Pro Bono: Just Another Burden

No, poor people can’t take their ’59 Rambler to the garage and get a free oil and lube as part of the auto mechanic’s pro bono duty.  No, saddled with debt and less hope for a job than winning the lottery, aspiring lawyers don’t deserve an unanticipated additional burden that no lawyer who is earning a living has to endure.  No, they aren’t suddenly competent to represent a rodent, no less a person, because they’ve managed not to flunk out after two years.

New York State Court of Appeals Chief Judge Jonathan Lippman’s  Law Day announcement that admission to the bar will require proof of 50 hours of pro bono service has raised quite a ruckus.  As has been admirably pointed out by pretty much all quarters, the idea is deeply flawed. No need to review every problem, as it’s all ready been done by the thoughtful, the angry, the disappointed, the angrier and the  self-serving and hysterical

So what is a smart guy like Judge Lippman thinking?  He’s got to know that he’s putting more weight on the shoulders of aspiring lawyers, who are already carrying more than their share.  He’s got to know that the sweet hype of helping indigent litigants is silly, since the poor don’t need representation by the incompetent.  He’s got to know that the burden of the legal system on the poor is a societal problem, and not one that demands lawyer pay the freight for a society unwilling to do so.  And he’s got to know that the legal profession is floundering on the whole, and he’s not helping.

Jonathan Lippman is a very smart man, and has proven himself well-intended many times. So what’s this really about?

Initially, the “burden” of 50 hours of pro bono services is a bit overwrought.  This is a grand total, not a monthly thing.  Given that law students can rack up the numbers fairly easily in law school, and most have plenty of time to get the rest in while waiting for their bar exam results, it can be accomplished without breaking much of a sweat. 

Is it a burden? Well, sure, just like the biennial dues and the CLE requirements. Burdens seem to come hand in hand with admission to a monopoly.  It’s not “indentured servitude” (or even involuntary servitude), since no one is forcing anyone to serve for free. No one forces you to be a lawyer, or to be admitted to the New York bar. Go to Montana. Become a carpenter. No pro bono requirement. There you go.

The poor in need of legal services, on the other hand, get squat out of this, making it far harder to understand why this was a battle worth fighting.  The 50 hours isn’t enough to cover their case, leaving them either high and dry in the middle, or forced to switch horses from one lame lawyer to another, neither of whom has a clue what he’s doing.

The blame game that invariably appears gets us nowhere, that it’s old lawyer shifting the burden onto young lawyers.  Of course it is, and that’s because old lawyers have more power than young lawyers. If young lawyers weren’t worthless slugs, they would have the power to impose burdens on old lawyers. You don’t. We win. Get over it.

And still, nothing about this requirement makes much sense on the surface. Plenty of anger. Almost no benefit. So why is Judge Lippman doing it?

Here’s my guess: This is where it starts.  Judge Lippman has figured out that as much as people need the hated lawyer when things go south, there is no way that legislatures are going to fund legal services for the poor. Nobody, but nobody, will ever get elected on that platform, and it will never come.  So while indigent litigants suffer for lack of representation, there is no hope of a fix in sight.

The need can only be filled by mandatory pro bono by experienced lawyers, which will not only prove invariably unfair, since the burden will eventually fall on the handful of lawyers with useful skills and the highest earners have no skills anyone needs. But by starting with the least powerful among us, the aspirants, and using his unilateral fiat to impose the requirement, since he can’t force the legislature to fund indigent representation and will be met by severe resistance if he tries to make admitted lawyers do pro bono off the bat, there is no better place to start.

Over the next decade or so, the duty will slide down the slippery slope, to lawyers with five years experience. Then ten. Then the rest of us, as part of registration renewal requirement. Sure it’s unfair to compel lawyers to fulfill societal burdens, when society hasn’t got the slightest interest in paying. Sure it’s unfair to single out lawyers, when no one else in society is required to do good against their will. But he has the juice to make it happen, and no one else will.

My bet is Judge Lippman knows that lawyers are hated, and this may be the only way to address fulfillment of the need for legal services while possibly getting back in the good graces of society.  He knows that we will bitch and moan about it, but that no one is going to burn their bar card and give up the profession over it. There’s no money to be made by walking away, and if lawyers are struggling to pay the rent, they can fill in the empty hours with some good deeds. We’ll find out it’s just not that big a deal. And we’ll do some good, maybe, in the meantime. And maybe people won’t hate us as much for it.

And since we’re professionals, and auto mechanics are not, and since we’re used to paying a price for the gift of a monopoly to practice law and this is just another mechanism to pay for the privilege, and since we can fit this into our not-terribly-busy day and help people in need even though it’s not exactly our sole responsibility to do so, maybe lawyers can become part of a long term solution to the problems plaguing society.  Not all the problems, but maybe some of them.

