NY’s New Lawyer Mandatory Pro Bono is Indentured Servitude

New York just passed mandatory pro bono hours for all new lawyers before they can be admitted to practice law.  This is indentured servitude, not pro bono

Beginning next year, the 10,000 or so prospective lawyers who pass the New York State Bar exam every year will be required to perform 50 hours of pro bono legal services before they are approved to practice law.

New York judicial system is quite proud of itself for creating this new mandatory requirement feeling it will give new law grads a chance to try out their skills while relieving the state of expanding programs which will actually hire lawyers to provide legal services to the indigent

The Legal Aid Society, the nation’s largest provider of free legal services, turns away eight of every nine people seeking help with civil legal matters, said Steven Banks, the New York group’s attorney in chief. Since the economic downturn began in 2008, Mr. Banks said, requests for assistance have jumped 40 percent for health care issues, 54 percent for unemployment insurance and work-related problems, 16 percent for domestic violence and “a stunning 800 percent” for foreclosures.

How brilliant.  How oppressive.  How typical. Add another obstacle to new lawyers before they can earn money with their degree and while they are drowning in debt instead of funding legal aid.

But his (Judge Lippman) latest measure may prove more controversial, some of his admirers said, because it wades into a fierce debate among lawyers over whether mandatory pro bono service is the right solution — and because it could hit the pocketbooks of young lawyers at a time when they are struggling to find jobs. Judge Lippman and the court administrative board have the power to do so because, unlike in many other states, the New York court system, and not the bar association, sets the requirements.

Cloaking it in a shroud of benefit to all appeases those who are so far removed from the reality of today’s new lawyer struggles it’s crazy!! And it relieves law schools of their obligations, once again, to produce lawyers who can actually practice law.  It creates this unacceptable purgatory between law school and a real job.  I won’t even begin to try and lay out the scenarios which could impact a new lawyer from performing those fifty hours between bar exam and finding out results.  And it definitely does not fit the description of pro bono.  It is classic indentured servitude.

This is a slippery slope as I’ve written about before.  And what’s worse, New York hopes this will be revolutionary and other states will jump on board.

Lawyer’s Services Should Be Theirs To Give Away…Not the ABA’s

Connecticut Law Tribune – June 8, 2007

(This column comes on the heels of the recent Second Circuit Decision regarding pro bono fees, as a I promised.)

It’s been a year since I read an Illinois Supreme Court ruling regarding mandatory pro bono reporting and I’m still feeling claustrophobic as the legal universe we are permitted to function in gets smaller and smaller.

That state’s new rule, celebrating it’s one year anniversary this month, requires lawyers to “annually report their pro-bono activities, including hours worked and any money contributed to pro-bono efforts.” The rationale behind the rule is that, by having to report what they do (or don’t do) by way of pro bono work or financial gifts to recognized legal aid organizations, lawyers will somehow be shamed into actually doing some, or do more than they’re already doing.

It doesn’t take a genius to see where this is really going. Although structured as simply a confidential reporting program for the purpose of accruing an aggregate total of pro bono hours, lawyers who fail to report their numbers to Illinois authorities face possible suspension of their law licenses. With this framework in place, if actual pro bono hours do not increase in a voluntary fashion, is it really a stretch to see pro bono work being mandated in order to continue practicing in the state of Illinois? (Note: Illinois is home to the American Bar Association.)

Who will have the hardest time meeting these requirements? Not large law firms that use their pro bono efforts as a tool for self-promotion. How much does it really cost them, anyway? At most large firms, it’s low-level associates who do the majority of the firm’s pro bono work. The firms write it off as a loss. At their worst, they take on high-profile cases in an effort to gain incalculable publicity. Mandatory pro bono wouldn’t hurt large law firms. Rather, they will profit on many levels.

Solos, however, will be the ones injured. They will look ungenerous and self-serving, as they single-handedly face the everyday struggles to stay in business.

As the pro bono numbers generated by solos, the largest body of lawyers out there, fail to increase appreciably, what will be the next logical step? Forcing them to take on a minimum number of pro bono hours or face suspension? It is certainly plausible.

And as word is spread to the general public regarding an attorney’s obligation to do pro bono work, is it unreasonable to believe that lower-income clients will demand lawyers represent them for free or at sharply reduced rates?

