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New York Professional Responsibility Developments Since November 2011: Part 2 — The Battle Over Pro Bono

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By Roy D. Simon, Distinguished Professor of Legal Ethics Emeritus

Last month in Part 1 of my review of developments in New York legal ethics since Lazar Emanuel’s untimely death in November 2011, I ended on the optimistic note that the process for amending the rules is generally getting better in New York because the Courts seem more receptive to input from the bar. [See, NYLER Jan. 2015.] But I also mentioned that sometimes the Courts get out ahead of the bar. That is what happened with pro bono, which led to an angry standoff between the New York State Bar Association and the New York Courts that lasted a full year. I call this the Battle Over Pro Bono, and I’ll cover it this month.

 

Landmark Pro Bono Developments in 2012

Chief Judge Jonathan Lippman is a man of bold ideas and soaring vision, a man who believes that the legal profession is a noble profession, and a man who cares deeply about the plight of the poor. One of the his early initiatives when he became Chief Judge in 2009 was to appoint a Task Force to Expand Access to Civil Legal Services. The second annual report of the Task Force, issued in November 2011, said that in 2010 the Task Force found a “growing crisis” in the New York State Courts because “2.3 million New Yorkers must navigate our State’s complex civil justice system without an attorney.” The Task Force said this “crisis of the unrepresented” not only harmed “vulnerable low-income families and individuals” but also “burdens our courts and represented parties.”

At his Law Day address on May 1, 2012, he announced that starting in 2015, New York would become the first state in the nation to require pro bono service as a condition of admission to the bar. In announcing that requirement — which will apply to every applicant to the New York bar no matter where they attend law school — Chief Judge Lippman noted that pro bono is “a core value of our profession” and that we should “we aspire for all practicing attorneys to devote a meaningful portion of their time to public service.” Then he said:

… [T]hese ideals ought to be instilled from the start … So today … we turn over a new page in the bar admission process in New York — by requiring each and every applicant for admission to contribute 50 hours of participation in law-related and uncompensated pro bono service before they can practice in New York State.

 

Controversial Pro Bono Changes in 2013

On Feb. 5, 2013, in his annual State of the Judiciary address, Chief Judge Lippman drew again on the report of the Task Force to Expand Access to Civil Legal Services. He said:

…[W]e must promote the importance of pro bono work not only in the men and women who enter our profession as lawyers each year, but also in our current practitioners … . The legal profession in our state selflessly provides millions of hours of pro bono work to help people of limited means, and I do not intend to mandate that all New York attorneys perform pro bono work — a better course is to adopt the Task Force’s recommendation to amend the Rules of Professional Conduct to increase the aspirational goal for pro bono service per attorney from 20 to 50 hours annually. This change not only will help narrow the justice gap, but also will further our efforts to foster a culture of service in all members of our profession. … [Emphasis added.]

 

He also announced that the Courts had approved the amendment. In addition, the Courts added specific annual aspirational guidelines for financial contributions Thus, effective May 1, 2013, the Courts amended the black letter text of Rule 6.1(a) to provide as follows:

(a) Every lawyer should aspire to:

(1) provide at least 20 50 hours of pro bono legal services each year to poor persons; and

(2) contribute financially to organizations that provide legal services to poor persons. Lawyers in private practice or employed by a for-profit entity should aspire to contribute annually in an amount at least equivalent to (i) the amount typically billed by the lawyer (or the firm with which the lawyer is associated) for one hour of time; or (ii) if the lawyer’s work is performed on a contingency basis, the amount typically billed by lawyers in the community for one hour of time; or (iii) the amount typically paid by the organization employing the lawyer for one hour of the lawyer’s time; or (iv) if the lawyer is underemployed, an amount not to exceed one-tenth of one percent of the lawyer’s income.

