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July 18, 2022

A Dramatic Rise in State Emeritus Pro Bono Programs

Ashley Ramsay

The PDF in which this article appears can be found here.

When New York State adopted its Attorney Emeritus Program 12 years ago, there were no more than a dozen such programs around the country, though the demographics of the profession were already changing. The United States has approximately 1.3 million active attorneys – with significant numbers of them aged. According to a survey conducted by the American Bar Association, in 2020, roughly 18% of attorneys were between the ages of 55 and 64 and 15% of attorneys were 65 years or older, meaning that nearly one-third of attorneys were 55 years or older – compared to only approximately one-quarter (24%) of all U.S. workers. Moreover, as of 2021, nearly half of U.S. adults 55 years or older are retired.

Historically, once an attorney retired, various state practice regulations (including licensing standards, continuing legal education requirements, and the cost of providing legal services) made it unaffordable for retired attorneys to continue to be engaged in the legal field by, for example, providing pro bono services.

One way to overcome this obstacle has been for a growing number of states to enact legal practice rules that have created an “Emeritus” attorney status. Emeritus programs enable and, in fact, incentivise pro bono by senior attorneys in various ways. The purpose remains consistent: to authorize retired, inactive and/or active attorneys who have attained a senior status to provide pro bono legal services and help diminish the civil “justice” gap that exists throughout the country. Facilitating and supporting senior pro bono legal services has expanded capacity. For example, pre-pandemic and even now, New York Emeritus attorneys have provided approximately 10,000 hours of pro bono services a year through a network of 68 legal services programs approved to serve as host organizations. And, at this moment, the demand for legal services is only growing as we continue to assess the impacts of the pandemic on affected populations. Supporting Emeritus programs is one way to help meet that ever-burgeoning need.

There are now 47 states that have adopted Emeritus pro bono programs! Opportunities for civil legal services are extraordinarily diverse and include, for example, limited-scope and full representation, appellate advocacy, administrative hearings, drafting legal documents and manuals, brief advice, working on hotlines, and supporting special projects – to name a few. Each states’ pro bono practice rules specify the following: whether there is an age restriction; years of practice requirement; status requirement (i.e., retired, inactive or active); direct supervision requirement; whether out-of-state licenses are allowed; whether registration fees are waived; whether continuing legal education requirements are waived; whether there is a requirement to work with a certified legal services program; and whether malpractice insurance is provided.

Of those 47 states, 40 do not have an age restriction, one (Utah) requires inactive attorneys to be 75 years or older, three (Georgia, Kentucky and Wisconsin) require attorneys to be 70 years or older, one (Delaware) requires attorneys to be 65 years or older, one (New York) requires attorneys to be 55 years or older, and one (Louisiana) requires attorneys to be 50 years or older. Of the 40 states that do not have age restrictions, 15 states have a “year of practice” requirement ranging from 3 to 50 years of practice experience.

In New York State, the Attorney Emeritus Program (AEP), which is co-administered by the New York State Unified Court System’s Office for Justice Initiatives and Fordham Law School’s Feerick Center for Social Justice, is an example of an initiative that recognizes the benefit of engaging senior lawyers (defined as 55 years or older with at least 10 years of practice experience and in good standing). The AEP supports Emeritus civil pro bono through approved host organizations and court-sponsored pro bono programs. Emeritus attorneys are providing crucial civil legal services in a variety of roles and, due to the expansion of virtual legal services, in ever more remote and underserved communities.

AEP host organizations leverage Emeritus pro bono in creative ways. For one, volunteer opportunities are not always client-facing. Emeritus attorneys have supported community education projects, mentored new attorneys (particularly with trial preparation), and provided specialized litigation support (e.g., litigation strategy, document drafting and legal research). In addition, client-facing Emeritus volunteers often engage in limited-scope legal services, such as clinics, hotlines, and other brief services models. These different types of opportunities allow volunteers to participate in a wider scope of legal work beyond traditional full-scope representation.

Below are links to more information on state “Emeritus” policies, best practices for Emeritus attorney pro bono programs, and the impact of the pandemic on retired attorneys. For more information on New York State’s Attorney Emeritus Program, please contact [email protected].

    Ashley Ramsay

    Greater New York City Attorney Emeritus Program Coordinator

    AmeriCorps VISTA, Fordham Law School Feerick Center for Social Justice

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