The Pro Bono Requirement in New York: How the New York Courts Have Pushed for an Increase in Legal Services to the Poor

By: Nicholas Martin, Albany Government Law Review

On September 14, 2012, the Chief Judge of the New York Court of Appeals, Jonathan Lippman, added a new mandatory rule for applicants to the New York State bar.[1] This new requirement states that each bar applicant in the State of New York must complete a minimum of fifty hours of pro bono services prior to admission.[2] The relevant portion of the New York Codes, Rules and Regulations is as follows:

(a) Fifty-hour pro bono requirement. Every applicant admitted to the New York State bar on or after January 1, 2015, other than applicants for admission without examination pursuant to section 520.10 of this Part, shall complete at least 50 hours of qualifying pro bono service prior to filing an application for admission with the appropriate Appellate Division department of the Supreme Court.[3]

According to the new rule, pro bono service is defined as work performed for people of limited means, not-for-profit organizations, and others—meaning individuals, groups, or organizations—that seek to “promote access to justice.”[4]

This mandate for applicants to the New York bar is the first of its kind in the nation.[5] No other state therefore has this mandate; other states merely encourage pro bono work.[6] However, it is important to note that California’s State Bar is preparing a similar pro bono requirement of fifty completed hours for bar applicants, and the New Jersey Supreme Court has made recommendations for a fifty–hour mandate as well.[7] As stated in the regulation above, the requirement will apply to every applicant to the New York bar beginning on January 1, 2015.[8]

Surprisingly, many future law students are not opposed to this fifty-hour mandate.[9] According to a Kaplan survey taken in June of 2013, in which 750 pre-law students partook, approximately sixty–eight percent of these students believed that a requirement for bar applicants to complete a set number of hours for pro bono work prior to admittance was a good idea.[10] Regardless of the reaction from future New York State bar applicants, it appears that the New York Courts have made a significant push for an expansion of legal services rendered to the poor as well as other non-profit organizations.[11]

The push towards increased pro bono work in the State of New York does not only affect bar applicants, but practicing attorneys as well. Beginning on May 1, 2013, the New York Courts increased the recommended hours of pro bono legal services to the poor from twenty to fifty hours.[12] According to Rule 6.1 of the New York Rules of Professional Conduct:

Lawyers are strongly encouraged to provide pro bono legal services to benefit poor persons.

(a) Every lawyer should aspire to:

(1) provide at least 50 hours of pro bono legal services each year to  poor persons; and

(2) contribute financially to organizations that provide legal services each year to poor persons.[13]

It is important to note that, for practicing attorneys in the State of New York, it is only strongly encouraged to provide fifty hours of pro bono legal services per year; that is, lawyers in this state are not mandated to provide any legal services to the poor.[14] Regardless, it seems evident that the New York Court of Appeals is pushing toward an increase in pro bono services from practicing attorneys with this increase in recommended annual hours.

The change made to Rule 6.1 of the New York Rules of Professional Conduct is not the only New York statute that has had an impact on licensed attorneys in the State of New York. Also taking effect on May 1, 2013, a new reporting requirement was added to section 118.1 of the Rules of the Chief Administrator.[15] Section 118.1(e)(14) deals with reporting requirements that lawyers must put in their biennial registration forms.[16]

According to the regulation:

Section 118.1 Filing Requirement

(e) The registration statement shall be on a form provided by the Chief Administrator and shall include the following information, attested to by affirmation:

(14)(a) voluntary unpaid pro bono services and (b) voluntary financial contributions made to organizations primarily or substantially engaged in the provision of legal services to the underserved and to the poor during the previous biennial registration period.[17]

This is a mandatory reporting requirement to all practicing attorneys in New York.[18] All lawyers of the state must report—every two years—the number of hours voluntarily spent providing unpaid legal services to poor clients, and the amount of voluntary financial contributions made to organizations that provide legal services to the poor.[19]

The New York Court of Appeals passed the above laws—the amendment to Rule 6.1 of the Rules of Professional Conduct and the new pro bono reporting requirement—concurrently, with the clear intention of increasing the amount legal services rendered from practicing attorneys to the poor and needy.[20] Though the Court may have had good intentions in passing these amendments, the idea of imposing a mandatory biennial report disclosing the number of hours spent rendering legal services to the indigent was not as popular as the Court may have expected. This mandatory reporting requirement has been met with opposition from various legal authorities in the State, including members of the New York State Bar Association, as well as—ironically—various pro bono organizations.

In a letter dated June 26, 2013, the President of the New York State Bar Association, David M. Schraver, wrote a letter to Chief Judge Lippman in response to the new amendments passed to the pro bono laws. He begins his letter referencing how the New York State Bar Association’s members take seriously their part in providing legal services to the poor, as well as providing voluntary financial contributions to non-profit organizations that provide more direct services to the impoverished.[21] However, Schraver writes, the Association is opposed to the recent reporting requirement amendment to section 118 of the New York Codes, Rules and Regulations.[22] One reason for this opposition deals with privacy issues. Schraver writes “[l]awyers’ personal pro bono services and contributions will have to be reported and will be available to any member of the public and the media. Our members regard such reporting and disclosure as an invasion of privacy.”[23] Another factor that Schraver writes about deals with the coercive nature of this mandatory biennial reporting requirement, stating that lawyers should choose to provide pro bono legal services because they want to assist the needy—not because they feel pressured to report hours on their reports.[24] Schraver lists a few other reasons why the bar association is against this mandatory reporting requirement, but these arguments are equally unpersuasive. Regardless, though, the mandatory biennial reporting requirement has been met with opposition from the New York State Bar Association.[25]