 

If the amendments to Rule 6.1 had been the only changes regarding pro bono in New York, I doubt there would have been a rebellion in the ranks. But Chief Judge Lippman did not stop with Rule 6.1. He went much further. Continuing his 2013 State of the Judiciary address, he said:

To provide admitted attorneys with further encouragement to participate in pro bono work, the Administrative Board has also approved the Task Force’s recommendation to require attorneys to report the number of pro bono hours they performed and the amount of monetary contributions they made to legal services providers as part of their biennial attorney registration process. … New York joins seven other states that have instituted pro bono reporting requirements to promote and encourage pro bono participation. These states have seen significant increases in the number of volunteer pro bono hours ***. The reporting requirement will also enable us to identify and honor those attorneys whose dedication to pro bono service goes above and beyond the aspirational goal *** [Emphasis added.]

 

The result was a new subparagraph in the Court of Appeals Rules, 22 NYCRR §118.1(e)(14), that requires attorneys to report the following information on the biennial registration statement that must be filed with the Office of Court Administration (OCA):

(i) voluntary unpaid pro bono services; and

(ii) 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.

 

To elaborate on these new requirements, which took effect on May 1, 2013, OCA posted FAQs to answer specific questions about the new rules. As initially posted, the FAQs said that lawyers could report only the number of hours spent providing “unpaid legal services to poor and underserved clients.” Three separate organizations soon sent letters to Chief Judge Lippman expressing concern that this definition of “pro bono” for reporting purposes was unduly narrow. For example, the New York City Bar’s Pro Bono and Legal Services Committee sent a letter to the Courts saying that the narrow definition of reportable pro bono hours excluded “legal services provided to nonprofit organizations that offer non-legal assistance to poor people or communities.” [Emphasis added.] The Committee therefore urged OCA to “instead adopt the definition of pro bono legal services provided in Rule 6.1 of the Rules of Professional Conduct,” which is much broader.

In a similar vein, the Association of Pro Bono Counsel (APBCo), whose members administer pro bono programs at 85 of the world’s largest law firms, complained that confining the definition of reportable pro bono work to “unpaid legal services to poor and underserved clients” would exclude pro bono legal service provided to nonprofits, such as (i) a real estate attorney review of a lease for a social enterprise developing rooftop gardens to help local residents grow their own food; (ii) a mergers and acquisitions attorney’s advice to two struggling nonprofits to combine their resources and better serve disabled children; or (iii) an intellectual property attorney’s work helping to protect an innovative curriculum of a girls’ school in Harlem. The APBCo letter continued:

By not allowing attorneys to report pro bono work done outside the context of direct legal services to low income individuals, or to the legal services organizations that serve them, the State would effectively exclude — and thereby undervalue and disincentivize — a substantial portion of pro bono legal services provided by the private bar in New York. …

 

The Unified Court System was receptive to these critiques and acted promptly to address the concerns. On June 7, 2013, John McConnell, Counsel to the Unified Court System, announced that the Courts had “amended our interpretation of Part 118 to require reporting of all pro bono services described in Rule 6.1(b) of the Rules of Professional Conduct …”

Nevertheless, the mandatory reporting rule infuriated many lawyers. Aspirational goals in Rule 6.1 were one thing — especially since Rule 6.1(d) expressly says: “This Rule is not intended to be enforced through the disciplinary process, and the failure to fulfill the aspirational goals contained herein should be without legal consequence.” But mandates were another thing entirely. The gripes about mandatory reporting were as much about process as about substance. The New York State Bar Association was a proud association with sincere and historic concerns — and a record of action and accomplishment — regarding the delivery of legal services to the poor. And years earlier the State Bar had gone on record as opposing mandatory pro bono or mandatory reporting. Yet the Courts had not consulted in advance with the New York State Bar Association (or the bar generally) about the new reporting requirements, and had not circulated them for public comment. Shouldn’t the Courts at a minimum have consulted the State Bar before imposing a radical new requirement at odds with State Bar policy? Many lawyers were outraged.

