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May 02 2012

Mandatory Pro Bono For Lawyers Is Wrong

NY Court of Appeals Judge Jonathan Lippman and his blue-ribbon panel appointed by him have decreed yesterday that new lawyers seeking admission to the Bar in the State of NY will have to do 50 hours of free legal services for the needy. Its’ a wrong and bad idea. There I said it. What is it about our profession that we occasionally need to lash ourselves in public in order to make us feel good about the fact that we are lawyers. Did I miss the announcement that doctors are now mandated to do pro bono services as well? They at least have Medicaid to give them some payment for the services they render for the indigent. And frankly the poor would more likely benefit from having mechanics, accountants, plumbers, and electricians render free services than lawyers. But of course none of those professions are being forced to do free work.

The real issue is that new lawyers will be forced to render this service at a time when the job market is at its lowest for new lawyers. So in addition to trying to find a way to earn a living, they will have to devote 50 hours of forced labor. Has anyone wondered whether having a lawyer forced to work for free will really benefit the litigant? Most of the hours will be put into landlord tenant matters (where as anyone knows, the court already bends over backwards to assist the unrepresented and indigent) since the poor already get free representation for the two most common forms of legal issues – criminal and accident cases. What if the new lawyer has no experience in landlord tenant law? Will the 50 hours be reduced by anytime the lawyer spends in training and education in the subject matter? Will it increase unnecessary litigation against landlords and others? Can the new lawyer be sued for malpractice if he makes an error during this 50 hour time period? Can he acquire insurance to cover this work?

While this altruistic idea sounds nice on paper, it is just another unfair burden placed upon a group of new professionals who already have huge debt and a miniscule market facing them. Most new law school grads will go to work at either small firms or as sole practitioners for salaries far below $75,000 per year. This is the last thing they need thrown on their plates. The only folks I see clamoring for this are Judge Lippman and BigLaw (who comprised a large part of his panel of experts). With all due respect to Judge Lippman, he has never practiced law. A pure administrator his entire career, he has never tried a case or even presided over a jury trial as judge before being elevated to the top position in NY. I wonder whether a little time out of the ivory tower might have benefited to understand the real pressures facing young lawyers in today’s market. As for the large firms that are the biggest supporters of mandatory pro bono, there are several reasons behind their support. It makes them feel somewhat cleansed from the regular day to day work they do to justify their mega-salaries by having their young underlings do some free legal work for the indigent. It allows those law puppies to get training in courtrooms on the poor’s time and legal cases. And with diminishing work it at least gives them something to do. But scholars have argued that giving free legal services to the indigent will also increase the amount of civil litigation brought against banks, hospitals, and real estate developers. And who represents those institutions? BigLaw of course!

It is just a fact that with the internet and sites that let folks print out basic legal documents for little cost; the glut of lawyers willing to perform services for far below what they used to cost years ago; and the protection of the court system that I do not feel that the poor or lower middle class have difficulty finding access to the court system and legal representation. At best, this burden should be placed on firms with 50 lawyers or more or scrapped entirely until the market for legal services changes significantly.

4 comments

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  1. Lee Adams

    What do you think motivates lawyers to do pro bono work?

    Should pro bono work be mandatory for law students and/or lawyers?

    1. Oscar Michelen

      Lee: While I cannot speak for all lawyers, for me and for most of the lawyers I know that do some pro bono, what motivates them are the same things that motivate others who volunteer their time, energy and creativity to any number of charitable purposes- community and religious organizations, school districts, hospitals, etc. Its that they see the value in giving back to the community and they are fortunately in a personal and financial place that allows them to give up this time. Its a very rewarding experience that is self-motivating. That being said, I just think it makes no sense to impose it in this fashion on new lawyers (and don’t worry, next it will be a requirement for lawyers practicing less than 2 years, then 5, then 10 then all lawyers. I think mandatory pro bono is a bad idea for the reasons I expressed in my post. Thanks for commenting!

  2. matthewchan.com

    I absolutely agree with you on that this is a VERY BAD IDEA. A young lawyer practicing law before they are ready is very dangerous prospect indeed. The risks and consequences for a young lawyer are very high. I cannot imagine too many senior lawyers or law firms willing to take on a young lawyer BEFORE this 50-hour burden is fulfilled.

    And because legal services has to be done “for free”, I wonder how much care would be given to a client. Or would the inclination to intentionally draw out a case in the effort to fulfill the 50 hours? I can see busy work being created which would unnecessarily encumber both sides vs. looking for an expeditious but fair resolution. There will be too much pressure to fulfill the 50 hours. After all, why beat the streets to take on 10 cases at 5 hours each when 1 case at 50 will do?

    Or perhaps it will pressure young lawyers to start padding their time in an effort to reach 50 hours?

    I agree the intention is good but making lawyers do free work especially without supervision is looking for trouble and hurt a profession that already takes such a beating.

  3. Oscar Michelen

    Matt: All good points. I would just add what about those cases that may take more than 50 hours (a week or so) to resolve? Can the pro bono lawyer just abandon that case? Will the client have to keep hopping from free lawyer to free lawyer? Or will the court require the lawyer to stay on for “just a little while longer.” The lawyer may feel pressure to do so, particularly if its early in their career and they are intimidated by the court and won’t want to say no. Without a doubt the indigent need to have more access to legal services. But this is one of those “feel good” ideas that accomplishes nothing and raises more issues than it resolves.

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