f/k/a archives . . . real opinions & real haiku

For many Americans (and other inhabitants of planet Earth), lawyer and liar aren’t just near-homonyms — they’re synonyms.  [Yes, I know you know this.]  

Now, imagine you’re a group of bar leaders concerned with the public image of lawyers as lying, greedy shysters.  To be more specific, you’re upset a survey by your state’s Office of Court Administration shows that lawyers did even less pro bono work in 2002 than they had in 1997, the last year surveyed.  Add the additional factor that your association has been working very hard for years to increase the amount of pro bono performed by its members, in order to prevent the establishment of a mandatory pro bono rule, which would replace the current “aspirational goal” of 20 hours per year of pro bono per attorney.

(c) provide services through:

(1) delivery of legal services at no fee or substantially reduced fees to individuals, groups or organizations seeking to secure or protect civil rights, civil liberties, or public rights, or charitable, religious, civic, community, governmental or educational organizations in matters in furtherance of their organizational purposes, where the payment of standard legal fees would significantly deplete the recipient’s economic resources or would be otherwise inappropriate;
(2) delivery of legal services at a substantially reduced fee to persons of limited means; or
(3) participation in activities for improving the law, the legal system or the legal profession;
(4) performance of legal services without compensation in aid or support of the judicial system.

Law firms should act reasonably to enable and encourage all lawyers in the firm to provide pro bono legal services in accordance with these precepts.

The obligation to provide pro bono legal services as described herein is aspirational rather than mandatory in nature.  Each lawyer should aspire to provide at least 20 hours of pro bono legal services annually in activities identified in subparagraph (a) above.  The failure to fulfill this aspirational goal should be without legal consequence. 

Does any of this matter?  Well, one weblawg maven and solo advocate has suggested that accounts receivable written off by small firm lawyers should be deemed pro bono (ex post facto pro bono!).  And, Robert Starr, director emeritus of the New York State Trial Lawyers Association, wants working against tort reform to count toward the expanded “public service” definition of pro bono work.  [Can you feel pain of Walter Olson and Philip K. Howard?]

To their credit, many members of the New York State legal community have raised an alarm against this new definition of pro bono service, noting both that it is certain to significantly diminish the already inadequate services provided for the State’s poor, and that it will surely embarrass the legal profession.   I particularly like this quote from the New York Law Journal:

“I find it stunning that the response to stagnant participation rates [in pro bono service] is to change the definition of pro bono to make it broader,” said Anthony P. Cassino, assistant director of public service at Milbank, Tweed, Hadley & McCloy and a former director of pro bono affairs at the State Bar. “They’re moving in the fences to make it easier to hit a home run.”

In a letter last August to the New York Law Journal, to “clarify” the NYSBA position, bar President Kenneth G. Standard stated “the definition properly should be broadened to include those essential services attorneys regularly contribute to society for the public good.”  You can judge for yourself whether the proposal backed by Mr. Standard meets his own criteria.  

The Association’s House of Delegates will vote on the proposed definition at the Annual Conference, Jan. 24 29, 2005.  Even though the offical period for Comments on the proposal ended on January 7, you might want to offer your opinion directly to President Standard at < standardkg36 — AT –aol.com> ; and you can also contact NYSBA’s Director of Pro Bono Services, Cynthia F. Feathers, Esq., at <probono – AT –  nysba.org>.

Part of the NYSBA “justification” for expanding the definition of pro bono is the fact that the term we in the profession use for volunteer services by lawyers is the high-falutin Latin “pro bono publico,” which means “for the good of the public,” not just for the good of poorfolk.  [Does this sound like admirable “lawyering” to you?]  A better solution is to word the responsibility in plain English as “volunteer service to the poor” — and, then, to encourage lawyers to further serve their community to the extent possible by providing legal or other services and financial support to their favorite causes.

All of this reminds me of the sage advice from my alter ego ethicalEsq to the Bar, in the post First thing … Let’s Quell All the Liars:  “You do need more PR, but it must be Professional Responsibility, not Public Relations.   Image crafting only sounds like more deception to the average (and above-average) American.  Like more lies.   Lost trust has to be earned the hard way — client by client, case by case, with the focus on competence, diligence, and loyalty toward the client; on responsibility toward society rather than toward guild and gelt; on virgorous overseeing rather than overlooking of ethical rules; and on service rather than self-importance.” 

• p.s.  You might be surprised to know, that the Office of Court Administration’s 2004 Pro Bono Report, mentioned above, actually suggested that the definition of pro bono be expanded in order to have more pro bono provided.  My other alter ego Prof. Yabut had this to say about that in a January 2004 post:  “In a bit of lawerly snake oil, the Report actually suggests that one way to get the number of pro bono hours increased is to broaden the definition of eligible pro bono work, including ‘Broaden[ing the] definition to include low- and middle-income individuals; read[ing the] current definition more creatively’.  The numbers might grow, but would such “solutions” help the poor?” 
  
• For further reading, try: NY’s Disappointing Pro Bono Report from Prof. Yabut.