Disagreement abound in legal community over pro bono rules

November 8, 2013 By Charisma L. Miller, Esq. Brooklyn Daily Eagle
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Earlier this year, New York State’s chief judge announced serious changes to the pro bono requirements and suggestions for prospective and currently active New York lawyers. Many of these changes, or rather the way in which the changes were implemented, do not sit well with a large group of attorneys—and the bar associations that represent their interests—they mean to affect.

Chief Judge Jonathan Lippman announced that, beginning May 1, New York attorneys must report the amount of hours they have spent providing pro bono service and the amount of financial contributions made to pro bono legal service organizations. In what may have been an effort to create more transparency in the legal profession, Lippman also declared that the reports of pro bono hours and financial contributions would be made public. “It is our responsibility to give it out,” Lippman said. “If someone asks for the information, they can have it.”

The efforts by Lippman have many in the legal community scratching their heads. The New York State Bar Association recently declined to add its official comments on the new requirements as a means of protest against the new rules and the way in which the changes were instituted.

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Robert Osterag, former NYSBA president noted, during the NYSBA’s fall meeting of Delegates, that the pro bono rules were implemented with an “iron fist.”  Members of the association appeared angry that Lippman and by extension the Office of Court Administration, did not consult the NYSBA on the drafting of the new rules.  “I suggest that we tell the truth, which is, ‘We don’t like it because we were not consulted,'” attorney Edwin David Robertson told fellow NYSBA delegates.

“The New York State Bar Association and other local associations would like to have more dialogue with the Chief Judge with these kinds of issues before they are unilaterally imposed,” Andrew Fallek, president of the Brooklyn Bar Association told to the Brooklyn Daily Eagle. Fallek spoke solely from the viewpoint of a practicing attorney as the Brooklyn Bar Association does not, as of yet, have an official position on the issue.

“[C]ourt rules affecting lawyers and the practice of law were announced without any opportunity for the organized bar to provide comment or input,” said NYSBA president David Schraver in a June letter to Lippman.

Though the NYSBA may have felt shut out from the process, it also expressed concerns that the reporting requirement will do more harm than good. “Our members regard such reporting and disclosure as an invasion of privacy,” Schraver noted in his letter. “Most people are not asked to tell how much they donate to a church, for example,” Fallek said. Robertson stated that “Telling how much money you give to something is offensive to a lot of people in this state.”

Another concern for attorneys is that the general public may see that an attorney’s reported pro bono hours or financial donations are low and not fully understand what those numbers truly indicate.  “There are malpractice issues for instance,” Fallek noted. “It is a much more complicated issue than one would think.” Unlike the medical profession, for example, the resolution of a legal case may take years.  “Lawyers are expected to, and do, put the same amount of care and tenacity into pro bono cases as they do for paying clients. In addition, many attorneys are not making a lot of money in this current economic environment, and pro bono cases, especially those outside of an attorney’s particular field, takes a lot of time and expense.”

An additional thorn for the New York State Bar Association is that a public reporting requirement of volunteer hours appears to be leading to an eventual pro bono mandate for practicing attorneys. “Even though mandatory reporting is not the equivalent of mandatory pro bono service, the reporting requirement dilutes the voluntary nature of lawyers’ pro bono service,” Schraver stated in his letter.

Pro bono hours are purely suggested and not required for legal practitioners. At present, it is recommended that attorneys provide 50 hours of pro bono service, an increase from the prior 20 recommended hours of service.  Of all specialized professions, legal practitioners are the only group upon which pro bono service is dictated as recommended.

The NYSBA made clear that attorneys are not against providing free legal services to underserved communities. “We strongly believe that lawyers should provide pro bono service because they recognize the critical importance of access to justice and lawyers’ unique ability to assist –not because they feel pressured into doing so,” Schraver stated.

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