Yes, mandatory pro bono would be a great image enhancement for the legal profession, particularly large firms. But for solos, it would be a daily migraine.

Shouldn’t Illinois officials be looking to catalog aggregate results rather than aggregate hours if the stated goal of this self-aggrandizing exercise is to actually help indigent clients? If painters took two days instead of two weeks to paint your house, wouldn’t you applaud their speed and efficiency? We should be measuring effectiveness through results, not inefficiency through racked up hours.

And, of course, we can’t let Illinois get all the glory for being so benevolent when giving away our services. All the states will want to jump on board for fear of looking mercenary and uncaring. They, too, will want to crack the whip and give away our time and money.

As a lawyer, I believe the role of the judiciary and national and state bar associations should be to provide a de minimus framework of what we can’t do in order to avoid risking our law licenses. Outside of that, they should be a source of professional support and information.

It is not their job to legislate or mandate how I should aspire to be a better person or lawyer. Nor should they tell me that I must give away my services.

But that is where they are heading. Please don’t order me to tithe to the Church of the American Bar Association. I still believe in freedom of professionalism. •

This ‘solution’ has been approached in many different ways by many different groups.  It was inevitable someone would find a politically palatable solution taking it out of the hands of the ABA and putting it in the hands of the judiciary.  The tanking economy gave the perfect opportunity to implement this scheme and it has now found its supporters. Shame on them.

What do you think about this ‘mandatory pro bono’.

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24 comments on “NY’s New Lawyer Mandatory Pro Bono is Indentured Servitude

  • Susan,

    I agree. This is absurd. If they want new lawyers to help them with their legal aid problem, then they should help new lawyers with their debt problem. You take care of some of my educational costs and then I’ll do your “volunteer” work.

    After I passed the New York bar, I was working full-time as a judicial law clerk, applying for jobs and interviewing like crazy for post-clerkship work and also extensively researching the option of going solo. When would I have had time to do 50 hours of pro bono work at that time? And if the state would withhold swearing me in, then that definitely would have had an affect on my career prospects.

    And that’s probably best case scenario. Worst case scenario is a young lawyer who spent his or her last dimes to take the very expensive bar exam (I had to spend money on the exam, a study course, a flight to Buffalo, taxis to and from the airport, 3 nights at a downtown hotel and meals!) and is now in dire straights desperately looking for a job and in mental anguish because of the lack of prospects. Now he or she, upon getting news of passing the bar, has to spend more money on transportation, possibly professional clothing, meals and maybe other costs to perform legal aid work for free while also taking time away from their desperate job search. Did I mention the mental anguish many of these young lawyers are experiencing? That is the worst time for young lawyers to have to provide free labor.

    I agree that the decisionmakers here are completely out of touch. Is it so far fetched to just ask new lawyers or recent law grads what they thought about all of this before making this decision?

    • I don’t think the requirement is absurd at all, or unfairly targets solos over anyone other kind of practicing attorney. (It targets new lawyers over older lawyers, but collective bargaining has been doing this for decades.)

      It’s hyperbole to call the 50 hours of pro bono a “purgatory” between law school and law practice. You can complete the 50 hours in less than a month. There are at least 3 months between when you take the bar exam and when you find out the results. You can’t practice law during those three months anyways, you can’t get a malpractice binder, you can’t even hold yourself out as a lawyer. So, you have plenty of time to get it done (and if you’re coming in from another jurisdiction – you can do your pro bono there before you file the application based on reciprocity.

      So, I don’t see how this significantly impacts one’s ability to practice law in New York.

      I also challenge Rachel’s assertion that she wouldn’t have had time to do it between her clerkship, her interviews, and her “research”. I own my law firm and have for the last 6 years. I clerked for a federal district judge right after the bar exam. Of course, that clerkship started in September, which gave me all of August to goof-off or go fulfill my pro bono requirement. Once the clerkship started, I kept some crazy hours. Often I’d be in chambers until 10pm or later (which is never fun in Hartford). But, I had Saturdays free and I could have volunteered at a local clinic for a month or so, and completed it. Let’s not make 50 hours sound like 500 hours.

