Chief Judge Jonathan Lippman gives a March 11 lecture during which he said that mandatory pro bono has “visceral” appeal and should be considered. (NYLJ/Rick Kopstein)
Chief Judge Jonathan Lippman has defended requiring lawyers to disclose voluntary efforts to help the poor—a rule that is so unpopular among lawyers that the New York State Bar Association has decided to hire an attorney to look into challenging it.
In the wake of that challenge, Lippman may have upped the ante in his disagreement with the state bar, suggesting earlier this month that a mandatory “public service” requirement has potential and should be considered.
“Nothing is off the table,” he said in answer to a question after delivering the 20th annual Brennan Lecture on State Courts and Social Justice at New York University School of Law.
That comment conflicted with others Lippman made following his May 2013 Law Day speech.
“The bar has done a great job [with voluntary pro bono)],” Lippman said then. “They are rising to the occasion. I have no intention of doing mandatory pro bono because the bar is doing their job.”
Lippman, who has made “access to justice” a centerpiece of his administration, acknowledged in his NYU speech that “many lawyers in New York give generously of their time to help the less fortunate.”
But he added that “we haven’t been able to reliably measure the magnitude of their efforts. Until recently, we had no way to assess with any confidence the efficacy of past and future policy prescriptions.”
In May 2013, the Unified Court System started requiring lawyers to report their pro bono hours and donations to legal services organizations in their biennial registration forms (NYLJ, May 1, 2013).
“Despite the common sense value of the rule in providing much needed data, not all members of the bar have embraced it,” Lippman said in the NYU address, adding that many attorneys feared that the new rule is only a prelude for the “much dreaded contingency” of mandated “public service” by lawyers.
In responding to a question from the audience after the March 11 speech, Lippman said it was “disappointing” to see the state bar resisting the reporting by lawyers on their involvement in pro bono, which he termed “the most basic issue of public responsibility” they have as lawyers.
“I think we’ve got to resist looking at the most parochial or insular view of our profession and recognize that legal regulation is not to protect our own interests,” he said.
“It boggles my imagination that … some lawyers are complaining when we ask them to report what they did to meet their responsibility in this noble profession,” Lippman continued. “We don’t have the slightest idea of how many hours that lawyers in New York give to pro bono. We don’t know. That’s why this baby step of pro bono reporting is so basic and yet we’re meeting resistance. So I think that shows you what we’re up against.”
Lippman said in the NYU address that the “means and ends of pro bono service by lawyers has been a topic of strong debate for decades.”
He told his audience he had recently reread the 1990 final report of a court system committee on legal services that recommended that in order to be held in “good standing,” lawyers should be required to do 40 hours of pro bono work every two years.
Rather than implement the recommendation, the court system agreed to let the state bar mobilize its members to meet the need voluntarily.
“Despite the Association’s dedicated efforts, the results of that campaign … were disappointing,” Lippman said.
Lippman told his audience that millions of New Yorkers face legal problems “over the most fundamental issues of life, especially following the recession,” without representation.
“This has led, both within and outside the legal community, to renewed calls by some for the implementation of a public service requirement,” he said.
Lippman said there is “an undeniable visceral attraction” to a public service requirement to those, himself included, who are focused on eliminating the justice gap.
Still, he said in the speech that mandatory pro bono “is in no way a given.” Lippman repeated that his own inclination “has been not to go there.” He said that he would prefer attorneys to take up the challenge voluntarily as a matter “of principle and duty,” and he said he recognizes that there are logistical, economic and geographic issues in the way of mandatory pro bono.
But, he added, “I believe that a public service requirement for lawyers is worth discussing among a host of other options to help close the gap that deprives so many of the disadvantaged of meaningful access to justice.”
Lippman in his address estimated that if New York had a 50-hour public service requirement­—the current aspirational goal set by the state and the ABA—the state’s 160,000 lawyers could generate more than 8 million hours of pro bono legal work.
“Could that massive level of assistance be anything other than a spectacular accomplishment for our profession and our state, even if it inconveniences us or marginally hurts our bottom lines?” he asked.
In response to question after the speech, Lippman said that as for his own role, “judicial leadership” means “not being afraid to go out there, to put yourself on the end of the diving board on things that are just so right, that aren’t debatable for a noble profession.”
Lippman declined to be interviewed by the Law Journal about his remarks.
His comments drew a sharp response from state bar president David Schraver, a Nixon Peabody partner in Rochester.
Any notion that it is “parochial” to oppose pro bono reporting is “simply wrong.” Schraver said in a statement to the Law Journal.
Rather, he said the disclosure rule infringes on the rights of members to keep their charitable giving private, coerces lawyers to provide the information under threat of disciplinary action and detracts from the “sense of nobility” lawyers derive from doing pro bono service.
The state bar has also launched a letter writing campaign for members to express their opposition to the pro bono reporting requirement to Lippman, Chief Administrative Judge A. Gail Prudenti (See Profile) and the presiding justices in the four Appellate Divisions. The group’s suggested letter urges that the mandatory rules be changed because they “dilute” the voluntary nature of what pro bono service should be about.
The New York City Bar Association has long favored both mandatory reporting and mandatory pro bono. Its president, Carey Dunne, told a hearing sponsored by Lippman in October 2012 that the group backs mandatory pro bono despite its “controversial” nature.
Dunne, of Davis Polk & Wardwell in Manhattan, declined to comment on Lippman’s lecture except to say that the chief judge is “really trying hard to come up with creative ways” to provide more free legal resources for the poor.
The New York County Lawyers’ Association has opposed mandatory pro bono for decades, its president, Barbara Moses, said.
“Among other things, NYCLA does not believe that mandatory pro bono is an efficient or effective way to deliver high-quality legal services in the areas where those services are most needed,” she said.
NYCLA has not taken a position on mandatory reporting, which Moses said presents “difficult and complex questions.” It is unclear whether compulsory reporting encourages voluntary pro bono or coerces lawyers to “donate funds and perform work that is voluntary only in name,” said Moses, of Morvillo Abramowitz Grand Iason & Anello.
NYCLA is organizing a forum for later this spring on mandatory pro bono reporting and other aspects of the controversy.