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The 72,000-lawyer New York State Bar Association has voted in favor of a wider official definition of “pro bono” work. Earlier this month, the State Bar’s House of Delegates decided by an overwhelming voice vote that the term should include civic and charitable work as well as that done for the poor. Since at least 1990, the state court system has defined pro bono as providing legal assistance to those who could not otherwise afford a lawyer. In January, the court system issued a report calling for an increase in pro bono activity. The report stated that an estimated 10 million additional hours of attorney assistance may be needed each year “to provide New York’s poor with even a bare minimum amount of the legal help that they need.” Deputy Chief Administrative Judge Juanita Bing Newton, who oversaw the preparation of the report for the Office of Court Administration (OCA), said she welcomed the State Bar’s viewpoint. She is confident, she said, that “people of good will can sit down collaboratively and come up with a program that increases pro bono efforts overall, including a dramatic increase in the number of hours devoted to the poor.” David Weschsler, the head of the Legal Aid Society’s pro bono program, however, called the State Bar’s position “a tremendous step backward” in terms of providing the poor with equal access to the courts. “By allowing lawyers to satisfy their ethical obligation by doing things outside of the legal system,” he said, “the state bar is turning away from the core ethical obligation to assist people in gaining equal access to the courts.” Prompting the State Bar’s action at its spring meeting was a recommendation from the New York County Lawyers’ Association. “There is a whole range of good works that lawyers undertake” that are not included in the court system’s definition of pro bono, said Norman Reimer, the county lawyers’ president-elect. Lawyers work without pay on disciplinary committees, school boards and civic and charitable groups, he pointed out. Much of the work done on behalf of victims of the 2001 terrorist attacks would not fall within court system’s definition, he said. Reimer said much of the pro bono work done in county lawyers’ programs is not narrowly focused on the poor. One program supplies volunteers, at the court system’s request, to mediate fee disputes between lawyers and their clients. Another provides volunteers to help resolve matrimonial disputes, he said. The county lawyers’ report and the State Bar vote were prompted by the proposal to increase pro bono service in OCA’s January report, “The Future of Pro Bono in New York.” The OCA report recommended the creation of 10 local committees throughout the state, as well as a statewide committee, to encourage pro bono involvement. It called upon the judiciary to take a leadership role in increasing pro bono service, and suggested that a co-head of the committee to be established in New York City should be an administrative judge for a citywide court. OCA set a 90-day comment period, which will expire on April 15. Judge Newton, who is in charge of justice initiatives, said bar associations and individuals should submit their views. (The court system’s Web site is www.courts.state.ny.us). JUDICIARY’S ROLE QUESTIONED The State Bar resolution, as well as the county lawyers’ report, took issue with two other aspects of OCA’s proposal. Both associations objected to judicial involvement in organizing pro bono activity and to the possibility that the court system might require lawyers to report pro bono activities. A. Thomas Levin, the State Bar’s president, said that the administration of pro bono programs should be left to the bar associations. To cede a leadership role to the courts might create “an inherently coercive element,” he said. “The association is adamantly opposed to mandatory pro bono,” Levin said. The State Bar also went on record as opposing mandatory reporting of pro bono activities. The OCA report recommended that the statewide committee should “examine the issue of individual pro bono reporting” within six months of its creation. The reporting proposal also made reference to “the Florida experience.” In 1993, Florida adopted a mandatory reporting system and is considering mandatory pro bono service, Levin said. Judge Newton said that the OCA report had made no recommendation on mandatory reporting but had merely suggested that the statewide committee “might want to look at it — nothing more.” As for judicial involvement, she said, “some might see it as not coercive, but supportive.” The county lawyers’ Reimer said OCA’s suggestion of mandatory reporting put the pro bono issue on the front burner. With the possible requirement of reporting, he said, “the question of how pro bono is defined became very important.” “Lawyers are doing all sorts of good work that doesn’t qualify, and that’s very troubling,” he said. The State Bar’s own Committee on Access to Justice had urged the delegates to recognize that the judiciary can play a “vital role in supporting pro bono activity.” It also suggested that, if OCA surveys do not provide a true picture of pro bono activity, requiring attorneys to report their work when they register with OCA every other year would be “appropriate.” LONG-STANDING DISPUTE The relationship between the State Bar and the court system over pro bono service has been contentious in the past. In 1998, former Chief Judge Sol Wachtler appointed a commission headed by Victor Marrero, now a judge in the Southern District of New York, to examine a mandatory pro bono program. Over intense opposition from the State Bar and other bar groups, the Marrero Commission recommended that New York lawyers be required to donate 20 hours of work a year. The commission report was never adopted but its definition of pro bono work was used in surveys from 1992 to 1994. The definition had three components: representation given to those who could not afford counsel; activities devoted to simplifying the legal process or increasing the availability of legal services to the poor; and professional services to non-profit organizations “in matters designed predominately to address the needs of poor persons.” In 1997, the Administrative Board of the Courts, the court’s policy-setting body, passed a resolution asking, but not requiring, that members of the Bar perform 20 hours a year of pro bono service. The board resolution also asked lawyers to provide financial assistance to groups providing civil legal services to the poor. It requested another statewide survey, incorporating the Marrero Commission definition of pro bono service. In 2002, the administrative board directed that a further survey be conducted. The findings of the latest survey found that the level of reported activity had changed very little. The 2002 survey found that 46 percent of the state’s attorneys that year had handled pro bono cases as defined by the Marrero Commission. The figure reported in the first round of surveys, from 1992 to 1994, was 48 percent. The 1997 figure was 47 percent. The proportion of attorneys in the 2002 survey who reported providing 20 hours of service, as recommended by the Administrative Board, was 27 percent, the same as in the 1997 survey.

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