      It’s also a false argument to say that a requirement to complete the hours would have negatively affected job prospects since everyone in NY will be facing the same requirement. You’ll be no worse or better off than other folks interviewing for a job (for a new attorney). Whether you’ve taken the steps to complete it might show your initiative (which might actually help you in the interview process). I know that I would look more favorably on a candidate who proactively got the hours done, than one that lagged behind.

      Finally, the discussion about the mental aguish that new law school grads are facing is silly. Welcome to the majors, rookie. This life is not easy; it’s not supposed to be easy. You will face ethical dilemmas, unreasonable clients, financial strife, continued pressures, terrible bosses, incompetent business owners (perhaps even when you’re a solo, or especially when you’re a solo) – and all the while you have to be an outstanding lawyer. Not just a decent lawyer, not just a competent lawyer – an outstanding lawyer. Because that’s what being a lawyer requires – it requires your best effort on your worst day because your client’s well-being is more important that your problems.

      With that as a backdrop, I’m not sympathetic to the cry that baby lawyers are too stressed to handle 50 hours of pro bono.

      I have a lot more about how my pro bono requirement in law school shaped and formed me, but it’s more important to halt the outcry that requiring 50 hours of pro bono sometime over 3 months (or even 3 years if the bar permits time in law school) is a harbinger of death for new lawyers.

      Victor

      • Victor,

        Unfortunately, your response is one that is typically given among lawyers. Its always “stiff upper lip”, “too bad” and “suck it up.” As if all young and new lawyers are lazy and whiny. Well, that characterization is completely false for most young lawyers. Nothing about getting into law school, successfully completing law school and passing the bar is easy or for the lazy.

        Some lawyers are of the mindset that being a good lawyer requires mentally breaking your back for your whole life in order to be good at what you do and for this you get rewarded with (allegedly) large sums of money which apparently someone else will enjoy because you are too busy with your back breaking work and early death. This too is false. It is quite possible for good lawyers to have balance in their lives and to say “no” to adding yet another hoop for them to jump through to maintain their status as lawyer.

        I did plenty of free work in college, after college and during law school and I continue to do pro bono work. I take issue with forcing people who are already struggling (I have seen a few articles in the past week or two discussing lawyers who are on public assistance because they can’t find paying work and are working for firms and other organizations for free so they can gain marketable skills) to work for free.

        And if you think mental anguish is something to be scoffed at, then consider the many lawyers who have died in the past year or two due to stress, depression and other mental health struggles which we can’t pretend had nothing to do with their jobs as lawyers.

        • “I have seen a few articles in the past week or two discussing lawyers who are on public assistance because they can’t find paying work and are working for firms and other organizations for free so they can gain marketable skill”

          What an absolute disgrace. There is work to be had out there. One has no business working for free and while collecting from the public dole. Just because they could not find jobs AS LAWYERS does not justify their throwing up their hands and sponging off society. There are paralegal jobs. Secretary jobs. Burger-flipper jobs. Are they too good for real work?

      • Victor,

        I always take a global view and this is much more than being annoyed at a requirement. I’m glad your pro bono experience helped shape you as a professional and I’m glad when you chose your law school which had a pro bono requirement in order to graduate you benefitted and that it was integrated into your overall learning. This situation is a whole other ball game.

        When the state makes pro bono a requirement in order to be admitted to their state bar and admittedly to provide more legal services to the indigent because their state-funded agencies can’t handle the work load, isn’t this just a tad different?

        If this was purely a noble gesture to make our profession more caring (as they claim), it should have been one which saw the light of day many decades ago. Instead, it comes at a time of economic crisis and is being ‘funded’ by the sweat equity of new lawyers who are unemployed, drowning in unconscionable law achool debt and desperate for any type of employment which will help them put food on their table. So, the answer is indentured servitude by the judiciary in order to have the privilege to use their license to earn money. The right to practice law is now being held hostage.

        Why not recognize the need of their citizens by funding these state agencies and giving these new lawyers actual paying jobs? Oh, because inexperienced lawyers CAN”T GET these jobs. Oh, because they politically can’t raise taxes to fund anything which smells of social services for the indigent. So, let’s take those frantic lawyers who are desperate and put an additional burden on them before they are allowed to use their hard-earned license. We kill two birds with one stone and we’re all hailed as heros.

