Stewart D. Aaron
May 21, 2012
Honorable Jonathan Lippman
New York State Court of Appeals
230 Park Avenue, Suite 826
New York, NY 10169-0007
Re: 50-Hour Pro bono Requirement for New York State Bar Admission
Dear Chief Judge Lippman:
NYCLA shares your concern about the plight of low- and moderate-income New Yorkers who cannot afford the basic civil legal services they need. NYCLA supports, and will continue to support, your campaign to increase civil legal services funding. We also believe, as you do, that New York lawyers across all demographics and practice areas should be encouraged to perform more pro bono work, and our pro bono programs provide greatly needed legal services to many indigent New Yorkers while giving volunteer lawyers an opportunity to learn new skills and gain valuable practical experience. However, NYCLA has historically opposed mandatory pro bono proposals for admitted attorneys on both philosophical and practical grounds. Perhaps not surprisingly, the plan you described in general terms on Law Day—which would require 50 hours of pro bono work as a condition of admission to the New York bar—prompted a vigorous debate at a meeting of NYCLA’s Board of Directors on May 14, 2012. At the conclusion of that debate, the Board of Directors adopted a resolution directing that I communicate with you NYCLA’s opposition to the plan. Our reasons are set forth below.
We note preliminarily that, in the past, the Court of Appeals worked closely with the organized bar associations when formulating changes to the rules regarding admission of attorneys. The current proposal does not appear to be the product of such collaboration. Before proceeding further, we urge you to return to the Court’s historical practice. The Court would also benefit from hearing the views of law students, law schools, existing pro bono providers, and other constituencies likely to be affected by the proposed changes. For example, while we agree that clinical experience can better prepare law school graduates for practice, the proper role of clinical work in a legal education has been a subject of heated debate within the academic community. NYCLA’s concerns center on the feasibility, and potential unintended consequences, of the mandate, including the burden that the mandate would impose on applicants for admission, especially those from out of state; the ability of our law schools to meet the inevitable demand for clinical pro bono opportunities without further increasing the already daunting cost of a law degree; the strain on the pro bono providers who will be asked to train and supervise thousands of newly graduated attorneys unable to satisfy the mandate while in law school; and the danger that the public will not be well served by inexperienced practitioners who, at least in some cases, may view themselves as unwilling conscripts rather than volunteers.
The plan announced on Law Day appears to be based on the assumption that most applicants for the New York bar will have satisfied their pro bono obligation during law school, which in turn assumes that the law schools graduating these applicants can and will expand their clinical programs sufficiently to provide these opportunities. Nothing we have heard or read thus far indicates that the schools are in a position to do this in time for their 2013 graduates to meet their pro bono requirements during the 2012- 2013 academic year. Moreover, while many local law schools would like to expand their clinical programs—with or without a mandate from the Court of Appeals—they are reluctant to hire the additional faculty and take on the additional overhead necessary to properly supervise a large increase in the number of inexperienced students performing direct legal services for vulnerable populations. According to U.S. News & World Report, annual tuition at New York law schools now ranges from $12,207 (CUNY, in-state students only) to $53,150 (Cornell), with the average well over $40,000. Any abrupt expansion of clinical offerings (which require a much lower student-faculty ratio than lecture courses) would inevitably push those figures even higher. The alternative – externships with legal services providers – are disfavored by many law schools because of difficulties in maintaining the quality and consistency of supervision.
