New York lawyers should be encouraged to perform 50 hours of pro bono annually instead of 20, and they should be required to report their pro bono work when reregistering every two years, according to the Task Force to Expand Access to Civil Legal Services.
The task force, appointed by Chief Judge Jonathan Lippman, issued a report last week that said while the current level of commitment to pro bono is “encouraging,” the demand remains as acute as ever, especially in light of continuing economic uncertainty and, more recently, Hurricane Sandy.
The panel estimated that each year, more than 2.3 million low-income New Yorkers go without representation for disputes over housing, health care and social services and unemployment benefits.
It said statewide, only about 1 in 5 indigent New Yorkers in need of pro bono counsel receive it, to the detriment of their interests as well as those of opposing parties such as banks, insurers, health care providers and landlords, and also the courts.
“When substantial numbers of unrepresented New Yorkers appear in court, the overall quality of justice for all litigants suffers because courts are less efficient when resources must be diverted from matters involving represented parties to try to assist unrepresented parties—and the results for unrepresented parties clearly differ from what can be achieved with counsel,” said the task force, which is chaired by Helaine Barnett, the former president of the federal Legal Services Corporation and the one-time attorney-in-charge of the civil practice of the Legal Aid Society.
The panel collected evidence of what it called the continuing representational “gap” for poor New Yorkers during public hearings before the storm dealt a devastating blow to some parts of downstate New York. Legal services providers said the storm has prompted a surge in demand for civil legal services by low-income New Yorkers (NYLJ, Nov. 7).
“It was a desperate situation before the storm and it has become exponentially worse as the result of the storm,” said Steven Banks, attorney-in-chief of the Legal Aid Society and a member of the task force. “There are other natural disasters that are examples of what is going to happen as we go forward. What was found after [Hurricane] Katrina is that there is an increased amount of immediate needs and also an increased amount of longer-term needs—an increased amount of family law because of the increased tension on family life, for instance. Also, with retraining services to help people get back into the job market and, of course, increased needs in terms of housing.”
Barnett said it was too soon to assess the additional legal needs of low-income New Yorkers affected by Sandy.
“I don’t think we can quantify it at this time other than to say that we know the problems continue to grow and even become more complicated as time passes,” she said in an interview. “It will certainly add to the continuing, substantial access-to-justice gap.”
The task force recommended a boost in state aid for civil legal services in the Judiciary’s budget by $15 million to $40 million for the next fiscal year, which begins April 1, 2013. Lippman and Chief Administrative judge A. Gail Prudenti accepted that higher level of funding for civil legal services in the budget they proposed to Governor Andrew Cuomo and the Legislature (NYLJ, Dec. 3).
Barnett’s task force said two state rules governing lawyers would have to be changed to effect its recommendations.
Proposed Rule Changes
Rule of Professional Conduct §6.1 would need to be altered to increase the recommended number of pro bono hours.
The task force said the 50-hour proposal makes sense because additional pro bono hours are needed, and that figure represents a level of commitment closer to what attorneys who are active in pro bono contribute each year.
According to an American Bar Association survey in which the New York State Bar Association participated, attorneys who provide pro bono service estimate that they spend an average of 66 hours a year donating their time.
Overall, the survey found that almost three-quarters of New York lawyers have performed some pro bono work this year, with a majority turning in the minimum of 20 hours, as encouraged in §6.1.
The task force also recommended that lawyers be required to report on their biennial registration forms the pro bono hours they worked over the previous two years and how much in monetary contributions they made to groups providing civil legal services.
Lawyers’ awareness of the need to provide pro bono seems to have been enhanced in the seven states that require attorneys to report their pro bono hours.
In Florida, for instance, officials said that pro bono contributions have increased by about 100 percent since 1993, when attorneys were first required to list pro bono service. In Illinois, which adopted a self-reporting requirement in 2007, annual pro bono hours have risen by about 10 percent, according to the task force.
The panel recommended that attorney pro bono disclosures be accessible to the public.
It also said the 50 hours of annual pro bono service should remain “precatory…at least until results of the change in Section 6.1 upon the number of pro bono hours performed can be assessed.”
Another proposal is to add to §6.1 guidelines on monetary contributions to legal services providers. The panel said private attorneys should be advised to donate the equivalent of what they typically charge for an hour of their time. Other attorneys should donate one-tenth of 1 percent of their salaries, the task force recommended.
Rule 522.8 of the Court of Appeals should also be revised to encourage pro bono participation by in-house counsel.
The Barnett panel said the pro bono recommendations are in keeping with the goal of the requirement imposed at Lippman’s behest that new attorneys perform at least 50 hours of pro bono service before they can gain admission to the bar beginning in 2015 (NYLJ, Sept. 20).
A committee of the 30-member task force studied ways the state could increase pro bono service to fill the gap between available legal services and the need for more. The committee was led by Robert Sheehan, who is of counsel at Skadden, Arps, Slate, Meagher & Flom.
Lippman said in an interview that the recommendations on pro bono are just the kind of proposals he wanted the task force to make.
“I didn’t appoint them to do reports that sit on a shelf,” Lippman said. “I appointed them to come up with new and creative ideas. I take very seriously the [pro bono] recommendations. We will give them really, really close scrutiny.”
The changes to the Court of Appeals Rule 522.8 and to the Rule of Professional Conduct § 6.1 would need approval by the administrative board of the courts, which is comprised of Lippman and the presiding justices of the four Appellate Division departments.
Lippman said the task force recommendations, if adopted by the administrative board of the courts, do not appear to him to bring the state closer to mandatory pro bono. The state bar has traditionally opposed the imposition of mandatory pro bono.
“That certainly is not what any of these things are about,” Lippman said. “That is not my intention and I have made that clear. I think the bar has risen to the occasion in so many ways with pro bono.”
@|Joel Stashenko can be reached at email@example.com.