        They also claim this is revolutionary. Big picture: this will be something all states will look to as a model, its architects hailed as visionaries by those lawyers at the top who have no clue what is going on for new lawyers.

        You mentioned that lawyers can choose not to go to law school in NY or practice law in New York. Really? Is that really an option for most people to not practice in their home state especially in this economy? I don’t think so.

        The reality is they are foisting their own responsibility to properly fundi social service agencies onto new grads, the most vulnerable of the lot. They are not going to the law schools and saying they should ‘pay’ new grads to work pro bono. Why not? The law schools have certainly gotten the lion’s share of the student’s money. Or maybe simply require all law schools to mandate pro bono work as part of graduation. The ABA requires many things of no value. Why not require something of value. Most are private institutions and they can handle this requirement.

        But to make admission to practice law conditional upon fulfillment of pro bono work is beyond the pale. That is indentured servitude 21st century-style.

        • It’s long been the case that admission to the bar is a privilege not a right. Most states ethical rules require lawyers to accept judicial appointment as counsel for indigent clients. There were several famous cases – including Scottsboro – where the court compelled service.

          The mindset that we are anything less than officers of the court and fiduciaries of our clients undermines the profession. If that means you have to do 50 hours of supervised pro-bono or assigned defense that is a consequence of your voluntary acceptance of the rights and responsibilities that come with the practice of law.

      • Isn’t providing pro bono work practicing law? And if you can’t be admitted to the Bar without this pro bono work, isn’t that advocating practicing law without a license? I can see requiring 50 hours of internship, maybe, but to require a non-licensed attorney to practice law?

  • I’m going to post some e-mails I’ve gotten from this post:

    Hi Susan –

    You have tapped into my political side. Before I have written to you about benevolent divorce and alternate dispute resolution, but this is different.

    In my opinion, courts must be neutral to all comers. This means that courtscannot take official or unofficial positions on the delivery of legal servicesto indigents or others. They cannot take positions supporting LegalService corporations because that would be institutionally favoring a partybefore the court. If mandatory pro bono flows from this tainted spring, it is unconstitutional.

    Specifically,a requirement that lawyers work for the state for free violates the takings clause of the fifth amendment and I believe it violates other clauses of the constitution I cannot identify at the moment. Of course, we know that the takings clause gets no respect in Connnecticut. My problem with the takings clause is that it seems to refer to condemning private tangible property for state use, not to forced labor. I cannot believe that a court or a state can constitutionally force someone to work for them for free, but I am not quite sure what clause of the constitution applies.

    In Washingon state where I practiced forever, the Supreme court is active politically partly because we have an “integrated bar” where the Washington bar association is an arm of the court, sort of, and conducts discipline as well aspolitical activity. I have been writing published letters to the WAbar news for about 25 years criticizing all this.

    Ironically,I think untested lawyers would do a poor job of representing indigents, muchless helping them.

    But you don’t want to get into this stuff, do you?

  • Here is another comment from a reader:

    Never mind the indentured servitude. Imagine feeling good about providing poor folks with the least-qualified legal assistance possible: people with 0 experience, under duress. And all the experienced lawyers have their consciences relieved.

  • This proposal is incredibly out of touch. What about a foreign educated attorney from say, London, who is qualified to take the bar and does not live in New York?

    Some out of town (or even foreign) attorneys take the NY bar and then look for a job in NY. How can they provide these pro bono services when they don’t even live in the state? Who will take them and supervise them if they have no connections?

    This new proposal seems to think that only in-state attorneys take the bar exam.

  • Paying bar dues is also indentured servitude (and so are taxes)–but then lawyers should be more about answer the call of law for the greater public good, not merely for selfish financial gain. If you want to make an easy living, law ain’t necessarily the way to go.

  • Interesting discussion. I don’t have a problem with the new requirement.

    After the bar exam, I spent my time applying for jobs and volunteering. I found the volunteer work beneficial for a few reasons. I hate networking events but have no problem networking with a lawyer I’m working with. Also, it helped break up the monotony of applying for jobs. Finally, it felt great helping people who otherwise couldn’t afford to see a lawyer.

