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.