When Families Fight – Mandatory Reporting of Pro Bono Hours in New York

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Lillian Moy

The Access to Justice community in New York is deeply divided over the issue of mandatory reporting of pro bono hours and financial contributions. As part of New York’s Unified Court System’s commitment to enhancing access to justice, our Rules of Professional Conduct now require mandatory reporting of hours of pro bono legal services to the poor and financial contributions to programs providing legal services to the poor. Members of the Bar who have long worked together to promote access to justice find themselves in deep disagreement over the new Rule. Why this family dispute?

Many attorneys chafe at what they consider to be the “authoritarian” way in which the Rule was issued. Others say that it is a privilege to practice law and that privileges are often regulated, this one by the Courts. Members of my extended family agree that only 20% of the legal needs of the poor are met by legal services providers. For some, the justice gap – the gap between the need for justice and the resources available to do justice — supports an appreciation that mandatory reporting of pro bono hours and financial contributions may well foster an increase in resources for closing the justice gap and meeting the legal needs of the poor. If so, perhaps mandatory reporting serves a legitimate purpose? Others believe that even if it is true that resources to close the justice gap will increase due to mandatory reporting, the ends do not justify the means. Many fear that mandatory reporting of pro bono is just the first step to mandatory pro bono itself.

Of all the issues that divide my family deepest, it is the question of disclosure. Privacy with respect to charitable donations is important to me too. My big city friends tell me that it was the prospect of disclosure that prompted some of their colleagues to look around for a pro bono opportunity or a charitable organization to receive their financial donation. Is this not exactly the result access to justice advocates want – a flowering of pro bono service and financial support? A narrowing of the justice gap?

Spirited debate in New York’s family of attorneys has prompted a study of voluntary and mandatory reporting of pro bono hours and financial contributions from around the country. The study may delineate a broad menu of successful practices from around the country that could offer respite to our family. Maybe on-line, anonymous mandatory reporting? Data collection by our voluntary bar association, rather than the Court? An agreement to disclose only aggregate data? Perhaps aggregating data on a geographic basis so that local pro bono and legal services providers can plan programming to close the gap? And the report may illustrate that mandatory reporting of pro bono hours serves to quash any further discussion of mandatory pro bono.

Many on either side of the divide argue that the bar should not be in such disagreement with the Court. At a moment like this a biological family might turn to a gifted mediator or trusted advisor. I hope that New York’s Access to Justice leaders will come back from the precipice to creatively consider how we can more forward together to close the gap between the need for legal services for the poor and the resources available.

Lillian M. Moy is Executive Director of the Legal Aid Society of Northeastern New York and a member of the ABA’s Standing Committee on Pro Bono and Public Service.

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5 Responses to When Families Fight – Mandatory Reporting of Pro Bono Hours in New York

  1. Bruce Strom says:

    Thank you for your article. I think New York is fortunate to have such an outstanding leader as Justice Lippman giving voice to this issue. I hope we learn from great works like Justice Earl Johnson’s recently released three volume set: To Establish Justice for All chronicling the past and future of civil legal aid in the United States. We must reframe this issue. This should not be about rules, regulations or ethical mandates. This is about the heart of our profession. To the public we only care about ourselves and nothing dispels that myth better than serving the public good through legal aid. As Justice Johnson writes, “Ours must be a nation where law and the courts are fair to everyone in the land, even if life sometimes isn’t.” Let’s see this as an opportunity to advance the rule of law, establish justice and promote the general welfare. Our very democracy hangs in the balance. Other nations do significantly better than we do. Instead of looking at how other states are handling this let’s recapture our role on the world stage and show the world what it means to actually provide justice for all.

  2. John Silvestri says:

    I have worked for Legal Services in Nassau, Suffolk and Westchester County. I served on the Board of Directors for a short time when I moved to the North Country. I support its programs and during my tenure as President of the Warren County Bar Association I worked with Legal Services to provide a free legal clinic to the residents of Warren County. I volunteer my time for a free legal clinic for those who are subjected to Domestic Violence. I devote much of my free time to two not for profits; one in Schenectady which works with fathers and one in Saratoga which provides support services to those subjected to Domestic Violence and is working in an affirmative way to educate about and end Domestic Violence. I traveled through eleven counties of the North Country speaking with law enforcement, prosecutors and judges advocating the creation of a problem solving court for out Veterans who find themselves involved in our judicial system and believe I paid a role in the establishment of the Veteran’s Court in Essex County and now serve on its Board. I regularly provide free services to those who can not afford legal services freely and voluntarily as an American Citizen. I recently devoted well beyond fifty-hours and paid for two expert witnesses to represent a victim of Domestic Violence. My wife and I also provided her with a place to live and clothing. Justice Lippman’s mandatory reporting is both an insult and ominous. I am not alone in my efforts to provide access to the court and know many attorney’s who volunteer their time and money for those without the means to obtain counsel. This rule is nothing more than evidence of a totalitarian mentality that seeks to impose its utopian view on every one. This act by Justice Lippman is no different than any other totalitarian mentality that in the name of the common good justifies the imposition of their world view with the coercive force of government. It is a coercive exercise of the power of government to compel people to provide services to others for free. It is one thing to say people must meet certain standards before they can be licensed to practice law it is an entirely different matter to say that someone must provide free legal services to those the government deems worthy as a condition to earning your living. If you adhere to the license and not a right argument then what about driver’s licenses, doctors, teachers and anyone else licensed by the State? Should they be compelled to provide free services as a condition or requirement of their license? Despite the decisions of several courts I believe this rule is a violation of the 13th Amendment of the Constitution of the United States. Educate, advocate, encourage and reward those who provide pro-bono services. Those are the tools of a free society to achieve its goals. Compulsion is the tool of those who see their world order as superior to all others and feel justified to use coercion to achieve their goals. The passage of that rule was at the cost of freedom. Respectfully, John Silvestri, Esq.

    • Bruce Strom says:

      I appreciate John’s comment and wish to point out I have long been an opponent of mandatory pro bono. I think mandating such work takes away from great examples like John and winds up hurting the clients we are trying to help when others are forced to begrudgingly offer services. Where I think we can be innovative in addressing the crisis which exist in this country is in other areas Justice Lippman has discussed. For example why shouldn’t the third year of law school require practical experience in some form of work for a legal aid or community legal group? To John’s excellent point both doctors and teachers receive practical experience before receiving their licenses.

      If answers were easy in this area someone much smarter than me would have provided them long ago. Lawyers are at our best when we come together to solve a problem. Let’s encourage (not mandate) those skills and let’s begin a constructive dialogue that makes our nation’s promise of equal justice under law accessible for all. That should be the goal of our constitution and free society.

  3. Pingback: ABA access to justice blog | Access to Justice Headlines – Cinco de Mayo, 2014

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