|"On the Changing Nature of a Lawyer’s Pro Bono Responsibility to the Public and the People in New York"
The regulation of attorneys does not happen in isolation and without regard to changes and pressures from the outside world. Despite rumors to the contrary lawyers do not live in isolation from society or exist beyond the scope of public criticism and anxiety. For this reason, it should not truly be surprising that the NY rules regarding pro bono service, law reform activities and even direct financial support for organizations providing access to justice have all been subject to significant amendment in the last year or so. The economic downturn revealed even greater need and inability of the poor to afford basic needed legal representation.
That the needs of the public are real and pressing is not in dispute. Nor is the basic principal that with the provision of the privilege of the ability to practice law, comes the ethical responsibility to alleviate the restriction to legal representation based on costs. The issue perplexing the New York legal community is how the rules of professional conduct and the technical forms of court administration can or should be used to socially engineer the desired results. In ethics, there is a fine line between the public and private life of lawyers and those who try to change that line should be cautioned to draw with a steady hand or fear unintended onsequences.
The most recent controversy comes about from a change to he usually inoffensive biennial attorney registration forms. In June 2013, the NY Attorney Registration process questionnaire was amended, to now require the mandatory reporting of pro bono hours served and of the amount of money contributed (by the individual or by his firm/company on his behalf) to organizations that provide legal services to the poor.
In an open letter to the Chief Judge of the State of New York, Jonathan Lippman, the President of the New York Bar Association, David Schraver, wrote that while all were in agreement in their duty to provide legal services to the poor, there were serious privacy concerns raised by the reporting requirement. “Lawyers should not be subject to having their personal charitable work and contributions
made public”, he wrote. Noting that such requirements undercut the voluntary nature of the pro bono requirement, he also raised the specter that such mandatory rules put lawyers in “the position of facing potential disciplinary charges for failure to report voluntary services and contributions”.
There is no more complex judgment than the extent and nature an individual’s private choices should be the proper subject of external inquiry and possible discipline. Nor is it completely clear that donations to organizations assisting the poor is truly an appropriate measure of character or fitness to practice law.
Importantly, there is still no mandatory pro bono service or mandatory financial contribution required by the NY rules of professional conduct for admitted lawyers. The latest revision, effective May 1, 2013, maintained the language that NY Admitted lawyers were only “strongly encouraged” to provide 50 (increased from 20) hours of probono legal services to the poor. Likewise the need to financially contribute to organizations that provide legal services to poor persons is still officially voluntary and is also couched in terms of aspiration, though the newly amended rule does give approved suggested amounts – generally a minimum of the amount the lawyer bills for one hour or its equivalent. It even gives an out for the underemployed lawyer, an expectation that the donation not need to exceed one-tenth of one-percent of the lawyer’s income.
The absence of a mandatory duty to perform the pro bono or make the charitable contribution (or even its arguably arbitrarily small amount) does not itself relieve lawyers of all anxiety. Any mandatory reporting of a voluntary duty is a socially tricky proposition. As everyone knows, the discomfort in being out of step of even voluntary professional norms or charitable expectations can be extreme and the specter of clients or the press having the ability to publicize these numbers may change any rational lawyer’s calculation of what might have been a gesture of pure charity and good will to a professional calculation. If so, is such behavior what we mean by “the public good”? Is the outcome of the service being performed more important than the nature of the character and the profession that such behavior was traditionally supposed to represent? Difficult to say, but admittedly the Courts can only regulate forms, not consciences.
Of particular interest to the foreign legal community is that this mandatory reporting requirement will apply to them regardless of where they actually practice. There is no requirement that the contributions to organizations providing legal services to the poor be to organizations operating in New York, but that disconnect makes the reporting requirement seemingly even more peculiar.
Likely the new requirements are simply all in accordance with the Chief Judge’s open support of lawyering for the public good. As such the requirement for admitted lawyers reporting such information on their biennial registration forms is in keeping with the now mandatory 50 hours pro bono requirement for those filing for admission to the NY bar in most circumstances after January 2015, including foreign
trained lawyers who qualified to sit for the bar by acquiring an LLM. Undoubtedly, it would seem odd to require such a significantly higher level of pro bono service for the newly applying than those admitted
lawyers had even been formally required to aspire to achieve. Perhaps, we should just be grateful that the donation requirement was not made mandatory for those applicants as well.