An Introduction to the Pro Bono Reporting Rule
Chief Administrative Judge A. Gail Prudenti
New York County Lawyers Association
May 27, 2014
It is no secret that our nation faces a crisis in access to justice. The distressing lack of civil legal aid for the poor is one of the most daunting challenges facing the justice system today. More than 2.3 million litigants come into the New York courts each year without legal representation — individuals and families unable to pay for a lawyer or to access free legal help when facing the loss of their homes, suffering persecution by predatory lenders, seeking to keep custody of their children or escape the abuse of a family member, or looking to protect their very subsistence. Access to justice is particularly challenging during a time of economic hardship for our state and the entire country. New York is still climbing out of recession. More than one-third of New York residents are living at or below 200 percent of the poverty level, a benchmark for receiving civil legal services grants and other benefits, with 40% living at that level in New York City. Meanwhile, federal, state, and local budget cuts have shrunk the social safety net for the poor. The Legal Services Corporation in Washington, D.C., the largest national funding stream for civil legal service providers over the last 40 years, has seen its funding cut again and again by Congress. State funding through Interest on Lawyer Trust Accounts – a mainstay for legal service providers — has thinned to a trickle – – in New York, from $32 million a year to $7 million almost overnight. From Buffalo to Brooklyn, legal service organizations and practitioners are dedicated to ensuring that even the poorest New Yorkers can vindicate their rights through our legal system. But for all their inspiring and tireless work, there is not enough assistance to go around. The Legal Aid Society in New York City has to turn away three out of four people who come to them seeking help relating to civil matters. Our most vulnerable constituents have fewer and fewer places to turn. This huge gulf between the finite legal resources available and the dire need for legal services for the poor and people of limited means has come to be known colloquially as the Justice Gap.
For the last five years, the Chief Judge and the Administrative Board of the Courts have sought to address this fundamental problem of the legal profession incrementally and systematically. The Chief Judge began by holding annual hearings in each of New York’s four judicial departments on civil legal services and the vital role they played in the life of our communities. Concurrently, the court system formed the Task Force to Expand Access to Civil Legal Services, chaired by Helaine Barnett, former head of the Legal Services Corporation in Washington, D.C., to help organize the hearings, create the infrastructure to examine the problem, gather information, and identify specific solutions.
That Task Force has been a wellspring of ideas and initiatives. I am only going to mention a few of them:
The most important among the Task Force’s recommendations was to secure funding for civil legal services as part of the judiciary budget, to replace the prior unreliable patchwork of revenue sources. Relying on the principle that steady and substantial funding by state government is fundamental to providing civil legal services for the poor – and that such services are as much a priority for our state and society as the other essentials of life – we have succeeded in obtaining tens of millions of dollars in state funds for that purpose: $70 million in this year’s budget alone.
Recently we amended our rules to allow pro bono work in New York by in-house counsel who are headquartered in New York, but licensed out-of-state. Until then, out-of-state lawyers were permitted to do legal work only for their employers and could not appear in court unless admitted to our bar or pro hac vice.
We are currently instituting a new Pro Bono Scholars Program, re-imagining the third year of legal education and creating incentives for law students to devote their last semester of law school to pro bono work under the supervision of a legal services provider, law firm, or corporation in partnership with their law school.
We’ve amended Rule 6.1 of the attorney Rules of Professional Conduct to set, as an aspirational goal, the performance of 50 hours of pro bono service to the poor, and the contribution of minimum amounts to legal services organizations, consistent with the recommendations of the American Bar Association.
In sum: ours is a reasoned, multifaceted, incremental approach to closing the Justice Gap in our state, built around the close cooperation of the Judiciary and its leadership, partners in the legislative and executive branches, and harnessing the great talents and energy of our professional colleagues in the bar, academia, and legal services communities.
We’ve done this with a strong central belief: it is the most basic responsibility of members of the legal profession to play a central role in the struggle for equal access to justice. This responsibility is part of our history; it is part of our professional creed; it is – as the Chief Judge has said so often – part of our DNA as lawyers. Our canons of ethics and our licensing requirements reflect the tenet that the legal profession is more than merely a business. It is a calling, a noble one, where the great power and privilege held by those admitted to the bar brings a concomitant special obligation to preserve the rule of law and assure access to justice for all, regardless of wealth and background. For example, the American Bar Association has long maintained that “Every lawyer, regardless of professional prominence or professional workload, has a responsibility to provide legal services to those unable to pay” (ABA Model Rule 6.1, Comment 1). New York’s Rules of Professional Conduct echo the ABA’s: “Lawyers are strongly encouraged to provide pro bono legal services to benefit poor persons” (Rule 6.1), as our society has become one in which rights and responsibilities are increasingly defined in legal terms. I know that this bar association in particular has a lengthy history of openness to all segments of society and service in the advancement of that ideal.
Alongside these basic beliefs is another: that the Judiciary’s role as a regulator of the profession under the leadership of the Chief Judge and the Presiding Justices – through the shaping of legal education (Court of Appeals), the enactment of rules of professional discipline (Supreme Court, Appellate Division), and enactment of various court rules and projects (Administrative Board of the Courts and Chief Administrative Judge) is both to protect the public interest and public trust in our profession’s integrity, and to shape the culture and understanding of how we best meet our professional duties and responsibilities as privileged members of the bar.
It is in this context that the pro bono reporting requirement under discussion today should be understood. The new rule, effective May 1, 2013, requires attorneys to report the number of pro bono hours they devoted to low-income persons and the amount of monetary contributions they made to legal services providers as part of their biennial attorney registration process. The report of hours is a write-in figure; the report of contributions is a selection of a “group” category: zero dollars, 1 to 250, 251 to 750, and the like.