Even assuming that the law schools in New York could expand their clinical offerings sufficiently to meet the mandate, there are approximately 5000 applicants each year who attended out-of- state schools. You are reported to have said that the implementing regulations will “probably” include provisions permitting clinical work at out-of-state law schools to satisfy the requirement. We believe that such a provision is absolutely essential to the feasibility of the mandate—particularly if other states follow your example and enact their own pro bono mandates. If each such state required that the pre- admission pro bono work be performed on its own soil, it would become virtually impossible for a national law school to adequately prepare its students for practice in the jurisdiction(s) of their choice, and it would double or triple the burden on the many students who seek admission to more than one bar after graduation. We also believe that “pro bono work” should not be so narrowly defined as to include only direct legal services provided to indigent clients. Law students who work without pay for recognized public interest organizations or work in clinics involved in impact litigation, for example, should not be penalized. Even with these provisions in place, we believe that there will be a significant number of applicants for admission who will not have satisfied their pro bono requirements before they graduate. This means that the onus will be on bar associations and existing civil legal service providers to create and run programs to offer these aspiring lawyers meaningful pro bono opportunities in the typically brief window between their graduation and their application for admission. During the same period, most of the new graduates will be studying for the bar, working to support themselves (and to pay off their loans), and/or looking for a job in a very tight market. Some of them may resent the pro bono mandate, particularly if it requires them to forego paid employment or take time away from their job hunt at a financially precarious time in their lives. Particularly under these conditions, it seems unrealistic to expect that existing or new pro bono providers can adequately train and supervise thousands of recent law school graduates each year—some of whom wish merely to “punch the clock”— and ensure that these inexperienced practitioners provide competent legal services to the New Yorkers who most need assistance.
The structure of these post-graduation programs also will result in systemic inefficiencies. Few if any pro bono cases will require precisely 50 hours of attorney time. There is thus a significant danger that a large number of case files will be returned to supervisors while still pending, delaying the conclusion of the cases and confusing and frustrating the clients being served. Programs will also spend significant time training conscripted “volunteers” who have no obligation to see through to conclusion the cases they are assigned.
NYCLA is one of the largest bar associations in the State and a long-time champion of pro bono work. Our own experience illustrates the potential problem. In 2011, approximately 120 volunteer lawyers participated in NYCLA-sponsored pro bono programs (most run jointly with other nonprofit organizations), providing approximately 2550 hours of free legal service to their clients. Although the volunteers donated their time, as did most of the trainers and supervisors, these programs cost NYCLA approximately $155,000 (including the salary of our full-time pro bono coordinator), or almost $61 per hour of pro bono service provided. This figure, of course, does not include the costs incurred by our pro bono partners or by the volunteers themselves. We note as well that additional and more direct supervision may be required to accommodate non-admitted attorneys, especially if they are to appear in court.
No doubt some expansion would be possible through intensive recruitment of volunteer supervisors and additional partnerships with nonprofit legal services providers. In addition, some of our existing programs could be refocused to make them more appropriate for a target population of recent law school graduates seeking to meet a bar admission mandate. We doubt that we would be able to significantly expand our pro bono offerings, however, without additional economic resources, and we would be extremely reluctant to impose the costs on our members—many of whom are already struggling economically—through increased dues. Based on our own contacts with other bar associations and nonprofit legal services providers, together with what we have read in the press, we believe that most such organizations would face similar challenges in attempting to provide the training and supervision necessary to implement the proposed mandate.
We also have concerns about the inevitable adverse impact of the mandate on the pro bono opportunities available for more experienced attorneys, and on clients needing help with legal problems too complex for the lawyers subject to the mandate. The plan now under discussion would push bar associations and civil legal services providers to re-gear their pro bono programs to accommodate the many applicants for admission who need to meet the 50-hour requirement. This in turn would restrict the pro bono resources and opportunities now available to experienced lawyers, including lawyers in transition who are hoping to gain useful experience and valuable contacts. Constraining these lawyers’ pro bono opportunities not only does them a disservice; it does a disservice to clients seeking help with legal problems too complicated for law students or recent graduates.
Finally, we ask you to think about the “optics” of the mandate. Shunting what should be society’s obligation to ensure access to justice by the indigent onto the shoulders of inexperienced, unlicensed attorneys sends a disquieting message about how we value the rights of the poor.
Furthermore, the group on whom the burden will most heavily fall are lawyers who did not attend New York law schools and did not know about the 50-hour requirement, or have a realistic opportunity to satisfy it, while in law school.
We have been privileged to work in close coordination with you, your predecessors, and the New York State Courts to fulfill our shared mandate of striving for access to justice. We continue to be grateful for the innovation and leadership you personally have provided in this area, including the emphasis on a combination of voluntary pro bono service by lawyers and adequate funding for civil indigent defense services which we, like you, continue to believe is an essential aspect of any solution.
We hope that our observations are helpful, and we look forward to working together to identify programs that will effectively address the needs of indigent New Yorkers for quality civil legal services.
Stewart D. Aaron