    In NY, test results come out four months after the exam. At the earliest, you could be admitted two months afterwards, but it typically it takes longer. Completing the 50 hour requirement may be difficult for some, but probably not for the majority of applicants.

    Actually, the difficult part may lie in finding adequate pro bono opportunities for all the applicants.

  • Much as I’d enjoy a rousing debate on whether I’m part of the “establishment”, truthfully I’ve grown weary of that tired argument. It makes me wonder whether there are Pavlovian triggers to reading that one’s point may be wrong. At this point, “salivating” as a response would be more entertaining than “you’re just not hip to what the young lawyers are all about.”

    That mildly-entertaining issue aside, this isn’t about indentured servitude. That concept applies when one is paying off a debt with labor. There is no debt owed here. This pro bono requirement is a barrier to entry. It’s not much different than (a) taking the LSAT to enter law school, (b) passing the bar, (c) graduating from law school (accredited or not in NY), or (d) passing a professional responsibility exam. I don’t think we can make it more than it is. The fact that it’s a labor requirement doesn’t change that it’s a requirement and nothing more.

    Canada has had an “articling” requirement for as far back as I can research. It is a lower-salary position, and absolutely required before you can practice on your own. Medical school have their own forced-labor requirements before you’re granted access to practice medicine on your own. It doesn’t matter whether you think the particular circumstances of the country, or profession, merit the requirement – it’s just a requirement.

    I still haven’t heard a valid rebuttal to the point that (a) everyone has the same requirement so no job hunters (or solos) is disadvantaged compared to another new grad/bar taker, and (b) there’s plenty of time between taking the bar exam and receiving notice that you passed the bar exam to complete the requirement. There are roughly 90 days between when you take the bar exam and when you receive the results. That means if you perform a measly .55 hours of pro bono per day, you can meet the requirement. If you want weekends off, it will require about .83 hours a day. Are mentally-anguished law grads, who don’t have a license to practice law and couldn’t get one before mid-November anyways, really so stressed out that they can’t find an hour a day to help others? I’m not talking about those with emotional disorders (since it seems by my comments that I’m eager to kill them anyways) – just run-of-the-mill law grads, the same ones that spent two months studying for the bar exam. I think they can find an hour a day.

    And my last point does to whether this is a problem of the state’s doing that should not be helped by new attorneys by way of a pro-bono requirement. First, the state agencies and bar did not create the need by the indigent for legal services. They didn’t manufacture it. If your position is that they should fund agency work to meet the need, that’s an argument about economic policy, not whether a requirement to enter professional service is unfair. If you want more money for legal aid, talk to the legislature that controls the purse strings. This is a requirement created by the bar and the court, who have no economic power.

    Second, are we really so self-centered so as to bristle at the notion that we be required to help others before we help ourselves? I know, you don’t like the authoritarian nature of the requirement. You say, I will do it on my own, I already do it on my own, don’t tread on me!

    That ain’t enough. We should welcome the obligation to help others (whether the motivation is born of exploiting a bad economy or not). This is a net good. People who ordinarily wouldn’t be helped will now be helped (yes, I know, by inexperienced lawyers, blah blah blah – but it’s better than no representation).

    Making this discussion about the lawyer’s right to practice without barriers like a 50 hour pro bono requirement moves it into the column of the lawyer’s self-interest.

    So, in the end, we have a requirement that can be met before the exam results are known that helps other people and exposes the lawyer to things they might never have seen. I can see why we should fight it and curse the sun.

    Victor

    • Victor, the issue as I see it is you are grabbing on to the ‘social good’ aspect to camouflage the stink of what is really going on. I also think more lawyers who have already run the gauntlet to get where they are today will secretly welcome this requirement because it presents another hurdle for new lawyers which will prevent many from encroaching on an already saturated legal market… though most will never admit it. But let’s agree to disagree on this. My feeling is if there is to be a pro bono requirement, let it be a requirement of graduation from law school and integrated into the curriculum through clinics which should be mandatory in every law school. Everyone’s noble mission is addressed and the burden falls upon the law school to make it happen….exactly where it belongs and during the course of one’s traditional legal education. Oh, and economic policy is very much involved in these judicial decisions. The very fact the argument was presented that the indigent are turned away from state funded agencies and this ‘new requirement’ is being created to help is an example of this.

