The Professional Lawyer
Volume 21 No. 4 (June 2013) page 9

Letter To The Editor:

With regard to the discussion of whether to impose a mandatory pro bono on law school graduates applying for admission to the New York State Bar ("Mandatory Pro Bono for New York Bar Applicants: Why Not?" The Professional Lawyer, vol. 21, No. 3), several additional ethical and practical difficulties are worth consideration.

Lawyers are required to handle cases "competently". In determining whether or not to accept a legal matter, ethics rules require that a lawyer determine his or her competence.

In a Legal Aid Clinic setting, law students can, and in fact are required, to be supervised by a licensed attorney prior to giving clinic clients legal advice. If a law school graduate has not had fifty hours of clinical experience in law school, the requirement must be satisfied after law school. If the applicant has no job after law school, ethical rules still apply, and require that any pro bono work be supervised by a licensed attorney. In a major city, there may be organizations willing to devote the time and take on the responsibility of supervising a law school graduate with no experience; in smaller cities, there may not be such organizations. Even assuming that the graduate has the financial ability to devote less than full time to finding a job so he or she can do fifty hours of pro bono work (does study time count? Or only "billable hours"?), the requisite supervision may not be available.

In the absence of supervision, there is some question as to whether a newly-graduated law student with no experience is competent to advise a client on legal matters. And there is no question that, prior to being licensed, filing papers and appearing in court is not permitted. Little attention seems to have paid to the practical aspects of implementing Judge Lippman's decree.

For a law school graduate fortunate enough to have a full time job, the employer may or may not be willing to devote the time required to supervise pro bono work, or permit "time off" to perform pro bono work. If supervision is not available, the same ethical problems of competence are brought into play, along with a conflict: the requirement that the newly-minted, not-yet-licensed lawyer devote "full time and attention" to the new job.

Doing legal work pro bono is in the nature of charitable giving. It's laudable, but best when it comes from the heart. Douglas Richmond, citing Esther Lardent (see "A New York State of Mind", The Professional Lawyer, vol. 21, No. 3), notes concern about poor people being represented by lawyers who don't want to be there. This raises another ethical issue: can a lawyer who does not want to represent a client, especially when the lawyer doesn't believe in the client's case, comply with the ethical obligation to represent a client "zealously"?

For the conscientious lawyer who sees ethical problems with handling legal matters about which he or she knows nothing, fifty hours may be utterly inadequate to perform any useful legal services. Fifty hours and more may be needed simply to become sufficiently educated regarding the issues to provide competent legal advice.

For the unemployed lawyer, along with the financial burden and (arguably) misallocation of time, access to a law library may be a problem. Free law libraries via the Internet may or may not provide sufficient resources.

For the resentful lawyer, the imposition may be such that representation quality is compromised and once the obligation is met, no further pro bono services will ever be performed.

However well-intentioned, Judge Lippman's requirement that state bar applicants perform pro bono legal services in order to gain admission to the state bar raises ethical and practical as well as legal questions. We need to find a better way.

-- Micalyn S. Harris

2013 Micalyn S. Harris, All rights reserved.