REPORT ON NEW YORK STATE’S 50-HOUR PRO BONO BAR ADMISSION REQUIREMENT

REPORT ON NEW YORK STATE’S 50-HOUR PRO BONO BAR ADMISSION REQUIREMENT

Prepared by the Task Force on Meeting the Challenge New York County Lawyers’ Association

Catherine A. Christian, Co-Chair

Adrienne B. Koch, Co-Chair

 

This report was approved by the Executive Committee of the New York County Lawyers’ Association on August 5, 2014.

 

On May 1, 2012, Chief Judge Jonathan Lippman announced that New York would become the first state in the country to require bar applicants to perform Pro Bono legal service — and to certify that they have done so — before they can be admitted to practice. On September 14, 2012, he signed the enabling order, creating Rule 520.16 of the Rules of the Court of Appeals for Admission of Attorneys and Counselors at Law (22 N.Y.C.R.R. Part 520; hereinafter, the “Admission Rules”), which requires all applicants for admission to the New York Bar on or after January 1, 2015, to demonstrate that they have completed 50 hours of qualifying pro bono work. The rule does not apply to attorneys who seek admission on motion pursuant to Rule 520.10 (that is, attorneys “waiving in” to New York from other jurisdictions), or those who are admitted pro hac vice pursuant to Rule 520.11.

 

In order to fulfill the requirement, the pro bono work must be law related and must be performed under the supervision of: a member of a law school faculty; an attorney admitted to practice and in good standing with the bar in the jurisdiction in which the work is performed; or, in the case of a clerkship or externship in a court system, a judge or an attorney employed by the court system. The supervisor must certify the hours the applicant spent on pro bono work.

 

The rule defines qualifying pro bono work broadly. Such work includes not only traditional pro bono legal services for the indigent and under-represented, but also law-related work with public sector offices, the judiciary and not-for-profit organizations.

 

Since its founding in 1908, NYCLA has encouraged its members to engage in public service, including voluntary pro bono work, education and advocacy. Indeed, part of the core mission of this “great democratic bar association,” as approved by our Board of Directors, is our unfailing commitment to “ensur[e] access to justice for all” and “arrang[e] for the provision by its members of free legal services for indigent, low income and other persons in need.” In 2004, NYCLA adopted a formal policy statement encouraging pro bono service — using a comprehensive and expansive definition of pro bono that encompasses legal work rendered to low- and limited-income persons; to organizations that serve low- and limited-income persons; to organizations that work to secure and protect civil rights, civil liberties, or public rights; and to charitable, religious, civic, community, governmental or educational organizations. At the same time, NYCLA reaffirmed its long-standing policy that pro bono service should remain voluntary. Consistent with this policy, NYCLA opposed the 50-hour rule for applicants to the New York bar when it was enacted.

 

In June 2013, then-NYCLA President Barbara Moses established the New York County Lawyers’ Association Task Force on Meeting the Challenge to look at the ways in which law schools, law firms, public interest organizations and other members of the legal community are responding to the 50-hour rule. The Task Force includes attorneys from private practice, legal service organizations and government; law school professors and administrators; retired judges; and members of NYCLA’s Pro Bono Committee.

 

The Task Force’s goals were two-fold. Its external mission was to investigate what the legal community is doing to assist law students and law school graduates in meeting the 50-hour requirement and to formulate recommendations to improve the process. The Task Force’s other mission was internal: to explore what NYCLA itself can do to help law students and law school graduates meet the requirement in a meaningful way.

 

In connection with the external portion of our analysis, we considered the rule’s impact on five different stakeholders: law schools; the judicial branch and public sector; legal services organizations and other providers of pro bono service; law firms and corporate legal departments; and bar associations. In Section I, we summarize our findings with respect to each of those stakeholders.

 

In Section II, we detail our conclusions and recommendations, including the results of internal portion of our analysis. We summarize those conclusions and recommendations here in brief:

 

• Law schools both inside and outside New York State are mindful of New York’s 50- hour pro bono requirement and are taking steps to help their students and alumni meet it. As a result, the majority of applicants to the New York bar — especially applicants with J.D. degrees from U.S. law schools that they earned through full-time law study — will likely complete the required 50 hours of pro bono service while they are in law school. For the reasons discussed below, however, it is equally likely that there will be a percentage of graduates (particularly those in LL.M. or evening programs) who are not able to do so. These individuals will need a steadily available pool of pro bono opportunities in which they can participate as non-admitted law school graduates. The impact of the 50-hour rule on this population should be closely monitored over the next few years.

 

• Law schools can and should make it easier for their students and alumni to find appropriate pro bono opportunities (and to track their compliance with the 50-hour rule) by expanding the services they already use to match students and alumni with job opportunities. In the view of the Task Force, law schools should bear a significant portion of this responsibility because they have a strong interest in the bar admission and placement rates of their students and alumni (an interest that is separate from — and in addition to — their general interest in increasing the availability of pro bono legal representation).

 

• More than 60% of the respondents in the Task Force’s survey of law firms and corporate legal departments indicated that they foresaw “significant difficulties” in the implementation of the 50-hour pro bono requirement — including difficulties in finding appropriate projects, providing appropriate supervision, and providing insurance coverage. A similar percentage, however, reported that their organizations employ 20 or fewer attorneys. This correlation is consistent with the general view (discussed further below) that the larger firms do not see the 50-hour requirement as posing any difficulty and are prepared to provide whatever pro bono opportunities are necessary to enable their employees to meet the requirement if they have not already done so by the time they graduate.

