[This article is excerpted from a white paper released by the ABA Standing Committee on Pro Bono and Public Service in October 2013. The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the ABA, and therefore should not be construed as representing ABA policy. The complete white paper is available here. ]
New York is the first jurisdiction in the United States to require pro bono service as a condition for bar applicants to become licensed for law practice. Section 520.16(a) of New York's Rules of the Court of Appeals for the Admission of Attorneys and Counselors at Law states, in relevant part:
"Fifty–hour pro bono requirement. Every applicant admitted to the New York State bar on or after January 1, 2015...shall complete at least 50 hours of qualifying pro bono service prior to filing an application for admission with the appropriate Appellate Division department of the Supreme Court."1
The ABA's Standing Committee on Pro Bono and Public Service is grateful for the leadership and energy which New York Chief Judge Jonathan Lippman has brought to the issue of narrowing the justice gap.
Regarding the 50–hour Rule, the Standing Committee has some concerns about an unintended impact on the core definition of "pro bono" which could dilute its meaning. The 50–hour Rule uses a definition of "pro bono service" which is broader than both Model Rule of Professional Conduct (MRPC) 6.1 and New York's own professional conduct standard on pro bono. Is "pro bono," then, the right term to describe what is a broader, law–related service requirement?
This article explores this question and also itemizes other potential benefits and drawbacks of the 50–hour Rule. Whatever one may think of the 50–hour Rule, it is a groundbreaking development in law practice regulation. The Rule may shape the bar–admission landscape inside and outside of New York State, and will change the way that many law students are introduced to pro bono and public service.
A Proposal to Narrow the Justice Gap & Train Tomorrow's Lawyers
In his Law Day remarks on May 1, 2012, New York's Chief Judge Jonathan Lippman announced: "[T]oday...we turn over a new page in the bar admission process in New York — by requiring each and every applicant for admission to contribute 50 hours of participation in law–related or uncompensated pro bono service before they can practice in New York State."2 Chief Judge Lippman articulated two motivations driving the proposal. He noted that with about 10,000 people passing New York State's bar exam annually, the 50–hour requirement could produce 500,000 yearly hours of pro bono service. He continued, "[W]e will not only benefit the clients who are in dire need of legal assistance but...we will also be helping prospective lawyers to build valuable skills and acquire the hands–on experience so crucial to becoming a good lawyer."3
Chief Judge Lippman's Law Day announcement laid out only a general framework for the 50–hour Rule's implementation. About three weeks later he announced the formation of an Advisory Committee to guide the Rule's development.4 The Advisory Committee worked into September, 2012, when it submitted a report5 which offered a draft rule and implementation recommendations.6
Analysis: Potential Benefits and Drawbacks
The 50–hour Rule was ordered into effect by Chief Judge Lippman in September 2012.7 Aside from the text of the Rule itself, the court released a set of Frequently Asked Questions (FAQs) to help explain the Rule's scope and contours.8
Subsection 520.16(b) defines "pro bono service" and the FAQs offer further explanation. Some important points:
- The pro bono service must be "law related," which the FAQs explain as involving "the use of legal skills or law–related activities that are appropriate for lawyers–in–training not yet admitted to practice."9
- The Rule employs a broad definition as to what type of services may count as "pro bono." Language in the answer to FAQ 11 offers non–binding guidance by noting that "you should seek pro bono work with programs or entities that aim to improve access to justice, are engaged in the representation of low–income or disadvantaged individuals or provide government services in furtherance of these objectives."10 But the scope of qualifying work is more expansive, including, for example, all government work.11
- Some credit–bearing work, such as the work performed via a qualifying law–school clinical program, would qualify as "pro bono service."12
- Work that is grant– or stipend–funded may still qualify as "pro bono service."13
Potential Pros and Cons
The 50–hour Rule's potential upsides are perhaps more obvious than its potential downsides, so this analysis begins with the "pros."
- Serving low–income clients and communities. One of the main reasons Chief Judge Lippman offered in announcing the Rule was to serve those in dire need. As he noted, 10,000 aspiring attorneys performing 50 hours of pro bono leads to 500,000 hours of service.14
- Inculcating a service ethic among tomorrow's lawyers. Introducing nearly every new attorney to law–related public service will offer exposure and education that many would not otherwise receive.
- Providing hands–on practice experience for lawyers in training. The 50–hour Rule could catalyze learning opportunities and practice experiences for would–be attorneys. Given the broad definition of "pro bono service", those performing it could be exposed to the full panoply of law and judicial practice, from research and litigation to rulemaking and deal–making.15
In addition to the possible benefits, there are potential drawbacks to the 50–hour Rule's implementation.