Quite surprisingly, the amendment creating the mandatory biennial reporting requirement has been met with opposition from pro bono groups as well, but for a different reason. A letter written by Brenna K. DeVaney, Chair of the Committee of Pro Bono and Legal Services, to Judge Lippman, stated that the reporting standard provided in the New York Code, Rules and Regulations is inconsistent with the description of pro bono legal services as provided in Rule 6.1 of the New York Rules of Professional Conduct.[26] As stated above, Rule 6.1 defined pro bono work as legal services rendered to the poor and non-profit organizations,[27] whereas the reporting requirement excludes work done for non-profits, mandating reports only for legal services rendered for the poor and financial contributions made to organizations dealing that render services to the poor.[28] The Committee argues that, because the reporting requirement provides only for financial contributions made to non-profit organizations rather than legal services rendered, this may lead to a decrease in pro bono work to these non-profit organizations, which, ironically, may in turn end up hurting the very people that pro bono is intended to help—the poor.[29] The Association of Pro Bono Counsel also has a similar complaint, stating that, while there is a strong support for the mandatory reporting requirement, the services eligible to be reported are too narrow.[30] “This definition appears to exclude the substantial amount of pro bono legal service that our attorneys provide to the many nonprofits serving this community, in addition to other work vital to low income New Yorkers.”[31] Though there are some complaints as to the exact definition of pro bono work that is eligible for reporting, the various pro bono associations overall believe this mandatory reporting requirement is a good idea and a step in the right direction for the State of New York.

The New York Court of Appeals has made some significant changes to the pro bono requirements in the state, whether it is for bar applicants or practicing attorneys. The statewide fifty-hour mandate for free legal services rendered by future bar applicants is the first of its kind in the United States, with other states beginning to consider adopting similar provisions. The change made to Rule 6.1 of the New York Rules of Professional Conduct that strongly encourages attorneys to provide fifty hours of pro bono work a year, coupled with the mandatory biennial reporting requirement mandating lawyers to disclose the number of hours spent rendering legal services to the indigent, marks a substantial change in responsibility for practicing attorneys in the state.[32] Irrespective of the praise or criticism toward these changes, the New York Courts have clearly made a significant push for increased pro bono work to the poor that affects all attorneys and aspiring attorneys in New York State. 

 

[1] State of New York, Court of Appeals, In the Matter of the Amendment of the Rules of the Court of Appeals for the Admission of Attorneys and Counselors at Law, Sept. 14, 2012, available at http://www.courts.state.ny.us/attorneys/probono/Rule520_16.pdf; 22 N.Y. Comp. Codes R. & Regs. § 520.16 (2008).

[2] 22 N.Y. Comp. Codes R. & Regs. § 520.16 (2008).

[3] Id.

[4] Id. § 520.16(b).

[5] See, e.g., James Podgers, New York’s New Rule Requires Bar Applicants to Perform 50 Hours of Pro Bono, A.B.A. J. (Mar. 1, 2013, 4:10 AM CDT), http://www.abajournal.com/magazine/article/new_yorks_new_rule_requires_bar_applicants_to_perform_50_hours_of_pro_bono/; Karen Sloan, Prospective Students Back Pro Bono Requirement, 250 N.Y. L. J. (Aug. 1, 2013), http://www.newyorklawjournal.com/id=1202613285016?slreturn=20140030104157.

[6] Podgers, supra note 5.

[7] Sloan, supra note 5.

[8] Id.; Podgers, supra note 5.

[9] Sloan, supra note 5.

[10] Id.

[11] See N.Y. Rules of Prof’l Conduct R. 6.1 (2013).

[12] Id.

[13] Id.

[14] Id.

[15] 22 N.Y. Comp. Codes R. & Regs. § 118.1(e)(14).

[16] See id.

[17] Id.

[18] See 22 N.Y. Comp. Codes R. & Regs. §§ 118.1(a), (b).

[19] Id.; 22 N.Y. Comp. Codes R. & Regs. § 118.1(e)(14).

[20] See id.

[21] Letter from David M. Schraver, President, N.Y. State Bar Ass’n, to Jonathan Lippman, Chief Judge of the State of N.Y. (June 26, 2013).

[22] Id.

[23] Id.

[24] Id.

[25] New President Pledges To Preserve What’s Best About The State Bar – And Move it Forward, The Metropolitan Corp. Counsel (Aug. 12, 2014, 1:19 PM), http://www.metrocorpcounsel.com/articles/29579/new-president-pledges-preserve-whats-best-about-state-bar-%E2%80%93-and-move-it-forward.

[26] Letter from Brenna K. DeVaney, Chair, Comm. of Pro Bono & Legal Services, to Jonathan Lippman, Chief Judge of the State of N.Y. (May 24, 2013), available at http://www2.nycbar.org/pdf/report/uploads/20072511-LettertoJudgeLippmanonReportingProBonoHours.pdf.

[27] N.Y. Rules of Prof’l Conduct R. 6.1.

[28] 22 N.Y. Comp. Codes R. & Regs. § 118(e)(14)(a).

[29] Letter from Brenna K. DeVaney, supra note 26.

[30] Letter from the Association of Pro Bono Counsel to Jonathan Lippman, Chief Judge of the State of N.Y. (May 22, 2013), available at http://nylawyer.nylj.com/adgifs/decisions/061913apbco.pdf (last visited Aug. 25 9:25 PM).

[31] Id.

[32] Nora A. Jones, Pro Bono Spotlight: Central & Western New York Chapter of the Association of Corporate Counsel Members Discuss Legal Service Needs, N.Y. Daily Record (Mar. 11, 2014), http://nydailyrecord.com/blog/2014/03/11/pro-bono-spotlight-acc-chapter-members-discuss-legal-service-needs/.

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