 

• Particularly for law school graduates who do not immediately go to larger firms, bar associations — including NYCLA — have an important role to play in helping to expand the available pool of qualifying pro bono work. In this regard, we note in particular that many respondents in the Task Force’s survey of law firms and corporate legal departments reported that they look to bar associations as a source of pro bono work, both for attorneys and for those awaiting admission; many of them also reported that they would increase this reliance in response to the 50-hour rule. Bar associations already offer many pro bono programs in which they provide the necessary supervision and insurance coverage for volunteers; they can address some of the difficulties identified in the survey by expanding their offerings of such programs. They should also take special care to include, where possible, opportunities for students and non-admitted law school graduates in their pro bono programs.

 

• Although much of the pro bono work that students and non-admitted law school graduates perform can be done without a student practice order, the available pool of pro bono opportunities could be expanded by creating uniform standards for such orders and making them broad enough to permit a qualified program to make at least certain kinds of changes and expansions without having to apply for a new order.

 

• As soon as practicable, the process of compliance should be made electronic. As further detailed below, it may be possible to do this simply by expanding some of the systems that are already in existence and/or by enlisting the assistance of law schools. This would not only assist applicants in a meaningful way; it would also enable the information they submit to be used to track trends that could provide useful information for studying the impact and effectiveness of the program.

 

There is one important group, however, that we were not in a position to assess: the community of law students who will now have to comply with the 50-hour rule in order to gain admission to the New York bar. One of our concerns has been that the rule will impose additional costs and burdens on them, at a time when law school graduates are already facing large debt and a challenging job market. Indeed, this was one of the reasons why NYCLA opposed the 50-hour rule. Because we were not able to craft a mechanism to assess such cost and burden at this juncture, the Task Force plans to survey these individuals after they have been admitted in order to try to get a better sense of what their experience actually was.

 

1. FINDINGS OF THE TASK FORCE

 

• Law Schools

 

Law schools are the logical starting place for this analysis; ideally many (if not most) applicants will complete the required 50 hours of pro bono work during the course of their law school studies. Both through research and through direct contact, the Task Force looked at the ways in which various law schools are working to provide their students with appropriate opportunities to perform qualifying work.

 

All 15 of the accredited law schools in New York State offer their students substantial and varied opportunities to participate in qualifying pro bono work. Some New York schools have expanded their pro bono offerings in direct response to the 50-hour rule. In addition, several — including Columbia, St. John’s and Touro — already had in place a requirement that students complete 50 hours of pro bono work in order to graduate (although the definitions of pro bono for purposes of these requirements are not always coextensive with the definition contained in the 50-hour rule).

 

The 15 New York law schools are all taking steps to ensure that their students are fully informed of the 50-hour rule and of the ways they can complete their compliance while still enrolled in law school. Many have devoted full sections of their websites to the provision of information concerning the rule and the opportunities that are available to satisfy it. They have also indicated that they will use Symplicity — a web-based career services tool that law schools are already using to help students and alumni with job searches and to track job placements — to match students and alumni with pro bono projects. In response to our specific inquiries, none of the New York law schools reported that they anticipated any problem in providing J.D. students (particularly those in full-time programs) with sufficient opportunities to fulfill the pro bono requirement before they graduate.

 

Law schools outside of New York also appear to be working proactively to inform students of the pro bono requirement that they must meet if they wish to apply for admission to the New York bar and of the ways they can fulfill it prior to graduation. Many of these schools also have fairly robust discussions of this topic on their websites. Many are also pressing to be granted access to whatever database is created for pro bono matching and placement.

 

The largest remaining concern in this area relates to foreign LL.M. students. These students are generally qualified as lawyers in their home countries, and many of them seek an LL.M. degree as a way to qualify for admission to practice law in the United States. New York is the jurisdiction of choice for many foreign-trained LL.M. students who ultimately sit for a U.S. bar examination, because most other states have requirements that make it difficult or impossible for a foreign-trained attorney to be eligible to take the bar examination without also obtaining a J.D. from a U.S. law school.

 

Under Rule 520.6(b)(3) of the Admission Rules, however, as a practical matter LL.M. students cannot satisfy their pro bono requirements solely through clinical coursework. That rule imposes certain eligibility requirements on foreign-educated applicants who wish to use LL.M. coursework to qualify for admission to the New York bar. These include a requirement that each credit include a certain amount of classroom instruction time, a limit on the number of credits that can be earned through clinical work, a requirement that all clinical work be performed under the supervision of a faculty member, and a requirement that all coursework be completed on campus (or on the campus of a college with which the law school offers a joint degree program).

 

Coupled with the compressed nature of most LL.M. programs (which are generally only one year long) these separate requirements for LL.M. students will make it difficult for them to complete 50 hours of pro bono work during the course of their LL.M. studies. Unlike J.D. students, a foreign-trained lawyer pursuing a U.S. LL.M. degree does not have a 1L summer or a 2L summer that can be used to perform qualifying pro bono work. Nor can a foreign- trained LL.M. student easily obtain a qualifying judicial or governmental internship during his or her single academic year. Because the combination of these factors with the limits imposed by Rule 520.6(b)(3) seemed to create a particular problem for LL.M. students, one of the Task Force’s initial concerns was whether foreign-trained students in LL.M. programs would have adequate opportunities to fulfill the requirements of the 50-hour rule.

 

In June 2013, various organizations (including the Task Force) voiced this concern to the Advisory Committee on New York State Pro Bono Bar Admission Requirements, chaired by Court of Appeals Judge Victoria Graffeo and Cooley LLP Partner Alan Levine. In response, on August 26, 2013, the Advisory Committee issued additional guidance (in the form of revisions to the FAQs) that clarifies that pro bono work performed by foreign students up to one year before they begin an LL.M. program — including work performed outside of the United States — will count toward the 50 hours required for bar admission.

