, in a May 24 letter written by chair Brenna DeVaney, said allowing lawyers to report less than is included under Rule 6.1 is "confusing and communicates to many lawyers that some pro bono contributions are not as valuable as others."
"The committee…is concerned that the current narrow understanding of what is reportable will ultimately discourage some lawyers, transactional lawyers in particular, from undertaking pro bono work that is truly needed."
"The greatest misfortune that we are concerned about is that the very people and communities that we all hope will gain from the remarkable efforts to increase pro bono services may suffer if a reduction in legal assistance to certain categories of nonprofits is realized," the committee said.
The Association of Pro Bono Counsel, composed of law firm attorneys who manage a pro bono practice, said in a May 22 letter that valuable pro bono work could include a corporate lawyer's advice to two struggling nonprofits to combine resources to serve the disabled, or an intellectual property lawyer's work to protect an innovative curriculum of a girls school in Harlem.
"Under the Rule, however, it appears that none of this valuable work is reportable," the pro bono association said. "The message sent to these lawyers from New York through this narrow reporting definition, however unintentional, is that this work doesn't matter."
McConnell said in his June 7 letter to the groups that the principal goal of the new reporting mandate has been the "closure of the justice gap," and the reporting requirement "was designed to obtain empirical information on the direct provision of legal services and resources to those vulnerable populations."
The reporting rule, he wrote, "was not designed to undermine pro bono legal services to benefit the poor in other, less direct ways, or to create confusion among definitions, or to give rise to other potential problems." To avoid such issues, he said, the court was amending its pro bono interpretation to fit Rule 6.1.
The new definition will appear this week in an updated Frequently Asked Questions guide to the pro bono reporting rule.
The definition, however, does not encompass some work that law firms have in the past designated as pro bono, such as advising a municipal taskforce or an arts, church or school board.
But the revised interpretation appears to be final. David Bookstaver, a court system spokesman, said any change to the interpretation "would require 6.1 to be amended and that is not on the horizon."
Overall, the response from pro bono groups was upbeat.
"We're pleased the court was responsive to the issue we raised and we're happy to know they're amending the interpretation," said DeVaney, pro bono counsel at Skadden, Arps, Slate, Meagher & Flom, who was speaking on behalf of the city bar committee.
Latonia Haney Keith, pro bono counsel at McDermott Will & Emery and chair of the Association of Pro Bono Counsel, said the updated interpretation is "not a perfect fit," as there will be a portion of pro bono work that qualifies under the Pro Bono Institute standard but may not be reportable to New York state. For instance, some work on behalf of charter schools and government agencies may not count, she said.
But overall, "the majority of the work we undertake will be counted" and the group is pleased with the court's move, she told the Law Journal.
To determine if hours qualify, firms and attorneys will have to look at each nonprofit client and project and evaluate its relation to low-income individuals, said Jennifer Colyer, pro bono counsel in the New York office of Fried, Frank, Harris, Shriver & Jacobson.
Miriam Buhl, pro bono counsel at Weil, Gotshal & Manges, said the original interpretation "would have severely limited" the reporting of pro bono hours at large firms. At Weil Gotshal, a firm with a large corporate practice, the firm has developed "hundreds of pro bono clients" in the last decade, she said.
Any reduction in legal services to various nonprofits would come as many groups have experienced cutbacks and decreased contributions. "The last thing they need to know is their pro bono counsel assistance is in jeopardy," Buhl said.
Lawyers Alliance for New York, which connects business and transactional lawyers in law firms and corporate legal departments with nonprofits, also wrote to Lippman, expressing concern that participating lawyers' service may not be counted, said Elizabeth Guggenheimer, deputy executive director.
Now, she said, "we are very pleased that the Office of Court Administration considered the input and is now taking a position that furthers pro bono to help close the justice gap as they intend and recognizes that there are many ways that an attorney" can make a difference.