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January 17, 2004

NY’s Disappointing Pro Bono Report

Filed under: pre-06-2006 — David Giacalone @ 2:27 pm

New York lawyers provided less pro bono service for the poor in 2002 than they had when last surveyed five years ago, despite promises by the bar of increased voluntary efforts in order to avoid mandatory pro bono requirements.   The administrative judge whose office released The Future of Pro Bono in New York, on January 15, 2004, said she was “disappointed” with the survey results (see, New York Law Journal, “NY Lawyers Doing Less Pro Bono Work,” by Daniel Wise, 01-16-2004).

I concur in Judge Newton’s disappointment in the Bar, but I must add that the judiciary’s recommendations for meeting the legal needs of the State’s poor in the future are even more disappointing.  The Report not only rejects using self-help tools as a meaningful part of the solution to the access crisis, it also rejects any significant role in the near future (if ever) for unbundling.    The full report, which includes survey results and details, a separate volume of recommendations, and many appendices, can be accessed here.  The Court Administration press release (Jan. 15, 2004) is here
The Report does say all the right things about needing to make civil justice available to the poor, not merely to people of means, and about the Bar’s obligation to serve the legal needs of the poor.  It cites an NYSBA study which estimates that there are annually “a total of approximately 2.5 million legal problems for which no lawyer is available” to poor households in New York.  The Report then estimates that it would take ten million additional pro bono hours to meet those needs.   After admitting that public funds are not available to provide lawyers for the poor, the Report asks “Who will provide these additional millions of hours of attorney time?” and then looks for ways to increase pro bono services.  
  • There are 117,620 “eligible” attorneys (Bar members, active and retired, with their primary office in the State).   To provide the extra 10,000,000 hours of lawyer time, the average attorney would have to do 85 hours per year of additonal pro bono service.  Using the Survey’s own numbers (disputed below), the average NY lawyer did about 19 hours of pro bono work in 2002.
Here are some of my reasons for disappointment over the Report, and the NYS judiciary and Bar:

According to the Survey, in 2002 only 46% of NY lawyers performed any “eligible” pro bono work (professional services for poor persons or households, or for organizations that primarly serve those populations), and the average pro bono lawyer did 41.3 hours of work.  A mere 27 percent of New York attorneys fulfilled the goal of a minimum of 20 hours per year per lawyer.  I fear that the numbers are worse than they appear:  only a third of the “participating” random sample of attorneys returned the survey forms.  It seems likely that those who actually do pro bono work are more likely to complete the survey than those who do none, and some returns might have “soft” estimates of hours served — self-selected responses to the survey and self-reporting of numbers yield results that are far from scientific or reliable. 
  • The OCA statisticians say in Vol. 1 that the Survey used a large enough sample to be considered “highly accurate,” as compared to “what would be expected had the full population” of eligible NYS lawyers been sent survey forms — not as compared to having all those surveyed responding, much less as compared to having the full population actually responding.  They do not purport to say that the resulting numbers accurately portray the actual amount of pro bono work performed.  [Yes, the Survey result may understate the amount, but that seems far less likely than overstating, due to the self-selecting nature of those returning the anonymous survery forms.]
  • Furthermore, as the NYLJ article notes, “The essentially flat level of participation occurred in a year in which there was heightened pro bono activity in New York City in response to the Sept. 11, 2001, terrorist attack on the World Trade Center.”  NYC lawyers received accolades for their generous post-9/11 pro bono services in 2002, but the statewide and City hours still went down overall.
In an effort to increase attorney participation in pro bono services, the Report makes practical recommendations (in Vol.2) for better leadership by the judiciary, plus more local organization and training.  It also emphasizes “educating” lawyers and law students about the need for and ethics of pro bono.  In addition, because many lawyers complain they don’t have enough incentives to do any pro bono [editor stifles himself], the Report suggests some financial and ego solutions for the lack of incentives: “Increase CLE credits for pro bono service; Provide tax deduction for pro bono; Provide loan forgiveness or NY tax credit; Hold recognition ceremonies and media campaigns.”
  • In a bit of lawerly snake oil, the Report actually suggests that one way to get the number of pro bono hours increased is to broaden the definition of eligible pro bono work, including “Broaden[ing the] definition to include low- and middle-income individuals; Read[ing the] current definition more creatively.”  The numbers might grow, but would such “solutions” help the poor?
Clearly, the judicial administration of NYS and the organized bar know that traditional methods of providing pro bono service cannot come even close to closing the access gap for the poor.   How are we going to meet those needs?  Convocations were held around the State last year to consider the problem, and the Report discusses other possible solutions, especially unbundling.  First, however, here’s the only mention of what I would call the “facilitated self-help option”: 
 

Placing emphasis on programs and materials that provide an elementary degree of legal education and training to those who are without a lawyer, while useful, has practical limitations and begs the fundamental unfairness of leaving the poor to fend for themselves in New York’s challenging legal arenas.