 

This clarification may go some distance toward relieving the burden on LL.M. students. But in all likelihood there will still be many who cannot satisfy (or cannot fully satisfy) the requirement through work performed prior to beginning their LL.M. program. Ideally, these candidates will have an opportunity to do so while in law school.

 

A number of law schools have created resources and/or targeted programs specifically designed to provide pro bono opportunities to LL.M. students and to address the special issues they face in this regard. Harvard, for example, reported that it created a new staff position for this purpose. Other schools that have substantial LL.M. programs may find it necessary to follow suit if they wish to continue to attract foreign students to those programs.

 

Despite such efforts, it appears that — although most other applicants will be able to complete the required 50 hours of pro bono work before graduating from law school — foreign-trained LL.M. students may continue to need access to substantial pro bono opportunities following graduation in order to complete those hours. To the extent they elect to stay in New York following graduation, such opportunities will (as further detailed below) likely be amply available through law firms, bar associations and legal service organizations. The availability of such opportunities for those who return to their home countries after graduating and taking the bar examination is less clear.

 

Separately, while none of the law schools we contacted voiced any particular concerns about the ability of evening students to satisfy the 50-hour requirement while in law school, there has been some suggestion in student publications that the requirement imposes particular burdens on such students — who often work full time while attending law school and therefore may have neither the time nor the flexibility to complete 50 hours of pro bono work (the nature of which is often such that it must be done during the very hours when they are unavailable because of work obligations) as well. Importantly, although under Rule 520.14 an individual can apply to the Court of Appeals for a waiver of any of the Admission Rules, the FAQs specify that “[p]art-time law studies, full-time employment, status as an LL.M. student, family obligations or other responsibilities, out-of-state or foreign residence and other commonly experienced situations will not qualify for a hardship waiver.” See FAQs, item 42. It thus appears that, like LL.M. students, evening students may have a particular need for pro bono opportunities after graduation in order to meet the requirements of the 50- hour rule.

 

In Section II, we offer some recommendations that may help to address this need.

 

• Judicial Branch and Public Sector

 

The Task Force also researched what the judicial branch and public sector offices are doing to assist students. Based on the information we received from a New York State Court Administrative Judge, we understand that there were no new initiatives by the state courts to facilitate students’ compliance with the new rule. Traditional practice, however, encourages individual judges to hire, without compensation but with academic credit if granted by the law school, law student interns. The five District Attorney’s Offices, the New York City Law Department and the New York State Attorney General’s Office all have internship programs that will continue to provide opportunities to law students, and hours spent working in these programs will qualify under the 50-hour rule. In addition, in the First and Second Departments, law students and non-admitted law school graduates can (by virtue of student practice orders) participate in the New York State Courts Access to Justice Program, through which they can provide advice and limited representation in certain proceedings in the Civil Court, Family Court and Supreme Court.

 

• Legal Services Organizations

 

One concern that was voiced following the announcement of the 50-hour rule was that it might result in a large influx of relatively untrained help that the various existing legal services organizations might not be fully equipped to absorb. To further investigate this issue, we reached out to a number of such organizations to solicit their views.

 

In general terms, these organizations had a positive response to the rule. For those that provide pro bono opportunities to lawyers in private practice by working with law firms rather than with individual lawyers, the responsibility to provide appropriate supervision — whether for junior associates who are admitted to practice or for summer associates and recent law school graduates who are not yet admitted — will continue to fall on the law firms. For such organizations, little will change as long as the law firms are prepared to provide that supervision. One such organization reported that the general view in the legal services community is that the law firms are in fact prepared to do so.

 

For those legal services organizations that directly supervise the volunteers who provide temporary or episodic pro bono help, the 50-hour rule has a somewhat greater impact. One salutary effect is that it gives the organization a more secure return on its training investment by making it more likely that the volunteers it trains will give at least 50 hours of work in return. It has also facilitated the expansion of services such as hotlines — the nature of which enables a single attorney to supervise large numbers of volunteers. One organization reported that having volunteers available for these kinds of services had freed their lawyers and paralegals to handle a substantially larger number of hearings (in some instances up to twice as many). All of this is obviously to the good, and is part of the effect that the rule was intended to have.

 

Further, to the extent they have the administrative capacity, legal services organizations may be able to streamline their processes by developing web-based training materials for some of their programs (as one such organization told the Task Force it begun to do). The use of such materials has two advantages. First, it minimizes the time that the organization’s own personnel must spend training volunteers. Second, by getting most of the training out of the way before the volunteer begins, it maximizes the number of hours the volunteer can ultimately spend on substantive work.

 

On the other hand, even with improved technology there are limits on the number of volunteers these organizations can properly train, supervise and even physically accommodate. Relatedly, there is a need to ensure that staff members are appropriately recognized and compensated for the increased demands that come with training and supervising more volunteers. There is also some sensitivity to the use of volunteers in ways that may displace opportunities for long-term employees to develop skills and experience.

 

In addition, there are administrative burdens associated with increases to the volunteer pool, including the need to keep records for malpractice insurance coverage and for purposes of the requirements of the 50-hour rule itself. In this regard, one concern relates to the need for applicants to provide paper copies of their certification documents, bearing the original signatures of the attorneys who supervised their work. While the organizations may wish to maintain copies of this material so that it can be available in case the student loses it or in case there is otherwise any question, over time organizations that are already often short on both staff and funding may find it unworkable to maintain these records for all of the (very short-term) volunteers who work for them. Further, if a student does pro bono work early in his or her law school tenure (at a time when he or she may not yet have decided which bar examination(s) to take), he or she may not complete the forms right away — and may find that a year or two later it is difficult to do so because the person who supervised the work is no longer employed by the organization.

 

Some of the recommendations we offer in Section II may help address these concerns.

