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NY’s New Pro Bono Requirement Discriminates Against Solos And is Unfair to New Lawyers

by Carolyn Elefant on May 2, 2012 · 15 comments

in MyShingle Solo, Pro Bono

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File this one under what were they thinking. Now, as a condition of gaining admission to the New York Bar, new graduates (and presumably, new admittees from other jurisdictions) must perform 50 hours of pro bono work, reports the
New York Law Journal.

There’s so much wrong with this proposal that I scarcely know where to start. But given that law students are graduating deeply in debt, shouldn’t they focus on paying work – even if it’s at a Starbucks or pizza parlor – rather than working for free. Moreover, if students or new grads are going to work for free and haven’t yet found a job, isn’t it more sensible for them to spend their time finding paying work than doing pro bono?

Second, who’s going to supervise all of this unpaid labor? Have we forgotten that at the height of big law layoffs, displaced associates and unemployed lawyers flooded legal aid offices and couldn’t find work for free. Why should it be different now?

Third, why in the hell is our profession imposing this requirement on new lawyers? Isn’t it enough that many of the lawyers of my generation or older completely wrecked the legal profession by racking up huge profits-per-partner with a sense of arrogance that blinded them to the possibility that the highly leveraged model could ever fail. But fail it did, flooding the market with new lawyers in debt and need of employment, fighting over the handful of document review that weren’t sent overseas. How dare we more experienced lawyers take our money and run, while forcing younger and newer lawyers to pick up the slack. As a New York licensed lawyer myself, I am outraged and offended that wealthy lawyers are passing the buck to those just starting out. Pro bono may be one of our professional obligations, but so too is training and mentoring and helping the next generation of lawyers – not making them the fall guys for our mistakes.

Although this ill-conceived program adversely impacts all lawyers, needless to say, it harms solo lawyers most of all. The New York Bar President anticipates that some new graduates will satisfy the pro bono requirement after they’ve taken the bar exam and have started working in paid positions. Uh – new solos don’t have that luxury – starting out, many solos will take any work to make ends meet as they prepare to start a firm. While it’s true that taking a pro bono or CLE can help new solos gain training, if a solo to be has a chance to do paid work for a lawyer, he or she need to jump on it because there’s no telling where the next pay check will come from.

Moreover, the Bar’s proposal fails to acknowledge that new solos, by virtue of being solo, perform far more than 50 hours of pro bono work annually. Solos handle court-appointed cases which don’t pay much; they often accept clients at reduced rates either to get business through the door, or as a favor to another lawyer to open up referral opportunities. Maybe a small percentage of New York lawyers go on to high paying jobs at big firms, but many others, particularly solos are picking up the slack merely by offering an affordable alternative. And they’re doing it more than 50 hours a year.

Don’t get me wrong – I personally believe that lawyers have an obligation to do pro bono work. Some of the highlights of my own career have involved pro bono matters
that I took on voluntarily and that I was fortunate enough to be able to subsidize either through employment or revenue from my practice. Not all lawyers are as lucky.

So to my colleagues in the New York bar, in academia and big law and thriving small practices, I say this: charity begins at home. All around us, there are young lawyers, heavily in debt and desperate for a chance. Over the years, I’ve tried to hire as many as I can – for paid blogging gigs, small-scale research or running errands around the town. It’s not much, but in many cases, the line item that I’ve served on a resume has helped newbies move on to bigger and better things. The New York bar doesn’t need to look to the streets and the shelters to help others when there are other lawyers in need right under their noses. If we give them a chance and help them along, trust me, they will pay it forward — and the problem of access to law will take care of itself.

  • Jackie

    New lawyers coming out of law school won’t like have as much of a problem with this, if the NY Bar allows pro bono during school to count.  I went to law school in NY (with the infamous plaintiff suing several blogs), and part of my graduation requirement was to complete, I believe, 30 pro bono hours.  The schools can just increase the hours required.  I did taxes through a public advocacy center on the school’s campus.

    I agree though that the requirement for solos and new attorneys seeking admission to have 50 BEFORE admission is unduly burdensome.   

  • Karen Eichman

    What kind of pro-bono work is a new graduate required to perform in order to obtain admission?  I would think they cannot do pro-bono legal work, as doing so would be practicing law without a license.  Perhaps NY allows for this kind of legal practice???  Thanks — great post!

  • myshingle

    Good point. Maybe NY thinks that the poor don’t need licensed lawyers

  • Guest

    50 hours? Most of the Pro Bono work that comes our way as attorneys is litigation based.  How is a new attorney, with little or no experience in either the practical application of the rules of procedure or courtroom etiquette and advocacy supposed to provide quality legal services to these clients?  

  • http://www.medinalawgroup.com/ Victor Medina

    Carolyn, 

    I don’t agree that this is a bad idea or harmful to solos over anyone else. First, let’s address the question of when the 50 hours can be completed (and by whom). Your posts suggests that doing it after the bar exam unfairly targets solos because they need to go get paying work, not doing pro bono. Except, they can’t get any paying work until they pass the bar exam, which they won’t know if they did until 3 months after taking it (November for the July exam in my case). So, they can’t hang a shingle. It’s the perfect time to knock this requirement out, while building relationships with other attorneys and court personnel in the meantime. 

    What will they be doing? Well, I was able to give 50 hours (more actually) of pro bono during law school working for a legal clinic. The requirements aren’t much different than that of a paralegal. My work had to be supervised by a licensed attorney. But, I was counseling clients, helping the indigent, and otherwise getting a fabulous education (I got that also from my 4 co-ops). 