Yes, this scheme is replete with flaws. There’s a damn fine argument at every turn as to why it’s wrong and won’t work.  It is unfair. Plenty of good people will be harmed in the process, not the least of which are poor people who deserve better.  And still, it’s the only game in town to try and fix some vexing problems, and the only one that a chief judge can pull off on his own, without anyone else’s approval.

Jonathan Lippman is no fool, begging every twinkie law student to critique his idea like shooting fish in a barrel.  If you want to rip this plan to shreds, have at it, but look down the road and see where it’s heading before going after the low hanging fruit.  This is the start of a major overhaul, and Judge Lippman has everybody looking at the edges while he’s got his eye in the center. 

We’re all in this. It’s just a matter of time.  Bookmark this post and check it out ten years from now.

21 thoughts on “Pro Bono: Just Another Burden

  1. Susan Hackett

    Really important post, Scott: thanks.

    But I’m here to respectfully push back on this rule. I agree the rule is bad for several of the reasons articulated (often attributed to others) in your post, but I’d add one more to the pile. So many top pro bono groups, such as the Pro Bono Institute, don’t like mandatory pro bono for a very important reasons: it’s that the end result is a net “lowering” of the number of hours donated by lawyers. It’s proven from looking at the experience in states with mandatory systems.

    My prediction for 5 years from now? This rule will be famous for having set the ceiling on the number of “authorized” or credited pro bono participation in every firm of some size in NY. And given how much work is done by firm programs (more than can be done or supported by solo & small firm practitioners), pro bono service just got dealt a losing hand.

    As a former bar exec, as well, here’s one last reason to dislike this requirement: the administrative time and costs that will be spent enforcing this rule and arguing over what constitutes qualifying service, if dedicated instead to pro bono work in the state, would have funded a significant group of full time public interest lawyers to work at the best legal services organizations, providing direct service to the needy, across the state, and pulling in and facilitating more piecemeal volunteer work from law firm lawyers. What if this rule could be replaced with a public interest lawyer employment act, funded by the money that the courts have just required to be spent staffing and enforcing this rule. How many public-interest-minded newbie lawyers who are without paying jobs as they graduate might find a calling doing pro bono full time through such an act? Remember, if you think the hiring market’s tight in the law firm sector, remember that there are absolutely no jobs in or funding of public interest law positions. I know that’s pie in the sky, but I wanted to raise the huge sums of wasted money that will be spent to administer this rule, rather than fund or even promote meaningful legal service for the poor.

    -Susan

  2. SHG

    Good points. The arguments against this keep on coming, and they’re absolutely valid.  The response is likely that “perfect is the enemy of good,” and since we’re nowhere near acheiving any traction toward a more perfect system, Judge Lippman is shooting for better than we have now, stopping the bleeding if not curing the disease.

    Does this mean it’s a good idea? Dunno, but what we’ve done up to now hasn’t worked very well.

    On the cost of bar oversight, the current burdens on the bar for overseeing the full panoply of things lawyers do (and I am specifically referring to websites and blogs) is so overwhelmingly massive that it’s far beyond viable. So add another burden to the list?  Heh.

  3. BL1Y

    Would attorneys be able to take the value of their donated work and deduct it from their taxes?

    As I understand it, you can only get a deduction for the actual costs of pro bono representation (filing fees or whatever lawyers spend money on). But, would a mandatory donation of time get different treatment than voluntary charity? Seems more like a cost of doing business.

  4. SHG

    Are you really making that much money sitting on your parents’ couch in the basement eating Cheetos that you worry about tax deductions? I’m impressed.

    As for your question, at the moment we’re not talking about attorneys, but law students.  But if it was attorneys, my solution would be to ask my accountant if I could deduct it as a business expense, just like my bar fees, if it was a requirement in order to practice law. But that’s just me.

  5. JMS

    I agree that it’s the thin edge of the wedge. New Jersey already has something like a 20 hour pro bono requirement for established lawyers (waivable if you don’t practice in NJ); it may have started like this.

    What gets me about this rule is that bar applicants have NO CLUE what they’re doing. (I certainly didn’t.) It would be a miracle if they don’t make everything worse.

    But! One argument for this: in order to keep these newbies from wrecking the joint through incompetence, I predict there will be much greater student interest in clinical education in NY law schools (or other states where lots of people take the NY bar).

    Clinics aren’t the be-all and end-all, but they certainly get you more hands-on experience in the details and strategy of actual practice than yet another Law & Literature class. If this leads to slightly more capable law school graduates, that’s worth something. And maybe the clinic, as an institution, could have continuity on cases so the client isn’t completely stranded once the 50 hours run out.

    (I’m assuming there’s a way to square the “pro bono” part of this with the “I’m enrolled in a class” part of this; maybe there’s not.)