 

• Law Firms and Corporate Legal Departments

 

The Task Force sent a survey to representatives of law firms and corporate legal departments to assist NYCLA in understanding what steps they are taking to provide pro bono opportunities for law students and non-admitted law school graduates, and what concerns they may have about the 50-hour rule. The full results of that survey are set forth in Appendix A to this Report; we briefly summarize the results here.

 

Composition of the Respondents

 

Of those who responded to the survey, 64% represented law firms and 9% represented in-house legal departments. (Of the remaining 27%, the majority identified themselves as solo practitioners). Sixty-one percent of the respondents represented organizations that employ 20 or fewer attorneys; 16% represented organizations that employ 301 or more attorneys.

 

For each of the years 2012, 2013 and 2014, 39% reported that their organization employed (or expected to employ) at least one law school graduate not yet admitted to any bar who had taken or planned to take the New York bar examination, and 12-13% reported that the number was (or would be) 10 or more in each of those years. Twenty-three percent reported that their organization will hire 2014 law school graduates who, at the time their employment commences, will not have completed the 50 hours of pro bono work required for admission to the New York bar.

 

Respondents’ Current Practices

 

The vast majority of the respondents (84%) reported that their pro bono policies have been the same for more than a year. Forty-one percent reported that they allow attorneys to use firm resources for pro bono work. Thirty-three percent of all respondents reported that they provide supervision for pro bono work, and an equal number reported that they provide malpractice insurance coverage for such work.

 

As for the sources of such work, 31% of the respondents reported that they have their own ongoing pro bono matters or projects on which they invite attorneys to work. Thirty-five percent reported that they encourage attorneys to join bar associations that provide pro bono opportunities, and 28% indicated that they provide information about pro bono opportunities offered through and supervised by other organizations.

 

Thirty-five percent of the respondents indicated that they keep track of the number of hours billed by each attorney and do not count pro bono work as “billable.” Another 35% indicated that they do not track billable hours. Most of the rest indicated that pro bono hours “count” as billable hours for all attorneys, although a handful reported that such hours “count” at a reduced percentage or are subject to a cap. A small number (2%) reported that pro bono hours “count” as billable hours only for attorneys below a certain level of seniority.

 

Anticipated Changes

 

Asked what changes (if any) they anticipated making to their pro bono policies in response to the 50-hour rule, 20% of respondents reported that they would begin to allow attorneys to use the organization’s resources in connection with pro bono work, and 24% reported that they will begin allowing law school graduates who have not yet satisfied the pro bono requirement to participate in pro bono work. Twenty-six percent of the respondents reported that they would begin encouraging law school graduates who are not yet admitted to any bar to join bar associations that will provide them opportunities to work on pro bono projects, 13% reported that they will begin to develop pro bono projects in-house, and 19% reported that they will begin providing supervision for pro bono work.

 

Respondents were also given an opportunity to provide additional information on steps their organizations were taking in reaction to the 50-hour rule. Steps identified in response to this question included implementing new recordkeeping systems for pro bono work, and working with law schools to assist in supervising the pro bono work of law students. A small number of respondents reported that further changes were still under consideration.

 

Nineteen percent of respondents indicated that they would not count pro bono work performed by law school graduates who have not yet satisfied the 50-hour requirement as “billable” hours. Thirteen percent said that such work would count as fully “billable.” Three percent said that such work would count as “billable,” but at a reduced rate or with a cap on the number of hours. Sixty-one percent answered “not applicable” to this question. (The percentages were roughly comparable for time spent by admitted attorneys supervising such work).

 

Anticipated Difficulties

 

Thirty-two percent of respondents reported that they do not believe there are any “significant difficulties” in offering pro bono opportunities to individuals who are not yet admitted to practice law.

 

The rest identified the following as “significant difficulties”: providing appropriate supervision (36%); finding appropriate work (32%); and providing insurance coverage (31%). Other difficulties that were identified by respondents included finding pro bono opportunities for transactional attorneys, providing appropriate training, cost, and recordkeeping.

 

When asked to identify the most significant difficulty, 32% repeated that they did not believe there were any such difficulties. Twenty-two percent identified providing appropriate supervision as the most significant difficulty; 16% said the most significant difficulty is finding appropriate work; and 12% said the most significant difficulty is providing insurance coverage. Among those who gave other answers, the most common was cost.

 

Separately, representatives of the legal services community told the Task Force anecdotally that the larger firms appear to be strongly of the view that the 50-hour rule will not present a problem, and are confident that they are prepared to provide whatever pro bono opportunities are necessary to enable their new associates to meet the requirement. This is consistent with the survey’s finding that nearly 1/3 of all respondents believe that the rule will not result in any significant difficulties.

 

Additional Comments

 

Our survey instrument provided a number of opportunities for respondents to add comments of their own, and many of these are included in the sections above. It concluded, however, by asking if there was anything else they would like to share that was not mentioned in the survey. Fifteen percent of the respondents answered this question. Their comments included the following:

 

• a view that the definition of qualifying work should be expanded to include reduced- rate assigned counsel work, volunteer work for bar associations, and the like;

 

• doubts about the ability of new graduates, who have only the training they received in law school, to provide meaningful pro bono assistance;

 

• concern that those who do not get jobs upon graduation will not be able to afford to meet the requirement;

 

• concern that law schools and employers outside New York (and/or outside the United States) may not be able to provide the necessary resources to accommodate those who wish to seek admission to the New York bar and need to satisfy the requirement;

 

• concern that federal judicial clerks will have limited opportunities to satisfy the requirement before completing their clerkships;

 

• concern that foreign-trained lawyers will not be able to meet the requirement;

 

• concern that those in certain fields — particularly those in transactional practices — will have difficulty finding appropriate pro bono work; and

 

• objections to (or support for) the requirement itself.

