May 062012

It’s not that providing legal services to the poor isn’t a worthy policy goal. However that worthiness does not vindicate any old policy nominally intended to serve that end, particularly if said policy either (a) doesn’t actually help achieve it, or, worse, (b) actually undermines it.

Such is the case of the rule promulgated by Chief Judge Jonathan Lippman, head of the New York court system and, by extension, the New York Bar. Beginning in 2012 this rule will require prospective applicants to the bar to have performed 50 hours of pro bono work to be eligible for admission.

While the goal of providing legal services to the poor is laudable, this rule is anything but. Not only will it fail to truly serve the constituency it purports to benefit, but it will also result in the deprivation of legal services to even more people by ultimately raising the their costs even higher than they already are.

First, the plan fails at a basic logistical level. For one thing, how are applicants to provide legal services? By the plan’s very definition they won’t be licensed attorneys, and the law generally frowns on the practice of law by unlicensed people. Perhaps these applicants could work under the supervision of another attorney or through some sort of program, which could have the upside of providing a useful training opportunity to new lawyers. But there are thousands and thousands of applicants each year – where are the thousands and thousands of senior lawyers and programs in the position to take them on, train them, supervise them properly (for what benefit is it to the poor to have free yet incompetent legal representation?) and make this investment in their skillset, just to have them promptly leave in search of a properly remunerating opportunity? Legal aid non-profits are already spread way too thin in terms of money and manpower to have the sort of bandwidth to take on this enormous mentoring obligation, and private firms cannot be presumed to be in any better position to do so either.

The rule could attempt to force senior lawyers to serve this mentoring role, but such requirements would be as inappropriately misguided as those attempting to co-opt the labors of new attorneys. Becoming a lawyer is already an irrationally and disproportionately expensive proposition, predicated on the fiction that upon entering the profession well-compensated positions will abound to reward the cost and effort necessary to achieve it. But this premise is false, as these jobs are rare and unobtainable to most new lawyers. Instead the majority are forced to scramble for whatever position might find, frequently not even in the law, to begin to support themselves and their families. And before they must service their school loans, pay for bar review, pay bar dues, comply with often onerous CLE requirements, and generally expend even more of their depleted financial resources without any guarantee that their enormous investment of time and money will ever be repaid. And on top of all these burdens, now the State of New York expects them to provide their labors for free.

The irony is that the State of the New York expects the poor to be served by the poor themselves! Which will only backfire against the broader goal of making legal services more accessible as it puts an even greater financial squeeze on the professionals the system is dependent on to provide them. The more burdened lawyers are with costs of complying with the myriad rules of the profession, the more they will need to be paid to compensate for them. As they search for employment lower-paid public interest positions will be financially impossible, and for those who eke out a private practice, lower rates and pro bono work will be similarly implausible.

The judge is right that the market for legal services all too frequently puts them out of reach of many people in need of them. But the problem results from the voluminous artifacts of professional rules that no longer sound in today’s reality. To truly solve the problem the profession needs deep and meaningful reform, including doing away with all the meaningless and/or poorly-tailored burdens on lawyers that drive up the costs of serving the public — not further encumber them with even more. Especially not those that would force people to labor unpaid. “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction,” reads the 13th Amendment. And that would include the State of New York.

Update: Apparently Above the Law also used a similar metaphor to provide its own criticism of this rule, that’s how apt it is.

 Posted by at 8:29 am

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