What does this mean for new admits to the profession of law?
By David Chapinski
Starting next year, New York will become the first state to require lawyers to perform unpaid work before being licensed to practice.
The state’s Chief Judge Jonathan Lippman made the announcement recently, describing the rule as a way to help the growing number of people who cannot afford legal services.
Also referred to as ‘Poor 3L Suckers,’ in some crowds, the rule will require the approximately 10,000 lawyers who apply to the New York State Bar each year to prove that they have performed 50 hours of pro bono work before they are admitted.
Judge Lippman has said that the move was intended to provide about a half-million hours of desperately needed legal services to those with urgent problems, like foreclosure and domestic violence. But who is he kidding? This sounds, to me, more like a ‘big business’ move.
The need for legal services has grown exponentially in recent years as the economic crisis delivered what advocates for the poor call a triple attack. More people are struggling financially and more people need legal services to cope with foreclosures, evictions, credit and employment problems that could push them into long-term poverty. Meanwhile, state and federal funding for legal services has dropped considerably.
For example, The Legal Aid Society, the nation’s largest provider of free legal services, turns away eight out of every nine persons
that seek help with civil legal matters. Since the economic downturn began in 2008, requests for legal assistance has jumped 40 percent for health care issues, 54 percent for unemployment insurance and work-related problems, 16 percent for domestic violence and a stunning 800 percent for foreclosures. While criminal defendants have a constitutional right to free legal representation, defendants in civil cases, as well as people who need legal help for essential needs like applying for disability benefits do not.
During his three years at the top of the state’s court system, Judge Lippman has made New York a national model and has been praised in the legal profession for addressing what he calls the ‘justice gap.[i]’ He helped to allocate millions of dollars from the courts’ administrative budget for free legal services and made it easier for retired lawyers to take pro bono cases. Judge Lippman and the court administrative board have the power to do so because, unlike in many other states, the New York court system, and not the bar association, set the requirements. Many worry about poor people with lawyers who don’t want to be there. Lawyers do not like to be told what to do.
But this latest measure may prove more controversial, some of his proponents say, because it enters into a fierce debate among lawyers over whether mandatory pro bono service is the right solution. There are also those who argue that the rule could empty the pockets of young lawyers at a time when they are struggling to find jobs.
If poor people in NY have trouble securing legal services, what better way to assist them than to force similarly situated people to come to their aid?
Instead of relying upon existing attorneys to offer assistance to those that are in need, Judge Lippman has chosen to force the task upon those who have no choice but to obey. I believe that Chief Judge Lippman has a good idea, but it is a bit misplaced.
If we are fair to the law student, we should be discussing what the new pro bono requirement means for them. Opponents argue that this proposal imposes a tax on attorneys and is preferable to proposals taxing a broader tax base for the same thing. Others argue that this is indentured servitude, not pro bono service.
The real issue here, some would say, is that Chief Judge Lippman has done his ‘job’ in improving New York’s “justice gap,”[ii] but his pro bono requirement for new admittees hasn’t exactly followed suit.
Endorsers of the approach say it will ensure that new lawyers have real-world experience while helping hundreds of thousands of people in the civil justice system that do not have a lawyer. To put it in perspective, if every state in the country were to join in, that would mean at least two and a half million hours of additional pro bono work. What a positive impact on persons and communities of limited means and organizations that would gain from this immersion of pro bono work. Only 20 percent[iii] of the need for civil legal services is currently being met. State lawmakers this year approved $25 million for civil legal services, double the funding from last year. But there isn’t enough money in the world to meet the need, according to Judge Lippman. There is still the need for the continued individual efforts of lawyers.
Yet, the requirement for mandatory pro bono will not extend to the approximately 160,000 lawyers the American Bar Association estimates are already admitted to the state bar and living in New York. Admittedly, mandatory pro bono for the entire bar is not workable because there are so many different categories of lawyers, differences in geography, and hundreds of lawyers who can’t make a living on what they are doing now.
Many think Judge Lippman’s initiative is wrong on so many levels that it’s easier to respond to it with ignorance than to even begin to point out its flaws. Like the fact that recent law school graduates have a difficult road ahead. Many of them have six figures of student debt to mine and bankruptcy is not a solution. Why not expect more of people who have already been admitted to the bar? Yes, pro bono is a real “core value” of the profession in New York. And New York would probably be better served by an amendment to the state’s own ethical code than this new requirement.
New York has one of the top two hardest bar exams in the country. So let us take a state that is already viewed with fear and apprehension and make it that much harder to get a license to practice in. Make that license contingent upon 50 hours of work, an additional source of torment for anyone who decides midway through their third year of law school to take the New York bar exam but didn’t go to law school in New York. Those applicants are deeply affected.
Is it possible to place 50 pro bono hours on the summer you are studying for the exam so you are now punishing anyone who did not ‘plan ahead’ even though the decision of where to take the bar exam is dependent upon things out of their hands?
Many argue that if the state of New York really cared about providing legal services to those that can’t afford them they would require that lawyers who have already passed the bar provide the services. Lawyers have to renew their licenses; they have to attend continuing legal education, so why not add a pro bono work requirement?
Maybe let them trade 10 hours of continuing legal education for 10 hours of pro bono work. Then you have ‘real’ lawyers dedicating their time to people who need it and you don’t have already trepid law students trying to help someone in their most desperate hour of need.
As an outside student of public administration looking in, I believe the role of the judiciary as well as national and state bar associations should be to provide a de minimus framework. Govern what we can’t do in order to avoid individuals risking licenses. Outside of that, professional associations should be a source of professional support and information. It is not the job of associations to legislate or mandate how an individual should aspire to be a better person or lawyer. Nor should they tell people that he/she must give away their services. But that is where they are heading.
Many still believe in freedom of professionalism. This ‘solution’ has been approached before in many different ways by many different groups. It seemed inevitable that someone would find a politically pleasing solution that would remove the option from the hands of the American Bar Association and put it in the hands of the judiciary.
I believe that a struggling economy has given the perfect opportunity to implement this mandate and it has now found its supporters – myself not one of them.
[i] Cardozo Law. Jonathan Lippman, Chief Judge of the Sate f New York, to Deliver Cardozo School of Law’s 2012 Commencement Address. April 4, 2012.
[ii] Law Day Ceremony. Law in the 21st Century: Enduring Traditions, Emerging Challenges. Court of Appeals. Albany, New York.
[iii] Thomas Reuters – Lippman announces pro bono requirement for prospective attorneys. May 2, 2012.