 

* * * * *

 

The discussion in Section II touches further on many of these comments and concerns.

 

• Bar Associations

 

The responses to our survey of law firms and in-house legal departments make clear that the community of lawyers in private practice is looking at least in part to bar associations to provide pro bono opportunities, both to experienced attorneys and to those seeking to satisfy the requirements of the 50-hour rule. New York City is fortunate to have a number of bar associations that actively foster pro bono service. Most of those bar associations have programs that can match volunteer lawyers (and in some cases, law students, recent graduates, paralegals and/or other non-lawyers) with suitable opportunities. In addition, some have their own pro bono projects, many of which are suitable for individuals who are not yet admitted to practice law. In particular:

 

• All of the pro bono programs offered by the City Bar Justice Center (the pro bono affiliate of the New York City Bar Association) accept law school graduates who are not yet admitted to practice.

 

• The City Bar Justice Center itself employs volunteer student interns (both during the summers and during the school year), and has doubled the number of such interns since the announcement of the 50-hour rule.

 

• NYCLA’s Project Restore provides assistance to individuals with misdemeanor and felony convictions who are denied vocational licenses by the New York State Department of State. This program will now accept NYCLA members who are not yet admitted to practice.

 

• NYCLA’s Manhattan CLARO (Civil Legal Advice and Resource Office) Program, a joint effort with Fordham Law School, provides limited legal advice to pro se low-income individuals being sued in Civil Court by collection agencies. The program (for which volunteers come both from Fordham’s own student body and alumni and from NYCLA’s membership) will now accept NYCLA members who are not yet admitted to practice.

 

• NYCLA’s Tax Court Project, which provides counseling to clients seeking advice in the area of tax law at calendar call sessions of the U.S. Tax Court, is open to volunteers who (whether through practice or through coursework) have some working knowledge of tax law. Again, the program will now accept NYCLA members who are not yet admitted to practice.

 

Each of these projects is able to provide appropriate supervision for non-admitted volunteers, either through the staff of the program itself or by matching the non-admitted volunteer with an attorney volunteer.

 

NYCLA also has a new project, still in the pilot phase, through which volunteers can assist veterans in upgrading their discharge status. As this project progresses, it will likely provide volunteer opportunities for individuals who are not yet admitted to practice, as it focuses more on advocacy skills than on substantive legal knowledge.

 

As discussed below in Section II, the Task Force believes that bar associations have a substantial place in the provision of pro bono opportunities and can be a significant part of the solution to any remaining difficulties in the smooth implementation and operation of the 50- hour rule.

 

1. CONCLUSIONS AND RECOMMENDATIONS

 

It is important to keep in mind that no applicant has yet had to certify compliance with the 50-hour rule. Because this year’s graduating class will have to do so, however, the rule’s requirements have been a reality for law schools since it was promulgated in January 2013. For this reason — and perhaps also because law schools are already accustomed to providing pro bono and clinical opportunities for individuals who are not admitted to practice law — of the segments we looked at law schools seem to be the most advanced in their preparation for the effective date of the rule.

 

That said, the Task Force recommends that the impact of the 50-hour rule on LL.M. and evening students be closely watched over the next few years. In particular, there should be monitoring for (a) any decline in enrollment in these programs; (b) any decline in the percentages of graduates of evening programs or of foreign-trained LL.M. graduates who elect to take the New York bar examination; and (c) any jump in the percentages of such test takers who pass the examination but are not ultimately admitted to practice in New York. Any such changes may suggest that further adjustments are necessary to account for the special circumstances of LL.M. and/or evening students.

 

It may already be the case that the vast majority of applicants to the New York bar, especially applicants with J.D. degrees from U.S. law schools, will have completed the required 50 hours of pro bono service while they were in law school. To the extent it is not, it seems likely it will be within a few years. But it seems equally likely that there will remain a steady percentage of graduates who did not complete the 50 hours while they were in law school — whether that is because they were in an LL.M. or evening program or because of personal circumstances. For these individuals, there will continue to be a need for pro bono opportunities for volunteers who are neither admitted to practice nor currently enrolled in law school.

 

The New York legal community offers numerous such opportunities. But for those who do not immediately go to large firms that have (and can easily coordinate) steady, ongoing pro bono work, the challenge may be to find appropriate opportunities that suit their skills, interests and availability.

 

One way to make this task easier would be to provide a central database through which individuals could search for appropriate pro bono projects. Such a database exists for admitted attorneys in the form of a subscription service called probono.net (http://www.probono.net/), which provides various resources “for pro bono and legal services attorneys and others working to assist low income or disadvantaged clients.” Among the services it provides on a regional basis are listings of available opportunities for volunteers. Probono.net includes a special New York City page (http://www.probono.net/ny/nyc/). which is hosted by the City Bar Justice Center and the Legal Aid Society and includes a search engine that allows volunteers to search for opportunities by area of law, type of project, and various other specifications. But it is not available other than through a subscription, and its market is primarily lawyers in large firms.

 

As noted above, however, law schools have begun to work on expanding the Symplicity program (which they already use to assist students and alumni with job placement) to include listings of pro bono opportunities. In the view of the Task Force, it is appropriate for law schools — who have a vested interest in ensuring (and indeed a responsibility to help ensure) that their graduates meet the eligibility requirements of the bars to which they apply — to be the ones to organize and fund this effort, and those who participate in it should make it available both to current students and to graduates.

 

We understand that law schools are facing declining enrollment, and that many have had to cut faculty and staff as a result. Nevertheless, if students need pro bono placements — either during law school or after graduation — in order to qualify for admission to the bar, the law school’s assistance in that regard should (much like assistance with job placement) be considered part of what they pay for with their tuition dollars. Moreover, providing such assistance will help law schools both to attract the best students and to maintain the bar admission and employment rates that they presumably would like to foster among their graduates.