It’s no secret that ethicalEsq believes there is no solution to the access gap for low- and middle-income consumers that does not embrace the significant use of self-help  information, technology and facilitation, especially through court-related programs (online and on site).  [See, e.g., Pro Bono is Not the AnswerImproving Self-Help, Pro Se Techniques for Judges,  and much more on our Access Resources Page.]   Paula Hannaford Agar, the author of “Helping the Pro Se Litigant: A Changing Landscape,” was apparently not speaking of New York State, when she recently wrote:
“In recognition of the reality of litigants’ needs, the courts and the legal community have slowly shifted from insistence on full-representation for every litigant as a fundamental requirement of equal justice to a more pragmatic approach, offering information and limited counsel for those litigants who are capable of managing their own cases and reserving full-representation for those with more complex cases or fewer personal resources.”
The failure of New York’s judicial administrators to seriously consider the facilitated-self-help option, or to even mention successful self-help programs in states like California and Nevada, suggests an active aversion to such programs, apparently fueled by judicial and court staff resistance to change and (from my experience) lawyer reluctance to promote programs that would also be available to the non-poor.
closed sm . . .
The Report does explore discrete task representation — unbundling — in far more detail, but the results and recommendations are not auspicious.  The Report notes that at least six other states have made rule changes to accommodate unbundling and that unbundled legal services can apparently “be beneficial in promoting pro bono service by attorneys.”  But, it goes on to say (emphasis added):
However, because there are many unreconciled viewpoints throughout the State, we do not recommend that rule changes be implemented at this time to allow for limited appearances by attorneys in litigated matters.
Instead, a Standing Committee on pro bono service should report back “within the first two years of its formation” on whether or not rule changes should be made to permit unbundling in litigated matters.  This paragraph explains the lack of enthusiasm for unbundling (emphasis added):
“Even in the most ideal situation, participants saw obstacles in implementing limited representation in New York. In particular, concerns were raised about the unfamiliarity of attorneys and judges regarding unbundling. Many participants were not convinced that attorneys would more readily perform pro bono under an unbundled system because it is contrary to their training. They believed that attorneys would be unwilling to step into a case after a litigant has appeared pro se or where work was done by another attorney, and for fear of not being able to step out of it. Concerns about malpractice and ethics also were repeatedly voiced.”
With all due respect, this sounds like over-cautious foot-dragging and paternalism — the guild mentality that we complained about last September..   The Report does, in the end, recommend that a very limited  unbundling pilot program be established in four diverse settings across the State. “At each location, one type of proceeding (i.e., housing, custody and visitation, child support or matrimonial proceedings) would be selected for a pilot. The four pilots would be monitored to identify common problems, issues and outcomes, and to assess the reactions and perceptions of litigants, attorneys and judges.

From the ethicalEsq perspective, “The Future of Pro Bono in New York State,” and correspondingly of accessibility to the justice system for all, looks bleak.  Perhaps it will take a legislative push (a mandate and adequate funding) for bench and bar to work harder to achieve universal legal access.  Traditional pro bono service is clearly not the answer, or even a small part of the answer, and mandating such pro bono would only make a tiny dent in the problem.  

It will take a determined judiciary and a committed and organized bar.   Bar associations who are serious about improving access to the legal system could help fund, tailor and produce, in their own states and locales, self-help programs similar to the online and courthouse resources available in California and Nevada,   Local bar groups could also recruit and train volunteers for hands-on assistance in programs similar to those in Duluth, MN, and Santa Clara, CA., where lawyers help persons with legal problems represent themselves.   Much more can and must be done.  I wish the judges in New York State had leaned a lot harder on the Bar and taken a lot broader perspective from their benches.

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