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New York sets new pro bono requirements

Legal Notebook

Published: May 9, 2012

Anyone who now wants to become an attorney in the state of New York will have to perform pro bono work as a mandatory part of passing the state’s bar exam.

The locals are pretty much none too happy about that.

The chief judge of the New York Court of Appeals, Jonathan Lippman, recently announced the requirement for bar passage. The court of appeals is New York’s equivalent to the Ohio Supreme Court.

When the rule goes into effect next year, New York will become the first state in the nation where lawyers are forced to “perform unpaid work before being licensed to practice law,” according to the New York Times article on the decision.

In addition to passing the bar examination, new New York lawyers will also be forced to perform 50 hours of pro bono work. About 10,000 people pass the New York bar exam each year.

The judge said that the court is imposing the rule because there are too many impoverished people in the state who are going without legal representation.

The Legal Aid Society in New York turns away eight of every nine people seeking assistance in civil cases, and those requests have grown substantially since the 2008 recession, especially in economic areas. Foreclosure representation requests, for instance, increased 800 percent in that time.

In his recent Law Day speech in Albany, Chief Judge Lippman said, “If pro bono is a core value of our profession, and it is — and if we aspire for all practicing attorneys to devote a meaningful portion of their time to public service, and they should — these ideals ought to be instilled from the start, when one first aspires to be a member of the profession.”

No regulations have yet been drafted for this requirement, so there is no way to tell exactly what the final shape of these rules will be. For instance, there is yet no indication how this would affect pro bono work done outside of New York State, or how it would affect lawyers form other states who also want to be members of the New York bar.

Nevertheless, New York lawyers who are legal commentators, bloggers, and others, even if they are generally supportive of pro bono work in theory, are universally displeased with this particular method of delivering legal services to the poor, liking it, essentially, to everything from an unfunded mandate to some form of slavery.

Even the head of the Pro Bono Institute, a non-profit that helps attorneys with their pro bono efforts, warned that having new attorneys represent clients against the attorney’s will may not turn out well.

Noted New York blawger Staci Zaretsky, writing on Above The Law, said that “Chief Judge Lippman had a good idea, but it’s a bit misplaced.”

She points out that Rule 6.1 of the New York Rules of Professional Conduct, “contains only an aspirational call to perform pro bono service…. New York would probably be better served by an amendment to the state’s own ethical code than this new requirement.”

She then goes on the say that, “Some of these would-be lawyers will have to desperately attempt to obtain paid work, but let’s put another stepping stone in their way. Because hey, why expect more of people who have already been admitted to the bar? Let’s force the newbies to attend to the state’s needs…. The first thing—let’s indenture the lawyers.”

Other commentators have chimed in, as well.

Ted Frank, posting on Point of Law, said, “this proposal imposing a tax on attorneys is preferable to proposals taxing a broader tax base for the same thing under the guise of "civil Gideon." On the other hand, 50 hours of an inexperienced attorney is perhaps comparable to twenty hours of an experienced attorney's work….”

Susan Cartier Liebel, on Solo Practice University, calls it, “indentured servitude.”

Professor Paul Campos, who blogs at Inside the Law School Scam, calls it, “wrongheaded…limousine liberal idiocy.”

The new rule (although it is not yet written) is supported by, among others, the National Legal Aid and Defenders Association and the said Pro Bono Institute (with reservations, especially about the skill level that will be provided to clients).

In the meantime, the New York bar is awaiting the details of this new rule.