  6. SHG

    I remember getting a call from a NJ real estate lawyer who was assigned an indigent to defense for his pro bono requirement. He wanted to know what he should say at arraignment. I told him to try “not guilty.” Yeah, a great system.

  7. Andrew

    You didn’t make the income in the first place, ergo, there is no tax deduction for the “value of the donated work.” Lots of people in lots of professions get confused about this one, I think. Expenses incurred, including mileage, are a different matter, but you got that already.

  8. BL1Y

    I’ve been admitted in NY for 3 years, so this won’t ever apply to me anyways. But, your premise doesn’t make any sense. People with low incomes should care more about tax deductions because they have greater need for the money. They might save less in terms of total dollars, but it’s a greater percentage of their income.

    As for my question, the judge stated you’ll be able to fulfill the requirement after law school. I haven’t heard an exact time frame, but it’s likely due by the end of your second year in practice, same time your first CLE credits are due.

  9. SHG

    You have to have a threshold of income before income taxes kick in. I would think you of all people would appreciate that. A greater percentage of zero is still zero. Based on your math skills, it’s easy to understand why you became a lawyer.

    As for your assumption, the requirement is a condition of admission. What part of that makes you think you get two years to fulfill it? 

  10. Shawn McManus

    I can see that CDL’s will have ample opportunity for this but what about an IP lawyer (or the like)?

    Is it often that an indigent technology firm seeks pro bono service from lawyers to sue tech giants?

    Is the expectation that a patent lawyer moving from Indiana to New York will have to provide 50 hours to a poor guy who really needs a CDL?

  11. SHG

    Good morning, Sir. I’m your new pro bono lawyer. If you can just point me in the direction of the courthouse, it would be my honor to defend you in your murder case.

    There’s no requirement that a lawyer needs to provide pro bono services in his own practice area, or any area with which he’s remotely familiar.  Lawyers are admitted as generalists, and we are all equally capable in the eyes of the law to practice any and all types of law, as needed.

  12. Jeff Gamso

    I, for instance, am actively looking for a case involving toxic torts and the divorce law of Burkina Faso. I know nothing about either, but I have a license to practice law in Ohio. Actually, I think if I find that case I’ll do it in 50 hours and for free so that I can move to New York and get licensed there.

  13. SHG

    You have a brilliant future in New York. I await referring all my toxic tort Burkina Faso divorces to you. It’s an underserved niche.

  14. BL1Y

    Quoting the judge, from the Reuters coverage:

    “And while most applicants to the bar will want to complete their pro bono service during the law school years or over the summers. They will also have the option to do so after graduation, or even after taking the bar exam or after beginning a paid legal position in a law firm or elsewhere.”

    You may be right, and this might refer to just the few months between taking the bar or starting your job and being admitted to practice, but that’s a pretty narrow window.

    If it really is going to be a requirement to being admitted, we’re probably going to see something similar to the articling shortage in Canada. Without a license to practice they’ll have to rely on someone else to create the work for them, and as I’m sure you know, wimpy older lawyers can’t be burdened with training the next generation.

  15. SHG

    It’s only 50 hours. Not pleasant, and perhaps not fair, but it’s not 500 gazillion hours. There’s more than enough time in the few months between bar exam and application for admission.

  16. tom felding

    Is the proposed system flawless or is the proposed system better than the status quo? It seems to me, in desperate times, the latter question is more important even if the longer run the former might be more important. Is it really desperate? During one of my brief visits, I got a chance to attend a speech by Lippman himself and I got the impression that he thinks the system is pretty dire for many defendants.

    The comparison with auto-mechanics is fine as far as it goes. But wouldn’t doctors be a better comparison? I mean health-care and justice are the most commonly public funded fields and practioners in these fields cannot completely ignore it.

  17. SHG

    Physician is clearly the better analogy. The mechanic arose from many who argued that others don’t have to personally contribute to the welfare of the poor in order to pursue their license occupation, which is true and relevant. But then, there is a different between the underlying responsibility of technician and professional which similarly shouldn’t ignored.

  18. James

    It sure has its disadvantages and I’m thinking maybe they would like new upcoming lawyers to get a feel of pro bono work. Maybe it’s one way to encourage lawyers or lawyers to feel that giving probono work is not that really bad.

  19. Bill Poser

    Doesn’t a requirement of 50 hours for admission to the bar require laws students to violate the law by providing legal services without a law license?

  20. SHG

    The objection is that when it’s forced, it’s not quite pro bono in the sense of voluntary giving. So, it could just as easily sour young lawyers on pro bono rather than encourage it. Which way it will cut has yet to be seen.

  21. SHG

    It’s lawful as long as they’re working under the supervision of an attorney. Of course, that means they will need to find a program or attorney willing to take them on, which may be easier said than done if there’s a massive rush to fulfill the requirement.

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