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Observers say it’s a commendable goal to ask each of New Jersey’s admitted attorneys to take on one pro bono case a year but that it will not solve the pro bono problem, and that legislative action and funding is needed. New Jersey State Bar President Barry Epstein plans to announce his proposal soon in an open letter to the bar. “I realize that this is idealistic, but you’ve got to start somewhere,” says the Rochelle Park lawyer, whose presidency ends in May. The proposal comes on the heels of the State Bar trustees’ refusal to sign on to a proposal, initiated by the Salem County Bar Association, to call on the New Jersey Legislature for funding to make compulsory pro bono unnecessary. Moorestown, N.J., sole practitioner Allen Ferg, who unsuccessfully challenged the pro bono mandate in Madden v. Delran, 122 N.J. 591, says he does not support Epstein’s proposal — even though it would be voluntary — because it would still be unfair to private lawyers. Since some classes of lawyers are exempt from doing mandatory service — or as Ferg likes to call it, “involuntary servitude” — the burden falls to private practice lawyers. Judges, government attorneys, prosecutors and legal service organization lawyers are excused from service, which Ferg says is unfair. Many private lawyers, especially in rural areas of New Jersey, earn far less than government attorneys, he notes. “All you’re doing is taxing private attorneys,” he says. If the burden of providing services to indigent populations is distributed, it should be doled out evenly and fairly, Ferg says. He also advocates funding indigent legal services through the state. “I think the Bar Association should lobby the Legislature,” Ferg says. “I think the supreme court should lobby the Legislature. I think that people ought to demand changes.” Doug Eakeley, national chairman of the Legal Services Corp., agrees that each attorney should do his or her part to provide representation to the poor, but says that much more is needed to fully address the problem. “If you’re talking about overall need, clearly voluntary efforts are necessary, but they will never be sufficient,” says Eakeley, a partner at Roseland, N.J.’s Lowenstein Sandler. The gap in coverage for the poor is already too wide, he says. Four out of five eligible candidates who apply to the Legal Services Corp. must be turned away because of lack of resources, Eakeley says, adding, “A better solution is to secure state funding.” Salem, N.J., Bar President Martin Siegel, whose group spearheaded the proposed lobbying efforts rejected by the New Jersey State Bar this year, questions how Epstein’s volunteer plan might be implemented. Volunteering allows attorneys some freedom to be selective and to avoid cases that might be distasteful to them. At present, lawyers who are assigned to a pro bono matter cannot decline based on the subject matter. But if lawyers get to choose their cases, it could leave some less popular matters uncovered, says Siegel, of Pennsville, N.J.’s Doroshow, Pasquale, Krawitz, Siegel & Bhaya. Then there’s the matter of timing. Attorneys are less likely to want to take pro bono cases during the summer or the holiday season, Siegel points out. Another problem is that the plan would not address the disparity among counties, Siegel says. In counties like Salem, attorneys feel the burden of mandatory pro bono more sharply because there are fewer attorneys in the pool. In light of those issues and others, Siegel says the association prefers that the matter be left to the New Jersey Legislature to manage through the Public Defender’s Office. A bill introduced last June by state Sen. John Adler, D-Cherry Hill, calls for $2 million to fund statewide representation of the poor through the Public Defender’s Office. The measure, S-1458, is under consideration in the New Jersey Senate’s Budget and Appropriations Committee. But neither the New Jersey State Bar nor the judiciary is actively supporting the measure. Last May, the state supreme court’s Ad Hoc Committee on Pro Bono Assignments said it would be inappropriate for the court to lobby the legislative and executive branches and implied that the State Bar should do it instead. On Oct. 13, the State Bar General Council voted narrowly to reject the Salem Bar’s resolution calling on the supreme court to end mandatory pro bono and on the Legislature to provide publicly funded representation for the poor. Apparently, the proposal was considered too extreme and too harsh in tone. So Epstein is changing tack, hoping to draw on the best impulses of the bar. With about 35,000 practicing attorneys statewide, Epstein says, “if every lawyer handled one case — or even half the lawyers handled one case — it would obviate the need for a mandatory system.” All nonexempt lawyers, even rainmakers, should be able to squeeze one pro bono case per year into their schedules, he says. That includes himself. “As soon as my term here is over as president, I intend to obtain a pro bono assignment,” most likely a criminal case in Bergen or Passaic counties, Epstein says. According to the Administrative Office of the Courts, 2,648 pro bono cases were assigned in 1999. The cases represent slightly more than 7 percent of the number of lawyers.

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