Letter From The President Of The New York County Lawyers' Association

2014-04-17 12:02

To The Readers Of The Metropolitan Corporate Counsel:

Last May, New York introduced, for the first time, mandatory pro bono reporting as a condition of license renewal. Section 118.1(e) of the Rules of the Chief Administrator now requires New York lawyers to report the time that they spent providing pro bono legal services to poor and underserved clients on their biennial registration forms, as well as their charitable contributions to organizations that provide such services. At the same time, the Appellate Division amended Rule of Professional Conduct 6.1 to raise the aspirational goal for New York lawyers from 20 hours to 50 hours per year of pro bono service. Amended Rule 6.1 also recommends a financial donation to organizations that provide pro bono legal services in an amount that is at least equivalent to the value of one hour of billable time.

The new rules have proven highly contentious. Supporters point to the widening “justice gap” in New York and argue that the disclosure rules in Section 118.1(e), coupled with the increased goals set forth in Rule 6.1, will encourage Empire State lawyers to devote more of their time and money to closing that gap. Opponents call the amendments both intrusive and coercive, particularly since Section 118.1(e), as written, does not make any of the information reported confidential. Others argue that the definition of pro bono used in the new rules is too narrow, or quarrel with the decision to exempt certain New York attorneys from the reporting requirement altogether, including those who are employed by pro bono legal services organizations. Thus far, however, Chief Judge Jonathan Lippman – the architect of and primary cheerleader for the new requirements – has made only one concession to the critics: in September 2013, the Office of Court Administration announced that for a two-year “phase-in period,” through April 2015, pro bono information reported by New York attorneys will be treated as confidential unless the reporting lawyer expressly consents to public disclosure.

NYCLA has historically been a strong supporter of voluntary pro bono efforts by the New York bar. Our commitment to pro bono work is quite literally a part of our mission statement, and NYCLA volunteers devote thousands of hours each year to providing free legal advice and representation to New Yorkers who otherwise could not afford those services. NYCLA has also consistently opposed any form of mandatory pro bono service requirement. The new reporting rules raise difficult and complex issues implicating both of NYCLA’s long-standing positions. In order to address those questions in a thoughtful and serious way – and to honor the diversity of views held among our membership – I appointed a Working Group on Mandatory Reporting of Voluntary Pro Bono, chaired by Megan P. Davis of Flemming Zulack Williamson Zauderer LLP. And on May 27, just two days before I turn over the gavel to President-Elect Lewis Tesser, NYCLA will present a Public Forum, organized by the Working Group, to explore the pros and cons of the new reporting rules.

At the Forum, members of the Working Group will moderate a series of panel discussions to address, among other things: the mechanics of and rationale for the new rules; whether the judiciary had the statutory authority to impose mandatory reporting without a vote of the Legislature; whether the stated justifications for the rules – encouraging lawyers to increase their voluntary pro bono service and charitable contributions, and allowing the judiciary to track statistical information about voluntary pro bono service and charitable contributions – are legitimate goals; if so, whether those goals can be accomplished in a way that does not inappropriately infringe on the privacy and First Amendment rights of New York lawyers; whether mandatory reporting is inherently coercive; whether mandatory reporting is a prelude to mandatory pro bono service; whether the definition of pro bono used in the new rules is appropriate; whether the increase in the aspirational goals set forth in Rule 6.1 is unduly burdensome, either standing alone or in conjunction with Section 118.1(e); and whether public interest lawyers are properly exempted from the reporting requirements.

NYCLA committees, sections and members are encouraged to submit comments on one or more of these topics, in advance, to help the moderators guide the panel discussions. In addition, time will be reserved throughout the program for audience questions. I hope you will visit nycla.org for more information on the Public Forum and make your voice heard on this important issue.

It has been an enormous honor for me to serve as president of NYCLA for the past year. On May 29, I will pass the mantle to Lew Tesser, who will lead the Association forward and use this space to keep you informed about all of NYCLA’s latest initiatives and programs. Meanwhile, feel free to tweet me at @nyclapres, or email me at bmoses@maglaw.com with your thoughts.

Sincerely,

Barbara Moses