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A proposal by an ad hoc committee of the New York State Bar Association to expand the definition of pro bono credit beyond legal services to the poor is creating widespread objections. At the center of the debate is a plan to revise the bar group’s Ethical Consideration 2-25. With the change, volunteer work by attorneys would qualify as pro bono in three new ways: � Service to individuals or charitable, not-for-profit, civic, governmental or public agencies “seeking to secure or protect civil rights, civil liberties or public rights, or to meet the basic needs of individuals of limited means … where payment of standard legal fees would significantly deplete the recipient’s economic resources.” � Participation in “activities for improving the law or the legal system.” � Financial contribution to “groups or organizations whose principal purpose is to address the legal needs of individuals of limited means, and of not for profit organizations.” A showdown is expected when the State Bar holds its annual full-membership meeting in Manhattan later this month and the House of Delegates, its governing body, will vote on the proposal. The new policy would not alter the current aspirational goal of 20 hours of annual pro bono service. Some lawyers — especially small firm and solo practitioners — are concerned that what is aspirational today could become mandatory in the future, as it has in other states. The concern arose, according to one source who requested anonymity, because of a parenthetical remark in a 1997 Office of Court Administration report on whether New York state might learn anything by examining mandatory pro bono experience elsewhere. The report chided the bar for its low level of pro bono participation: Only 43 percent of attorneys around the state reported performing 20 or more hours of volunteer service. Therefore, the source said, the State Bar proposal might be a “preemptive response” to broaden the field of qualifying pro bono service. Judge Juanita Bing Newton, deputy chief administrative judge for justice initiatives, said in an interview that OCA has no plans to establish mandatory pro bono service. “The court and the administrative board have looked into this issue and opted not to have mandatory pro bono and not to have mandatory reporting,” she said. She added that the courts plan to cooperate with the Bar in fostering a “process to increase the kind and amount of pro bono that’s done — with, of course, a focus on the needs of the poor.” The OCA, which also sets a yearly 20-hour aspirational pro bono goal per lawyer, defines “appropriate” service as legal work for the indigent. The OCA asks lawyers to make financial contributions beyond that to agencies that serve the poor. In November, Patricia K. Bucklin, executive director of the State Bar, sent the ad hoc committee’s six-page “Policy Statement With Respect to Voluntary Pro Bono Publico Service” to delegates, section and committee chairs, and leaders of county and local bar groups. Negative reaction was swift. Even the cover letter came under criticism. “We fear that adoption … could prove to be an extreme embarrassment to the association,” declared a 17-page statement issued last month by the State Bar’s largest member group, the Commercial & Federal Litigation Section. “To do so would present a horrible public relations image.” The statement called much of the policy draft “confusing,” “ambiguous” and “inconsistent” and continued:
While an “expansion” of a definition of pro bono would seem to be unobjectionable, if that “expansion” has the effect of diluting pro bono legal service for the poor, then that “expansion” runs counter to the highest ideals of the legal profession. Unfortunately, our review of the proposals, as they are currently read, indicates that the proposed “expansion” seems to be a dilution of the professional obligation to provide pro bono legal services to the poor.

The section objected to what it perceived as a “buyout” provision, allowing lawyers to exempt themselves from pro bono service by making an unspecified contribution to an organization serving the poor. Bucklin’s cover letter stated that the proposed new policy “parallels” Model Rule 6.1 of the American Bar Association, which serves as a pro bono guide to local and State Bar organizations around the country. But the Commercial & Federal Litigation Section noted that the ABA rule calls for more than twice New York’s aspirational goal of pro bono service — 50 hours annually — with at least a “substantial majority” of time devoted to the poor. Separately, the ABA calls on lawyers to make financial contributions to organizations serving the poor. The section statement said the proposed new policies for New York contradict ABA Model Rule 6.1, “particularly in that the proposals appear to create a ‘buyout’ provision.” ADDITIONAL CRITICISM The State Bar’s Committee on Legal Aid also issued a written objection. “The current draft will dilute the [State Bar's] commitment to increase access to legal services for the poor, even as the need for these services continues unabated,” Lillian M. Moy, committee chairwoman and an attorney with the Legal Aid Society of Northeast New York in Albany, wrote in a Jan. 5 letter to the Bar group. Instead of adopting it, Moy wrote, the State Bar should wholly conform to the ABA standard to send “the clear message that while other worthy activities constitute pro bono services, it is legal services to the poor that deserve our profession’s greatest priority.” “I find it stunning that the response to stagnant participation rates [in pro bono service] is to change the definition of pro bono to make it broader,” said Anthony P. Cassino, assistant director of public service at Milbank, Tweed, Hadley & McCloy and a former director of pro bono affairs at the State Bar. “They’re moving in the fences to make it easier to hit a home run.” Cassino said that when the current policy was set 10 years ago, the relatively low goal of 20 hours yearly was a compromise in return for a narrow definition of pro bono as volunteer work strictly for the poor. “Twenty hours was a low number, but a focused number,” he said. “They’re now violating that original agreement. This is not a groundswell from the committees. This comes from the leadership — from the president.” State Bar President Kenneth G. Standard defended the committee’s proposal as being in keeping with the ABA definition of pro bono as service beyond that to the poor. “Realistically, you have to assess attorney qualifications,” said Standard, a partner at Epstein Becker & Green who was part of the ad hoc committee that drafted the proposal. “I don’t believe all attorneys are qualified to provide services that indigent people need –landlord-tenant matters, for instance, or Social Security benefits issues. What is needed, Standard said, “is more government funding for the indigent.” Budget cuts, he said, have shifted “the onus from society to attorneys to meet the legal needs of the indigent in our country and state, and there is no way in my view that lawyers working on a pro bono basis can meet the unmet legal needs.” Raymond J. Dowd, a partner at Dowd & Marotta, disputed that contention, calling it an excuse for opting out of legal service to the poor. Dowd said the State Bar should adopt what he called the “extremely modest” 50-hour standard of annual volunteer service. For the long term, Dowd said, “If our law schools don’t turn out people who know how to represent the poor, and if there’s no requirement of law schools to do so, then, really, we’re violating the public trust.” Bernard W. McCarthy, a general litigation partner at Chadbourne & Parke who directs the firm’s pro bono programs, was involved in drafting the Commercial & Federal Litigation Section objection to the proposal. “We didn’t say it in the report, but our section would much prefer the State Bar just adopt [ABA] Rule 6.1,” he said. Meanwhile, in the run-up to the State Bar’s Jan. 24-29 meeting, objections continue, McCarthy said. “We keep imagining potential headlines,” he said. ” ‘State Bar Turns Back on the Poor’ and things like that.”

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