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Evan A. Davis, the immediate past president of the Association of the Bar of the City of New York, was not present for the first of four statewide pro bono convocations at Fordham University School of Law last month. But his sentiments on equal justice were, and they set the tone for an historic task taken up by the Unified Court System: the design of a statewide program for lawyers to easily volunteer their services. In opening remarks at the Fordham meeting, New York Court of Appeals Chief Judge Judith S. Kaye quoted from a speech Davis delivered last November, on the occasion of what is usually a pro forma business session of the city Bar. But on that November evening, the nation was still reeling from the terrorist attacks of Sept. 11. And Davis’ own downtown Manhattan firm — he is a partner at Cleary, Gottlieb, Steen & Hamilton — was dislocated by the collapse of the nearby twin towers. In his speech, Davis identified the irony of the moment: atrocity had been met with mercy — mercy in the form of an unparalleled outpouring of volunteerism among New York lawyers. “Adversity almost always has a counterpoint,” said Davis. “From scandal comes reform; from disease comes medical advance. The tragedy with which we are coping has revealed the bar’s deepest character, and that character is admirable.” The challenge today, as Kaye and others see it, is how to maintain that counterpoint momentum of pro bono. And how to involve those attorneys — slightly more than half the state’s private lawyers, according to New York State Bar Association surveys — who have never volunteered legal service to the poor, or for the public good. “It was a shining hour for the New York Bar,” said Kaye, with reference to volunteerism at the time of Sept. 11. “When these [convocations] are complete, we will have a marvelous answer to a long-standing and vexing problem: How do we overcome the problem of so many lawyers seeing no value in pro bono?” She then issued a challenge to the approximately 150 lawyers attending the event, the planning of which actually began in Albany on, of all days, Tuesday, Sept. 11, 2001: “What we want to see emerge is something tangible — no more rhetoric,” said Kaye. “It doesn’t mean a perfect theoretical model, [it means] an actual system we can put in place.” FAMILIAR TERRITORY A background paper presented at Fordham suggested that Kaye and others pushing for systemic progress face a difficult path ahead, one marked with vociferous objection to the idea that New York lawyers should work a handful of hours each year for no pay. In 1990, when a committee of the New York State Unified Court System found a “widening gap between the legal needs of the poor and the resources available to meet those needs,” a mandatory pro bono requirement was recommended. While accepting the findings of the Marrero Commission report — named for Southern District Judge Victor Marrero, at the time a partner at Brown & Wood, now Sidley Austin Brown & Wood — former Chief Judge Sol Wachtler balked at the notion of pro bono as a formal requirement for licensure. His reluctance was due to “significant resistance demonstrated by the bar,” according to the convocation paper. Five years ago, the city Bar recommended that an annual “aspirational goal” for attorneys should include 20 hours of pro bono service per year, or comparable financial contribution to poverty law agencies. “As before, the private bar was not receptive,” the paper stated, “and the issue was rejected altogether.” Comprehensive surveys of pro bono activities among New York lawyers were conducted in 1992 and 1997 by the Administrative Board of the Courts. In part, the later survey benchmarked the effectiveness of strictly volunteer pro bono in the face of what the convocation paper defines as New York justice: a “two-tier system … where those with lawyers are able to address their legal needs, and those without are not.” The second survey found results in 1997 “shockingly similar to the earlier results,” according to the paper. In fact, there was a decrease in the percentage of New York attorneys reporting 20 or more hours of pro bono — from 26 percent in 1992 to 24 percent in 1997. Late this year, yet another survey will be conducted by the board. In 1999, meanwhile, the board created the post of Deputy Chief Administrative Judge for Justice Initiatives, naming Judge Juanita Bing Newton to the post. Within a year of Judge Newton’s appointment, the Continuing Legal Education rules were changed to allow CLE credit for up to six hours of pro bono — making New York only the third state in the country to grant such credit. NEW MODELS The concept of “discrete task representation,” or so-called “unbundled services,”represents an additional area of pro bono opportunity. It was advanced in May 2001 by the American Bar Association Ethics Commission. Under this model, pro bono attorneys and their clients would agree to limit the scope of legal services to be volunteered; lawyers would perform specific duties, with all remaining tasks the responsibility of the client. For example, a client could decide to self-represent in court, with a pro bono attorney’s counsel, research and document review. The New York State Bar’s Commission on Providing Legal Services for Middle Income Consumers has been studying the issue of unbundling, with a report expected to be submitted to the executive committee later this year. The city Bar is also looking into the matter. Further note was made of three state experiences that could serve as models for New York. Maryland and Florida have established voluntary pro bono systems, bolstered by a mandatory requirement that lawyers report annual pro bono service on a uniform basis. Indiana obliges lawyers to render an unspecified amount of “free or reduced-fee services to persons of limited means, or [to] public service or charitable organizations, and to financially support organizations that provide legal services” to the poor, according to the paper. Judge Phillip Adler of Indiana’s Vigo County Court in Indianapolis, explained at the Fordham conference that under the Indiana system, attorneys register pro bono service through administrative committees in 14 districts of the state, each committee chaired by a local judge. The committees monitor the pro bono activity and the gaps in legal service. According to the convocation paper, during the first year of the Indiana program, “the number of people working toward developing pro bono resources in Indiana increased exponentially,” and providing pro bono services “became more organized and efficient.” While no hard and fast recommendations for formalized pro bono in New York were made at the event at Fordham, judges Kaye and Newton declared that traditional barriers to lawyers volunteering their skills had clearly been obviated by the experience of Sept. 11. The ’97 Administrative Board survey defined those barriers as lack of expertise, insufficient support staff, lack of interest in undertaking specific types of work, and financial instability. “In the aftermath of the horrific events of Sept. 11, New York lawyers embraced their professional responsibility,” the convocation paper stated. “Their response demonstrated that it is possible to overcome the obstacles most often cited by attorneys for not undertaking pro bono. More than ever, lawyers recognized the importance of their services to those in crisis.” Michael A. Cardozo, Corporation Counsel of New York City, said at the conference that the crisis has hardly gone away. In his address, however, he said it was “unrealistic” to believe that government could or would provide increased funding to meet the legal needs of the poor. Relief, he said, must come from the private bar. “Our chief judge has seized the moment to present a critical challenge to all of us,” said Cardozo. “Rarely has there been a time when the need for pro bono services has been greater. Rarely has there been a time when the bar has demonstrated that many of its members want to help.”

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