    Victor

  • shg

    Other fine points and arguments aside, this initiative didn’t come from fat, middle-aged bald men at the bar association, but by the unilateral fiat of New York Court of Appeals Chief Judge Jonathan Lippman.  While I share your distress about older lawyers dumping the problems they created on newer lawyers, this isn’t one of them.

  • myshingle

    Victor

    I love pro Bono and I think it offers great training. But there isn’t much that an unlicensed lawyer who’s already graduated can do. If you can do the clinic in law school and have it count, that’s great. But to have to go out and work free and answer phones or do other grunt work is ridiculous. Also the rule applies to lawyers seeking admission in NY
    But you’re right – thux is the weakest argument. The fact is that solos especially those starting out essentially wind up working pro Bono anyway and these forced servitude laws don’t take that into account
    Carolyn

  • Guest

    This seems like an invitation to unauthorized (and unsupervised, incompetent) practice.

  • Jordan Rushie

    Here in Philadelphia we have PhillyVIP. They give you CLE credits in exchange for doing pro bono work. The way it works is they train you in a substantive area of the law, and then you have to take on a pro bono case within 6 month of the CLE.

    So, if you take the mortgage foreclosure CLE, you usually get around 6 credits, a top notch training course, and then you get to handle one of the cases under the supervision (and malpractice insurance) of PhillyVIP.

    It’s a great program. 

    While I see your point, I also firmly believe that pro bono work is a good way for young lawyers to get experience without much risk of hurting a client. A pro bono litigant is better off with an attorney, even an inexperienced attorney, than no one. So it’s a good way for a young lawyer to take on a case they normally wouldn’t in order to learn a new area of law (preferably under the supervision of a pro bono organization).

    NY ought to consider adopting a program like PhillyVIP, where at least the young lawyer can turn to for guidance, training materials, and appropriate malpractice insurance. Free, high quality CLEs that teach a lawyer to handle new areas of law are also a huge bonus.

  • Jordan Rushie

    And regarding the stuff about having to provide 50 hours before you’re licensed…

    Sounds similar to a preceptorship. In states like Delaware, a lawyer has to apprentice for a certain number of hours to get licensed. 

    I wouldn’t be opposed to law schools adding a mandatory clinic.

  • myshingle

    That kind of pro Bono makes sense. Best way to learn new work. But this program kicks in before licensing so lawyers can’t do az much without supervision

  • http://www.austin-car-accident-lawyer.com/ James

    Karen really has a good point. They don;t have a license yet so why do 50 hours of pro-bono work? Truly another burden.

  • Ian Scott E

    Thanks for the post Carolyn.  I have reposted my comment here to continue the discussion.   For those of you who are interested, i have an opposing post at http://www.lawschoolsuccesstips.blogspot.com.

    As you can see from the post on my blog, I am a strong supporter of the pro bono requirement.  I have reposted here a response to a comment on my blog.  

    I whole heartedly disagree that someone without a law degree cannot or should not do pro bono work and I certainly did more than fill out forms when I worked on my clinics. In fact a client that I represented called me back a year an a half later and wanted me to represent her on a matter because she was so pleased with the service she received. Moreover, as my post indicates some schools already have this as a requirement to graduate and EVERY school has clinics and it certainly has not caused problems for them. Volunteering gives students the ability to learn a great deal, helps the community and gives them some experience. 
    Also, the point of the pro bono requirement is giving back and demonstrating that the profession is not just about money. The point was not getting practical training and I do not think that this requirement will impose any supervisory requirement that will burden small business. (and not sure why this will impact small business at all). I suspect that students will simply be required to attest that they have fulfilled the requirement. Also, I do not see how the arguments put forth regarding the economy have anything to do with this requirement. 2 reasons for this. One, no one can convince me that each and every student can EASILY fulfill this requirement without having to forego ANY opportunity or job and Two, pro bono work looks great on a resume and if anything will help them get a job. 

    I also reject that 50 hours is too much time. (To be clear, I can understand (but do not agree) with some of the reasons people think it is a bad idea but I am surprised at the arguments that the amount of time is too much). I just do not see 50 hours as a great deal of time and anything less than that would just seem trivial. I have no doubt that most students that this requirement will apply to have spent more than 50 hours in any given 3 month period on the internet on social media sites. When you say it would have been “hard to squeeze in another 50 hours” I find that hard to believe that it would be hard for a student to find 50 hours to donate to those who are underserved. In fact, I have no doubt that the majority of students already perform well over 50 hours of pro bono work and it has not hurt them. In fact, at Harvard, the average student performed well over 100 hours of pro bono work and the requirement was only 50 hours to graduate. 

    The key I think is ensuring that what is counted as pro bono is not rigid. At HLS almost anything counted as the point was to give back not get experience. As such, even doing the Aids walk for example would count as pro bono work. 

    These days our society needs more initiatives like this to teach young people that giving back to the community is part of being a professional. Actually, they are already used to this as everyone knows that admissions committees in any good school places a significant amount of emphasis on pro bono and charity work and most have done some even if the reason is to bolster their application. 

    At any rate, all good and interesting points  raised.

  • Blawgmeister

    Forced unpaid work means poor quality work (as if the quality of legal work, in general, is not bad enough).  They once tried to force pro bono in NJ, and the response of most lawyers was that they do not deem themselves qualified to handle that type of work.

  • raaaaku

    How Does this work for the foreign Lawyers who give the bar exam every year? In fact the number of foreign lawyers giving the exam is increasing each year. Further most of them do not or will not have a visa to work in the US if the pro bono service rule states that it has to be adhered only in the state of NY. Further it is not sure if the NY admission committee will accept pro bono services offered at a foreign country. It really sounds confusing at this point of time. I hope the rule will ruin a career of lot of people. 

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