Should Pro Bono Be Considered Mandatory?

Published August 14, 2012

New York Bar’s Pro Bono Requirement

Recently the Chief Judge of the New York Appeals Court announced a pro bono requirement to gain admission to the New York Bar. Under this requirement, every new lawyer will have to prove their performance of 50 hours of pro bono practice before being admitted to the New York State Bar. As the Chief Judge explained this decision, “If pro bono is a core value of our profession, and it is-and if we aspire for all practicing attorneys to devote a meaningful portion of their time to public service, and they should – these ideals ought to be instilled from the start, when one first aspires to be a member of the profession.”

Is Pro Bono a “Core” Value of the Legal Profession?

I believe that characterizing pro bono as a “core value” of the legal profession is faulty. While many lawyers “give” many hours freely of their time and talent, that does not define the essence or “core” of the profession’s values. Those values are embodied in the Rules of Professional Conduct, and Rule 6.1 calls pro bono service a “professional responsibility” that lawyers should “aspire” to. This has been substantiated many times over when bar associations call on their members to provide free services for low and moderate income people. Many do step up to the plate, but not all. Thus, it is distinct from true core values like maintaining client confidentiality.

The “Law Firm Pro Bono Challenge”

Years ago the ABA and the Pro Bono Institute launched the “Law Firm Pro Bono Challenge” for larger firms with more than 50 lawyers to make an institutional, rather than an individual lawyer, pro bono commitment as a percentage of billable hours. By promoting a percentage goal, the Challenge ties pro bono activity to firm productivity and profitability.

The Pro Bono Requirement Does Not Apply to All Lawyers

This is an important consideration, one acknowledged in the New York announcement itself. The pro bono requirement does not apply to all lawyers in the state because, according to the reasoning used, existing lawyers’ practices are very diverse and some lawyers already are having difficulty earning enough money to remain solvent and thus should be excused from this requirement. This self-evident truth is one we have discussed numerous times – firms must have adequate billable work before they can assume pro bono work for which they will not be paid.

Pro Bono Work: Aspiration or Requirement?

Where does this leave the young lawyer seeking bar admission? The requirement may not be that onerous. Many such lawyers have undertaken pro bono work in law school or as summer associates, and in recent years large law firms have paid newly hired “deferred associates” reduced stipends to spend a year doing public interest work pro bono until they are brought on full time. These are practical solutions. Arbitrarily seeking to turn an “aspiration” into a requirement is not.

Categorized in: Ethics

Audience type: Administrators, Associates, Large Law Firms, Small Law Firms, Sole Practitioners