Open Letter to the New York State Bar Association

I didn’t intend to write anything about the new mandatory 50-hour pro bono requirement New York will impose on its bar applicants next year, figuring I had nothing new to add. However, I received an e-mail from the New York State Bar Association’s Office of the President, saying:

In his Law Day speech on Tuesday, Chief Judge Jonathan Lippman announced that beginning next year, people seeking admission to the bar in New York will be required to perform at least 50 hours of pro bono service at some point prior to their application. According to Chief Judge Lippman’s speech, this service can be performed during law school, or prior to the admission process. (Text of Lippman’s speech: http://www.courts.state.ny.us/whatsnew/Transcript-of-LawDay-Speech-May1-2012.pdf)

The New York State Bar Association has not yet seen any written version of this new requirement, but will follow the matter closely. In the meantime, we are interested in our members’ reactions and comments. Email us at probonocomments@nysba.org.

It appears the new requirement was hatched without the NYSBA’s knowledge, which surprises me. If I were to politic it, I’d reckon that the request for members’ reactions suggest the association is nonplussed by the announcement and doesn’t know how to proceed, so since it asked, I sent this e-mail with the appropriate subject line, “All Oblige and No Noblesse Makes Law a Dull Profession.” It gets a little sharp at the end, but that’s where the muse took me.

**********

Dear NYSBA,

Thank you for asking NYSBA members for their opinions about Chief Judge Jonathan Lippman’s announcement regarding the new mandatory 50-hour pro bono requirement applicants to the New York bar will have to meet before admission. This issue is important to me not just because I have friends in law school who might seek licensing in New York but because I research the cost and value of legal education in the United States on my blog, The Law School Tuition Bubble, and in my submissions to the Am Law Daily. Here are my thoughts.

Judge Lippman grounds the new pro bono requirement in a belief that holding a law license entails a “responsibility” (a word he uses five times) that demands a sacrifice on the lawyer’s part. For example, he opens his Law Day 2012 speech saying, “Those who are privileged to call ourselves lawyers have a special duty as the gatekeepers of justice to participate in preserving what we hold so dear.”

Unfortunately, as a lawyer of four years, I do not know what privileges Judge Lippman is referring to. He never lists them in his speech, and I will not waste my time looking for a “List of Lawyers’ Privileges” on the State Judiciary’s Web site, for I suspect there is none. Indeed, since I am currently licensed but not practicing, I barely see myself as a lawyer. I rarely refer to myself as one, and when people ask me what I do for a living, I tell them that I am a “writer,” a profession that does not come with any “privilege” I know of. Although I intend to renew my license this summer, there is a growing possibility that I will never use it again, though I believe I am more likely to than my peers.

Thus, from my standpoint a law license allows a person to represent people before a court. That is it. There is no other grand responsibility be it “pressing,” “special,” “social,” or “professional” as Judge Lippman qualifies it. Pro bono service should be done out of a lawyer’s magnanimity, not the requirements of bar authorities. I would take a different opinion if the law schools and the bar colluded to engineer a shortage of attorneys in New York to ensure stable practices for them. Were that the case, then I would easily be able to work as an attorney and collect economic rents along with my wages. In this circumstance, I would feel honor-bound to provide free legal services, and I would simultaneously argue that an artificial scarcity of lawyers is fundamentally unjust. (Ironically, Judge Lippman disagrees, for a mandatory pro bono requirement discharged only in New York will hamper out-state petitioners’ applications.)

However, there is no shortage of lawyers in New York. The State Department of Labor projects that between 2008 and 2018, 1,700 new lawyer jobs will open each year due to both growth and replacement. Meanwhile, the state’s 15 law schools graduated nearly 5,000 people in 2010, and there is no Shangri-La legal market in the United States for them to move to. Many will never practice law in any meaningful way.

Although Judge Lippman is correct that many poor people need legal services, one wonders why aspiring lawyers should be ordered to provide them. Bar applicants often lack experience as lawyers, and since they will mostly be providing their services through programs organized by their law schools, they will ultimately be paying wealthy institutions money to supervise their service. Given how much law school costs—especially in New York—there is a high probability that there will be no net social benefit from these programs: Law students will indenture themselves to the U.S. Department of Education to help the poor—something they can do more effectively by not going to law school.

At the same time, neither judicial authorities nor the ABA (i.e. those who are “privileged to call themselves lawyers”) has shown any interest in advocating eliminating the monumentally wasteful federal student loan program or reforming the law to enable the tens of thousands of lawyers who owe excessive debt on their degrees to reduce or discharge their loans in bankruptcy. Instead, these “gatekeepers of justice” quietly prefer to shift the problem onto future taxpayers. It is in this context that I find appeals to lawyers’ “special responsibility” to serve the poor galling. Consequently, I do not support the new pro bono requirement.

Thank you for considering my thoughts,

Matt Leichter, Esq.

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One Response

  1. Matty,

    Nice riposte! Also, consider the following: what the hell happens to a case, when a pre-lawyer provides 50 hours of pro bono work? You can bet that the newly-admitted attorney will be on the hook until final disposition.

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