By now it is widely known that Chief Judge Jonathan Lippman is set to require, by rule, that prospective attorneys render 50 hours of pro bono legal services in exchange for the “privilege and honor of practicing law in New York.”
This mandate has not gone without criticism, and perhaps deservedly so; to impose yet another requirement on those facing mountainous debt and a dubious job market may not be the best way to demonstrate the importance of selfless service. That said, the chief judge should be commended for taking action to address the enormous need for indigent legal services, particularly in the absence of an alternative viable approach. That being the case, allow me to suggest one.
About 18 months ago, I presented an initiative to the New York State Bar Association’s Committee on Attorneys in Public Service to make it easier for public sector attorneys to engage in ‘outside’ pro bono work. As I think of it now, that model could be modified somewhat into a statewide program to encourage and foster such a commitment by all attorneys, both public and private, young lawyers, as well as those with a few years under their belts.
In contrast to Judge Lippman’s proposed rule, this idea is based on a belief that most lawyers, particularly the young lawyers I have encountered, are willing, if not energetic about serving those in need, except that certain obstacles make acting on that inclination impractical or even impossible.
For many, it may be unclear how to engage an indigent client on a matter that might only take a limited number of hours to resolve, while others may be hesitant when not versed in a particular area of law.
Also, I am personally aware of the inconsistent rules, both written and cultural, that exist across the various government agencies and departments that either prohibit outside legal work of any kind or make it so onerous to gain approval that it is simply not worth the effort. I suspect the same can be said for many firms and in-house counsel offices.
With that in mind, the more effective target for any rule should be legal employers, both public and private. They should be required to develop policies that permit and encourage their attorneys to provide a certain amount of pro bono services each year. After all, a top-down approach is the best way to demonstrate that access to justice for everyone is a hallmark tenet of our profession.
The structure of an effective statewide pro bono effort should be anchored on the local indigent legal provider, the Legal Aid Society and analogues thereof, which, despite the $25 million increase by state lawmakers to fund civil legal services, remain woefully under-resourced to serve the many clients who walk through their doors.
Clients would come to them in the ordinary course, and referrals would then be made using a list of attorneys maintained by the state or local bar, attorneys whose firms have signed up to participate in the program or who have volunteered individually after selecting the approximate number of hours he or she would like to commit as well as one or two preferred areas of law.
The local legal provider would be strongly encouraged to offer support, perhaps by providing office space for client meetings, forms and other legal materials, as well as expertise to any volunteering attorney who might be handling a particular type of case for the first time.
Or, better yet, if enough local attorneys are willing to work on matters of high-need for indigent clients (landlord-tenant, bankruptcy), the legal nonprofit can provide those attorneys with a practical-based CLE, and many already do, for the dual purpose of cross training those attorneys for their own professional benefit and meeting the needs of indigent clients.
Better still, perhaps an increase in the maximum allowable number of CLE credits that one can earn for pro bono work (attorneys who are not newly admitted can currently earn .5 hours of CLE credit for every 2.5-hour increment of free legal work up to six credits)—that would send a real message that our profession was serious about pro bono.
For the public sector counsel, new attorney, or associate in a large firm, this type of initiative could very well provide the first real opportunity to gain courtroom experience, which would not be without value to their employer.
And for firms that may be hesitant to make a commitment, I suspect that such reluctance would soon wane. Lawyers are a competitive bunch, so my expectation is that not long after one firm receives recognition, competing firms will soon follow suit.
Much like the state bar’s increasingly successful Empire State Counsel program, which recognizes attorneys who perform 50 or more hours of free legal services as well as the highest performing firms in this regard, the key is to create and market a statewide voluntary standard, coupled with a comprehensive program that provides referrals and support, and then a rule that requires all legal employers to encourage and permit their attorneys to perform these services, then let the natural instinct of those in our profession begin to make a difference.
The leaders of the bar should work to eliminate barriers to performing pro bono services, not relegate the responsibility to the most ill-equipped among us. Otherwise, I fear that serving the indigent will come to be viewed as little else but a burdensome condition precedent for entering the profession; a condition that, once met, will thereafter be seen as the responsibility of the next class of prospective attorneys instead of responsibility that should continuously be shared by us all.
Michael Barrett is a former deputy commissioner for criminal justice programs at the New York State Division of Criminal Justice Services. He is currently a policy advisor and legal counsel to the governor of Missouri.