Chief Administrative Judge A. Gail Prudenti discusses the Unified Court System’s mandatory disclosure rule for pro bono at a forum Tuesday night organized by the New York County Lawyers’ Association. Listening, from left, are Megan Davis and Stephen Hoffman of NYCLA and court system counsel John McConnell. (NYLJ/Rick Kopstein)
Several state court administrators at a forum Tuesday indicated their willingness to compromise on parts of a mandatory pro bono disclosure rule, surprising a cohort of the bar who has protested the rule for the past year.
The four-hour session, hosted by the New York County Lawyers’ Association, brought together proponents and critics of the rule. The mandate that lawyers disclose their annual pro bono hours and any charitable contributions to legal services groups every two years went into effect in May 2013.
Administrators say the data collected will help measure the unmet legal needs of low-income New Yorkers—a cornerstone of Chief Judge Jonathan Lippman’s goal to increase “access to justice” in the state.
But many attorneys regard the rule as an unwarranted violation of their personal privacy as well as a possible prelude to mandatory pro bono beyond the courts’ voluntary, aspirational goal of 50 hours per attorney each year.
“In all my conversations with the chief judge, he’s never indicated that mandatory pro bono is the logical next step,” said Chief Administrative Judge A. Gail Prudenti during one of four panel discussions Tuesday. “He just wants to collect the data; he wants to see where we are; he wants to see what’s being done.”
Moderator Stephen Hoffman, a past president of NYCLA and senior litigator with Wilk Auslander, asked whether anonymous reporting of pro bono contributions would accomplish those goals.
The courts’ joint administrative board is “open to discussion” on that possibility and other proposed changes, Prudenti told the audience of about 60. In September, she pointed out, the Office of Court Administration announced it would keep the reported information confidential through at least April 2015, ceding to heated complaints over an early plan to make the data public.
“Change is never easy, my friends, especially when it comes to obligations regarding our profession,” Prudenti said. The policymaking board will continue adjusting the rules and has already heard from bar associations and lawyers from firms of all sizes, she added.
In addition to Prudenti, panelists included John McConnell, counsel to the Unified Court System; Justice Barry Kamins, chief of policy and planning for the state courts; Deputy Chief Administrative Judge Fern Fisher; incoming New York State Bar Association president Glenn Lau-Kee; former state bar president Robert Ostertag and others.
Lippman did not attend due to a scheduling conflict. Reached Wednesday, court system spokesman David Bookstaver said Lippman would not be making any public comments on the matter.
The event was several months in the making, according to NYCLA president Barbara Moses, whose term ends Thursday. The bar group hoped the extended “face-to-face dialogue” would prove more productive than piecemeal discussion of individual issues in speeches, bar meetings and news articles, she said at the event’s close.
“The judiciary has signaled tonight that they’re much more flexible on the issue of mandatory reporting of pro bono than many in the organized bar have imagined until now,” she said.
NYCLA has not taken an official position on the rule, unlike the state bar, which said it would retain private counsel to explore possible a legal challenge. Both NYCLA and the state bar are opposed to mandatory pro bono.
A NYCLA committee, chaired by incoming secretary Megan Davis, is writing a report on the group’s proposed policy changes and will issue it to the courts’ administrative board in the coming months.
Speakers at one panel discussion questioned whether the administrative board, which is comprised of the chief judge and the four presiding justices of the Appellate Division departments, has legal authority to impose mandatory pro bono reporting as a condition of license renewal.
McConnell said the board has constitutional authority to set the agenda for the state’s lawyers—and the reporting rule is a “modest intrusion” that advances the board’s goal to close the “justice gap.”
“I’m hard-pressed to imagine a grounds for a challenge based on the impression the administrative board did something it doesn’t usually do,” McConnell said.
In response to confusion over whether attorneys would face disciplinary action if they chose not to report their pro bono contributions, McConnell assured the audience that it would not be a cause for discipline “at this time.”
During public comment throughout the event, members of the bar criticized how the rule was rolled out.
The Judiciary has been “tone-deaf” to the bar’s concerns, said Gordon Eng, who is general counsel for SKY Harbor Capital Management and a NYCLA board member. He pointed to data collection techniques used by the U.S. Bureau of Labor Statistics and election exit pollsters that accurately predict monthly national jobs report and election results with small margins of error.
“Why aren’t techniques like that being considered, if the real purpose of the rule is getting data and not to coerce lawyers into reporting it?” Eng asked.
“If NYCLA has a better idea for how the data should be collected, they should present it to us,” Kamins responded.
Echoing the question posed to Prudenti in an earlier panel, moderator Michael McNamara, a partner at Seward & Kissel and NYCLA’s incoming vice president, asked panelists whether collecting the data anonymously would fulfill the Judiciary’s policy objectives. Nearly all­—including Kamins—seemed to agree it would.
“You can accurately estimate the number of fish in a pond without catching every fish,” Eng said after the meeting. “There are ways to collect this data without infringing on people’s sense of privacy.”