New York Courts Adopt New Pro Bono Disclosure Requirements

A number of years ago, New York imposed upon its lawyers, basically as a revenue-raising measure, a requirement to "register" every two years and, in connection with filing the form, pay a fee.  Seemed pretty innocuous.  But what an opportunity for a little social engineering by the unaccountable!

A couple of days ago on May 1 we got an announcement from our Chief Judge, Jonathan Lippman, that the court system has now adopted a requirement that on the registration form each lawyer must disclose how much "voluntary unpaid pro bono services" he/she has performed and how much he/she has made in the way of "voluntary financial contributions . . . to organizations primarily or substantially engaged in the provision of legal services to the underserved and to the poor" during the two-year period prior to the registration.  At the same time, the courts amended Rule 6.1 of the Rules of Professional Responsibility to up the guideline for pro bono work from 20 hours per year to 50.

Don't worry though, people:  while disclosure is required, the actual work or contributions are "completely voluntary."  From the report in Wednesday's New York Law Journal:

He [Chief Judge Lippman] added, "My every instinct is not to do mandatory pro bono. This is not a nose-under-the-tent kind of an approach."  But he said the mandatory reporting will provide court administrators with by far the clearest picture yet of the extent to which lawyers in New York are performing pro bono or giving money to pro bono providers.

The great and the good of course are of course unanimously behind this.  For example, this from New York City Bar President Carey Dunne:

"It presents a minimal burden on practicing lawyers," said Dunne, a partner at Davis Polk & Wardwell.

Or from Michael Grohman, head of the New York office of Duane Morris:

"If you look at the balancing act of what we may be disclosing or divulging versus the ultimate increased benefit to so many who can't get this help by themselves, then the equities are strongly in favor of the underserved," he said.

The less well-heeled express a large measure of skepticism, viewing this as precisely the nose-in-the-tent on the way to mandatory pro bono.  For example, from W. Adam Mandelbaum in the NYLJ comments:

Sure, it's voluntary, but the handwriting is on the wall. How many hours of pro bono does Mr. L do? It's always the guys with the guaranteed salaries and benefits that are willing to sacrifice every last drop of somebody else's blood who has to chase cases and pray for payment. How many hours of unintentional pro bono does a solo or small firm lawyer do a year?

But there is another aspect of this that I haven't seen anyone comment on, so let me.  So-called "pro bono" in New York has a long and ignominious history as the method by which lawyers unsatisfied with the grants made by the legislature to their preferred causes use the courts to circumvent the state constitution, with the goal of establishing "rights" to various handouts and giveaways that the legislature will not enact.  The game is particularly distasteful because the lawyers backing the cases "pro bono" are among the wealthiest of New York's citizens, yet they will not fund their causes with their own money, and instead seek through the courts to have the burden of their programs paid by far less wealthy average taxpayers.

To take just one particularly notorious example, consider the long-running "homeless rights" litigation that began c. 1983 and may still be going on as far as I can tell.  Advocates sued the City for failure to provide homeless shelter on demand to anyone who asked.  The City (in a huge mistake by then Mayor Ed Koch) promptly settled, basically agreeing to provide the shelter.  And then the advocates have spent the past 30 years suing the City for failing to live up to its agreement.  Billions have been spent in complete circumvention of the legislative process for appropriating money and of the executive prerogative to manage the delivery of services.  The advocates found a sympathetic judge in the state court system and ran from there for decades.  Here is a report from the New York Times in 2002.  Excerpt:

[The judge] has, for instance, ordered that the city make infant formula, bottle warmers and Pedialyte available to homeless families waiting for shelter assignments and told the city that it cannot interview families seeking shelter over a hot line but must meet with them in person. She has told the city that any women claiming domestic abuse should skip the normal fraud investigation, and she has forbidden the city to review homeless mothers for workfare eligibility while they await shelter.

And this is just one case among many such.  For example, there are very similar decades-spanning "welfare rights" and "prisoner's rights" cases. 

I can say with confidence that I will not offend Chief Judge Lippman in the slightest by saying that he regards the work of these advocates as the highest calling of lawyers and that encouraging more such cases is exactly what he has in mind with his new pro bono rules.  The problem here is that there is a huge disagreement in the world between those who think that entitlement-based giveaways to the poor are helpful or harmful to the intended beneficiaries.  Is our Chief Judge using his powers to force people onto his side of this essentially political dispute?

Yesterday I submitted a letter to the editor of the Law Journal as follows:

Chief Judge Lippman's recent amendment to the attorney registration rule, requiring disclosure of "voluntary pro bono services," raises a question of what is intended to count as "pro bono," or "for the good" of the poor.  The classic New York "pro bono" endeavor has very often been a counterproductive and destructive demand for government handouts and giveaways, all of which have manifestly failed to eliminate or reduce poverty, and serve mainly to deprive the poor of their dignity and independence.   I think particularly of the long-running and hugely expensive "welfare rights" and "homeless rights" cases.  These types of cases should more correctly be called "pro malo."  If we really seek to improve the lot of the poor, we should instead engage in efforts that would do some real good for them, like advocacy to reduce these poverty traps, reduce taxes and eliminate barriers to entrepreneurism throughout our economy.   Surely, such real pro bono activities must be what our Chief Judge is asking us to disclose.

They did not publish it this morning.  We'll see if it turns up on Monday.  I wouldn't count on it.