By Latonia Haney Keith
McDermott Will & Emery
As a means of addressing the large, unmet need for lawyers to represent the poor, Chief Judge Jonathan Lippman announced in May that a minimum of 50 hours of pro bono service will be required of all attorneys seeking admission to the bar in New York ("Pro Bono Requirement"). In his address at the Court of Appeals' annual Law Day, Lippman stated "(i) 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."
As New York will be the first state to implement a pro bono requirement, the parameters for which are still under consideration, and as other states may be contemplating a similar rule, I wanted to share with you a segment of the position paper, "Recommendations: New York State Bar Proposed Pro Bono Admission Requirement," prepared by the board of the Association of Pro Bono Counsel (APBCo), of which I am a part. APBCo is a membership organization of about 125 attorneys and practice group managers who run pro bono practices in 85 of the country's largest law firms. Our members direct some of the nation's most successful law firm pro bono practices and have significant knowledge about the pro bono delivery of legal services throughout the United States.
APBCo commends the efforts of Lippman and his commitment to increase the delivery of legal services to low-income New Yorkers. It believes that effective implementation of this rule requires consideration of these issues:
1. Defining eligible "pro bono" work: Although many definitions of "pro bono" service have been used over the years, the most widely accepted definition is the one promulgated by the Pro Bono Institute (PBI). This well-defined standard is used by most firms and corporate law departments in the United States, and many bar associations and media outlets that survey pro bono use the PBI definition as well. The PBI definition is narrow enough to encourage a focus on the needs of low-income people and the organizations that serve them, while broad enough to ensure that New York bar applicants, who come from a variety of schools, backgrounds and countries, will be able to satisfy the requirement.
2. Work done outside New York state: Many attorneys who pursue careers in New York have attended law schools outside the state or outside the country (in the case of applicants eligible to seek admission because they obtained LL.M. degrees in the United States). Other applicants are practicing lawyers already admitted in other states. To address this reality, APBCo recommends that eligible pro bono service should qualify wherever it is performed.
3. Compensated pro bono service: The PBI considers work done in the course of summer associate or paid internship programs in the public or private sector to be "eligible" service. Regardless of the compensation that may be earned, as long as the client is not paying a fee, the benefit of increased representation to the community of low-income clients remains the same. APBCo recommends the pro bono requirement include pro bono service done in the course of compensated employment.
4. Supervision: The pro bono requirement will result in hundreds of thousands of additional hours of legal services available for indigent clients, but most of these hours will be performed by inexperienced and unlicensed law students and new graduates. Supporting this effort with expert supervision is vitally important. Rules 5.3 and 5.5 of the New York Rules of Professional Conduct and their analogues in other states, which govern the duty of supervision and the conduct of unauthorized practice of law, require that new graduates who provide pro bono assistance be sufficiently supervised by licensed attorneys. A formal system of oversight and certification should be put in place to ensure that new graduates are being supervised appropriately and not engaging in the unauthorized practice of law. This system will help promote competent representation of pro bono clients.
5. Time for completing compliance: Some candidates may face substantial hurdles to performing eligible service prior to starting employment after taking the New York bar. As such, APBCo recommends that the New York rules offer the ability to apply for an extension of time to complete the pro bono requirement for candidates who are otherwise eligible for admission, to as much as one year after bar admission, in certain situations.
Because many law schools provide opportunities for pro bono service, both within clinical settings and through independent work, APBCo encourages the New York Bar to allow this service to count toward the pro bono requirement. It also urges the New York Bar to provide strong incentives for schools to support student pro bono service, so that the majority of candidates for the bar will have met the requirement before graduation.
As this requirement will be a change of profound importance, it is critical that the pro bono service be of the highest quality. For any states contemplating a similar rule, thoughtful implementation will be necessary to preserve the integrity of the commitment.