 

In addition, there are ways in which the available pool of suitable projects for individuals seeking to meet the requirements of the 50-hour rule can easily be expanded. One possibility may be for organizations that run on-site clinic-type services where volunteer attorneys provide limited legal advice on particular topics (including bar associations) to permit law students and non-admitted law school graduates to pair with the volunteer attorneys and assist them on a one-on-one basis. This is the model that NYCLA itself has adopted to permit law students and non-admitted graduates to participate in several of its pro bono programs. Further, as such organizations develop new pro bono programs, attention should be paid to the need to include, where feasible, opportunities for law students and non-admitted law school graduates.

 

It may be that not all pro bono projects or programs will have room for such participation. But a project or program that gives seasoned practitioners opportunities not only to perform pro bono work themselves, but also to advise and supervise students and new graduates as they complete the 50 hours of pro bono work they must do to qualify for admission, provides a double service to the legal community. NYCLA and other organizations that develop pro bono projects and programs should be vigilant for ways in which such projects and programs can include that kind of opportunity.

 

The need for bar associations such as NYCLA to remain at the cutting edge in this regard is all the more pressing in light of the fact that law firms appear to rely heavily on them as sources of pro bono opportunities — both for individuals seeking to satisfy the 50-hour rule and for practicing attorneys. As noted above, more than a third of the respondents in our survey reported that they look to bar associations for this purpose. More than a quarter reported that, in response to the 50-hour rule, they would begin encouraging non-admitted law school graduates to join bar associations in order to gain access to pro bono opportunities. Moreover, many of the difficulties identified by respondents can be obviated by using bar associations as sources for such opportunities; in particular, they offer wide choices, and their programs provide supervision and insurance coverage.

 

There are two other areas in which the Task Force recommends that changes be considered, and three further observations. One recommendation relates to student practice orders. Currently, these are issued by the four individual Appellate Divisions, each of which has its own rules for eligibility. There is therefore no uniform rule concerning (for example) how much a program can expand and change before it becomes a different program that requires a new student practice order. In fact, the rules of the Third Department require any application for a student practice order to “set forth the names and addresses of the persons to be appointed [i.e., the students and/or non-admitted law school graduates] and facts showing their eligibility for appointment, together with the applicant’s [i.e., the representative of the organization that will employ or utilize them] certification that they are of good moral character and competent legal ability.” 22 N.Y.C.R.R. § 805.5(a). This means that any program that has such an order must seek a new order any time a new student or non-admitted law school graduate joins the program.

 

Organizations would likely be better able to expand the pro bono offerings that they make available to students and non-admitted law school graduates if the standards for student practice orders were made uniform throughout the state and if such orders were broad enough to permit at least some expansion without the need to apply for a new order. While it is beyond the purview of the Task Force to say what the courts should allow, we do respectfully suggest that what is acceptable in one Department should be acceptable in any other — just as attorneys admitted in any Department can appear in courts throughout the state.

 

The other recommendation relates to the way in which compliance is certified and monitored. Currently, the rule requires that applicants submit original, paper certifications for all of the pro bono projects on which they worked. As these are presumably collected from numerous sources over a course of years and only submitted when the application is filed, there is a real possibility that they may be lost. And as noted above, the organizations for which the applicants have worked may not have the administrative capacity to retain copies of all of the paperwork over time. There is thus a distinct possibility that the paper certification requirement will prove the downfall of at least some otherwise-qualified applicants to the New York bar.

 

Moreover, having these submissions only in paper form makes them less useful as a data source. It would be much easier to glean information from these submissions — including information about trends regarding such matters as the timing of applicants’ pro bono service, the extent to which such service is completed outside New York (or outside of the U.S.), the kinds of projects undertaken, the populations served, and the like — if the data were available in an automated form.

 

The Task Force therefore recommends that, to the extent possible, the process of tracking and certifying qualifying pro bono hours be made electronic. One possibility is for law schools to do this (both for their students and for their alumni) through the Symplicity program — which, as we understand it, already has functions that permit users to track interviews and job offers and to store information such as resumes and other documents. The court system accepts the use of electronic identifiers in lieu of signatures in documents that are filed through the electronic filing system and in electronically filed biennial registration forms; similar electronic identifiers could be created for the individuals who certify applicants’ pro bono hours. This would enable applicants to accumulate their certifications electronically over time and then submit the electronic “package” with their applications. That electronic data would, in turn, be easier to review and analyze for observable trends.

 

We recognize that any such development may be some time away. We urge, however, that this possibility be explored. At least in principle, it should be no more difficult to implement or maintain than the electronic filing systems for court papers or for biennial attorney registrations — particularly if the law schools provide the assistance that we believe they should.

 

We also have three further observations. The first is that this new rule is taking effect at a time when there are ongoing discussions about whether J.D. programs should be shortened to two years. While the Task Force does not take a position on the separate question of whether such shortening is a good idea, we note that a shorter program would make it more difficult for students to complete 50 hours of pro bono service while they are in law school. We hope that the 50-hour rule will be taken into consideration in connection with any analysis of the proper length of a J.D. program.

 

Our second observation is that, although we do recommend that steps be taken to develop tracking capabilities so that trends can be observed (and, where appropriate, adjustments can be made and other steps can be taken in response to those trends), we also see a risk that such monitoring may impact applicants’ perception of their ability to freely choose pro bono projects that fit their own personal values — to put a finer point on it, some applicants might be concerned that the types of pro bono projects they choose could be considered in assessing their applications for admission to the bar. To the extent that Character and Fitness Committees are provided access to information about each applicants’ pro bono work, we hope that the relevant question will be only whether qualifying hours were completed and not whether one project seems more worthy than any other.