      • <>

        Well, let’s call this what it really is . . . a tax on those who are least able to pay the tax. (sorry Susan, but I do think that you can reasonably compare this to a tax . . . and that taxes can sometimes be considered indentured servitude. Not normally, but under very specific circumstances taxes can create indentured servitude). Time is valuable and at even a fairly lowball rate of $100/hour, this requirement corresponds to a tax of $5,000, imposed on those least able to afford it (this is specifically the type of tax that would be able to be considered indentured servitude).

        And it is being touted to ameliorate a problem with a frayed part of our social fabric – indigent legal services. And those are services that should be provided by those state funded agencies, agencies that should be fully funded by tax dollars levied on those that can more reasonably pay those taxes (read as law partners making 10+ times what these new bar admittees can be expected to make. How about we make the 10,000 lawyers in New York who make the most money chip in 5K and use it to hire those new low grads to serve indigent clients. The result would likely be better than a forced program of pro bono, but the social cost would be the same).

        Plus, this would have the added benefit of increasing the number of jobs available to the new bar admittees, which is something desperately needed now.

        And to your point of including this requirement as a requirement of graduation – well, that would be OK, too. How about we propose the New York courts mandate both?

    • Victor- Well said. The new rule is merely a requirement to enter the legal profession and the ‘indentured servitude’ argument is mere hyperbole.

      And while I agree with your points on altruism, I also believe there are self-serving factors that are not given enough credit. There is widespread sentiment that pro bono is entirely burdensome but this view is purely myopic. Aspiring attorneys and newly admitted attorneys seeking to market themselves as an employee and even attorneys seeking to market their practice can derive great benefit from pro bono. My experience has been so positive that I continue to devote a large portion of my practice to pro bono at 5 years out – and I’m not talking about the warm feeling I get inside from helping those who cannot help themselves. I’m talking about the warm feeling I get from a fat wallet.

      Pro bono provides amazing benefits that can only be realized if we think a bit differently from the traditional social utility paradigm. Let’s be selfish for a moment. Think of the aspiring lawyer who wants to secure a job upon admission to the Bar. Getting involved in a pro bono program such as the Brooklyn Volunteer Lawyer Project (I use this as an example because it is one of the organizations I have direct involvement with), provides three crucial tools: 1) knowledge/training in a specific legal area; 2) experience within that area; and 3) perhaps most importantly, connections/mentors. For most, getting a job is not about a great resume. It is about making and working your connections. Some of the best connections I’ve forged have been through my pro bono work. All of these factors also apply to admitted attorneys seeking a job and to attorneys seeking to grow their practice.

      We need to stop thinking of pro bono as a burden and start harnessing its power.

  • Would this apply starting the class of 2013 or to *everyone* applying for the bar exam? (i.e. someone who graduated in say, 2012 or 2011 and is taking the exam until now). Would the saving clause apply on this case?

      • I found the follow information at http://www.nybarexam.org/

        “[The] requirement is not in effect for applicants who take and pass the July 2012 bar exam. The Appellate Divisions will be developing rules for the new requirement. No further information on the initiative is available at this time. The Board will update this website as more information on the new initiative becomes available.”

        A memo issued by the New York City Bar states, “It is unclear whether the requirement will take effect for those applying for admission in 2013, those taking the bar exam in 2013, those graduating in 2013, or some combination thereof.” According to the memo, details should be released by September 2012.

        Not much help to those who fall into the gray area.

  • It is my understanding that the pro bono hours can be completed any time prior to admission. That means that the hours can be completed while in law school. I don’t think this can be considered indentured servitude. There are plenty of mandatory requirements we have to adhere to in order to be members of the legal profession. When you think about it, it breaks down to one day a semester while in law school.

  • Indentured servitude? Nonsense. Young attorneys need to realize that the practice of law isn’t simply a job. It’s a calling that serves the highest needs of society. There’s a reason we take an oath of office. Being a lawyer is more than a privilege; it carries with it responsibilities to society. Mind, I say that as a libertarian – but one who recognizes the obligations of the social contract.
    I gather that Burger King has no pro bono requirement. If youngsters are so concerned with getting paid, I suggest they try there.

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