Then Chief Judge Lippman made matters worse. Shortly after the new provision requiring attorneys to report their pro bono hours and financial contributions took effect on May 1, 2013, Chief Judge Lippman announced that the mandatory reports would be available to the public upon request. In an interview with the New York Law Journal, Chief Judge Lippman said: “It is our responsibility to give it out. If someone asks for the information, they can have it.” See, Joel Stashenko, “Lawyers’ Pro Bono Hours, Contributions, Will Be Public” (NYLJ, 6/19/2013).

The State Bar protested immediately. New State Bar President David Schraver of Rochester wrote a letter objecting both to mandatory reporting and to public disclosure of the reports, stating:

…[B]y virtue of being included on the attorney registration form, lawyers’ 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. Lawyers should not be subject to having their personal charitable work and contributions made public; while we recognize the important need for legal services funding, it cannot be achieved through breaching the privacy rights of individuals. [Emphasis added.]

 

Similarly, Marian Rice of Garden City, immediate past-President of the Nassau County Bar Association, was quoted as saying that “you should not have to disclose to anyone what your personal, voluntary pro bono efforts are. That is the attorney’s business.”

This harsh criticism did not fall on deaf ears. In September 2013, the Courts relented, announcing that public disclosure of each attorney’s mandatory biennial report under §118.1(e)(14) would be optional until April 2015. See, Joel Stashenko, “Pro Bono Reporting to Remain Confidential, for Now” (NYLJ, 9/13/2013). Attorneys could waive confidentiality and make the pro bono information on their biennial bar registration reports available to the public, but absent a waiver, the reports would remain confidential. Chief Administrative Judge Gail Prudenti said that the revised policy struck “a balance between the bar’s privacy concerns and the court system’s long-term interest in sharing information about our attorneys’ extraordinary pro bono efforts.”

That balance was not enough to mollify many State Bar members. The issue came to the fore in a surprising way at the November 2013 quarterly meeting of the State Bar’s House of Delegates. The Committee on Standards of Attorney Conduct (COSAC), which is responsible for recommending amendments to the New York Rules of Professional Conduct, had submitted a routine proposal to amend Comment [2] to Rule 6.1 by increasing the aspirational number of pro bono hours from 20 to 50 annually. This should have been a totally uncontroversial proposal, because the black letter text of the Rules always governs, and the Comments cannot contradict the Rules. The motion to amend Comment [2] should have passed by a voice vote in a jiffy.

Instead, anger at the Courts boiled over. In the eyes of some, mandatory reporting was just the first step toward mandatory pro bono, which the State Bar had always opposed. A rogue group argued that the State Bar should not in any way endorse mandatory pro bono, or even the increase from 20 to 50 aspirational hours of pro bono a year. Amending the Comment to accord with the black letter text that the Courts had amended so abruptly was, in the eyes of some, an endorsement of a policy they opposed. The opponents moved to table the routine amendment to the Comment until January, and the motion to table passed.

The January 2014 meeting was even more emotional. The ringleader of the opposition group, small firm upstate lawyer and former State Bar President Bob Ostertag of Poughkeepsie, said from the floor that he had personally contacted the head of every county bar association in New York State and that not one of them supported mandatory reporting of pro bono hours. He also pointed out that small firm lawyers were struggling, especially upstate, and that burdening them with more pro bono work was oppressive and unrealistic. Many other speakers also expressed anger at the imperious nature of the new mandatory pro bono reporting rule, which they considered coercive, unnecessary, and an invasion of privacy. The House of Delegates again defeated a motion to amend Comment [2] to Rule 6.1 by changing “20 hours” to “50 hours,” and instead authorized the State Bar President to hire counsel to explore legal action to block the mandatory reporting rule. Chief Judge Lippman responded by saying: “It boggles my imagination *** that some lawyers are complaining when we ask them to report what they did to meet their responsibility in this noble profession.” The rebellious members of the State Bar responded by agitating for repeal of the mandatory reporting requirement.