 

Our third observation is that, as noted above, the definition of pro bono work for purposes of the 50-hour rule is broader than the definition for reporting purposes under Part 118. The Task Force believes that this may be part of the reason why the rule’s implementation appears to be proceeding relatively smoothly: applicants are able to satisfy the rule through pro bono work covering a large range not only of skills, but also of interests and values. It is not within the scope of the Task Force’s brief to take a position on the wisdom of the reporting requirement set forth in Part 118, and we can conceive of numerous reasons why the experience with the 50-hour rule may not necessarily parallel the experience with the reporting requirement. We do suggest, however, that any attempt to glean any larger lessons from the experience with the 50-hour rule should take into account its broad definition of qualifying work. It is one thing to impose on applicants for admission to the bar a performance mandate that they can fulfill from a very broad range of choices that take into account differences not only in interests and skills, but also in personal values; it is quite another to impose on admitted attorneys a reporting mandate that they can fulfill only from a substantially narrower range that does not take these differences as fully into account.

 

* * * * *

 

As noted above, NYCLA opposed the 50-hour rule when it was enacted. Although much of what we found in the investigations that led to this Report assuaged some of the practical concerns NYCLA initially had, NYCLA’s opposition to mandatory pro bono rests in part on broader issues of principle and professionalism. Moreover, we continue to have concerns about the rule’s impact on law students. But as also noted above, the Task Force has not yet had an opportunity to assess that impact because — until they actually take the bar examination and apply for admission — the students who need to satisfy the 50-hour rule are not an easily-definable survey target. As these students begin to be admitted to the bar, we will look to find out from them what their experience with the rule actually was.

 

Meanwhile, as New York moves forward with the rule, it is important that the experience be monitored in a way that allows real conclusions to be drawn — so that adjustments can be made where appropriate — without impeding or appearing to judge the personal pro bono choices of individual applicants.

 

NYCLA Task Force on Meeting the Challenge

 

Catherine A. Christian, Co-Chair*

Adrienne B. Koch, Co-Chair

 

Carol Buckler*

Colin D. Bull

Dora Galacatos

Hon. Emily Jane Goodman (ret.)

Amy Heading

Mary Holland

Carolyn A. Kubitschek

Craig A. Landy

Stephen C. Lessard

Hon. Joseph Kevin McKay (ret.)

Lori Nessel

Andrew Scherer

Diana S. Sen

Asha Smith

Christopher Strong

Daniel K. Wiig

 

*Abstains from the Report

 

REPORT ON NEW YORK STATE’S 50-HOUR PRO BONO BAR ADMISSION REQUIREMENT

 

Prepared by the Task Force on Meeting the Challenge

New York County Lawyers’ Association

 

APPENDIX A – RESULTS OF THE PRO BONO SURVEY

 

Between March and May of 2014, NYCLA’s Task Force on Meeting the Challenge circulated a survey designed to assess (a) the current pro bono practices of law firms and in-house legal departments; and (b) the impact or anticipated impact of the 50-hour rule on those practices. The survey was sent to NYCLA’s entire membership (with a request that the recipient forward it to the appropriate person in his or her organization) and to a list of individuals who had been identified as the pro bono coordinators for their organizations. Responses were screened for duplication, so that only one response per organization would be counted.

 

We received a total of 247 unique responses. By the time the survey closed, the addition of further data was not materially changing the overall percentages. This suggests that, despite a relatively small sample size, the responses are representative.

 

The results of the survey, which are summarized in the body of the Task Force’s report, are as follows:

 

1. Are you currently a member of the New York County Lawyers’ Association?

 

Number who answered:	247
Yes:	62%
No:	38%

 

2. Do you work for a law firm or an in-house legal department?

 

Number who answered:	247
Law Firm:	64%
In-House Legal Dept.:	9%
Other:	27%

 

3. How many attorneys are in your organization?

 

Number who answered:	247
20 or fewer:	61%
21-60:	7%
61-99:	4%
100-300:	4%
301 or more:	16%
Other:	9%

 

4. How many attorneys in your organization are admitted to practice in the State of New York?

 

Number who answered:	247
20 or fewer:	64%
21-60:	9%
61-99:	4%
100-300:	6%
301 or more:	9%
Other:	9%

 

5. In each of the following years, how many employees did your organization have or does your organization expect to have who, for any portion of the year in question, were or will be law school graduates, NOT YET ADMITTED TO ANY BAR, who have taken or plan to take the New York bar exam?

 

2012

 

Number who answered:	245
None:	61%
1-5:	24%
6-10:	3%
More than 10:	12%

 

2013

 

Number who answered:	246
None:	61%
1-5:	24%
6-10:	3%
More than 10:	12%

 

2014

 

Number who answered:	246
None:	61%
1-5:	24%
6-10:	3%
More than 10:	13%

 

6. Will your organization hire 2014 law school graduates who plan to apply for admission to the New York bar, but who, at the time their employment will commence, will not yet have the 50 hours of pro bono work that are now required for such admission?

 

Number who answered:	247
Yes:	23%
No – we will hire 2014 law school graduates who plan to apply for such admission only if they have already completed 50 hours of pro bono work by the time their employment commences:	4%
No – we will not hire 2014 law school graduates unless/until they are admitted to the New York bar:	26%
Other:	47%

 

7. How does your organization currently support pro bono work by its attorneys? Please check all that apply.

 

Number who answered:	246
We provide information about pro bono projects offered through and supervised by other organizations, and allow them to work on such projects:	28%
We allow them to work on pro bono matters they find on their own:	47%
We allow them to use the organization’s resources in connection with pro bono work:	41%
We provide supervision for pro bono work:	33%
We provide malpractice insurance coverage for pro bono work:	33%
We have our own ongoing pro bono matters or projects on which we invite them to work:	31%
We encourage them to join bar associations that give them opportunities to work on pro bono projects:	35%
Other:	44%

 

8. Does your organization currently permit law school graduates who are not yet admitted to any bar to participate in pro bono work?