That requirement emerged from a recommendation of the Task Force in its report of November 2012. That report, and working group report upon which it was based, were public documents (Exhs. A [excerpt]; Exh. B). The recommendation was based on the premise that the requirement would both remind attorneys of the Justice Gap, and for the first time would give the court system an ongoing measure of its effectiveness in confronting this critical problem (Exh.A., p. 35; Exh. B, pp. 7-8). That is, it would provide a factual foundation – rather than guesswork for measuring the actual delivery of such services over a lengthy period.
In January 2013, the Chief Judge discussed the proposal in an article published by the New York Law Journal as part of the State Bar Association’s annual meeting (Exh. C).Following the approval by the Administrative Board, the Chief Judge announced his intention to implement the proposal the following May in his State of the Judiciary address in February 2013 (Exh. D [excerpt]). Little fanfare followed this announcement. Part 118 of the Rules of the Chief Administrative Judge – and the biennial reporting form — were amended accordingly.
Concurrently, a webpage was set up on the Unified Court System website, offering a detailed explanation of the requirement and containing a “FAQ” segment to address major concerns (Exh. E). In addition, an email information line was set up, which has responded to scores of inquiries from filers around the world since the rule went into effect.
Let me summarize the major features – including the constraints — of the reporting requirement.
It focuses principally on two considerations: the economic resources of the client (and here the rule makes no distinction between liquid or illiquid wealth), and the attorney’s intention, prior to performing legal services, to do so without a fee.
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Many of you will be aware of the many criticisms directed at the new rule. It has been called demeaning, a violation of attorney privacy, the first step towards mandatory pro bono, an arrogant effort by the court system to influence the charitable work of lawyers. It has been described as a “dilution” of the true spirit of pro bono service that could discourage such service. It has been labeled inequitable to small practitioners, who may lack the resources to meet the aspirational goal, and who often struggle to conduct ordinary business operations with modest profit margins. It has been called unfair to transactional attorneys, or specialists, whose expertise isn’t readily transferrable to serving the pro bono needs of the poor.
The scope of the definitions has been challenged: for some, they are too broad (because any reporting is wrong); for others, they fail to capture many ways in which attorneys provide legal services at reduced rates, or by forgiving fees to needy clients. It has been suggested that it’s wrong to limit the definition to service to the poor and exclude the many hours of pro bono service to other law-related causes (for example, bar association committees, public service entities such as local zoning boards) or non-legal charities (for example, volunteer groups, social service organizations). It has been argued that by focusing on one type of giving, the court system may implicitly diminish others.
Two concerns, perhaps, stand above all others: the fact that this information was initially to be made public; and the failure to invite public comment prior to initiating the practice.
These issues are, in large part, the subject of discussion at this forum. But several observations may assist those discussions.
First, to the extent that the rule can be improved – and debate over definitions made unnecessary — by expanding opportunities to report other instances of pro bono work or charitable giving, such an expansion appears (subject to further dialogue) consistent with the court system’s coordinate interest in obtaining data and encouraging service pursuant to Rule 6.1. The rule was drawn narrowly to limit its intrusiveness; it was not designed to denigrate the countless other forms of public and private service performed by New York lawyers.
Likewise, to the extent that we can address concerns through additional disclaimers, or modification of the reporting form, the court’s website, and FAQ on the subject, such adjustments are consistent with the rule’s purpose.
Second, the primary purpose of the rule as envisioned by the Board is the collection of pro bono service data, and not the public availability of individualized data. In any event, such public availability has been stayed until next May at the request of the bar; and the Board is well attuned to sensitivities on this subject.
Third, we agree that one major challenge in the provision of pro bono services to the poor lies in linking supply and demand: pairing attorneys who wish to provide such services with providers or clients who need them, and creating meaningful opportunities for service for all attorneys – over the internet as well as through more conventional means of client contact – without regard to their specialty or physical location, and with due regard to the impracticality of committing to lengthy periods of service. This would be of particular benefit to attorneys with narrower fields of expertise or challenging work schedules.
Lastly, we continue to believe that the rollout of this new rule was amply publicized, even in the absence of a formal public comment period. It was publicly addressed in the published report of the Task Force to Expand Access to Civil Legal Services – a group that included former bar leaders and eminent practitioners from all over the State. It was discussed by the Chief Judge in an article prominently published in the Law Journal during Bar Week in January 2013, and publicly announced in the State of the Judiciary several weeks later, three months prior to implementation. It is a concept that has been successfully instituted in other states, and is part of a far longer and broader public debate over the role of pro bono in the profession. The Board has been very responsive to early critique on some of its major issues of definition and publication. At bottom, this rule, like so many preceding and later initiatives, derives from the constitutional and statutory mandate of the Chief Judge, along with the rulemaking powers of the Administrative Board, to lead the court system. Inevitably, that responsibility of leadership will occasionally entail intense controversy — especially when it emphasizes obligations arising from our privileged professional status, and takes the legal profession in a new direction. On such occasions – and of course, after an issue has been fully explored – the duty to lead requires action.
All this having been said, the Chief Judge and the Board will continue to listen and consider practical experience as they make further judgments and decisions in this area.
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I hope that these remarks make clear that we are in the midst of a major adjustment in the landscape for access to justice in New York and around the country — a time of innovation and change in the way we think about the need for legal services, about society’s obligation to those who cannot afford counsel, and about our profession’s responsibility to assist in the fulfillment of that obligation. We believe that this positive change is our inescapable responsibility as lawyers and as leaders of a court system: making equal justice a reality for every individual, regardless of his or her station in life. The reporting requirement is an essential part of that change, providing the practical measure of success. There is no doubt that – as in any new program – it will be improved upon with experience. We look forward to working with the Association towards that end.