But that was the nadir, and things went gradually uphill from there. The State Bar never did retain counsel to sue the Courts, and rationality returned. At a May 2014 forum organized by the New York County Lawyers’ Association and attended by various court officials, Chief Administrative Judge Gail Prudenti indicated that the Courts were “open to discussion” about the mandatory reporting rules. [See, Tania Karas, “Courts Offer Olive Branch on Pro Bono Rule” (NYLJ, 5/29/2014).] In June 2014, Glenn Lau-Kee took over as President of the State Bar, and he and President-Elect David Miranda met with Judge Prudenti and with Helaine Barnett, Chair of the Task Force to Expand Access to Civil Legal Services, to discuss the State Bar’s concerns. The meetings were fruitful. At the June meeting of the House of Delegates, Mr. Lau-Kee reported that the Courts were willing to consider changes to: (1) public disclosure of hourly pro bono service and financial donations and (2) the type of legal work that qualifies as “pro bono.” The House of Delegates responded by delaying a vote on a resolution calling for repeal of the pro bono reporting requirement. See, Joel Stashenko, “State Bar Delegates Allow More Time for Pro Bono Accord” (NYLJ, 6/24/2014).

At its November 2014 meeting, the House of Delegates passed a resolution asking the Administrative Board (1) to grant lawyers anonymity when they disclose information about pro bono contributions, and (2) to expand the definition of pro bono activities. See, Joel Stashenko, “State Bar Calls for Changes to Pro Bono” (NYLJ, 11/3/2014). The State Bar and OCA soon agreed that the Courts would expand the categories of service that qualify as pro bono work (without amending the formal definition), and Judge Lippman indicated the Courts would change the disclosure rules themselves. In December 2014, State Bar officials reported that the Courts were modifying the rules “to make the reporting of individuals’ pro bono contributions of time and money anonymous; to limit disclosure of the contributions to aggregate data; to broaden the definitions of pro bono and public service and to require that individuals’ information gathered since last year be confidential” See, “Court Administrators Adopt New Pro Bono Standards” (NYLJ, 12/19/2014).

 

Conclusion: Off to a Fresh Start

The resolution of the Battle Over Pro Bono serves both the bench and the bar. If experience in other states is a guide, the mandatory pro bono reporting requirement will spur New York lawyers to perform more pro bono work than ever — and the broader definition of pro bono work will encourage a broader range of lawyers than ever to perform that work, especially outside the courts. The long and often bitter battle was disconcerting and often counterproductive, in my opinion, but the resolution demonstrates that the Courts and the New York State Bar Association can work together to achieve their shared goals. That bodes well for a cooperative and productive future in the realm of lawyer regulation in New York.

 


Professor Roy Simon is the author of Simon’s New York Rules of Professional Conduct Annotated. The brand new 2015 edition consists of more than 2,000 pages of commentary concerning the New York Rules, including a phrase-by-phrase analysis of each rule, plus summaries of related ethics opinions and cases, historical context, underlying policies, and practical advice. The 2015 edition analyzes more than 100 new cases, ethics opinions, and other developments critical to New York practice. It’s the legal ethics bible for all New York-area lawyers. To purchase, click here.

In addition, Professor Simon advises lawyers and law firms on questions of professional conduct and serves as an expert witness in cases raising issues of lawyer conduct. You may reach Professor Simon at 516-463-5289 or Roy.Simon@hofstra.edu.

 

Get CLE Credit for this month’s articles (Feb. 2015).

 

DISCLAIMER: This article provides general coverage of its subject area and is presented to the reader for informational purposes only with the understanding that the laws governing legal ethics and professional responsibility are always changing. The information in this article is not a substitute for legal advice and may not be suitable in a particular situation. Consult your attorney for legal advice. New York Legal Ethics Reporter provides this article with the understanding that neither New York Legal Ethics Reporter LLC, nor Frankfurt Kurnit Klein & Selz, nor Hofstra University, nor their representatives, nor any of the authors are engaged herein in rendering legal advice. New York Legal Ethics Reporter LLC, Frankfurt Kurnit Klein & Selz, Hofstra University, their representatives, and the authors shall not be liable for any damages resulting from any error, inaccuracy, or omission.

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