 

Number who answered:	247
Yes:	40%
No:	60%

 

9. Has your organization adopted any new or additional pro bono policy within the last year? Please check all that apply.

 

Number who answered:	247
No – our policy has been the same for more than a year:	84%
Yes – we have begun to provide attorneys with information about pro bono projects offered through and supervised by other organizations, and allow them to work on such projects:	1%
Yes – we have begun to allow attorneys to work on pro bono matters they find on their own:	2%
Yes – we have begun to allow attorneys to use the organization’s resources in connection with pro bono work:	0%
Yes – we have begun to provide supervision for pro bono work:	0%
Yes – we have begun to provide malpractice coverage for pro bono work:	0%
Yes – we have begun to have one or more ongoing pro bono matters or projects of our own:	1%
Yes – we have begun to encourage attorneys to join bar associations that provide opportunities to work on pro bono projects:	1%
Yes – we have begun to allow law school graduates who are not yet admitted to any bar to participate in pro bono work:	0%
Yes – we have begun to encourage law school graduates who are not yet admitted to any bar to join bar associations that give them opportunities to work on pro bono projects:	0%
Other:	17%

 

10. If you responded YES to the previous question about your organization’s pro bon policy, was the policy adopted in response to the requirement that applicants for admission to the New York bar complete 50 hours of pro bono work in order to qualify for such admission (hereafter, the “pro bono admission requirement”)?

 

Number who answered:	247
Yes:	1%
No:	6%
Not applicable, I answered NO to the previous question about my organization’s pro bono policy:	93%

 

11. Do you anticipate making any changes or further changes to your organization’s approach to pro bono work in response to the pro bono admission requirement? Please check all that apply.

 

Number who answered:	228-231
We will begin to provide (or increase the provision of) information about pro bono projects offered through and supervised by other organizations, and allow them to work on such projects:	15%
We will begin to allow attorneys to work on pro bono matters that they find on their own:	18%
We will begin to allow attorneys to use the organization’s resources in connection with pro bono work:	20%
We will develop or adopt one or more on-going pro bono matters or projects in-house:	13%
We will provide supervision for pro bono work:	19%
We will encourage attorneys to join bar associations that give them opportunities to work on pro bono projects:	29%
We will encourage law school graduates who are not yet admitted to any bar to join bar associations that give them opportunities to work on pro bono projects:	26%
We will allow law school graduates who have not yet satisfied the pro bono admission requirement to participate in pro bono work:	24%

 

12. Are there any other changes or further changes to your organization’s approach to pro bono work in response to the pro bono admission requirement that are not listed in the previous question?

 

Number who answered:

106

 

13. Does or will your organization offer summer associates the opportunity to participate in pro bono work?

 

Number who answered:	247
Yes:	27%
No:	9%
Not applicable, we do not have summer associates:	65%

 

14. Does or will your organization count time spent on pro bono work by law school graduates who have yet to satisfy the pro bono admission requirement as “billable hours”?

 

Number who answered:	247
Yes, for all attorneys:	18%
Yes, but only for attorneys below a certain level of seniority:	2%
Yes, but at a reduced percentage or with a cap on number of hours:	4%
No:	35%
Not applicable, we do not track “billable hours”:	35%
Other:	11%

 

15. Does or will your organization count time spent by attorneys supervising pro bono work law school graduates who have yet to satisfy the pro bono admission requirement as “billable hours”?

 

Number who answered:	247
No:	19%
Yes, at 100%:	13%
Yes, but at a reduced percentage or with a cap on the number of hours:	3%
Not applicable:	61%
Other:	4%

 

16. Does or will your organization count time spent by attorneys supervising pro bono work law school graduates who have yet to satisfy the pro bono admission requirement as “billable hours”?

 

Number who answered:	247
No:	19%
Yes, at 100%:	11%
Yes, but at a reduced percentage or with a cap on the number of hours:	4%
Not applicable:	60%
Other:	6%

 

17. Does your organization have a policy requiring any law school graduate it hires to be admitted to the bar within a certain period of time? If you answer yes, please provide the time frame you require in the box below labeled “other”.

 

Number who answered:	247
No:	34%
Yes:	11%
Not applicable:	48%
Other:	20%

 

18. Which, if any, of the following are significant difficulties in offering pro bono opportunities to individuals who are not yet admitted to practice law? Please check all that apply.

 

Number who answered:	244
Providing appropriate Supervision:	36%
Insurance coverage:	31%
Finding appropriate work:	32%
We do not believe there are significant difficulties in this regard:	32%
Other:	24%

 

19. Which of the following is the MOST significant difficulty in offering pro bono opportunities to individuals who are not yet admitted to practice law? Please select only 1 answer.

 

Number who answered:	234
Providing appropriate Supervision:	22%
Insurance coverage:	12%
Finding appropriate work:	16%
We do not believe there are significant difficulties in this regard:	32%
Other:	18%

 

20. Has your organization done, or is your organization planning to do anything in response to the pro bono admission requirement that is not mentioned in your responses to the questions in this survey?

 

Number who answered:	246
No:	88%
Yes (please describe below in the box labeled “other”):	2%
Other:	13%

 

21. We value your input and would like to know if there is anything else you can share with regard to the pro bono hours requirement that was not mentioned in this survey?

 

Number who answered:

98