New York Needs Real Legal System Reform, Not Lipp Service

While Pro Bono Goal Applauded, Questions About Details Abound
The New York Law Journal by Joel Stashenko  -  May 7, 2012

Each year since Hurricane Katrina inundated the Gulf Coast in 2005, about 60 students from Touro Law Center have spent winter or spring breaks in Louisiana and Mississippi performing pro bono legal work for residents who are still trying to recover from the disaster.  Now, however, Thomas Maligno, executive director of Touro's public advocacy center, is wondering how the students' "really wonderful work" will be affected by a new requirement that will make pro bono service a prerequisite for admission to New York's bar.  "The question is, will it meet this new [bar admission] requirement?" Maligno asked. "And if it doesn't, will that make it harder to find students to do this type of work in the future?"  Maligno is not alone in asking questions about the implications of Chief Judge Jonathan Lippman's generally-applauded announcement last week that candidates for admission starting next year will be required to certify they performed at least 50 hours of pro bono service before they can be admitted (NYLJ, May 2).  "The unmet need [for legal services] is huge," said Kim Diana Connolly, director of clinical legal education at SUNY Buffalo Law School. "The idea of mobilizing the brilliant minds I teach every day is great. But it is going to be a great deal of work to tromp through the slop to see how we are going to make this happen. Right now it is rather murky."  And it is likely to remain murky for a while. Lippman said that the rules shaping the new requirement would not be circulated until late August or early September.

Judge Lippman said he intentionally made his announcement eight months before the requirements are to go into effect to give court officials time to hear from law schools, law firms, legal services providers, the bar admissions departments of the Appellate Division and others about how to implement the new prerequisite.  "Before I put out the exact rules, I want to talk to the stakeholders," Judge Lippman said in an interview.  Meanwhile, law students on several campuses said they were supportive of the chief judge's initiative.  Some students are "so caught up" with the idea of winning a lucrative position in corporate law that they have lost track of an attorney's responsibility to society, said Elaine Lorenzo, a first-year student at the Maurice A. Deane School of Law at Hofstra University.  "This will shift the focus back to what we're meant to do," she said. "It's not a burden, it's a week. Get over it."  Another Hofstra student, Ahmad Almadallal, the president of a campus organization encouraging public-sector service, said that the requirement could expand the legal horizons of some students.  "A lot of students don't even think of [pro bono work]," he said. "It might open their eyes to other areas of the law."  Michael Legge, a first-year student at New York University Law School, agreed.  "You are admitted to the bar to be an officer of the court and the court is meant to be in service to the public, so this seems to fit with that," he said.  But the consensus among NYU students interviewed last week is that most students already do pro bono work. In fact, the school bestows a "Pro Bono Service Award" on those who have donated 50 hours of their time between the second semester of their first year and graduation.  "Fifty hours is not a lot of time—you can do that in a week," said first-year Shira Burton, adding that NYU Law students typically do public service work during the summer between their first and second years.

At Touro, which has a 40-hour pro bono prerequisite for graduation, second-year student Erica Vladimer said she did not think the new state rule would unduly inconvenience most students. In any case, she said, the benefits will outweigh any drawbacks.  "It is very easy to get lost in the books and very easy to just get into your study habits," Vladimer said. "But to go out there in the community and utilize what you are learning...that is something that nobody can deny feels good."  Albany Law School second-year Ben Pomerance, who organizes legal clinics for veterans with the help of volunteer local lawyers and other students, said the pro bono admissions requirement is "one of the most positive advances that the state could make in the legal education realm."  "It instills in us an ethic of service that should...be within every student and professional," Pomerance said. "Justice is meant for everyone."  Lippman said he believes that to be acceptable pro bono programs must provide legal services to low-income communities. Moreover, the students must receive meaningful supervision from lawyers or service providers.  "We are not talking about granting [pro bono] credits for sitting in a classroom," he said. "We don't want them to go willy-nilly without the proper preparation and supervision. You just can't take these kids and say, 'Go out there and do good things.'"  Lippman estimated that the new requirement will add 500,000 hours of legal assistance to low-income New Yorkers each year. But he acknowledged that no one keeps statistics now on how many hours law students put in providing legal aid to the poor.  The chief judge said in a meeting with reporters after his annual Law Day speech last week that "a little flexibility" will be built into the rules to allow applicants to demonstrate that they fulfilled the pro bono requirement in their home states or native countries.  "We're not going to diminish doing pro bono in Connecticut or Arizona," the judge said. "But for the most part, that pro bono work will be in the state of New York."  While rules for acceptable pro bono work performed by prospective lawyers outside New York have yet to be worked out, Lippman said the Touro Law student work with Hurricane Katrina victims would seem, at first blush, to fit the bill.  "I think that would qualify because you are coming from a New York law school and responding to an emergency," Judge Lippman said. "Just as OCA sent court personnel down to the Gulf after Hurricane Katrina, that is the emergency kind of situation involving human tragedies that transcends setting a rule like this."

'A Culture of Public Service'

Two of the 13 New York law schools, Columbia and Touro, already require students to donate at least 40 hours of closely supervised community service before they graduate.  Ellen Chapnick, dean for social justice initiatives at Columbia Law, said the 18-year-old Columbia pro bono requirement has accomplished Lippman's aims.  "It really does create a culture of public service," Chapnick said in an interview. "Every student at Columbia Law School and much of the faculty understand the obligation to do public service as a public responsibility. It is not charity. It is a public responsibility."  Chapnick said that the majority of students do more than the required 40 hours. And although all students do not initially embrace the school's pro bono requirement, many initial skeptics end up acknowledging its value.  She recalled that one student who worked on an eviction case responded to a survey by saying that "he still thought of it as 'communism, fascism and slavery.' He also referred to it as representing, 'Maybe the most worthwhile thing I have done in my life, maybe the only worthwhile thing I have done in my life.'"  Alicia Oulette, professor of law and associate dean for student affairs at Albany Law School, said many students there participate in voluntary programs to help low-income people that are supervised by more experienced students.  In addition, Albany, like its counterparts, places significant emphasis on attorney-supervised clinical programs as part of its curriculum. Second- and third-year students represent consumers, the unemployed, immigrants and domestic violence victims among others. Students can earn up to 20 hours of academic credits toward the 87 credit hours needed for graduation by participating in the clinics.  She said that Albany and other law schools will have to make available to students the kinds of pro bono programs that would help qualify them for admission.  "I would say it is our job to help those students to become qualified," Oulette said. "We need to know what counts, what records we need to keep. Is there a structure that each of the [Appellate Division] departments is going to have in terms of record-keeping?"  Both Oulette and Connolly, from Buffalo Law, said mandatory pro bono for prospective lawyers will require more supervision by legal services providers and private attorneys.  Buffalo has introduced a "practicum" course in criminal law in which students work with defense lawyers through the local assigned counsel program.  "Something we have been struggling with in terms of developing these new practicum courses is the level of commitment with the outside lawyers," Connolly said.  In addition to the types of programs that will qualify, framers of the new rules will consider whether to allow current first- and second-year students to perform less than 50 hours of service to qualify for admission, Lippman said. For example, students with only one year left in law school might be required to perform only one-third of the requirement—about 17 hours.  "We are not giving anybody a pass," he said.  The chief judge also said some consideration will be given to hardship cases, where students are too busy working their way through law school to meet the 50-hour obligation. However, he said such exemptions should be "very, very rare."  @|Joel Stashenko can be contacted at jstashenko@alm.com. Andrew Keshner and Laura Haring contributed to this story.