- Inadvertently diluting the definition of "pro bono." The 50–hour Rule refers to "pro bono service", but its broad "pro bono" definition could have the unintended effect of lessening the importance of traditional pro bono work, i.e. direct, uncompensated service to poor people and their communities. Work toward the 50–hour requirement may be performed, for instance, in an adequately funded government agency that plays little or no role in serving low–income populations. Some credit–bearing and stipend or grant–funded work also qualifies to satisfy the 50–hour Rule.
This is an expansion on some conventionally accepted "pro bono" definitions. MRPC 6.116 prioritizes pro bono work with a recommendation that a substantial majority of service consists of providing legal services to people of limited means or to organizations that serve people of limited means. Also, the New York Rule of Professional Conduct defining "pro bono legal services" is tailored more narrowly than the 50–hour Rule.17
Tomorrow's lawyers could enter the profession with a notion of "pro bono" that is inconsistent with the time–honored concept that has evolved –– a means of service to those on society's margins. Put differently, one of the main goals Chief Judge Lippman articulated in his May Day speech was to deliver legal services to those who most need them. Because "pro bono" is defined so broadly, however, the benefit to those needy client communities will be lessened because bar applicants will be able to perform 50 hours of service that delivers no direct benefit to the most needy clients.
- Placing an administrative burden on nonprofit and government law offices. These offices have been substantially impacted by the Great Recession. Many nonprofits have gone through layoffs, resulting in fewer staff members assuming more responsibilities. Government offices have likewise experienced the effects of fiscal austerity. They may not have the capacity to supervise large groups of law students.
- Placing an administrative burden on law schools and students. Most schools are confronting revenue declines and may not be able to support their students' efforts to comply with the 50–hour Rule. This is especially so for schools far outside of New York, which may not be able to efficiently accommodate small numbers of students who wish to practice there. Also, the 50–hour Rule's "pro bono" definition could create a confusing inconsistency in schools that use a different definition for purposes of their internal programs –– some of which require pro bono service as a condition for graduation, and many of which already have infrastructure in place to track service performed under their own definitions.
Developments Outside New York
The 50–hour Rule's rollout has caused other jurisdictions to consider placing a similar requirement on bar applicants. In at least four states there has been some consideration of a pro bono/public service requirement. For continuing updates see the Standing Committee on Pro Bono & Public Service's website.
The Standing Committee on Pro Bono and Public Service supports innovation and creative approaches to enabling more law students to perform pro bono and law–related public service. But with respect to the 50–hour Rule, the Standing Committee believes that experiential service–learning should be distinguished from pro bono service as defined in MRPC 6.1. If a state is going to follow the New York approach, the qualifying service should be described as "pro bono or law–related public service" to best reflect this important distinction.
1 New York Rules of the Court of Appeals for the Admission of Attorneys and Counselors at Law § 520.16(a), http://www.nycourts.gov/ctapps/520rules10.htm#B16. (The Rule is also attached as an appendix.)
2 Chief Judge Lippman, "Law Day 2012" (speech, May 1, 2012), State of New York Unified Court System, http://www.nycourts.gov/whatsnew/
4 State of New York Unified Court System, "Chief Judge Names Advisory Committee on Pro Bono Bar Admission Requirements," Press Release (May 22, 2012), http://www.courts.state.ny.us/press/pr2012_03.shtml.
5 Advisory Committee on New York State Pro Bono Bar Admission Requirements, "Report to the Chief Judge of the State of New York and the Presiding Justices of the Four Appellate Division Departments," September, 2012, http://www.nycourts.gov/attorneys/probono/
7 New York Court of Appeals, Order In the Matter of The Amendment of the Rules of the Court of Appeals for the Admission of Attorneys and Counselors at Law, September 14, 2012, http://www.courts.state.ny.us/attorneys/probono/Rule520_16.pdf.
8 State of New York Unified Court System, "New York State Bar Admission: Pro Bono Requirement FAQs (August 26, 2013 rev.)," http://www.nycourts.gov/attorneys/probono/FAQsBarAdmission.pdf.
11 Id. at 8–9 (FAQ 12 offers examples of qualifying work, including "Externship or internship placements with a judge or a court system..." and with a "federal, state or local government agency or a legislative body."
14 Chief Judge Lippman at 4, http://www.nycourts.gov/whatsnew/
15 For more on the rule's potential benefits as well as the possibility of it having a positive effect on law school pro bono programs, see Liz Tobin Tyler and David Udell, "Is the New York 50 Hour Requirement Changing the Future of Law Student Pro Bono?", Bloomberg Law, January 28, 2013, hosted at: http://ncforaj.files.wordpress.com/2013/02/
16 American Bar Association, Model Rule of Professional Conduct 6.1: Voluntary Pro Bono Publico Service, http://www.americanbar.org/groups/professional_responsibility/
17 New York State Bar Association, New York Rule of Professional Conduct 6.1: Voluntary Pro Bono Service, http://nycourts.gov/rules/jointappellate/Rule6.1.pdf.