Sheff on New York’s New Pro Bono Rules

Over at PrawfsBlawg, Jeremy Sheff raises important concerns about the pro bono requirements that New York will begin imposing on budding lawyers. Here is the relevant part of the post:

Chief Judge Jonathan Lippman of the New York Court of Appeals has just announced that all candidates for admission to the Bar of the State of New York will soon be required to prove that they have performed at least 50 hours of law-related pro bono service prior to being admitted. I’m a firm believer in the value of pro bono service, and did quite a bit of pro bono work in my past life as an associate at Cravath. And as Jason Mazzone notes over at Balkinization, all these person-hours could well produce some serious social good. But this new rule strikes me as seriously problematic, particularly in light of the challenges facing legal education and the prevailing economic climate, both of which are the topic of so much current discussion and angst.

The current recession has not been kind to the young, particularly those without a broad support network. The deck is stacked against them in a contractionary economy, both because they haven’t yet had the chance to acquire sufficient resources to see them through hard times, and because in periods of scarcity (like the current one), those who do have such resources guard them ever more jealously, making it difficult for those just starting out to get on their feet. Chief Judge Lippman’s proposal notably declines to impose pro bono requirements on current members of the bar on grounds that it would not be “workable,” in part because there are “lawyers who can’t make a living on what they are doing now.” This special pleading seems to be of a piece with the current trend of muddling through hard times by demanding more sacrifice from those who have less, while failing to make comparable demands of otherwise similarly situated people who are fortunate enough–often due to nothing more than the historical accident of having been born at the right time–to have more.

As my former colleague Brian Tamanaha and others have argued at length, law school is an increasingly bad deal for many students. The looming spectre of unmanageable debt and the fierce competition for legal employment have created all sorts of opportunities for incumbents in the legal profession to take advantage of those who seek to enter the profession as a means to a better life. I’m sure I’m not alone in having been somewhat concerned at the contortions that law schools and legal employers alike are willing to go through to steer a course between the ABA’s Standard 305 (governing externships) and the recently reinvigorated enforcement of the Fair Labor Standards Act. Even federal judges and US Attorneys Offices appear to be hungry for free labor from those who are desperate to get a foot on the ladder to a successful legal career. The fact that we incumbents are increasingly demanding these types of sacrifices of those who seek to climb up the ladder behind us strikes me as at best uncharitable and at worst venal. Certainly it strikes me as inconsistent with the values underlying a commitment to pro bono service. If the stewards of the legal profession really think pro bono service is important enough to be made mandatory–and I’m not opposed to that idea–then we should be mandating it across the board, not singling out already disadvantaged new entrants for treatment we don’t have the stomach to impose on ourselves.

An editorial in the New York Times the other day took a more charitable view of the requirement, arguing that the rule would give soon-to-be lawyers “some degree of real-world experience” and would “foster a stronger culture of public service in the legal profession, while providing more assistance for the many hundreds of thousands of people without lawyers in the state’s civil court system.” Even the Times recognized that:

This initiative, however, is no substitute for more federal and state support of legal aid for the poor, or for other moves, like expanding law school loan-forgiveness programs to help graduates who work in legal services offices. Still, requiring new lawyers to demonstrate their commitment to the profession’s ideals of service is a worthy step in the right direction.

I am somewhat dubious about how much practical experience this requirement will really give law students and I wonder about the culture we are creating when, as Jeremy notes, we create a two-tier system where only those not yet admitted to the bar are obligated to perform such services. I also worry that the Times is too optimistic when it suggests that this is only the first step. Won’t the same political pressures that yielded this compromise apply equally to any attempts to extend it?

What do you think about these new obligations? Feel free to add your comments below to weigh in on this important debate.

2 Comments to “Sheff on New York’s New Pro Bono Rules”

  1. I am against a pro bono requirement for practicing attorneys. I did not go to law school to work for free. I do give to charities and I am not unsympathetic to the poor, but lawyers, who all pay a biennial registration fee, should not be forced to work for free. No other profession requires its members to do free work. We all are forced to do unpaid work when clients can’t pay or won’t pay. Legal services organizations do a good job representing the poor and they do pay their attorneys. I have seen these organizations working for their clients. There is no need to require lawyers, who have expenses to pay, to work for free.

  2. As a law student graduating this Spring, my immediate concern is does this apply to me???

    The Chief Judge’s comments grabbed the headline, but the fine print of “what counts” towards the 50 hours and “who” this applies to must be spelled out ASAP. As Professor Sheff notes in a comment on the post at PrawfsBlag, the requirement is vague about “who” this applies to and only states that those seeking admission in 2013 are impacted. If I submit my application in December 2012, am I seeking admission in 2012 or 2013? I hope I won’t need to wait until December to find out.

    On the other hand, the merits of the requirement deserve to be debated, and all sides are weighing in. But this goes to “what counts,” and here the Chief Judge has once again provided very few details. If the net is cast wide, incorporating many activities that law students already engage in, I think the requirement will be easy to satisfy. If the 50 hours must be spent performing specific pro bono services, I suspect it won’t be as easy as the Chief Judge anticipates. One must also question whether our local legal services office has the capacity or staff to handle 100 or 200 new students walking in the door seeking work? If not, where are we to turn?

    Finally, I’m struck by how quickly this debate has crossed over to whether all attorneys should be required to do pro bono work. Maybe some see the student requirement as a gateway to mandatory pro bono in NY? I don’t really know if this is driving the new debate, but most importantly for my friends and I . . . it is taking the spotlight off of the questions that really need to be answered!!

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